Exhibit 4(a)
================================================================================
CREDIT AGREEMENT
dated as of
November 30, 2001
among
UNITED STATES STEEL LLC
THE LENDERS PARTY HERETO
THE LC ISSUING BANKS PARTY HERETO
JPMORGAN CHASE BANK,
as Administrative Agent, Collateral Agent and Swingline Lender
GENERAL ELECTRIC CAPITAL CORPORATION,
as Documentation Agent and Co-Collateral Agent
and
PNC BANK, NATIONAL ASSOCIATION and
FOOTHILL CAPITAL CORPORATION,
as Co-Syndication Agents
---------------------------
X.X. XXXXXX SECURITIES INC.,
as Lead Arranger and Bookrunner
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 Definitions
Section 1.01. Defined Terms....................................................................1
Section 1.02. Classification of Loans and Borrowings..........................................33
Section 1.03. Terms Generally.................................................................34
Section 1.04. Accounting Terms; Changes in GAAP...............................................34
ARTICLE 2 The Credits
Section 2.01. Commitments.....................................................................34
Section 2.02. Revolving Loans.................................................................35
Section 2.03. Requests to Borrow Revolving Loans..............................................35
Section 2.04. Swingline Loans.................................................................36
Section 2.05. Letters of Credit...............................................................38
Section 2.06. Funding of Revolving Loans......................................................42
Section 2.07. Interest Elections..............................................................43
Section 2.08. Termination or Reduction of Commitments.........................................45
Section 2.09. Payment at Maturity; Evidence of Debt...........................................45
Section 2.10. Optional and Mandatory Prepayments..............................................46
Section 2.11. Change in Control...............................................................47
Section 2.12. Fees............................................................................48
Section 2.13. Interest........................................................................49
Section 2.14. Alternate Rate of Interest......................................................50
Section 2.15. Increased Costs.................................................................50
Section 2.16. Break Funding Payments..........................................................52
Section 2.17. Taxes...........................................................................52
Section 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-
offs...................................................................................54
Section 2.19. Lender's Obligation to Mitigate; Replacement of Lenders.........................56
Section 2.20. Optional Increase in Commitments................................................57
ARTICLE 3 Representations and Warranties
Section 3.01. Organization; Powers............................................................58
Section 3.02. Authorization; Enforceability...................................................59
Section 3.03. Governmental Approvals; No Conflicts............................................59
Section 3.04. Financial Statements; No Material Adverse Change................................59
Section 3.05. Security Documents..............................................................60
Section 3.06. Borrower's Subsidiaries.........................................................60
Section 3.07. Litigation and Environmental Matters............................................60
Section 3.08. Compliance with Laws and Agreements.............................................61
Section 3.09. Investment and Holding Company Status...........................................61
Section 3.10. ERISA...........................................................................61
Section 3.11. Regulation U....................................................................61
Section 3.12. Disclosure......................................................................61
Section 3.13. Senior Debt.....................................................................62
Section 3.14. Processing of Receivables.......................................................62
Section 3.15. Senior Unsecured Debt Documents.................................................62
Section 3.16. Solvency........................................................................62
ARTICLE 4 Conditions
Section 4.01. Effective Date..................................................................63
Section 4.02. Conditions to Initial Utilization...............................................66
Section 4.03. Conditions to Each Utilization..................................................66
ARTICLE 5 Affirmative Covenants
Section 5.01. Financial Statements and Other Information......................................67
Section 5.02. Notice of Material Events.......................................................70
Section 5.03. Information Regarding Collateral................................................71
Section 5.04. Existence; Conduct of Business..................................................72
Section 5.05. Payment of Obligations..........................................................72
Section 5.06. Maintenance of Properties.......................................................72
Section 5.07. Insurance.......................................................................73
Section 5.08. Casualty and Condemnation.......................................................74
Section 5.09. Proper Records; Rights to Inspect and Appraise..................................74
Section 5.10. Compliance with Laws............................................................76
Section 5.11. Use of Proceeds and Letters of Credit...........................................76
Section 5.12. Further Assurances..............................................................76
Section 5.13. Amendments to Effective Date Receivables Financing..............................77
Section 5.14. Designation of Subsidiaries.....................................................77
ARTICLE 6 Negative Covenants
Section 6.01. Debt; Certain Equity Securities.................................................78
Section 6.02. Liens...........................................................................79
Section 6.03. Fundamental Changes.............................................................80
Section 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions...........................................................................81
Section 6.05. Asset Sales.....................................................................84
Section 6.06. Subsidiary Debt.................................................................85
Section 6.07. Sale and Leaseback Transactions.................................................87
Section 6.08. Restricted Payments.............................................................87
Section 6.09. Transactions with Affiliates....................................................87
Section 6.10. Restrictive Agreements..........................................................88
Section 6.11. Designation of Unrestricted Subsidiaries........................................89
Section 6.12. Capital Expenditures............................................................89
Section 6.13. Interest Expense Coverage Ratio.................................................89
Section 6.14. Leverage Ratio..................................................................90
Section 6.15. Periods of Less Than Four Fiscal Quarters.......................................90
Section 6.16. Hedging Agreements..............................................................90
Section 6.17. Environmental Matters...........................................................90
Section 6.18. Amendment of Material Documents.................................................91
ARTICLE 7 Events of Default
ARTICLE 8 The Agents
Section 8.01. Appointment and Authorization...................................................95
Section 8.02. Rights and Powers as a Lender...................................................95
Section 8.03. Limited Duties and Responsibilities ............................................95
Section 8.04. Authority to Rely on Certain Writings, Statements and Advice....................96
Section 8.05. Sub-Agents and Related Parties..................................................96
Section 8.06. Resignation; Successor Agents...................................................96
Section 8.07. Credit Decisions by Lenders.....................................................97
Section 8.08. Agents' Fees....................................................................97
Section 8.09. Documentation Agent and Co-Collateral Agent.....................................97
ARTICLE 9 Miscellaneous
Section 9.01. Notices.........................................................................97
Section 9.02. Waivers; Amendments.............................................................98
Section 9.03. Expenses; Indemnity; Damage Waiver.............................................101
Section 9.04. Successors and Assigns.........................................................103
Section 9.05. Designated Lenders.............................................................106
Section 9.06. Survival.......................................................................107
Section 9.07. Counterparts; Integration; Effectiveness.......................................107
Section 9.08. Severability...................................................................108
Section 9.09. Right of Setoff................................................................108
Section 9.10. Governing Law; Jurisdiction; Consent to Service of
Process...............................................................................108
Section 9.11. WAIVER OF JURY TRIAL...........................................................109
Section 9.12. Headings.......................................................................109
Section 9.13. Confidentiality................................................................109
Section 9.14. Interest Rate Limitation.......................................................110
CREDIT AGREEMENT dated as of November 30, 2001 among UNITED STATES STEEL
LLC, the LENDERS party hereto, the LC ISSUING BANKS party hereto, JPMORGAN CHASE
BANK, as Administrative Agent, Collateral Agent and Swingline Lender, and
GENERAL ELECTRIC CAPITAL CORPORATION, as Documentation Agent and Co-Collateral
Agent.
WHEREAS, the Borrower desires to borrow funds and obtain letters of credit
under this Agreement for general corporate purposes, including working capital;
WHEREAS, the Borrower is willing to secure (i) its obligations under this
Agreement and (ii) certain other obligations under interest rate hedging
arrangements and other arrangements entered into with certain Lenders, by
granting Liens on certain of its assets to the Collateral Agent as provided in
the Security Documents; and
WHEREAS, the Lenders and the LC Issuing Banks are willing to make loans or
issue or participate in letters of credit hereunder, and those Lenders who are
counterparties to the interest rate hedging arrangements and other arrangements
referred to above are willing to enter into or maintain them, under the terms
and conditions set forth in this Agreement and the Security Documents;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1. Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Adjustment.
"Administrative Agent" means JPMorgan Chase Bank, in its capacity as
administrative agent under the Loan Documents, and its successors in such
capacity.
"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 under common Control with such specified Person.
"Agents" means the Administrative Agent, the Documentation Agent, the
Collateral Agent and the Co-Collateral Agent.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
will be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Rate" means for any day:
(a) with respect to any Revolving Loan or Swingline Loan that is a
Base Rate Loan, the applicable rate per annum set forth in the Pricing
Schedule in the row opposite the caption "Base Rate Margin" and in the
column corresponding to the "Pricing Level" that applies for such day;
(b) with respect to any Revolving Loan that is a Eurodollar Loan, the
applicable rate per annum set forth in the Pricing Schedule in the row
opposite the caption "Euro-Dollar Margin" and in the column corresponding
to the "Pricing Level" that applies for such day;
(c) with respect to the commitment fees payable hereunder, the
applicable rate per annum set forth in the Pricing Schedule in the row
opposite the caption "Commitment Fee Rate" and in the column corresponding
to the "Pricing Level" that applies for such day;
In each case, the "Applicable Rate" will be based on the Senior Debt Rating as
of the most recent determination date; provided that:
(i) on the Effective Date, the "Applicable Rates" for purposes of
clauses (a), (b) and (c) above will be the applicable rates per annum set
forth in the Pricing Schedule and corresponding to Level III Pricing;
(ii) at any time when an Event of Default has occurred and is
continuing, such Applicable Rates will be those set forth in the Pricing
Schedule and corresponding to the Pricing Level in effect for such day plus
2.00%; and
(iii at the option of the Administrative Agent (or at the request of
2
the Required Lenders), if the Borrower fails to deliver consolidated
financial statements to the Administrative Agent as and when required by
Section 5.01(a)(i) or 5.01(a)(ii), such Applicable Rates will be those set
forth in the Pricing Schedule and corresponding to Level V Pricing during
the period from the expiration of the time specified for such delivery
until such financial statements are so delivered.
"Arranger" means X.X. Xxxxxx Securities Inc., in its capacity as arranger
of the credit facility provided under this Agreement.
"Assignment" means an assignment and assumption agreement entered into by a
Lender and an assignee (with the consent of any party whose consent is required
by Section 9.04), and accepted by the Administrative Agent, in the form of
Exhibit A or any other form approved by the Administrative Agent.
"Availability Block" means (i) at all times prior to the date on which the
Borrower has delivered to the Administrative Agent the financial statements
required pursuant to Section 5.01(a)(ii) relating to the Fiscal Quarter ending
September 30, 2002 (the "Specified Financial Delivery Date"), an amount equal to
the sum of (x) an amount equal to 25% of the aggregate amount of the Commitments
plus (y) the aggregate amount of Total Spin-Off Proceeds that have not been
applied in accordance with Section 6.04 to permanently reduce Debt of the
Borrower and (ii) at all times from and after such Specified Financial Delivery
Date , an amount equal to zero.
"Availability Reserves" means, as of any date of determination, such
reserves in amounts as the Collateral Agent may from time to time establish
(upon ten business days' notice to the Borrower in the case of new reserve
categories established after the Effective Date and formula changes) and revise
(upward or downward) in good faith in accordance with its customary credit
policies: (i) to reflect events, conditions, contingencies or risks which, as
reasonably determined by the Collateral Agent, do or are reasonably likely to
materially adversely affect either (a) the Collateral or its value or (b) the
security interests and other rights of the Collateral Agent or any Lender in the
Collateral (including the enforceability, perfection and priority thereof) or
(ii) to reflect the Collateral Agent's reasonable belief that any collateral
report or financial information furnished by or on behalf of the Borrower is or
may have been incomplete, inaccurate or misleading in any material respect or
(iii) in respect of any state of facts which the Collateral Agent reasonably
determines in good faith constitutes a Default or an Event of Default; provided
that, at any date of determination (unless and until otherwise determined by the
Collateral Agent), "Availability Reserves" shall include (a) a reserve equal to
two times the most current month-end liability to Outside
3
Processor, Third-Party Warehouseman and Borrower Joint Venture locations holding
Eligible Inventory, (b) a reserve for obligations secured by Liens on Collateral
for which UCC financing statements are filed, (c) a reserve for permitted Liens
and (d) a reserve for claims secured by purchase money liens.
"Available Inventory" means, at any time the sum of:
(a) the lesser of (i) 65% of Eligible Finished Goods Inventory and
(ii) the product of (x) 85% of the net recovery rates as determined by an
independent appraisal multiplied by (y) Eligible Finished Goods Inventory;
plus
(b) the lesser of (i) 60% of Eligible Semi-Finished Goods and Scrap
Inventory and (ii) the product of (x) 85% of the net recovery rates as
determined by an independent appraisal multiplied by (y) Eligible
Semi-Finished Goods and Scrap Inventory; plus
(c) the lesser of (i) 25% of Eligible Raw Materials Inventory and (ii)
the product of (x) 85% of the net recovery rates as determined by an
independent appraisal multiplied by (y) Eligible Raw Materials Inventory.
"Available Receivables" means, at any time, a percentage (not to exceed
85%) of the difference of (i) Eligible Receivables minus (ii) a Dilution
Reserve, such percentage and such Dilution Reserve to be determined by the
Collateral Agent in its sole discretion (taking into consideration actual
dilution) upon the completion of collateral review field work to be performed
subsequent to the termination of the Effective Date Receivables Financing.
"Base Rate", when used with respect to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Board of Directors" means, the Board of Directors of the Borrower or any
committee thereof duly authorized to act on behalf of such Board of Directors.
"Borrower" means United States Steel LLC, a Delaware limited liability
company, and its successors (including United States Steel Corporation upon
consummation of the reorganization of United States Steel LLC in corporate form
under such name).
4
"Borrower Joint Venture" means any joint venture in which the Borrower
holds, or acquires after the Effective Date, a direct or indirect equity
interest.
"Borrowing" means Loans of the same Interest Type made, converted or
continued on the same day and, in the case of Eurodollar Loans, as to which the
same Interest Period is in effect. The term "Borrowing" does not apply to a
Swingline Loan.
"Borrowing Base" means, at any time, subject to adjustment as provided in
Section 5.09(b), an amount equal to the sum of (i) Available Inventory less (ii)
Availability Reserves less (iii) the aggregate outstanding amount (calculated as
the Xxxx-to-Market Value) of the Derivative Obligations of the Borrower that
constitute Secured Derivative Obligations (as defined in the Security
Agreement), up to a maximum amount of $25,000,000 plus (iv) Available
Receivables if the Effective Date Receivables Financing shall have terminated
(and the obligations in respect thereof paid in full) and not been replaced with
another Receivables Financing on terms (other than terms relating to pricing or
reserve percentages or similar financial terms) satisfactory to the
Administrative Agent (it being understood that such Available Receivables shall
exclude all Receivables that have become Transferred Receivables (as defined in
the Security Agreement) at the time of, or prior to, such termination of the
Effective Date Receivables Financing). Standards of eligibility and reserves and
advance rates of the Borrowing Base may be revised and adjusted from time to
time by the Collateral Agent in its sole discretion (subject to Section
9.02(b)(viii) hereof), with any such changes in such standards to be effective
three Business Days after delivery of notice thereof to the Borrower.
"Borrowing Base Certificate" means a certificate, duly executed and
certified as accurate and complete by a Financial Officer of the Borrower,
appropriately completed and substantially in the form of Exhibit D-1 (or, at any
time when such certificate is required to be delivered on a bi-weekly basis
pursuant to Section 5.01(b), substantially in the form of Exhibit D-2) together
with all attachments and supporting documentation (i) as contemplated thereby,
(ii) as outlined on Schedule 1 to Exhibit D-1 and (iii) as reasonably requested
by the Collateral Agent.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day" means any day 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; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any
5
day on which banks are not open for dealings in dollar deposits in the London
interbank market.
"Capital Expenditures" means, for any period, the additions to property,
plant and equipment and other capital expenditures of the Borrower and its
Restricted Subsidiaries that are (or would be) set forth as capital expenditures
in a consolidated statement of cash flows of the Borrower and its Restricted
Subsidiaries for such period prepared in accordance with GAAP
"Capital Lease Obligations" of any Person means obligations of such Person
to pay rent or other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination thereof, which
obligations are required under GAAP to be classified and accounted for as
capital leases on a balance sheet of such Person. The amount of such obligations
will be the capitalized amount thereof determined in accordance with GAAP.
"Cash Collateral Account" has the meaning specified in Section 1 of the
Security Agreement.
"Change in Control" means the occurrence of any of the following:
(a) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) is or becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that for the purposes of
this clause (a) such person shall be deemed to have "beneficial ownership"
of all shares that any such person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 35% of either the aggregate ordinary
voting power or the aggregate equity value represented by the issued and
outstanding Equity Interests in the Borrower.
(b) individuals who constituted the Board of Directors of the Borrower
at any given time (together with any new directors whose election by such
Board of Directors or whose nomination for election by the shareholders of
the Borrower as approved by a vote of 66-2/3% of the directors of the
Borrower then still in office who were either directors at such time or
whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors then in
office;
(c) the adoption of a plan relating to the liquidation or dissolution
of the Borrower; or
6
(d) the merger or consolidation of the Borrower with or into another
Person or the merger of another Person with or into the Borrower, or the
sale of all or substantially all the assets of the Borrower (determined on
a consolidated basis) to another Person, other than a merger or
consolidation transaction in which holders of Equity Interests representing
100% of the ordinary voting power represented by the Equity Interests in
the Borrower immediately prior to such transaction (or other securities
into which such securities are converted as part of such merger or
consolidation transaction) own directly or indirectly at least a majority
of the ordinary voting power represented by the Equity Interests in the
surviving Person in such merger or consolidation transaction issued and
outstanding immediately after such transaction and in substantially the
same proportion as before the transaction.
"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
such date or (c) compliance by any Lender or the LC Issuing Bank (or, for
purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's or the LC Issuing Bank'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 such date.
"Co-Collateral Agent" means General Electric Capital Corporation, in its
capacity as co-collateral agent for the Lenders under the Loan Documents, and
its successors in such capacity.
"Collateral" means any and all "Collateral", as defined in any Security
Document.
"Collateral Access Agreement" means an agreement substantially in the form
of Exhibit F-1 or Exhibit F-2.
"Collateral Agent" means JPMorgan Chase Bank, in its capacity as collateral
agent for the Lenders under the Loan Documents, and its successors in such
capacity.
"Collateral Requirement" means the requirement that:
(a the Administrative Agent (i) shall have received a counterpart of
the Security Agreement duly executed and delivered by JPMorgan Chase Bank,
as Collateral Agent, and (ii) shall have received from the Borrower a
counterpart of the Security Agreement duly executed and delivered on behalf
of the Borrower;
7
(b all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Collateral Agent to be filed, registered or recorded to create the Liens
intended to be created by the Security Documents and perfect or record such
Liens to the extent, and with the priority, required by the Security
Documents, shall have been filed, registered or recorded or delivered to
the Collateral Agent for filing, registration or recording;
(c the Borrower shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and delivery
of all Security Documents to which it is a party, the performance of its
obligations thereunder and the granting of the Liens granted by it
thereunder;
(d the Borrower shall have taken all other action required under the
Security Documents to perfect, register and/or record the Liens granted by
it thereunder; and
(e the Administrative Agent shall have received a fully executed copy
of the Intercreditor Agreement.
"Commitment" means, with respect to each Lender, the commitment, if any, of
such Lender to make Revolving Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time 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 2.01, or in the Assignment pursuant to which such Lender shall
have assumed its initial Commitment, as applicable. The initial aggregate amount
of the Commitments is $400,000,000.
"Consolidated Cash Interest Expense" means, for any period, the amount by
which:
(a the sum of (i) the interest expense (including imputed interest
expense in respect of Capital Lease Obligations) of the Borrower and its
Restricted Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP, (ii) any interest accrued during such period, in
respect of Debt of the Borrower or any Restricted Subsidiary, that is
required under GAAP to be capitalized rather than included in consolidated
interest expense for such period, and (iii) to the extent not included in
cash interest expense for such period pursuant to subclause (i) of this
clause (a), cash payments (if any) made during such period in
8
respect of obligations referred to in clause (b)(ii) below that were
amortized or accrued in a previous period, exceeds
(b the sum of (i) to the extent included in such consolidated interest
expense for such period, non-cash amounts attributable to amortization of
financing costs paid in a previous period, (ii) to the extent included in
such consolidated interest expense for such period, non-cash amounts
attributable to amortization of debt discount or accrued interest payable
in kind for such period and (iii) the interest income of the Borrower and
its Restricted Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP.
"Consolidated EBITDA" means, for any period, the sum of (a) Consolidated
Net Income for such period, minus (b) to the extent included in calculating such
Consolidated Net Income (and without duplication), any gains for such period,
plus (c) each of the following (without duplication) to the extent deducted in
calculating such Consolidated Net Income;
(i) all income tax expense of the Borrower and its Restricted Subsidiaries
for such period;
(ii) Consolidated Cash Interest Expense for such period;
(iii) depreciation, depletion and amortization expense of the Borrower and
its Restricted Subsidiaries for such period (excluding amortization expense
attributable to any prepaid operating activity item that was paid in cash in a
prior period) and
(iv) all other non-cash charges of the Borrower and its Restricted
Subsidiaries for such period (excluding any such non-cash charge to the extent
that it represents an accrual of or reserve for cash expenditures in any future
period);
in each case, with respect to any period prior to the Separation, as such
amounts are attributed to the U.S. Steel Group. Notwithstanding the foregoing,
the provision for taxes based on the income or profits of, and the depreciation
and amortization and non-cash charges of, a Restricted Subsidiary shall be added
to Consolidated Net Income to compute Consolidated EBITDA only to the extent
(and in the same proportion) that the net income of such Restricted Subsidiary
is included in calculating Consolidated Net Income and only if a corresponding
amount would be permitted at the date of determination to be dividended to the
Borrower by such Restricted Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to such Restricted Subsidiary or its stockholders.
9
"Consolidated Net Income" means, for any period, the net income or loss of
the Borrower and its Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP (and calculated for any period prior
to the Separation as net income or loss attributed to the U.S. Steel Group for
such period); provided that there shall be excluded (a) the income of any Person
(except the Borrower and its Restricted Subsidiaries) in which any other Person
(except the Borrower, a Restricted Subsidiary or a director holding qualifying
shares in compliance with applicable law) owns an Equity Interest, except to the
extent that dividends or other distributions were actually paid by such Person
to the Borrower or any Restricted Subsidiary during such period, and (b) the
income or loss of any Person accrued before (i) the date it becomes a Restricted
Subsidiary, (ii) the date it is merged into or consolidated with the Borrower or
any Restricted Subsidiary or (iii) the date its assets are acquired by the
Borrower or any Restricted Subsidiary.
"Control" means possession, directly or indirectly, of the power (a) to
vote 30% or more of any class of voting securities of a Person or (b) to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Debt" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or with respect to
deposits or advances of any kind,
(b) all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments,
(c) all obligations of such Person on which interest charges are
customarily paid (other than obligations where interest is levied only on late
or past due amounts),
(d) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person,
(e) all obligations of such Person in respect of the deferred purchase
price of property or services (excluding current accounts payable incurred in
the ordinary course of business),
(f) all Debt of others secured by (or for which the holder of such Debt has
an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Debt secured
thereby has been assumed,
10
(g) all Guarantees by such Person of Debt of others,
(h) all Capital Lease Obligations of such Person,
(i) all obligations, contingent or otherwise, of such Person as an account
party in respect of letters of credit and letters of guaranty,
(j) all capital stock of such Person which is required to be redeemed or is
redeemable at the option of the holder if certain events or conditions occur or
exist or otherwise,
(k) the aggregate amount advanced by buyers or lenders with respect to all
Receivables Financings, net of repayments or recoveries through liquidation of
the assets transferred pursuant to such Receivables Financing, and
(l) all obligations, contingent or otherwise, of such Person in respect of
bankers' acceptances.
The Debt of any Person shall include the Debt of any other entity
(including any partnership in which such Person is a general partner) to the
extent that such Person is liable therefor as a result of such Person's
ownership interest in or other relationship with such entity, except to the
extent that contractual provisions binding on the holder of such Debt provide
that such Person is not liable therefor.
Notwithstanding the foregoing, the term "Debt" will exclude (x) any
indebtedness for which Marathon Oil Corporation indemnifies the Borrower
pursuant to the terms of the Financial Matters Agreement, so long as such
indebtedness (i) has not been refinanced and (ii) Marathon Oil Corporation has
an Investment Grade Rating from both Xxxxx'x and S&P and (y) Industrial Revenue
Bond Obligations to the extent the Borrower (i) has delivered to the holders of
such obligations an irrevocable notice of redemption or directed delivery of
such a notice and (ii) has set aside cash or U.S. Government Obligations,
pursuant to a defeasance mechanism or otherwise, sufficient to redeem such
obligations. As used herein, the term "U.S. Government Obligations" shall refer
to direct obligations (or certificates representing an ownership interest in
such obligations) of the United States of America (including any agency or
instrumentality thereon) for the payment of which the full faith and credit of
the United States of America is pledged and which are not callable or redeemable
at the issuer's option.
Notwithstanding the foregoing, in connection with the purchase by the
Borrower or any Restricted Subsidiary of any business, the term "Debt" will
exclude post-closing payment adjustments to which the seller may become entitled
to the extent such payment is determined by a final
11
closing; provided, however, that, at the time of closing, the amount of any such
payment is not determinable and, to the extent such payment thereafter becomes
fixed and determined, the amount is paid when due.
"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.
"Derivative Obligations" has the meaning specified in Section 1 of the
Security Agreement.
"Designated Lender" means, with respect to any Designating Lender, an
Eligible Designee designated by it pursuant to Section 9.05(a) as a Designated
Lender for purposes of this Agreement.
"Designating Lender" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to Section 9.05(a).
"Dilution Reserve" means a reserve amount to be determined by the
Collateral Agent in its sole discretion upon the completion of collateral review
field work to be performed subsequent to the termination of the Effective Date
Receivables Financing.
"Documentation Agent" means General Electric Capital Corporation in its
capacity as documentation agent for the Lenders under the Loan Documents, and
its successors in such capacity.
"dollars" or "$" refers to lawful money of the United States.
"Domestic Subsidiary" means each Subsidiary that is not a Foreign
Subsidiary.
"Effective Date" means the date on which each of the conditions specified
in Section 4.01 is satisfied (or waived in accordance with Section 9.02).
"Effective Date Receivables Financing" means the Receivables Financing of
the Borrower that is in effect on the Effective Date, as amended, supplemented
or modified from time to time (subject to Section 5.13 hereof), and as such
receivables financing may be renewed, extended or rolled over on substantially
the same terms as are in effect on the Effective Date; provided that the Debt
arising from the Effective Date Receivables Financing shall comply with the
limitations set forth in Section 6.06(g).
12
"Eligible Designee" means a special purpose corporation that (i) is
organized under the laws of the United States or any state thereof, (ii) is
engaged in making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and (iii) issues (or the parent of which issues)
commercial paper rated at least A-1 or the equivalent thereof by S&P or P-1 or
the equivalent thereof by Xxxxx'x.
"Eligible Finished Goods Inventory" means all Finished Goods Inventory that
is Eligible Inventory.
"Eligible Inventory" means at any date of determination thereof, the
aggregate value (as reflected on the plant level records of the Borrower and
consistent with the Borrower's current and historical accounting practices
whereby manufactured items are valued at pre-determined costs and purchased
items are valued at rolling average actual cost) at such date of all Qualified
Inventory owned by the Borrower and located in any jurisdiction in the United
States of America as to which appropriate UCC financing statements have been
filed (or delivered to the Collateral Agent for filing pursuant to Section
4.01(h) naming the Borrower as "debtor" and JPMorgan Chase Bank as Collateral
Agent, as "secured party," adjusted on any date of determination to exclude,
without duplication, all Qualified Inventory that is Ineligible Inventory, minus
all Valuation Reserves.
"Eligible Raw Materials Inventory" means all Raw Materials Inventory that
is Eligible Inventory.
"Eligible Receivables" means at any date of determination thereof, the
aggregate value (determined on a basis consistent with GAAP and the Borrower's
then current and historical accounting practices) of all Qualified Receivables
of the Borrower, net of (x) any amounts in respect of sales, excise or similar
taxes included in such Receivables and (y) returns, discounts, claims, credits
and allowances of any nature at any time issued, owing, granted, outstanding
available or claimed (calculated without duplication of deductions taken
pursuant to the exclusion of "Ineligible Receivables" as described below),
adjusted on any date of determination to exclude, without duplication, all
Qualified Receivables that are Ineligible Receivables.
"Eligible Semi-Finished Goods and Scrap Inventory" means all Semi-Finished
Goods and Scrap Inventory that is Eligible Inventory.
"Environmental Laws" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, the preservation or reclamation of natural resources, the
management, release or threatened
13
release of any Hazardous Material or the effects of the environment on health
and safety.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of remediation, fines, penalties or
indemnities), of the Borrower directly or indirectly resulting from or based on
(a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Material, (c)
exposure to any Hazardous Material, (d) the release or threatened release of any
Hazardous Material into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Equity Interests" means (i) shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person or (ii) any
warrants, options or other rights to acquire such shares or interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that, together with the Borrower or any Subsidiary, is treated as a single
employer under Section 414(b) or (c) of the Internal Revenue Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Internal Revenue Code,
is treated as a single employer under Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (except an
event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Internal Revenue Code or Section 302 of ERISA), whether or
not waived; (c) the filing pursuant to Section 412(d) of the Internal Revenue
Code or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the Borrower or
any ERISA Affiliate of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any ERISA Affiliate of any liability with
respect to withdrawal or partial withdrawal from any Plan or Multiemployer Plan;
or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of
any notice, concerning the
14
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
"Eurodollar", when used with respect to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Events of Default" has the meaning specified in Article 7.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Excluded Taxes" means, with respect to any Lender Party or other recipient
of a payment made by or on account of any obligation of the Borrower hereunder:
(a income or franchise taxes imposed on (or measured by) its net
income, receipts, capital or net worth by the United States (or any
jurisdiction within the United States, except to the extent that such
jurisdiction within the United States imposes such taxes solely in
connection with such Lender Party's enforcement of its rights or exercise
of its remedies under the Loan Documents), 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 or any
similar tax imposed by any other jurisdiction described in clause (a)
above; and
(c in the case of a Foreign Lender, any withholding tax that (i) is in
effect and would apply to amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement or designates a
new lending office or (ii) is attributable to such Foreign Lender's failure
to comply with Section 2.17(e).
Notwithstanding the foregoing, a withholding tax will not be an "Excluded Tax"
to the extent that (A) it is imposed on amounts payable to a Foreign Lender by
reason of an assignment made to such Foreign Lender at the Borrower's request
pursuant to Section 2.19(b), (B) it is imposed on amounts payable to a Foreign
Lender by reason of any other assignment and does not exceed the amount for
which the assignor would have been indemnified pursuant to Section 2.17(a) or
(C) in the case of designation of a new lending office, it does not exceed the
amount for which such
15
Foreign Lender would have been indemnified if it had not designated a new
lending office.
"Exposure" means, with respect to any Lender at any time, the sum of
(i) the aggregate outstanding principal amount of such Lender's Revolving Loans
and (ii) such Lender's LC Exposure and Swingline Exposure at such time.
"Facility Availability" means, at any time, an amount equal to (i) the
lesser of (x) the aggregate amount of the Lenders' Commitments at such time and
(y) the Borrowing Base, at such time, less (ii) the Total Outstanding Amount at
such time, less (iii) the Availability Block at such time.
"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 on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published on such 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 the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System of the United States.
"Financial Matters Agreement" means the Financial Matters Agreement to be
dated as of the date of the Separation between the Borrower and Marathon Oil
Corporation.
"Financial Officer" means the chief financial officer, treasurer, any
assistant treasurer, the controller or any assistant controller of the Borrower.
"Financing Transactions" means the execution, delivery and performance by
the Borrower of the Loan Documents to which it is to be a party, the borrowing
of Loans, the use of the proceeds thereof and the issuance of Letters of Credit
hereunder.
"Finished Goods Inventory" means finished goods to be sold by the Borrowers
in the ordinary course of business, including plates, finished tubes, tin plates
and finished sheets, but excluding Semi-Finished Goods and Scrap Inventory and
Raw Materials Inventory.
"Fiscal Quarter" means a fiscal quarter of the Borrower.
16
"Fiscal Year" means a fiscal year of the Borrower.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction outside the United States.
"Foreign Subsidiary" means a Subsidiary (which may be a corporation,
limited liability company, partnership or other legal entity) organized under
the laws of a jurisdiction outside the United States, and conducting
substantially all its operations outside the United States.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States, applied on a basis consistent (except for
changes concurred in by the Borrower's independent public accountants) with the
most recent audited consolidated financial statements of USX Corporation and its
consolidated Subsidiaries delivered to the Lenders.
"Governmental Authority" means the government of the United States, 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" by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Debt or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or other
obligation or to purchase (or advance or supply funds for the purchase of) any
security for the payment thereof, (b) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Debt or other
obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Debt or other obligation
or (d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Debt or other obligation; provided that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas,
17
infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest rate, currency exchange rate or commodity price hedging arrangement.
"Indemnified Taxes" means all Taxes except Excluded Taxes.
"Industrial Revenue Bond Obligations" means an obligation to a state or
local government unit that secures the payment of bonds issued by a state or
local government unit or any obligation under the Financial Matters Agreement
relating to Industrial Revenue Bond Obligations or any Debt incurred to
refinance, in whole or in part, such obligations.
"Ineligible Inventory" means all Qualified Inventory described in one or
more of the following clauses, without duplication:
(a) Qualified Inventory that is not subject to a perfected first priority
Lien in favor of the Collateral Agent or that is subject to any Lien other than
the Liens permitted pursuant to Section 6.02; or
(b) Qualified Inventory that is not located at or in transit to property
that is either owned or leased by the Borrower; provided that any Qualified
Inventory located at or in transit to property that is leased by the Borrower
shall be deemed "Ineligible Inventory" pursuant to this clause (b) unless the
Borrower shall have delivered to the Collateral Agent a Collateral Access
Agreement (or, if applicable, a landlord waiver in form and substance
satisfactory to the Collateral Agent) with respect to such leased location; and
provided further that any Qualified Inventory located at or in transit to a
Third-Party Location shall not be deemed "Ineligible Inventory" pursuant to this
clause (b) on any date of determination if (w) the value of such Qualified
Inventory on such date of determination (as reflected on the plant level records
of the Borrower and consistent with the Borrower's current and historical
accounting practices whereby manufactured items are valued at pre-determined
costs and purchased items are valued at rolling average actual cost) is greater
than $500,000, (x) the Borrower shall have delivered to the Collateral Agent a
Collateral Access Agreement with respect to such Third-Party Location, (y) the
aggregate number of Third-Party Locations designated by the Borrower as eligible
locations in respect of which Qualified Inventory shall be excluded from
"Ineligible Inventory" in reliance on this clause (b) does not exceed 60 on such
date of determination and (z) in the case of any Third Party Location owned or
leased by a Borrower Joint Venture, the terms of the joint venture
18
arrangements in respect of such Borrower Joint Venture are satisfactory to the
Collateral Agent and the Lenders; or
(c) Qualified Inventory that is on consignment and Qualified Inventory
subject to a negotiable document of title (as defined in the Uniform Commercial
Code as in effect from time to time in the State of New York); or
(d) Qualified Inventory located on the premises of customers or vendors
(other than Outside Processors); or
(e) Qualified Inventory comprised of Finished Goods Inventory and
Semi-Finished Goods and Scrap Inventory that has been written down pursuant to
the Borrower's existing accounting procedures (as such existing accounting
procedures are set forth in Schedule 1.01 hereto); provided, however, that the
scrap value of such Qualified Inventory will be included in the calculation of
"Eligible Inventory"; or
(f) Qualified Inventory that consists of maintenance spare parts; or
(g) Qualified Inventory that is classified as supplies, and sundry in the
Borrower's historical and current accounting records, including, but not limited
to, fuel oil, coal chemicals, metal products, miscellaneous, non-LIFO inventory,
store supplies, cleaning mixtures, lubricants and the like; or
(h) Qualified Inventory that is billed not shipped Inventory; or
(i) Qualified Inventory considered non-conforming, which shall mean, on any
date, all inventory classified as "non-prime" or "seconds" or other "off-spec"
Inventory, to the extent that such Qualified Inventory exceeds 3% of Total
Qualified Inventory; provided that the scrap value of such Qualified Inventory
shall be included in the calculation of Eligible Inventory. For purposes of this
clause (i), "Total Qualified Inventory" means all Raw Materials Inventory,
Finished Goods Inventory and Semi-Finished Goods and Scrap Inventory; or
(j) Qualified Inventory that is not located in the United States; or
(k) Qualified Inventory that is not owned solely by the Borrower, or as to
which the Borrower does not have good, valid and marketable title thereto; or
(l) intercompany profit included in the value of Qualified Inventory; or
(m) Qualified Inventory that consists of scale, slag and other by-products;
or
(n) Qualified Inventory that consists of raw materials other than iron ore,
coke, coal, scrap, limestone, other alloys and fluxes; or
19
(o) Qualified Inventory that does not otherwise conform to the
representations and warranties contained in this Agreement or the other Loan
Documents; or
(p) depreciation included in the value of Qualified Inventory; or
(q) non-production costs included in the value of Qualified Inventory; or
(r) slabs that are more than two months old and other semi-finished and
finished goods that are more than eight months old provided that the scrap value
of such inventory shall be included in the calculation of Eligible Inventory; or
(s) such other Qualified Inventory as may be deemed ineligible by the
Collateral Agent from time to time in its sole discretion.
"Ineligible Receivables" shall be determined by the Collateral Agent in its
sole discretion upon the completion of collateral review field work to be
performed subsequent to the termination of the Effective Date Receivables
Financing and shall include such ineligibles based on traditional asset based
lending concepts, and any other ineligibles as may be deemed appropriate at the
sole discretion of the Collateral Agent.
"Information Memorandum" means the Confidential Information Memorandum
dated October 4, 2001 relating to the Borrower and the Financing Transactions.
"Intercreditor Agreement" means the Intercreditor Agreement dated as of
November 30, 2001 among JPMorgan Chase Bank, as a Funding Agent, The Bank of
Nova Scotia, as a Funding Agent and as Receivables Collateral Agent, JPMorgan
Chase Bank, as Lender Agent, U.S. Steel Receivables LLC, as Transferor, and
United States Steel LLC, as Originator, as Initial Servicer and as Borrower, as
acknowledged and agreed by the Administrative Agent, the Collateral Agent and
the Co-Collateral Agent, substantially in the form of Exhibit E.
"Interest Election" means an election by the Borrower to change or continue
the Interest Type of a Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any Base Rate Loan, the
last day of each March, June, September and December, (b) with respect to any
Swingline Loan, the day on which such Loan is required to be repaid and (c) with
respect to any Eurodollar Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, if such Interest Period is
longer than three months, each day
20
during such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
period beginning on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; provided that (a) 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 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 (b) any Interest Period
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 Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall
be deemed to be the effective date of the most recent conversion or continuation
of such Borrowing.
"Interest Type", when used with respect to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Inventory" has the meaning set forth in Article 9 of the Uniform
Commercial Code as in effect from time to time in the State of New York.
"Investment Grade Rating" means a rating equal to or higher than Baa3 (or
the equivalent) by Moody's and BBB- (or the equivalent) by S&P.
"LC Disbursement" means a payment made by the LC Issuing Bank in respect of
a drawing under a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all Letters of Credit outstanding at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Revolving Lender at any
time will be its Percentage of the total LC Exposure at such time.
"LC Issuing Bank" means JPMorgan Chase Bank, PNC Bank, National
Association, Mellon Bank, N.A. and any other Lender that may agree to issue
letters of credit hereunder, in each case in its capacity as
21
an issuer of a Letter of Credit, and their respective successors in such
capacity as provided in Section 2.05(i). The LC Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by its
Affiliates, in which case the term "LC Issuing Bank" shall include each such
Affiliate with respect to Letters of Credit issued by it.
"LC Reimbursement Obligations" means, at any time, all obligations of the
Borrower to reimburse the LC Issuing Bank for amounts paid by it in respect of
drawings under Letters of Credit, including any portion of such obligations to
which Lenders have become subrogated by making payments to the LC Issuing Bank
pursuant to Section 2.05(e).
"Lender Affiliate" means, (a) with respect to any Lender, (i) an Affiliate
of such Lender or (ii) any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by such Lender or an Affiliate of such
Lender and (b) with respect to any Lender that is a fund which invests in bank
loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"Lender Parties" means the Lenders, the LC Issuing Bank and the Agents.
"Lenders" means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to an Assignment, other than any
such Person that ceases to be a party hereto pursuant to an Assignment. Unless
the context requires otherwise, the term "Lenders" includes the Swingline
Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Leverage Ratio" means, on any day, the ratio of (a) Total Debt as of such
day to (b) Consolidated EBITDA for the period of four consecutive Fiscal
Quarters (subject to Section 6.15) ended on such day (or, if such day is not the
last day of a Fiscal Quarter, ended on the last day of the Fiscal Quarter most
recently ended before such day).
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for
22
purposes of providing quotations of interest rates applicable to dollar deposits
in the London interbank market) at approximately 11:00 a.m., London time, two
Business Days before the beginning of such Interest Period, as the rate for
dollar deposits with a maturity comparable to such Interest Period. If such rate
is not available at such time for any reason, then the "LIBO Rate" with respect
to such Eurodollar Borrowing for such Interest Period shall be the rate at which
dollar deposits of $5,000,000 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 approximately
11:00 a.m., London time, two Business Days before the beginning of such Interest
Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loan Documents" means this Agreement, any promissory note issued by the
Borrower pursuant to Section 2.09(e) and the Security Documents.
"Loans" means loans made by the Lenders to the Borrower pursuant to this
Agreement. Unless the context requires otherwise, the term "Loans" includes
Swingline Loans.
"Lorain Merger" means the proposed merger of Lorain Tubular Company LLC
with and into the Borrower.
"Marathon Oil Corporation" means Marathon Oil Corporation, a Delaware
corporation (currently named USX Corporation), together with its successors.
"Xxxx-to-Market Value" has the meaning specified in Section 1 of the
Security Agreement.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, properties, assets, financial condition, contingent
liabilities or material agreements of the Borrower and its Subsidiaries taken as
a whole, (b) the ability of the Borrower to perform any of its obligations under
any Loan Document or (c) the rights of or benefits available to any Lender Party
under, or the validity or enforceability of, any Loan Document.
23
"Material Debt" means Debt (other than obligations in respect of the Loans
and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and its Restricted Subsidiaries
in an aggregate principal amount exceeding $20,000,000. For purposes of
determining Material Debt, the "principal amount" of the obligations of the
Borrower or any Restricted Subsidiary in respect of any Hedging Agreement at any
time will be the maximum aggregate amount (after giving effect to any netting
agreements) that the Borrower or such Subsidiary would be required to pay if
such Hedging Agreement were terminated at such time.
"Maturity Date" means December 31, 2004 (or, if such day is not a Business
Day with respect to Eurodollar Loans, the next preceding day that is a Business
Day with respect to Eurodollar Loans).
"Maximum Facility Availability" means, at any date, an amount equal to the
sum of (a) the lesser of (i) the aggregate amount of the Lenders' Commitments on
such date and (ii) the Borrowing Base on such date, less (b) the Availability
Block on such date.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"Outside Processor" means any Person that provides processing services with
respect to Qualified Inventory owned by the Borrower and on whose premises
Qualified Inventory is located, which premises are neither owned nor leased by
the Borrower.
"Participants" has the meaning specified in Section 9.04(e).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"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 Percentages will be determined based on the
Commitments most recently in effect, adjusted to give effect to any assignments.
24
"Perfection Certificate" means a certificate in the form of Exhibit A to
the Security Agreement or any other form approved by the Administrative Agent.
"Permitted Investments" means any of the following: (i) any investment in
direct obligations of the United States of America or any agency thereof; (ii)
investments in time deposit accounts, certificates of deposit and money market
deposits maturing within 180 days of the date of acquisition thereof issued by
any Lender or a bank or trust company which is organized under the laws of the
United States of America, any State thereof or any foreign country recognized by
the United States of America, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $50,000,000 (or the
foreign currency equivalent thereof) and whose long-term debt is rated "A" (or
such similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Exchange Act)
or any money market fund sponsored by a registered broker dealer or mutual fund
distributor; (iii) repurchase obligations with a term of not more than 30 days
for underlying securities of the types described in clause (i) above entered
into with a Lender or a bank meeting the qualifications described in clause (ii)
above; (iv) investments in commercial paper, maturing not more than 90 days
after the date of acquisition, issued by a corporation (other than an Affiliate
of the Borrower) organized and in existence under the laws of the United States
of America or any foreign country recognized by the United States of America
with a rating at the times as of which any investment therein is made of "P-1"
(or higher) by Moody's or "A-1" (or higher) by S&P; (v) investments in
securities with maturities of six months or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United
States of America, or by any political subdivision or taxing authority thereof,
and rated at least "A" by S&P or "A" by Moody's; (vi) overnight investments with
banks rated "B" or better by Fitch, Inc.; (vii) in the case of a Restricted
Subsidiary that is a Foreign Subsidiary, investments of the type and maturity
described in clauses (i) through (vi) above of foreign obligors, which
investments or obligors (or the parents of such obligors) have ratings described
in such clauses or equivalent ratings from comparable foreign rating agencies;
and (viii) deposits in Slovak financial institutions that do not at any time
exceed $5,000,000 in the aggregate.
"Permitted Liens" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
25
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 30 days or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, and Liens imposed by statutory or
common law relating to banker's liens or rights of setoff or similar rights
relating to deposit accounts, in each case in the ordinary course of
business;
(e) Liens arising in the ordinary course of business in favor of
issuers of documentary letters of credit;
(f) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article 7; and
(g) easements, zoning restrictions, rights-of-way, licenses,
reservations, minor irregularities of title and similar encumbrances on
real property imposed by law or arising in the ordinary course of business
that do not secure any monetary obligation and do not materially detract
from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Restricted Subsidiary;
provided that the term "Permitted Liens" shall not include any Lien that secures
Debt.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (except a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the
Internal Revenue Code or Section 302 of ERISA, and in respect of which the
Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) a "contributing sponsor" as defined
in Section 4001(a)(13) of ERISA.
"Pricing Schedule" means the Pricing Schedule attached hereto.
"Prime Rate" means, for any day, the rate of interest per annum then most
recently publicly announced by JPMorgan Chase Bank as its
26
prime rate in effect at its principal office in New York City. Each change in
the Prime Rate will be effective for purposes hereof from and including the date
such change is publicly announced as being effective.
"Qualified Inventory" means all Raw Materials Inventory, Semi-Finished
Goods and Scrap Inventory and Finished Goods Inventory held by the Borrower in
the normal course of business and owned solely by the Borrower (per plant level
records whereby manufactured items are valued at pre-determined costs and
purchased items are valued at rolling average actual cost).
"Qualified Receivables" means all Receivables that are directly created by
the Borrower in the ordinary course of business arising out of the sale of goods
or rendition of services by the Borrower, which are at all times acceptable to
the Collateral Agent in all respects in the exercise of its reasonable judgment
and the customary credit policies of the Collateral Agent.
"Rating Agency" means each of S&P and Moody's.
"Raw Materials Inventory" means any raw materials used or consumed in the
manufacture or production of other inventory including, without limitation, iron
ore and sinter, coke, coal, limestone and other alloys and fluxes, but excluding
steel scrap and iron scrap (it being understood that steel scrap and iron scrap
shall be included in Inventory not constituting "Raw Materials").
"Receivables" means any account (as defined in the Uniform Commercial Code
as in effect from time to time in the State of New York) and any other right,
title or interest which, in accordance with GAAP, would be included in
receivables on a consolidated balance sheet of the Borrower.
"Receivables Financing" means any receivables securitization program or
other type of accounts receivable financing transaction by the Borrower or any
of its Restricted Subsidiaries; provided that substantially all Debt incurred in
connection therewith (other than Debt of a Special Purpose Financing Subsidiary)
arises from a transfer of accounts receivable which is intended by the parties
thereto to be treated as a sale.
"Receivables Purchase Agreement" means the Amended and Restated Receivables
Purchase Agreement dated as of November 28, 2001 among U.S. Steel Receivables
LLC, as seller, the Borrower, as initial servicer and in its individual
capacity, The Bank of Nova Scotia, as collateral agent, JPMorgan Chase Bank, as
a committed purchaser and a funding agent, and the various other Persons from
time to time party thereto, as amended, supplemented or modified from time to
time (subject
27
to Section 5.13 hereof), entered into in connection with the Effective Date
Receivables Financing.
"Register" has the meaning specified in Section 9.04(c).
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and its Affiliates.
"Required Lenders" means, at any time, Lenders having aggregate Exposures
and unused Commitments representing more than 50% of the sum of all Exposures
and unused Commitments at such time; provided that the "Required Lenders" shall
be comprised of a minimum of three Lenders.
"Restricted Debt" means Debt of the Borrower or any Restricted Subsidiary,
the payment, prepayment, redemption, purchase or defeasance of which is
restricted under Section 6.08.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any Equity Interest in the
Borrower, or any payment (whether in cash, securities or other property) or
incurrence of an obligation by the Borrower or any of its Restricted
Subsidiaries, including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any Equity Interest in the Borrower (including, for this purpose, any payment in
respect of any Equity Interest under a Synthetic Purchase Agreement).
"Restricted Subsidiary" means any Subsidiary that is not an Unrestricted
Subsidiary.
"Revolving Availability Period" means the period from and including the
Effective Date to but excluding the Maturity Date (or, if earlier, the date on
which all outstanding Commitments terminate).
"Revolving Loan" means a Loan made pursuant to Section 2.02.
"S&P" means Standard & Poor's.
"SEC" means the Securities and Exchange Commission.
"Secured Obligations" has the meaning specified in Section 1 of the
Security Agreement.
28
"Secured Parties" has the meaning specified in Section 1 of the Security
Agreement.
"Security Agreement" means the Security Agreement among the Borrower and
the Collateral Agent, substantially in the form of Exhibit C.
"Security Documents" means the Security Agreement, the Intercreditor
Agreement and each other security agreement, instrument or document executed and
delivered pursuant to Section 5.12 to secure any of the Secured Obligations.
"Semi-Finished Goods and Scrap Inventory" means semi-finished goods
produced by the Borrower in the ordinary course of business, including slabs,
blooms, coiled strip, black plate, sheets hot rolled and cold rolled, unfinished
tubes, scrap and pig iron.
"Senior Debt Rating" means a rating of the Borrower's senior long-term debt
which is not secured or supported by a guarantee, letter of credit or other form
of credit enhancement; provided that if a Senior Debt Rating by a Rating Agency
is required to be at or above a specified level and such Rating Agency shall
have changed its system of classifications after the date hereof, the
requirement will be met if the Senior Debt Rating by such Rating Agency is at or
above the new rating which most closely corresponds to the specified level under
the old rating system; and provided further that the Senior Debt Rating in
effect on any date is that in effect at the close of business on such date.
"Senior Unsecured Debt" means the 103/4% Senior Notes due August 1, 2008
issued by the Borrower before the Effective Date in the aggregate principal
amount of $535,000,000 and the Debt represented thereby.
"Senior Unsecured Debt Documents" means the indenture under which the
Senior Unsecured Debt is issued and all other instruments, agreements and other
documents evidencing or governing the Senior Unsecured Debt or providing for any
Guarantee or other right in respect thereof.
"Separation" means the separation of the Borrower from USX Corporation
pursuant to an Agreement and Plan of Reorganization to be entered into among USX
Corporation, the Borrower and certain of its Subsidiaries, as described in USX
Corporation's 2000 Form 10-K, USX Corporation's Latest Form 10-Q and USX
Corporation's Latest Proxy Statement.
"Significant Subsidiary" of any Person means any subsidiary of such Person,
whether now or hereafter owned, formed or acquired which,
29
at the time of determination is a "significant subsidiary" of such Person, as
such term is defined on the date of this Agreement in Regulation S-X of the SEC
(a copy of which is attached as Exhibit G), except that "5 percent" will be
substituted for "10 percent" in each place where it appears in such definition
of "significant subsidiary"; provided however, that an Unrestricted Subsidiary
of the Borrower shall not be a "Significant Subsidiary".
"Special Purpose Financing Subsidiary" means a Subsidiary of the Borrower
which is a special-purpose company created and used solely for purposes of
effecting a Receivables Financing.
"Statutory Reserve Adjustment" means 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 aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Federal Reserve Board to which the Administrative Agent is
subject with respect to eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Federal Reserve Board). Such
reserve percentages will include those imposed pursuant to such Regulation D.
Eurodollar Loans will 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
Adjustment will be adjusted automatically on and as of the effective date of any
change in any applicable reserve percentage.
"StraightLine Line of Business" means the division of the Borrower known as
"Straightline" or "Straightline Source" that sells steel products via the
internet.
"subsidiary" means, with respect to any Person (the "parent") at any date,
(a) any corporation, limited liability company, partnership or other entity the
accounts of which would be consolidated with those of the parent in the parent's
consolidated financial statements if such financial statements were prepared in
accordance with GAAP as of such date and (b) any other corporation, limited
liability company, partnership or other entity (i) of which securities or other
ownership interests (x) representing more than 50% of the ordinary voting power
or, in the case of a partnership, more than 50% of the general partnership
voting interests or (y) otherwise having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions, are, as of such date, owned, controlled or held, or (ii) that is
otherwise Controlled
30
(pursuant to clause (b) of the definition of "Control") as of such date, by the
parent and/or one or more of its subsidiaries.
"Subsidiary" means any subsidiary of the Borrower.
"Swingline Exposure" means, at any time, the aggregate outstanding
principal amount of the Swingline Loans at such time. The Swingline Exposure of
any Lender at any time will be its Percentage of the total Swingline Exposure at
such time.
"Swingline Lender" means JPMorgan Chase Bank, in its capacity as the lender
of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Synthetic Purchase Agreement" means any swap, derivative or other
agreement or combination of agreements pursuant to which the Borrower or a
Restricted Subsidiary is or may become obligated to make (i) any payment in
connection with the purchase by any third party, from a Person other than the
Borrower or a Restricted Subsidiary, of any Equity Interest or Restricted Debt
or (ii) any payment (other than on account of a permitted purchase by it of any
Equity Interest or Restricted Debt) the amount of which is determined by
reference to the price or value at any time of any Equity Interest or Restricted
Debt; provided that no phantom stock or similar plan providing for payments only
to current or former directors, officers or employees of the Borrower or its
Restricted Subsidiaries (or their heirs or estates) will be deemed to be a
Synthetic Purchase Agreement.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Third-Party Location" means any property that is either owned or leased by
(a) a Third-Party Warehouseman, (b) an Outside Processor, or (c) a Borrower
Joint Venture.
"Third-Party Warehouseman" means any Person on whose premises Qualified
Inventory is located, which premises are neither owned nor leased by the
Borrower, any customer of or vendor to the Borrower, or an Outside Processor.
"Total Debt" means, as of any date, the sum of (a) the aggregate principal
amount of Debt of the Borrower and its Restricted Subsidiaries outstanding as of
such date, in the amount that would be reflected on a balance sheet prepared as
of such date on a consolidated basis in accordance with GAAP, and (b) the
aggregate principal amount of Debt of
31
the Borrower and its Restricted Subsidiaries outstanding as of such date that is
not required to be reflected on a balance sheet in accordance with GAAP,
determined on a consolidated basis.
"Total Outstanding Amount" means, at any date, the aggregate Exposures of
all Lenders at such date.
"Total Spin-Off Proceeds" has the meaning set forth in Section 6.04.
"Transaction Liens" means the Liens on Collateral granted by the Borrower
under the Security Documents.
"Tubular Line of Business" means the business of Lorain Tubular Company LLC
and any other assets and liabilities of the Borrower or any of its Restricted
Subsidiaries primarily related to their tubular products business.
"United States" means the United States of America.
"Unrestricted Subsidiary" means any Subsidiary designated by the Borrower's
board of directors as an Unrestricted Subsidiary pursuant to Section 5.14
subsequent to the date of this Agreement.
"USSK" means U.S. Steel Kosice, s.r.o, a company organized under the laws
of the Slovak Republic.
"U.S. Steel Group" means the group of businesses of USX Corporation that is
primarily engaged in the production and sale of steel mill products, coke, and
taconite pellets and that has been reported as the "U.S. Steel Group" in USX
Corporation's reports on Forms 10-K and 10-Q filed with the SEC.
"USX Corporation" means USX Corporation, a Delaware corporation, and its
successors.
"USX Corporation's Latest Form 10-Q" means USX Corporation's quarterly
report on Form 10-Q for the quarter ended September 30, 2001, as filed with the
SEC pursuant to the Exchange Act.
"USX Corporation's Latest Proxy Statement" means USX Corporation's proxy
statement on Form 8-K as filed with the SEC on September 20, 2001.
"USX Corporation's 2000 Form 10-K" means USX Corporation's annual report on
Form 10-K for 2000, as filed with the SEC pursuant to the Exchange Act.
32
"Valuation Reserves" means the sum of the following:
(a) a favorable variance reserve for variances between pre-determined cost
and actual costs;
(b) a calculated revaluation reserve, as determined by the Collateral Agent
in its sole discretion;
(c) a reserve for costs incurred at headquarters which are allocated to
Inventory;
(d) a lower of cost or market reserve which includes all Inventory sold for
less than pre-determined cost as deemed appropriate by the Collateral Agent in
its sole discretion;
(e) a reserve for iron ore transportation costs, as determined by the
Collateral Agent in its sole discretion; and
(f) such other reserves as may be deemed appropriate by the Collateral
Agent from time to time in their sole discretion.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
Section 0.1. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans and Borrowings may be classified by Interest Type (e.g., a
"Eurodollar Loan" or a "Eurodollar Borrowing").
Section 0.2. Terms Generally. The definitions of terms herein (including
those incorporated by reference to another document) apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun includes 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
33
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 word
"property" shall be construed to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
Section 0.3. Accounting Terms; Changes in GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment of any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof (or
if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment of any provision hereof for such purpose), regardless of
whether such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be applied on the basis of GAAP
as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.
ARTICLE 1
The Credits
Section 1.1. Commitments. (a) Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to the Borrower from time to
time during the Revolving Availability Period in an aggregate principal amount
that will not at any time result in (A) such Lender's Exposure exceeding its
Commitment or (B) the Total Outstanding Amount exceeding the Maximum Facility
Availability then in effect. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.
(b) The Commitments of the Lenders are several, i.e., 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, and no Lender shall be responsible for any
other Lender's failure to make Loans as and when required hereunder.
34
Section 1.2. Revolving Loans. (a) Each Revolving Loan shall be made as part
of a Borrowing consisting of Loans of the same Interest Type made by the Lenders
ratably in accordance with their respective Commitments, as the Borrower may
request (subject to Section 2.14) in accordance herewith. Each Lender at its
option may make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan. Any exercise of such option shall
not affect the Borrower's obligation to repay such Loan as provided herein.
(b) At the beginning of each Interest Period for any Eurodollar Borrowing,
the aggregate amount of such Borrowing shall be an integral multiple of
$1,000,000 and not less than $5,000,000. When each Base Rate Borrowing is made,
the aggregate amount of such Borrowing shall be an integral multiple of
$1,000,000 and not less than $5,000,000; provided that a Base Rate Borrowing may
be in an aggregate amount that (i) is equal to the entire unused balance of the
Commitments or (ii) is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e). Borrowings of more than one
Interest Type may be outstanding at the same time; provided that there shall not
at any time be more than a total of seven Eurodollar Borrowings outstanding.
(c) Notwithstanding any other provision hereof, the Borrower will not be
entitled to request, or to elect to convert or continue, any Eurodollar
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
Section 1.3. Requests to Borrow Revolving Loans. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of a Base Rate Borrowing, not later than 12:00
noon, 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 Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of such Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Base Rate Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
35
Period to be applicable thereto, which shall be a period contemplated by
the definition of "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
If no election as to the Interest Type of a Borrowing is specified, the
requested Borrowing will be a Base Rate Borrowing. If no Interest Period with
respect to a requested Eurodollar Borrowing is specified, the Borrower will be
deemed to have selected an Interest Period of one month's duration. Promptly
after it receives a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender as to the details of such
Borrowing Request and the amount of such Lender's Loan to be made pursuant
thereto.
Section 1.4. Swingline Loans. (a) Subject to the terms and conditions set
forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower from time to time during the Revolving Availability Period, in each
case in an amount that (i) is an integral multiple of $100,000 and not less than
$250,000, (ii) will not result in the aggregate outstanding principal amount of
all Swingline Loans exceeding $25,000,000 and (iii) will not result in the Total
Outstanding Amount exceeding the Maximum Facility Availability then in effect;
provided that the Swingline Lender will not be required to make a Swingline Loan
to refinance an outstanding Swingline Loan. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy or
e-mail transmission), not later than 3:00 p.m., New York City time, on the
proposed date of borrowing. Each such notice shall be irrevocable and shall
specify the requested date (which shall be a Business Day) and amount of the
requested Swingline Loan. The Administrative Agent shall promptly advise the
Swingline Lender of any such notice received from the Borrower. The Swingline
Lender shall make each Swingline Loan available to the Borrower by means of a
credit to the Borrower's general deposit account with the Swingline Lender (or,
if such Swingline Loan is made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e), by remittance to the LC Issuing
Bank) by 5:00 p.m., New York City time, on the requested date of such Swingline
Loan. Each Swingline Loan shall bear interest at the rate specified in Section
2.13(c).
(c) The Borrower unconditionally promises to pay to the Swingline Lender
the then unpaid principal amount of each Swingline Loan on the earlier of
36
the Maturity Date and the first day after such Swingline Loan is made that is
the 15th or last day of a calendar month and is one Business Day after such
Swingline Loan is made; provided that on each day that a Borrowing of Revolving
Loans is made, the Borrower shall repay all Swingline Loans that were
outstanding when such Borrowing was requested.
(d) The Borrower will have the right at any time to prepay any Swingline
Loan in full or in part in an amount that is an integral multiple of $100,000
and not less than $250,000. The Borrower shall notify the Swingline Lender and
the Administrative Agent, by telephone (confirmed by telecopy or e-mail
transmission), of the date and amount of any such prepayment not later than
12:00 noon on the date of prepayment. Each such prepayment shall be made
directly to the Swingline Lender and shall be accompanied by accrued interest on
the amount prepaid.
(e) The Swingline Lender may, by written notice given to the Administrative
Agent not later than 3:00 p.m., New York City time, on any Business Day, require
the Lenders to acquire participations on such Business Day in all or a portion
of the Swingline Loans then outstanding. Such notice shall specify the aggregate
amount of Swingline Loans in which Lenders will participate. Promptly after it
receives such notice, the Administrative Agent shall notify each Lender as to
the details thereof and such Lender's Percentage of such aggregate amount of
Swingline Loans. Each Lender agrees, upon receipt of such notification, to pay
to the Administrative Agent, for the account of the Swingline Lender, such
Lender's Percentage of such aggregate amount of Swingline Loans. Each Lender's
obligation to acquire participations in Swingline Loans pursuant to this
subsection is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or any reduction or termination of the Commitments, and each payment by a Lender
to acquire such participations shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Lender shall comply with its
obligation under this subsection by wire transfer of immediately available
funds, in the same manner as provided in Section 2.06 with respect to Loans made
by such Lender (and Section 2.06(b) shall apply, mutatis mutandis, to the
payment obligations of the Lenders under this subsection), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Lenders. The Administrative Agent shall notify the
Borrower of any participations in Swingline Loans acquired pursuant to this
subsection, and thereafter payments in respect of such Swingline Loans shall be
made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or any other party on behalf
of the Borrower) in respect of a Swingline Loan after the Swingline Lender
receives the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent, which shall promptly remit any such
amounts received by it to the Lenders that shall have made payments pursuant to
this subsection and to the Swingline Lender, as their interests may appear. The
purchase of
37
participations in Swingline Loans pursuant to this subsection will not relieve
the Borrower of any default in the payment thereof.
Section 1.5. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of
Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the LC Issuing Bank, from time to time during the
Revolving Availability Period. If the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the LC Issuing Bank relating to any Letter of
Credit are not consistent with the terms and conditions of this Agreement, the
terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal or Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the LC Issuing Bank) to the LC
Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the requested date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with Section
2.05(c)), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the LC Issuing
Bank, the Borrower also shall submit a letter of credit application on the LC
Issuing Bank's standard form (with such changes as are agreed by such LC Issuing
Bank and the Borrower) in connection with any request for a Letter of Credit. A
Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower
shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension, (i) the LC Exposure will not exceed
$75,000,000 and (ii) the Total Outstanding Amount will not exceed the Maximum
Facility Availability then in effect.
(c) Expiration Date. Each Letter of Credit shall expire at or before the
close of business on the earlier of (i) the date that is eighteen months after
such Letter of Credit is issued (or, in the case of any renewal or extension
thereof, eighteen months after such renewal or extension) and (ii) the date that
is five Business Days before the Maturity Date.
(d) Participations. Effective upon the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
38
any further action on the part of the LC Issuing Bank or the Lenders, the LC
Issuing Bank grants to each Lender, and each Lender acquires from the LC Issuing
Bank, a participation in such Letter of Credit equal to such Lender's Percentage
of the aggregate amount available to be drawn thereunder. Pursuant to such
participations, each Lender agrees to pay to the Administrative Agent, for the
account of the LC Issuing Bank, such Lender's Percentage of (i) each LC
Disbursement made by the LC Issuing Bank and not reimbursed by the Borrower on
the date due as provided in Section 2.05(e) and (ii) any reimbursement payment
required to be refunded to the Borrower for any reason. Each Lender's obligation
to acquire participations and make payments pursuant to this subsection is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or any reduction or
termination of the Commitments, and each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the LC Issuing Bank makes any LC Disbursement under a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying an
amount equal to such LC Disbursement to the Administrative Agent not later than
12:00 noon, New York City time, on the day that such LC Disbursement is made, if
the Borrower receives notice of such LC Disbursement before 10:00 a.m., New York
City time, on such day, or, if such notice has not been received by the Borrower
before such time on such day, then not later than 12:00 noon, New York City
time, on (i) the Business Day that the Borrower receives such notice, if such
notice is received before 10:00 a.m., New York City time, on the day of receipt,
or (ii) the next Business Day, if such notice is not received before such time
on the day of receipt; provided that, if such LC Disbursement is at least
$250,000, the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 or 2.04 that such payment be
made with the proceeds of a Base Rate Revolving Loan or a Swingline Loan in an
equivalent amount and, to the extent so financed, the Borrower's obligation to
make such payment shall be discharged and replaced by the resulting Base Rate
Revolving Loan or Swingline Loan. If the Borrower fails to make such payment
when due, the Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such
Lender's Percentage thereof. Promptly after it receives such notice, each Lender
shall pay to the Administrative Agent its Percentage of the payment then due
from the Borrower, in the same manner as is provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06(b) shall apply, mutatis
mutandis, to such payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the LC Issuing Bank the amounts so received by it
from the Lenders. If a Lender makes a payment pursuant to this subsection to
reimburse the LC Issuing Bank for any LC Disbursement (other than by funding
Base Rate Revolving Loans as contemplated above), (i) such payment will not
constitute a Loan and will not relieve the Borrower of its obligation to
reimburse such LC Disbursement and (ii) such
39
Lender will be subrogated to its pro rata share of the LC Issuing Bank's claim
against the Borrower for such reimbursement. Promptly after the Administrative
Agent receives any payment from the Borrower pursuant to this subsection, the
Administrative Agent will distribute such payment to the LC Issuing Bank or, if
Lenders have made payments pursuant to this subsection to reimburse the LC
Issuing Bank, then to such Lenders and the LC Issuing Bank as their interests
may appear.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in Section 2.05(e) shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective of
(i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the LC Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of
such Letter of Credit, or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. None of
the Administrative Agent, the Lenders, the LC Issuing Bank and their respective
Related Parties shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
LC Issuing Bank; provided that the foregoing shall not excuse the LC Issuing
Bank from liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the LC Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. In the absence of gross negligence or
wilful misconduct on the part of the LC Issuing Bank (as finally determined by a
court of competent jurisdiction), the LC Issuing Bank shall be deemed to have
exercised care in each such determination. Without limiting the generality of
the foregoing, the parties agree that, with respect to documents presented which
appear on their face to be in substantial compliance with the terms of a Letter
of Credit, the LC Issuing Bank may, in its sole discretion, either (A) accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or (B)
refuse to accept and make payment upon such documents if such documents do not
40
strictly comply with the terms of such Letter of Credit.
(g) Disbursement Procedures. The LC Issuing Bank shall, promptly after its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The LC Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of
such demand for payment and whether the LC Issuing Bank has made or will make an
LC Disbursement pursuant thereto; provided that any failure to give or delay in
giving such notice will not relieve the Borrower of its obligation to reimburse
the LC Issuing Bank and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest. Unless the Borrower reimburses an LC Disbursement in
full on the day it is made, the unpaid amount thereof shall bear interest, for
each day from and including the day on which such LC Disbursement is made to but
excluding the day on which the Borrower reimburses such LC Disbursement, at the
rate per annum then applicable to Base Rate Revolving Loans; provided that, if
the Borrower fails to reimburse such LC Disbursement when due pursuant to
Section 2.05(e), then Sections 2.13(d) and 2.13(e) shall apply. Interest accrued
pursuant to this subsection shall be for the account of the LC Issuing Bank,
except that a pro rata share of interest accrued on and after the day that any
Lender reimburses the LC Issuing Bank for a portion of such LC Disbursement
pursuant to Section 2.05(e) shall be for the account of such Lender.
(i) Replacement of LC Issuing Bank. The LC Issuing Bank may be replaced at
any time by written agreement among the Borrower, the Administrative Agent, the
replaced LC Issuing Bank and the successor LC Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement. At the time any such
replacement becomes effective, the Borrower shall pay all unpaid fees accrued
for the account of the replaced LC Issuing Bank pursuant to Section 2.12(b). On
and after the effective date of any such replacement, (i) the successor LC
Issuing Bank will have all the rights and obligations of the LC Issuing Bank
under this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term "LC Issuing Bank" will be deemed to refer
to such successor or to any previous LC Issuing Bank, or to such successor and
all previous LC Issuing Banks, as the context shall require. After an LC Issuing
Bank is replaced, it will remain a party hereto and will continue to have all
the rights and obligations of an LC Issuing Bank under this Agreement with
respect to Letters of Credit issued by it before such replacement, but will not
be required to issue additional Letters of Credit.
(j) Cash Collateralization. If an Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposures representing more than 50% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
41
subsection, the Borrower shall deposit in its Cash Collateral Account an amount
in cash equal to 102% of the total LC Exposure as of such date plus any accrued
and unpaid interest thereon; provided that the obligation to deposit such cash
collateral will become effective immediately, and such deposit will become
immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower described in
clause (i) or (j) of Article 7. Any amount so deposited (including any earnings
thereon) will be withdrawn from the Borrower's Cash Collateral Account by the
Administrative Agent and applied to pay LC Reimbursement Obligations as they
become due; provided that (i) if at any time all Events of Default have been
cured or waived, such amount, to the extent not theretofore so applied, (and
excluding amounts required to be deposited in the Cash Collateral Account
pursuant to Section 2.10(b) or Section 5.12(b)) will be returned to the Borrower
upon its request and (ii) if at any time the maturity of the Loans has been
accelerated, such amount (to the extent not theretofore so applied or returned)
will be applied to pay the Secured Obligations as provided in Section 7 of the
Security Agreement.
Section 1.6. Funding of Revolving Loans. (a) Each Lender making a Revolving
Loan hereunder shall wire the principal amount thereof in immediately available
funds, by 1:00 p.m., New York City time, on the proposed date of such Loan, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent shall make such funds
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing
Request; provided that Base Rate Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e) will be
remitted by the Administrative Agent to the LC Issuing Bank.
(b) Unless the Administrative Agent receives notice from a Lender before
the proposed date of any Borrowing that such Lender will not make its share of
such Borrowing available to the Administrative Agent, the Administrative Agent
may assume that such Lender has made such share available on such date in
accordance with Section 2.06(a) and may, in reliance on such assumption, make a
corresponding amount available to the Borrower. In such event, if a Lender has
not in fact made its share of such Borrowing available to the Administrative
Agent, such Lender and the 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 day such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate reasonably determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to Base Rate Loans. If
42
such Lender pays such amount to the Administrative Agent, such amount shall
constitute such Lender's Loan included in such Borrowing.
Section 1.7. Interest Elections. (a) Each Borrowing of Revolving Loans
initially shall be of the Interest Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Interest Type or, in the case
of a Eurodollar Borrowing, to continue such Borrowing for one or more additional
Interest Periods, all as provided in this Section. The 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 comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall notify
the Administrative Agent thereof by telephone by the time that a Borrowing
Request would be required under Section 2.03 if the Borrower were requesting
that a Borrowing of the Interest Type resulting from such election be made on
the effective date of such election. Each such telephonic Interest Election
shall be irrevocable and shall be confirmed promptly by hand delivery, telecopy
or e-mail transmission to the Administrative Agent of a written Interest
Election in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election shall specify the
following information in compliance with Section 2.02 and subsection (e) of this
Section:
(i) the Borrowing to which such Interest Election 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) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be a Base Rate Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
"Interest Period".
43
If an Interest Election requests a Eurodollar Borrowing but does not specify an
Interest Period, the Borrower will be deemed to have selected an Interest Period
of one month's duration.
(d) Promptly after it receives an Interest Election, the Administrative
Agent shall advise each Lender as to the details thereof and such Lender's
portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election with
respect to a Eurodollar Borrowing before the end of an Interest Period
applicable thereto, such Borrowing (unless repaid) will be converted to a Base
Rate Borrowing at the end of such Interest Period. 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
Borrower, then, so long as an Event of Default is continuing, (i) no outstanding
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
each Eurodollar Borrowing (unless repaid) will be converted to a Base Rate
Borrowing at the end of the Interest Period applicable thereto on the date of
such notice.
Section 1.8. Termination or Reduction of Commitments. (a) Unless previously
terminated, the Commitments will terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time reduce,
the Commitments; provided that (i) the amount of each reduction of the
Commitments shall be an integral multiple of $1,000,000 and not less than
$5,000,000 and (ii) the Borrower shall not terminate or reduce the Commitments
if, after giving effect thereto and to any concurrent prepayment of Revolving
Loans pursuant to Section 2.10, the total Exposures would exceed the total
Commitments.
(c) The Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under Section 2.08(b), at least three
Business Days before the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly after it
receives any such notice, the Administrative Agent shall advise the Lenders of
the contents thereof. Each notice delivered by the Borrower pursuant to this
Section will be irrevocable; provided that any such notice terminating the
Commitments may state that it is conditioned on the effectiveness of other
credit facilities, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or before the specified effective date) if
such condition is not satisfied. Any termination or reduction of the Commitments
will be permanent and will be made ratably among the Lenders in accordance with
their respective Commitments.
44
Section 1.9. Payment at Maturity; Evidence of Debt. (a) The Borrower
unconditionally promises to pay to the Administrative Agent on the Maturity
Date, for the account of each Lender, the then unpaid principal amount of such
Lender's Revolving Loans.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Interest Type thereof and
each Interest Period (if any) applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to subsections (b)
and (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that any failure by any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not affect the Borrower's obligation to repay the Loans in
accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the 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 1.10. Optional and Mandatory Prepayments. (a) Optional Prepayments.
The Borrower will have the right at any time to prepay any Borrowing in whole or
in part, subject to the provisions of this Section.
(b) Mandatory Prepayments. If at any date the Total Outstanding Amount
exceeds the Maximum Facility Availability calculated as of such date, then not
later than the next succeeding Business Day, the Borrower shall be required to
prepay the Loans (or, if no Loans are outstanding, deposit cash in the Cash
Collateral Account to cash collateralize Letter of Credit liabilities) in an
amount equal to such excess until the Total Outstanding Amount, net of the
amount of cash collateral deposited in the Cash Collateral Account, does not
45
exceed the Maximum Facility Availability.
(c) Allocation of Prepayments. Before any optional or mandatory prepayment
of Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings
to be prepaid and shall specify such selection in the notice of such prepayment
pursuant to Section 2.10(f).
(d) Partial Prepayments. Each partial prepayment of a Borrowing shall be in
an amount that would be permitted under Section 2.02(b) for a Borrowing of the
same Interest Type, except as needed to apply fully the required amount of a
mandatory prepayment. Each partial prepayment of a Borrowing shall be applied
ratably to the Loans included in such Borrowing.
(e) Accrued Interest. Each prepayment of a Borrowing shall be accompanied
by accrued interest to the extent required by Section 2.11 or Section 2.13.
(f) Notice of Prepayments. The Borrower shall notify the Administrative
Agent by telephone (confirmed by telecopy or e-mail transmission) of any
prepayment of any Borrowing hereunder (i) in the case of a Eurodollar Borrowing,
not later than 12:00 noon, New York City time, three Business Days before the
date of prepayment and (ii) in the case of a Base Rate Borrowing, not later than
12:00 noon, 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 optional prepayment is given in
connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.08(c), then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.08(c).
Promptly after it receives any such notice, the Administrative Agent shall
advise the Lenders of the contents thereof.
Section 1.11. Change in Control. (a) If a Change in Control of the Borrower
shall occur, the Borrower will, within one Business Day after the occurrence
thereof, give the Administrative Agent notice thereof, and the Administrative
Agent shall promptly notify each Lender thereof. Such notice shall describe in
reasonable detail the facts and circumstances giving rise thereto and the date
of such Change in Control and each Lender may, by notice to the Borrower and the
Administrative Agent (a "Termination Notice") given not later than ten days
after the date of such Change of Control, terminate its Commitment, which shall
be terminated, and declare any Loans made by it (together with accrued interest
thereon) and any other amounts payable hereunder for its account to be, and such
Loans and such amounts shall become, due and payable, in each case on
46
the day following delivery of such Termination Notice (or if such day is not a
Business Day, the next succeeding Business Day), without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower.
(b) If the Commitment of any Lender is terminated pursuant to this Section at a
time when any Letter of Credit is outstanding, then (i) such Lender shall remain
responsible to the LC Issuing Bank with respect to such Letter of Credit to the
same extent as if its Commitment had not terminated and (ii) the Borrower shall
pay to such Lender an amount in immediately available funds (which funds shall
be held as collateral pursuant to arrangements satisfactory to such Lender)
equal to such Lender's Percentage of the aggregate amount available for drawing
under all Letters of Credit outstanding at such time.
(c) If the Commitment of any Lender is terminated pursuant to this Section at a
time when any Swingline Loan is outstanding, then (i) such Lender shall remain
responsible to the Swingline Lender with respect to such Swingline Loan to the
same extent as if its Commitment had not terminated and (ii) the Borrower shall
pay to such Lender an amount in immediately available funds (which funds shall
be held as collateral pursuant to arrangements satisfactory to such Lender)
equal to such Lender's Percentage of the aggregate outstanding principal amount
of such Swingline Loan at such time.
Section 1.12. Fees. (a) The Borrower shall pay to the Administrative Agent
for the account of each Lender a commitment fee, which shall accrue at the
Applicable Rate on the average daily unused amount of each Commitment of such
Lender during the period from and including the Effective Date to the date on
which such Commitment terminates. Accrued commitment fees will be payable in
arrears on the last day of March, June, September and December of each year and
the day when the Commitments terminate, commencing on the first such day to
occur after the date hereof. All commitment fees will be computed on the basis
of a year of 360 days and will be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of computing
commitment fees, a Lender's Commitment will be deemed to be used to the extent
of its outstanding Revolving Loans and LC Exposure (and its Swingline Exposure
will be disregarded for such purpose).
(b) The Borrower shall pay (i) to the Administrative Agent for the account
of each Lender a participation fee with respect to its participations in Letters
of Credit, which shall accrue for each day, at the Applicable
47
Rate that applies to Eurodollar Revolving Loans, on the amount of such Lender's
LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) on such day, during the period from the Effective Date to the
later of the date on which such Lender's Commitment terminates and the date on
which such Lender ceases to have any LC Exposure, and (ii) to the LC Issuing
Bank a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon by the Borrower and such LC Issuing Bank on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from the Effective Date to the
later of the date on which the Commitments terminate and the date on which there
ceases to be any LC Exposure, as well as the fees separately agreed upon by the
Borrower and such LC Issuing Bank with respect to issuing, amending, renewing or
extending any Letter of Credit or processing drawings thereunder. Participation
fees and fronting fees accrued through the last day of March, June, September
and December of each year will be payable on the third Business Day following
such last day, commencing on the first such date to occur after the Effective
Date; provided that all such fees accrued to the date on which the Commitments
terminate will be payable on such date, and any such fees accruing after such
date will be payable on demand. Any other fees payable to the LC Issuing Bank
pursuant to this subsection will be payable within 10 days after demand. All
such participation fees and fronting fees will be computed on the basis of a
year of 360 days and will be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Borrower shall pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon by
the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the LC Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
Section 1.13. Interest. (a) The Loans comprising each Base Rate Borrowing
shall bear interest for each day at the Alternate Base Rate plus the Applicable
Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest for
each Interest Period in effect for such Borrowing at the Adjusted LIBO Rate for
such Interest Period plus the Applicable Rate.
48
(c) The Swingline Loans shall bear interest at the rate applicable to Base
Rate Revolving Loans.
(d) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by the Borrower hereunder is not paid
when due, whether at stated maturity, upon acceleration 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 that would, in the absence of an Event of Default, be otherwise applicable
to such Loan as provided in the preceding subsections of this Section or (ii) in
the case of any other amount, 2% plus the rate that would, in the absence of an
Event of Default, be applicable to Base Rate Revolving Loans, as provided in
subsection (a) of this Section.
(e) Interest accrued on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and upon termination of the Commitments;
provided that (i) interest accrued pursuant to Section 2.13(d) shall be payable
on demand, (ii) upon any repayment of any Loan (except a prepayment of a Base
Rate Revolving Loan before the end of the Revolving Availability Period),
interest accrued on the principal amount repaid shall be payable on the date of
such repayment and (iii) upon any conversion of a Eurodollar Loan before the end
of the current Interest Period therefor, interest accrued on such Loan shall be
payable on the effective date of such conversion.
(f) All interest hereunder will be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate will be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case will be payable for the actual number of days elapsed (including the first
day but excluding the last day). Each applicable Alternate Base Rate or Adjusted
LIBO Rate shall be determined by the Administrative Agent, and its determination
thereof will be conclusive absent manifest error.
Section 1.14. Alternate Rate of Interest. If before the beginning of any
Interest Period for a Eurodollar Borrowing:
(i) deposits in dollars in the applicable amounts are not being
offered by the Administrative Agent in the London interbank market for such
Interest Period; or
(ii) Lenders having 50% or more of the aggregate principal amount of
the Loans to be included in such Borrowing advise the Administrative Agent
that the Adjusted LIBO Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders of making or maintaining such
Loans for such Interest Period;
49
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election that requests the conversion of any Borrowing to, or continuation of
any Borrowing as, a Eurodollar Borrowing will be ineffective and (ii) if any
Borrowing Request requests a Eurodollar Borrowing, such Borrowing will be made
as a Base Rate Borrowing.
Section 1.15. Increased Costs. (a) 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 the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the LC Issuing Bank; or
(ii) impose on any Lender or the LC Issuing Bank or the London
interbank market any other condition affecting this Agreement or Eurodollar
Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make Eurodollar Loans) or to increase the cost to such Lender or
the LC Issuing Bank of participating in, issuing or maintaining any Letter of
Credit or to reduce any amount received or receivable by such Lender or the LC
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower shall pay to such Lender or the LC Issuing Bank, as the case may be,
such additional amount or amounts as will compensate it for such additional cost
incurred or reduction suffered.
(b) If any Lender or the LC Issuing Bank 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 or the LC Issuing Bank's capital or on the capital of
such Lender's or the LC Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the LC Issuing Bank, to
a level below that which such Lender or the LC Issuing Bank or such Lender's or
the LC Issuing Bank's holding company could have achieved but for such Change in
Law (taking into consideration such Lender's or the LC Issuing Bank's policies
and the policies of such Lender's or the LC Issuing Bank's holding company with
respect to capital adequacy), then from time to time following receipt of the
certificate referred to in subsection (c) of this Section, the Borrower
50
shall pay to such Lender or the LC Issuing Bank, as the case may be, such
additional amount or amounts as will compensate it or its holding company for
any such reduction suffered.
(c) A certificate of a Lender or the LC Issuing Bank setting forth the
amount or amounts necessary to compensate it or its holding company, as the case
may be, as specified in subsection (a) or (b) of this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. Each such
certificate shall contain a representation and warranty on the part of the
Lender to the effect that such Lender has complied with its obligations pursuant
to Section 2.19 hereof in an effort to eliminate or reduce such amount. The
Borrower shall pay such Lender or the LC Issuing Bank, as the case may be, the
amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Failure or delay by any Lender or the LC Issuing Bank to demand
compensation pursuant to this Section will not constitute a waiver of its right
to demand such compensation; provided that the Borrower will not be required to
compensate a Lender or the LC Issuing Bank pursuant to this Section for any
increased cost or reduction incurred more than 180 days before it notifies the
Borrower of the Change in Law giving rise to such increased cost or reduction
and of its intention to claim compensation therefor. However, if the Change in
Law giving rise to such increased cost or reduction is retroactive, then the
180-day period referred to above will be extended to include the period of
retroactive effect thereof.
Section 1.16. Break Funding Payments. If (a) any principal of any
Eurodollar Loan is repaid on a day other than the last day of an Interest Period
applicable thereto (including as a result of an Event of Default), (b) any
Eurodollar Loan is converted on a day other than the last day of an Interest
Period applicable thereto, (c) the Borrower fails to borrow, convert, continue
or prepay any Revolving Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.10(f) and is revoked in accordance therewith), or (d) any Eurodollar Loan is
assigned on a day other than the last day of an Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19, then
the Borrower shall compensate each Lender for its loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost
and expense to any Lender shall be deemed to include an amount determined by
such Lender to be the excess, if any, of (i) the amount of interest that would
have accrued on the principal amount of such Loan had such event not occurred,
at the Adjusted LIBO Rate that would have been applicable to such Loan, for the
period from the date of such event to the end of the then current Interest
Period therefor (or, in the case of a failure to borrow, convert or continue,
the Interest Period that would have begun on the date of such failure), over
(ii) the amount of interest that would accrue on such
51
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the beginning of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. 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
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
Section 1.17. Taxes. (a) All payments by the Borrower under the Loan
Documents shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that, if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable will be increased as necessary so that, after all required
deductions (including deductions applicable to additional sums payable under
this Section) are made, each relevant Lender Party receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify each Lender Party, within 10 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by such Lender Party with respect to any payment by or obligation of
the Borrower under the Loan Documents (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) 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 any such payment delivered to the
Borrower by a Lender Party on its own behalf, or by the Administrative Agent on
behalf of a Lender Party, shall be conclusive absent manifest error. If the
Borrower has indemnified any Lender Party pursuant to this Section 2.17(c), such
Lender Party shall take such steps as the Borrower shall reasonably request (at
the Borrower's expense) to assist the Borrower in recovering the Indemnified
Taxes or Other Taxes and any penalties or interest attributable thereto;
provided that no Lender Party shall be required to take any action pursuant to
this Section 2.17(c) unless, in the judgment of such Lender Party, such action
(i) would not subject such Lender Party to any unreimbursed cost or expense and
(ii) would not otherwise be disadvantageous to such Lender Party.
(d) As soon as practicable after the Borrower pays any Indemnified Taxes or
Other Taxes to a Governmental Authority, the Borrower shall deliver to
52
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) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the laws of the United States, or any treaty to which
the United States is a party, with respect to payments under this Agreement
shall deliver to the Borrower (with a copy to the Administrative Agent), at the
time or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate. If any such Foreign Lender becomes subject to any Tax because it
fails to comply with this subsection as and when prescribed by applicable law,
the Borrower shall take such steps (at such Foreign Lender's expense) as such
Foreign Lender shall reasonably request to assist such Foreign Lender to recover
such Tax.
Section 1.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it under the
Loan Documents (whether of principal, interest or fees, or reimbursement of LC
Disbursements, or amounts payable under Section 2.15, 2.16 or 2.17 or otherwise)
before the time expressly required under the relevant Loan Document for such
payment (or, if no such time is expressly required, before 12:00 noon, New York
City time), on the date when due, in immediately available funds, without
set-off or counterclaim. Any amount received after such time on any day 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 its offices at
One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, except payments to be
made directly to the LC Issuing Bank or the Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17
and 9.03 shall be made directly to the Persons entitled thereto and payments
pursuant to other Loan Documents shall be made to the Persons specified therein.
The Administrative Agent shall distribute any such payment received by it for
the account of any other Person to the appropriate recipient promptly after
receipt thereof. Unless otherwise specified herein, if any payment under any
Loan Document shall be due on a day that is not a Business Day, the date for
payment will be extended to the next succeeding Business Day and, if such
payment accrues interest, interest thereon will be payable for the period of
such extension. All payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the
53
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, 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 and unreimbursed LC
Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.
(c) 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 Loans or any of its participations in LC Disbursements or Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and participations in LC Disbursements and
Swingline Loans and accrued interest thereon 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 Loans and participations in LC
Disbursements and Swingline 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 Loans and participations in LC Disbursements and Swingline
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 subsection shall not
apply to any payment made by the 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 or participations in LC Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this subsection shall apply). The 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 the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless, before the date on which any payment is due to the
Administrative Agent for the account of one or more Lender Parties hereunder,
the Administrative Agent receives from the Borrower notice that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance on such assumption, distribute to each relevant Lender Party the amount
due to it. In such event, if the Borrower has not in fact made such payment,
each Lender Party severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender Party with interest
54
thereon, for each day from and including the day such amount is distributed to
it to but excluding the day it repays the Administrative Agent, at the greater
of the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.
(e) If any Lender fails to make any payment required to be made by it
pursuant to Section 2.04(e), 2.05(d), 2.05(e), 2.06(b), 2.18(d) or 9.03(c), the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
Section 1.19. Lender's Obligation to Mitigate; Replacement of Lenders . (a)
If any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use all commercially reasonable efforts to mitigate or eliminate
the amount of such compensation or additional amount, including without
limitation, by designating a different lending office for funding or booking its
Loans hereunder or by assigning its rights and obligations hereunder to another
of its offices, branches or affiliates; provided that no Lender shall be
required to take any action pursuant to this Section 2.19(a) unless, in the
judgment of such Lender, such designation or assignment or other action (i)
would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as
the case may be, in the future, (ii) would not subject such Lender to any
unreimbursed cost or expense and (iii) would not otherwise be disadvantageous to
such Lender. The Borrower shall pay all reasonable costs and expenses incurred
by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all
its interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent (and, if a Commitment is being
assigned, the LC Issuing Bank and the Swingline Lender), which consents shall
not unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
55
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments required
to be made pursuant to Section 2.17, such assignment will result in a material
reduction in such compensation or payments. A Lender shall not be required to
make any such assignment if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment cease to apply.
Section 1.20. Optional Increase in Commitments. At any time, if no Default
shall have occurred and be continuing (or would result after giving effect
thereto), the Borrower, may, if it so elects, increase the aggregate amount of
the Commitments (each such increase to be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000), either by
designating a financial institution not theretofore a Lender to become a Lender
(such designation to be effective only with the prior written consent of the
Administrative Agent and each LC Issuing Bank, which consent will not be
unreasonably withheld or delayed, and only if such financial institution accepts
a Commitment in an aggregate amount that is an integral multiple of $1,000,000
and not less than $5,000,000), or by agreeing with an existing Lender that such
Lender's Commitment shall be increased. Upon execution and delivery by the
Borrower and such Lender or other financial institution of an instrument (a
"Commitment Acceptance") in form reasonably satisfactory to the Administrative
Agent, such existing Lender shall have a Commitment as therein set forth or such
other financial institution shall become a Lender with a Commitment as therein
set forth and all the rights and obligations of a Lender with such a Commitment
hereunder; provided:
(a) that the Borrower shall provide prompt notice of such increase to the
Administrative Agent, who shall promptly notify the Lenders;
(b) that the Borrower shall have delivered to the Administrative Agent a
copy of the Commitment Acceptance;
(c) that the amount of such increase, together with all other increases in
the aggregate amount of the Commitments pursuant to this Section 2.20 since the
date of this Agreement, does not exceed $150,000,000;
(d) that, before and after giving effect to such increase, the
representations and warranties of the Borrower contained in Article 3 of this
Agreement shall be true and correct; and
(e) that the Administrative Agent shall have received such evidence
(including an opinion of Borrower's counsel) as it may
56
reasonably request to confirm the Borrower's due authorization of the
transactions contemplated by this Section 2.20 and the validity and
enforceability of the obligations of the Borrower resulting therefrom.
On the date of any such increase, the Borrower shall be deemed to have
represented to the Administrative Agent and the Lenders that the conditions set
forth in clauses (a) through (e) above have been satisfied.
Upon any increase in the aggregate amount of the Commitments pursuant to
this Section 2.20:
(x) within five Domestic Business Days, in the case of any Base Rate
Borrowings then outstanding, and at the end of the then current Interest
Period with respect thereto, in the case of any Eurodollar Borrowings then
outstanding, the Borrower shall prepay such Borrowing in its entirety and,
to the extent the Borrower elects to do so and subject to the conditions
specified in Article 4, the Borrower shall reborrow Loans from the Lenders
in proportion to their respective Commitments after giving effect to such
increase, until such time as all outstanding Loans are held by the Lenders
in such proportion; and
(y) each existing Lender whose Commitment has not increased pursuant
to this Section 2.20 (each, a "Non-Increasing Lender") shall be deemed,
without further action by any party hereto, to have sold to each Lender
whose Commitment has been assumed or increased under this Section 2.20
(each, an "Increased Commitment Lender"), and each Increased Commitment
Lender shall be deemed, without further action by any party hereto, to have
purchased from each Non-Increasing Lender, a participation (on the terms
specified in Section 2.05 and 2.04, respectively) in each outstanding
Letter of Credit and each Swingline Loan in which such Non-Increasing
Lender has acquired a participation in an amount equal to such Increased
Commitment Lender's Percentage thereof, until such time as all LC Exposures
and Swingline Exposures are held by the Lenders in proportion to their
respective Commitments after giving effect to such increase.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender Parties that:
57
Section 2.1. Organization; Powers. The Borrower and each of its Restricted
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where failures
to do so, in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, is qualified to do business in, and is in good standing
in, every jurisdiction where such qualification is required.
Section 2.2. Authorization; Enforceability. The Financing Transactions to
be entered into by the Borrower are within its corporate, limited liability
company or similar company powers and have been duly authorized by all necessary
corporate, limited liability company (or similar) action and, if required,
stockholder or equity holder action. This Agreement has been duly executed and
delivered by the Borrower and constitutes, and each other Loan Document to which
the Borrower is to be a party, when executed and delivered by the Borrower, will
constitute, a legal, valid and binding obligation of the Borrower, as the case
may be, in each case enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
Section 2.3. Governmental Approvals; No Conflicts. The Financing
Transactions (a) do not require any consent or approval of, registration or
filing with, or other action by, any Governmental Authority, except (i) such as
have been obtained or made and are in full force and effect and (ii) filings
necessary to perfect the Transaction Liens, (b) will not violate any applicable
law or regulation or the charter, by-laws, limited liability company agreement
or other organizational documents of the Borrower or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon the Borrower or any of its
properties, or give rise to a right thereunder to require the Borrower to make
any payment, and (d) will not result in the creation or imposition of any Lien
(other than the Transaction Liens) on any property of the Borrower.
Section 2.4. Financial Statements; No Material Adverse Change . (a) The
Borrower has heretofore furnished to the Lenders (i) USX Corporation's 2000 Form
10-K containing the audited consolidated balance sheet of the U.S. Steel Group
as of December 31, 2000 and the related consolidated statements of income and
cash flows for the Fiscal Year then ended, reported on by PricewaterhouseCoopers
LLP, independent public accountants, and (ii) USX Corporation's Latest Form 10-Q
containing the unaudited consolidated balance sheet of the
58
U.S. Steel Group as of September 30, 2001 and the related consolidated
statements of income and cash flows for the Fiscal Quarter then ended and for
the portion of the Fiscal Year then ended, all certified by its chief financial
officer. Such financial statements present fairly, in all material respects, the
consolidated financial position of the U.S. Steel Group as of such dates and its
consolidated results of operations and cash flows for such periods in accordance
with GAAP, subject to normal year-end adjustments and the absence of footnotes
in the case of the statements referred to in clause (ii) above.
(b) The Borrower has heretofore furnished to the Lenders its pro forma
consolidated balance sheet as of June 30, 2001, prepared giving effect to the
Financing Transactions as if the Financing Transactions had occurred on such
date. Such pro forma consolidated balance sheet (i) has been prepared in good
faith based on the same assumptions used to prepare the pro forma financial
statements included in the Information Memorandum (which assumptions are
believed by the Borrower to be reasonable), (ii) is based on the best
information available to the Borrower after due inquiry, (iii) accurately
reflects all adjustments necessary to give effect to the Financing Transactions
and (iv) presents fairly, in all material respects, the pro forma consolidated
financial position of the Borrower and its Subsidiaries as of June 30, 2001 as
if the Financing Transactions had occurred on such date.
(c) Since December 31, 2000, there has been no material adverse change in
the business, operations, properties, assets, financial condition, contingent
liabilities or material agreements of the Borrower and its Subsidiaries, taken
as a whole, except as disclosed prior to the Effective Date in USX Corporation's
2000 Form 10-K, USX Corporation's Latest Form 10-Q or USX Corporation's Latest
Proxy Statement.
Section 2.5. Security Documents. The Security Documents create valid
security interests in the Collateral purported to be covered thereby, which
security interests are and will remain perfected security interests, prior to
all other Liens, other than Liens permitted under Section 6.02. Each of the
representations and warranties made by the Borrower in the Security Documents to
which it is a party is true and correct in all material respects.
Section 2.6. Borrower's Subsidiaries. As of the Effective Date, the
Borrower has no Subsidiaries other than those set forth on Schedule 3.06. Each
Subsidiary identified on Schedule 3.06 is a Restricted Subsidiary.
Section 2.7. Litigation and Environmental Matters. (a) Except as set forth
in (i) USX Corporation's 2000 Form 10-K, (ii) USX Corporation's Latest Form
10-Q, (iii) USX Corporation's Latest Proxy Statement, (iv) USX Corporation's
quarterly reports on Form 10-Q for the quarters ended
59
March 31, 2001 and June 30, 2001, as filed with the SEC pursuant to the Exchange
Act or (v) the Borrower's and USX Corporation's registration statement on Form
S-4, as filed with the SEC on October 12, 2001, there is no action, suit,
arbitration proceeding or other proceeding, inquiry or investigation, at law or
in equity, before or by any arbitrator or Governmental Authority pending against
the Borrower or of which the Borrower has otherwise received official notice or
which, to the knowledge of the Borrower, is threatened against the Borrower (i)
as to which there is a reasonable possibility of an unfavorable decision, ruling
or finding which would reasonably be expected to result in a Material Adverse
Effect or (ii) that involves any of the Loan Documents or the Financing
Transactions.
(b) Except as set forth in USX Corporation's 2000 Form 10-K, USX
Corporation's Latest Form 10-Q or USX Corporation's Latest Proxy Statement, the
Borrower does not presently anticipate that remediation costs and penalties
associated with any Environmental Law, to the extent not previously provided
for, will have a Material Adverse Effect.
Section 2.8. Compliance with Laws and Agreements. The Borrower is in
compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property (including (i) all Environmental Laws, (ii)
ERISA, (iii) applicable laws, regulations and orders dealing with intellectual
property, and (iv) the Fair Labor Standards Act and other applicable law dealing
with such matters) and all indentures, agreements and other instruments binding
on it or its property, except where failures to do so, in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect. No Default
has occurred and is continuing.
Section 2.9. Investment and Holding Company Status. The Borrower is not (a)
an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended or (b) a
"holding company" or "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
Section 2.10. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other ERISA Events for which
liability is reasonably expected to occur, would reasonably be expected to
result in a Material Adverse Effect.
Section 2.11. Regulation U. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U).
60
Section 2.12. Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it is
subject, and all other matters known to it, that, individually or in the
aggregate, would reasonably be expected to result in a Material Adverse Effect.
The Information Memorandum and any other written information (other than
projected financial information) set forth in (a) USX Corporation's Proxy
Statement on Form 14A filed with the SEC on September 20, 2001, (b) the
Borrower's Confidential Offering Circulars dated July 24, 2001 and September 6,
2001 relating to the Borrower's 10-3/4% Senior Notes, (c) the Borrower's
roadshow materials presented in connection with its July, 2001 and September,
2001 offering of 10-3/4% Senior Notes, (d) a presentation prepared for the
proposed members of the Lender syndicate and (vi) materials regarding the
Borrower's inventory that has been made available by or on behalf of the
Borrower to the Arranger, any Agent or any Lender in connection with the
negotiation of this Agreement or any other Loan Document or delivered hereunder
or thereunder, is complete and correct in all material respects and does not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not materially
misleading in light of the circumstances under which such statements are made;
provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based on
assumptions believed to be reasonable at the time.
Section 2.13. Senior Debt. The Secured Obligations constitute "Secured
Indebtedness" and "Senior Indebtedness" under and as defined in the Senior
Unsecured Debt Documents.
Section 2.14. Processing of Receivables. In the ordinary course of its
business, the Borrower processes its accounts receivable in a manner such that
(i) each payment received by the Borrower in respect of accounts receivables is
allocated to a specifically identified invoice or invoices, which invoice or
invoices corresponds to a particular account receivable owing to the Borrower
and (ii) if, at any time, less than 100% of the accounts receivables to the
Borrower are included in a Receivables Financing, payments received in respect
of those accounts receivable included in a Receivables Financing would be
identifiable and separable from payments received in respect of accounts
receivable not so included in a Receivables Financing.
Section 2.15. Senior Unsecured Debt Documents. The Borrower has heretofore
furnished to the Lenders true and correct copies of all Senior Unsecured Debt
Documents.
61
Section 2.16. Solvency. Immediately after the Financing Transactions to
occur on the Effective Date are consummated and after giving effect to the
application of the proceeds of each Loan made on the Effective Date and after
giving effect to the application of the proceeds of each Loan made on any other
date, (a) the fair value of the assets of the Borrower, at a fair valuation,
will exceed its debts and liabilities, subordinated, contingent or otherwise;
(b) the Borrower will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (c) the Borrower will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is now
conducted and proposed to be conducted after the Effective Date.
ARTICLE 3
CONDITIONS
Section 3.1. Effective Date. The obligations of the Lenders to make Loans
and of the LC Issuing Bank to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
counterparts hereof signed by the Borrower and each of the Lenders listed
on the signature pages hereof (or, in the case of any party as to which an
executed counterpart shall not have been received, receipt by the
Administrative Agent in form satisfactory to it of telex, facsimile or
other written confirmation from such party that it has executed a
counterpart hereof).
(b) The Administrative Agent shall have received favorable written
opinions (in each case, addressed to the Administrative Agent and the
Lenders and dated the Effective Date) of Xxxxx & Associates, special
counsel for the Borrower, and the General Counsel or an Assistant General
Counsel of the Borrower, (i) which opinions are substantially in the form
of Exhibit B-1 and Exhibit B-2, respectively, and (ii) covering such other
matters relating to the Borrower, the Loan Documents or the Financing
Transactions as the Required Lenders shall reasonably request. The Borrower
requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Borrower, the authorization for and validity of the
62
Financing Transactions and any other legal matters relating to the
Borrower, the Loan Documents or the Financing Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the
conditions set forth in clause (a), (b) and (c) of Section 4.03.
(e) The fact that the Required Lenders shall not have notified the
Administrative Agent of their determination that, since December 31, 2000,
any event, development or circumstance has occurred that has had or would
reasonably be expected to have a Material Adverse Effect, other than those
events, developments and circumstances that have been disclosed (i) to the
Administrative Agent in writing or (ii) in USX Corporation's 2000 Form
10-K, USX Corporation's Latest Form 10-Q, USX Corporation's Latest Proxy
Statement or the Borrower's and USX Corporation's registration statement on
Form S-4 filed on October 12, 2001.
(f) The fact that neither the Arranger nor the Administrative Agent
shall have become aware of any information or other matter affecting the
Borrower or the Financing Transactions which was in existence prior to the
date of this Agreement and is inconsistent in a material and adverse manner
with any such information or other matter disclosed to them prior to the
date of this Agreement.
(g) The Borrower shall have paid all fees and other amounts due and
payable to the Lender Parties on or before the Effective Date, including,
to the extent invoiced, all out-of-pocket expenses (including fees, charges
and disbursements of counsel) required to be reimbursed or paid by the
Borrower under the Loan Documents.
(h) The Collateral Requirement shall have been satisfied and the
Administrative Agent shall have received a completed Perfection Certificate
dated the Effective Date and signed by a Financial Officer or other
executive officer of the Borrower, together with all attachments
contemplated thereby, including the results of a search of the Uniform
Commercial Code (or equivalent) filings made with respect to the Borrower
in the jurisdictions contemplated by the Perfection Certificate and copies
of the financing statements (or similar documents) disclosed by such search
and evidence reasonably satisfactory to the Administrative Agent that the
Liens indicated by such financing statements (or similar documents) are
permitted by Section 6.02 or have been released.
(i) The Administrative Agent shall have received evidence
63
reasonably satisfactory to it that all insurance required by Section 5.07
is in effect.
(j) All consents and approvals required to be obtained from any
Governmental Authority or other Person in connection with the Financing
Transactions shall have been obtained and be in full force and effect,
except where failure to obtain such approval or consent would not have a
Material Adverse Effect.
(k) The Lenders shall have received (i) a monthly computation of the
Borrower's liquidity position (including cash, receivables, inventory and
borrowings) for each month of Fiscal Year 2001 that ends at least 20 days
prior to the date of this Agreement, (ii) a business plan for each Fiscal
Year that begins during the term of this Agreement (including financial
forecasts on a quarterly basis for Fiscal Year 2001 and Fiscal Year 2002
and on an annual basis for each Fiscal Year thereafter) and (iii) a written
analysis of the business and prospects of the Borrower and its Subsidiaries
for the term of this Agreement, all in form and substance reasonably
satisfactory to the Lenders in their good faith judgment.
(l) The Administrative Agent shall have received a completed Borrowing
Base Certificate dated the Effective Date and signed by a Financial
Officer.
(m) The Administrative Agent shall have completed all such field exams
as it deems reasonably necessary or desirable, and shall have received
evidence satisfactory to it that the Collateral Agent and Co-Collateral
Agent and their respective designated representatives shall have completed
all such field exams and received all such inventory appraisals from
independent appraisers as the Collateral Agent and Co-Collateral Agent deem
reasonably necessary or desirable.
(n) The Administrative Agent shall have received evidence satisfactory
to it that the Effective Date Receivables Financing shall have been
consummated prior to or concurrently with the occurrence of the Effective
Date.
Promptly after the Effective Date occurs, the Administrative Agent shall notify
the Borrower and the Lenders thereof, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations of the Lenders to make
Loans and of the LC Issuing Bank to issue Letters of Credit shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) before 5:00 p.m., New York City time, on December 3,
2001 (and, if any such condition is not so satisfied or waived, the Commitments
shall terminate at such time).
64
Section 3.2. Conditions to Initial Utilization. The obligation of each
Lender to make a Loan on the occasion of the initial Borrowing, the obligation
of the Swingline Lender to make the initial Swingline Loan (if such initial
Swingline Loan is made prior to the occasion of the initial Borrowing and the
issuance of the initial Letter of Credit) and the obligation of the LC Issuing
Bank to issue the initial Letter of Credit (if such initial Letter of Credit is
issued prior to the occasion of the initial Borrowing and the making of the
initial Swingline Loan), are each subject to the satisfaction of the following
conditions:
(a) The Effective Date shall have occurred.
(b) The Administrative Agent shall have received evidence satisfactory
to it that the Lorain Merger shall have been consummated.
(c) The Administrative Agent shall have received evidence satisfactory
to it that the Separation shall have been completed ((x) without the
requirement of any Borrowing or Swingline Loan being made or any Letter of
Credit (other than Letters of Credit in an aggregate amount not in excess
of $15,000,000) being issued hereunder, (y) with trade payables being paid
currently and expenses and liabilities being paid in the ordinary course of
business and (z) without acceleration of sales), and the Borrower shall no
longer be a subsidiary of USX Corporation.
(d) After giving effect to the consummation of the Lorain Merger and
the Separation, the Borrowing Base, as set forth in the most recent
Borrowing Base Certificate (dated within 30 days of the date of such
initial Borrowing, Swingline Loan or Letter of Credit), shall not be less
than $325,000,000.
(e) The Administrative Agent shall have received evidence satisfactory
to it that the Borrower's contemplated tax settlement with Marathon Oil
Corporation shall have been consummated and shall have resulted in a value
transfer to the Borrower (in the form of a reduction in Debt attributed to
the Borrower) in an amount equal to or greater than $300,000,000.
Section 3.3. Conditions to Each Utilization. The obligation of each Lender to
make a Loan on the occasion of any Borrowing (including the initial Borrowing),
the obligation of the Swingline Lender to make any Swingline Loan (including the
initial Swingline Loan) and the obligation of the LC Issuing Bank to issue,
amend, renew or extend any Letter of Credit (including the initial Letter of
Credit), are each subject to receipt of the Borrower's request therefor in
accordance herewith and to the satisfaction of the following conditions:
65
(a) Immediately after giving effect to such Borrowing or Swingline
Loan or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
(b) The representations and warranties of the Borrower set forth in
the Loan Documents shall be true on and as of the date of such Borrowing or
Swingline Loan or the date of issuance, amendment, renewal or extension of
such Letter of Credit, as applicable.
(c) Immediately before and after such Borrowing or Swingline Loan is
made, or such Letter of Credit is issued, amended, renewed or extended, as
applicable, the Total Outstanding Amount will not exceed the Maximum
Facility Availability.
Each Borrowing, each Swingline Loan and each issuance, amendment, renewal or
extension of a Letter of Credit shall be deemed to constitute a representation
and warranty by the Borrower on the date thereof as to the matters specified in
clauses (a), (b) and (c) of this Section.
ARTICLE 4
AFFIRMATIVE COVENANTS
Until all the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or been cancelled and all LC
Disbursements have been reimbursed, the Borrower covenants and agrees with the
Lenders that:
Section 4.1. Financial Statements and Other Information. (a) The Borrower
will furnish to the Administrative Agent (for delivery to each Lender):
(i) as soon as available and in any event within 90 days after the end
of each Fiscal Year, its audited consolidated balance sheet as of the end
of such Fiscal Year and the related statements of income and cash flows for
such Fiscal Year, setting forth in each case in comparative form the
figures for the previous Fiscal Year, all reported on by
PricewaterhouseCoopers LLC or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to
the scope of such audit) as presenting fairly in all material respects the
financial position, results of operations and cash flows of the Borrower
66
and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP;
(ii) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year, its
consolidated balance sheet as of the end of such Fiscal Quarter and the
related statements of income and cash flows for such Fiscal Quarter and for
the then elapsed portion of such Fiscal Year, setting forth in each case in
comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous
Fiscal Year, all certified by a Financial Officer as (x) reflecting all
adjustments (which adjustments are normal and recurring unless otherwise
disclosed) necessary for a fair presentation of the results for the period
covered and (y) having been prepared in accordance with the applicable
rules of the SEC;
(iii) as soon as available and in any event within 30 days after the
end of each fiscal month (x) its shipment and average selling price data
for such month and for the then elapsed portion of the Fiscal Year and (y)
the additional monthly financial information described in (and
substantially in the form of) Schedule 5.01, certified as to accuracy by a
Financial Officer;
(iv) concurrently with each delivery of financial statements under
clause (i) or (ii) above, a certificate of a Financial Officer (x)
certifying as to whether a Default has occurred and is continuing and, if a
Default has occurred and is continuing, specifying the details thereof and
any action taken or proposed to be taken with respect thereto, (y) setting
forth reasonably detailed calculations demonstrating compliance with
Sections 6.12 through 6.14, inclusive, and (z) stating whether any change
in GAAP or in the application thereof has become effective since the date
of the Borrower's most recent audited financial statements referred to in
Section 3.04 or delivered pursuant to this Section and, if any such change
has become effective, specifying the effect of such change on the financial
statements accompanying such certificate;
(v) concurrently with each delivery of financial statements under
clause (i) above, a certificate of the accounting firm that reported on
such financial statements stating whether during the course of their
examination of such financial statements they obtained knowledge of any
Default (which certificate may be limited to the extent required by
accounting rules or guidelines);
(vi) no later than 45 days after the beginning of each Fiscal Year, a
detailed consolidated budget for such Fiscal Year (which budget shall (A)
include a projected consolidated balance sheet and related statements of
projected operations and cash flows as of the end of and for such Fiscal
67
Year, a projected Borrowing Base as of the last day of each Fiscal Quarter
in such Fiscal Year, and projected levels of Facility Availability as of
the last day of each Fiscal Quarter in such Fiscal Year, and (B) set forth
the assumptions used in preparing such budget) and, promptly when
available, any significant revisions of such budget;
(vii) promptly after the same become publicly available, copies of all
periodic and other material reports and proxy statements filed by the
Borrower or any Restricted Subsidiary with the SEC, or any Governmental
Authority succeeding to any or all of the functions of the SEC;
(viii) concurrently with each delivery of financial statements under
clause (i) or (ii) above, the related consolidating financial statements
reflecting the adjustments necessary to eliminate the accounts of
Unrestricted Subsidiaries (if any) from such consolidated financial
statements;
(ix) promptly upon the effectiveness of any material amendment or
modification of, or any waiver of the rights of the Borrower or any
Restricted Subsidiary under, (A) any Senior Unsecured Debt Document, (B)
the certificate of formation, limited liability company agreement,
certificate of incorporation, by-laws or other organizational documents of
the Borrower or any Restricted Subsidiary or (C) any document evidencing
any Receivables Financing, written notice of such amendment, modification
or waiver describing in reasonable detail the purpose and substance
thereof; and
(x) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower and its Restricted Subsidiaries, or compliance with the terms of
any Loan Document, as the Administrative Agent or any Lender may reasonably
request.
Information required to be delivered pursuant to Sections 5.01(a)(i),
5.01(a)(ii) or 5.01(a)(vii) above shall be deemed to have been delivered on the
date on which the Borrower provides notice to the Administrative Agent that such
information has been posted on the Borrower's website on the Internet at the
website address listed on the signature pages hereof, at
xxx.xxx/xxxxx/xxxxxxxx.xxx or at another website identified in such notice and
accessible by the Lenders without charge; provided that (i) such notice may be
included in a certificate delivered pursuant to Section 5.01(a)(iv) and (ii) the
Borrower shall deliver paper copies of the information referred to in Sections
5.01(a)(i), 5.01(a)(ii) and 5.01(a)(vii) to the Administrative Agent for any
Lender which requests such delivery.
68
(b) Borrowing Base Reports. The Borrower will furnish to the Administrative
Agent, the Collateral Agent and the Co-Collateral Agent (and the Administrative
Agent shall thereafter deliver to each Lender):
(i) as soon as available and in any event within 15 days after the end
of each calendar month, a completed Borrowing Base Certificate (accompanied
by supporting documentation and supplemental reporting) calculating and
certifying the Borrowing Base as of the end of such calendar month, signed
on behalf of the Borrower by a Financial Officer and in form and substance
satisfactory to the Collateral Agent; provided that such Borrowing Base
Certificate (accompanied by supporting documentation and supplemental
reporting) shall be furnished to the Administrative Agent, the Collateral
Agent and the Co-Collateral Agent as soon as available and in any event
within two Business Days after the end of each period of two calendar weeks
(each such biweekly period deemed, for purposes hereof, to end on a Friday)
at the end of which Facility Availability (calculated, for purposes of this
Section 5.01(b)(i), without giving effect to the Availability Block) is
less than $100,000,000; and;
(ii) within two Business Days of any request therefor, such other
information in such detail concerning the amount, composition and manner of
calculation of the Borrowing Base as any Lender may reasonably request.
Section 4.2. Notice of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Restricted Subsidiary or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liabilities of the Borrower and its Restricted Subsidiaries in an
aggregate amount exceeding $50,000,000;
(d) the occurrence of any change in the Borrower's Senior Debt Ratings
by either Xxxxx'x or S&P; and
(e) any other development that results in, or would reasonably be
69
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
Section 4.3. Information Regarding Collateral. (a) The Borrower will
furnish to the Administrative Agent prompt written notice of any change in (i)
the Borrower's corporate name or any trade name used to identify it in the
conduct of its business or the Borrower's chief executive office, its principal
place of business, or any office or facility at which Collateral owned by it is
located (including the establishment of any such new office or facility), (ii)
the Borrower's identity or corporate structure, (iii) the Borrower's State
Organizational Identification Number (or Charter Number) and (iv) the Borrower's
Federal Taxpayer Identification Number. The Borrower will not effect or permit
any change referred to in the preceding sentence unless all filings have been
made under the Uniform Commercial Code and all other actions have been taken
that are required so that such change will not at any time adversely affect the
validity, perfection or priority of any Transaction Lien on any of the
Collateral. The Borrower will also promptly notify the Administrative Agent if
any material portion of the Collateral is damaged or destroyed.
(b) Each year, at the time annual financial statements with respect to the
preceding Fiscal Year are delivered pursuant to Section 5.01(a)(i), the Borrower
will deliver to the Administrative Agent a certificate of a Financial Officer
and the chief legal officer (or other in-house counsel) of the Borrower (i)
setting forth the information required pursuant to Sections A.1, A.2 and B.1 of
the Perfection Certificate or confirming that there has been no change in such
information since the date of the Perfection Certificate delivered on the
Effective Date or the date of the most recent certificate delivered pursuant to
this subsection and (ii) certifying that all Uniform Commercial Code financing
statements (including fixture filings, as applicable) or other appropriate
filings, recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of
record in each appropriate office in each jurisdiction identified pursuant to
clause (i) above to the extent necessary to protect and perfect the Transaction
Liens for a period of at least 18 months after the date of such certificate
(except as noted therein with respect to any continuation statements to be filed
within such period).
(c) The Borrower will furnish to the Administrative Agent, the Collateral
Agent and the Co-Collateral Agent prompt written notice of the occurrence of any
"Termination Event" (as defined in the Effective Date Receivables Financing).
From and after the occurrence of any such Termination Event, the Borrower shall
furnish to the Administrative Agent and the Collateral
70
Agent a daily written report reflecting then current amortization of the
Effective Date Receivables Financing. On any date when the Effective Date
Receivables Financing shall have terminated and the payment of all obligations
owing by the Borrower and its Subsidiaries in respect thereof shall have been
paid in full, the Borrower shall provide prompt written notice thereof to the
Administrative Agent, the Collateral Agent and the Co-Collateral Agent.
(d) Upon the request of any Lender, the Borrower will furnish to the
Collateral Agent copies of any servicer reports that have been furnished to
JPMorgan Chase Bank or The Bank of Nova Scotia, in their respective capacities
as agents, under the Effective Date Receivables Financing.
Section 4.4. Existence; Conduct of Business. The Borrower will, and will
cause each of its Subsidiaries (other than any Unrestricted Subsidiary) to, do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and the rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.03.
Section 4.5. Payment of Obligations. The Borrower will, and will cause each
of its Subsidiaries (other than any Unrestricted Subsidiary) to, pay all of its
material Debt and other material obligations, including Tax liabilities, before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP, (c) such contest effectively
suspends collection of the contested obligation and the enforcement of any Lien
securing such obligation and (d) the failure to make payment pending such
contest would not reasonably be expected to result in a Material Adverse Effect.
Section 4.6. Maintenance of Properties. The Borrower will, and will cause
each of its Subsidiaries (other than any Unrestricted Subsidiary) to, maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
Section 4.7. Insurance. (a) The Borrower will, and will cause each of its
Subsidiaries (other than any Unrestricted Subsidiary) to maintain, at its sole
cost and expense, insurance coverage (x) as in effect on the date of the
Agreement and described in Schedule 5.07 or (y) otherwise with financially sound
and reputable insurers (which insurers shall be reasonably acceptable to the
Administrative Agent, the Collateral Agent and the Co-Collateral Agent) in such
amounts, and with such deductibles (including provisions for self-insurance), as
are set forth on Schedule 5.07
71
hereof. If at any time the Borrower is unable to maintain (or cause to be
maintained) such insurance coverage with the deductibles shown on Schedule 5.07
at favorable premiums, it shall so advise the Administrative Agent, the
Collateral Agent and the Co-Collateral Agent in writing at least 30 days prior
to the expiration of the then current policy (enclosing with such notice copies
of any proposals from insurers regarding the insurance coverage in question as
well as the Borrower's recommendations with respect thereto). The Administrative
Agent shall promptly (but in no event later than 15 days from receipt of such
notice) advise the Borrower of the requirements of the Administrative Agent
(which requirements shall be determined in good faith by mutual agreement among
the Administrative Agent, the Collateral Agent and the Co-Collateral Agent)
regarding such insurance coverage, and the Borrower shall be bound to adhere to
such requirements. If the Borrower at any time or times hereafter fails to
obtain or maintain the insurance coverage required pursuant to this Section 5.07
or to pay all premiums relating thereto, the Collateral Agent may at any time or
times thereafter obtain and maintain such required insurance coverage and pay
such premiums and take such other actions with respect thereto that the
Collateral Agent deems reasonably advisable. The Collateral Agent shall not have
any obligation to obtain insurance for the Borrower or any of its Subsidiaries
or to pay any premiums therefor. By doing so, the Collateral Agent shall not be
deemed to have waived any Default arising from failure of the Borrower to
maintain (or cause to be maintained) such insurance or to pay (or cause to be
paid) any premiums therefor. All sums so disbursed, including reasonable
attorneys' fees, court costs and other charges related thereto, shall be payable
on demand by the Borrower to the Administrative Agent and shall be additional
obligations hereunder secured by the Collateral. The Collateral Agent and the
Co-Collateral Agent reserve the right at any time upon any change in the
Borrower's risk profile to require additional insurance coverages and limits of
insurance to, in such Agents' reasonable opinion, adequately protect the
interests of the Lender Parties in all or any portion of the Collateral.
(b) Property damage policies maintained with respect to any Collateral
shall be endorsed or otherwise amended to include a lenders' loss payable
clause, in each case in favor of the Collateral Agent and providing for losses
thereunder to be payable to the Collateral Agent or its designee as loss payee
and (ii) a provision to the effect that none of the Administrative Agent, the
Collateral Agent, the Co-Collateral Agent nor any other Lender Party shall be a
coinsurer. Commercial general liability policies shall be endorsed to name the
Collateral Agent as an additional insured. Each such policy referred to in this
subsection also shall provide that it shall not be canceled, modified or not
renewed (i) by reason of nonpayment of premium except upon at least 10 days'
prior written notice thereof by the insurer to the Collateral Agent (giving the
Collateral Agent the right to cure defaults in the payment of premiums) or (ii)
for any other reason
72
except upon at least 30 days' prior written notice thereof by the insurer to the
Collateral Agent. The Borrower shall deliver to the Collateral Agent, prior to
the cancellation, modification or nonrenewal of any such policy of insurance, a
copy of a renewal or replacement policy (or other evidence of renewal of a
policy previously delivered to the Collateral Agent) together with evidence
reasonably satisfactory to the Collateral Agent of payment of the premium
therefor.
Section 4.8. Casualty and Condemnation. The Borrower will furnish to the
Administrative Agent, the Collateral Agent and the Lenders prompt written notice
of any casualty or other insured damage to any material portion of the
Collateral or the commencement of any action or proceeding for the taking of any
Collateral or any part thereof or interest therein under power of eminent domain
or by condemnation or similar proceeding.
Section 4.9. Proper Records; Rights to Inspect and Appraise. (a) The
Borrower will, and will cause each of its Subsidiaries (other than any
Unrestricted Subsidiary) to, keep proper books of record and account in which
complete and correct entries are made of all transactions relating to its
business and activities. The Borrower will, and will cause each of its
Subsidiaries (other than any Unrestricted Subsidiary) to, permit any
representatives designated by the Administrative Agent, the Collateral Agent,
the Co-Collateral Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
(b) The Borrower will, and will cause each of its Subsidiaries (other than
any Unrestricted Subsidiary) to, permit the Collateral Agent and/or the
Co-Collateral Agent and any representatives designated by either of them
(including any consultants, accountants, lawyers and appraisers retained by the
Collateral Agent) to conduct collateral reviews and evaluations and appraisals
of the assets included in the Borrowing Base and the Borrower's computation of
the Borrowing Base, all at such reasonable times and as often as reasonably
requested. The Borrower shall pay the documented fees and expenses of employees
of the Collateral Agent (including reasonable and customary internally allocated
fees of such employees incurred in connection with periodic collateral
evaluations and appraisals and internally allocated monitoring fees associated
with the Collateral Agent's "collateral agent services group" or similar body)
or any representatives (including any inventory appraisal firm) retained by the
Collateral Agent to conduct any such evaluation or appraisal; provided the
Borrower shall not be required to pay such fees and expenses of collateral
reviews and appraisals performed by the Collateral Agent and the Co-Collateral
Agent, except (i) in respect of one such collateral review and one such
appraisal performed by the Collateral Agent (or, at the option of the
Co-Collateral Agent,
73
by the Collateral Agent and the Co-Collateral Agent together) in any calendar
year, and (ii) in respect of up to four such collateral reviews and four such
appraisals performed by the Collateral Agent (or, at the option of the
Co-Collateral Agent, by the Collateral Agent and the Co-Collateral Agent
together) at such times as Facility Availability (calculated for purposes hereof
without giving effect to the Availability Block) is less than $100,000,000, and
(iii) in respect of any such collateral reviews and such collateral appraisals
performed by the Collateral Agent and the Co-Collateral Agent during the
continuance of a Default or Event of Default; and provided further that the
Borrower shall not be required to pay the fees and expenses of inventory
appraisal firms hired by the Collateral Agent, except (i) in respect of one
inventory appraisal per calendar year during the term of this Agreement, (ii) in
respect of up to four inventory appraisals per calendar year at such times as
Facility Availability (calculated for this purpose without giving effect to the
Availability Block) is less than $100,000,000, and (iii) in respect of any one
or more additional inventory appraisals conducted at the request of the
Collateral Agent during the continuance of a Default or Event of Default. The
Collateral Agent, the Co-Collateral Agent and any representative designated by
either of them to conduct such collateral reviews, evaluations and appraisals
shall, during any review, inspection or other activity performed at any of the
Borrower's plant sites, (x) be accompanied at all times by a plant safety
representative (and the Borrower hereby agrees to cause such a plant safety
representative to be available for such purpose at such reasonable hours as may
be requested and upon reasonable prior notice) and (y) comply at all times with
the Borrower's rules regarding safety and security to the extent that the
Collateral Agent, Co-Collateral Agent or representative has been notified of
such rules. In connection with any collateral monitoring or review and appraisal
relating to the computation of the Borrowing Base, the Borrower shall make
adjustments to the Borrowing Base (which may include maintaining additional
reserves or modifying the eligibility criteria for components of the Borrowing
Base) to the extent required by the Collateral Agent or the Required Lenders as
a result of any such monitoring, review or appraisal. The Collateral Agent and
the Co-Collateral Agent shall furnish to the Administrative Agent (for delivery
to each Lender) a copy of the final written collateral review or appraisal
report prepared in connection with such monitoring, review or appraisal.
Section 4.10. Compliance with Laws. The Borrower will, and will cause each
of its Subsidiaries (other than any Unrestricted Subsidiary) to, comply with all
laws, rules, regulations and orders of any Governmental Authority (including all
Environmental Laws and ERISA and the respective rules and regulations
thereunder) applicable to it or its property, other than such laws, rules or
regulations (a) the validity or applicability of which the Borrower or any
Subsidiary is contesting in good faith by appropriate proceedings or (b) the
failure to comply with which cannot reasonably be expected to result in a
Material Adverse Effect.
74
Section 4.11. Use of Proceeds and Letters of Credit. The proceeds of the
Revolving Loans and Swingline Loans will be used only to finance the general
corporate purposes (including working capital needs) of the Borrower. No part of
the proceeds of any Loan will be used, directly or indirectly, for any purpose
that entails a violation of any of the Regulations of the Federal Reserve Board,
including Regulations T, U and X. Letters of Credit will be requested and used
only to finance the general corporate purposes (including working capital needs)
of the Borrower, and will not be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Federal
Reserve Board, including regulations T, U and X.
Section 4.12. Further Assurances. (a) The Borrower will execute and deliver
any and all further documents, financing statements, agreements and instruments,
and take all such further actions (including the filing and recording of
financing statements and other documents), that may be required under any
applicable law, or that the Administrative Agent, the Collateral Agent or the
Required Lenders may reasonably request, to cause the Collateral Requirement to
be and remain satisfied, all at the Borrower's expense. The Borrower will
provide to the Collateral Agent, from time to time upon request, evidence
reasonably satisfactory to the Collateral Agent as to the perfection and
priority of the Transaction Liens created or intended to be created by the
Security Documents.
(b) If, on the date when all of the Commitments are terminated (whether
pursuant to Section 2.08 or otherwise), any Letter of Credit remains
outstanding, the Borrower shall deposit in the Cash Collateral Account on such
date an amount in cash equal to 102% of the total LC Exposure as of such date
plus any accrued and unpaid interest thereon. Any amount so deposited (including
any earnings thereon) will be withdrawn from the Cash Collateral Account by the
Administrative Agent and applied to pay LC Reimbursement Obligations as they
become due; provided that at such time as all outstanding Letters of Credit have
expired, and all LC Reimbursement Obligations (plus accrued and unpaid interest
thereon) have been paid in full, such amount, to the extent not therefore
applied, shall be returned to the Borrower.
Section 4.13. Amendments to Effective Date Receivables Financing. The
Borrower shall (a) provide the Administrative Agent and the Collateral Agent
with written notice of any proposed amendment, modification or other change to,
and each consent to a departure from, the terms or provisions of the Effective
Date Receivables Financing and (b) promptly following the effectiveness thereof,
provide the Administrative Agent and the Collateral Agent with a copy of each
such amendment, modification or other change to, and each such consent to a
departure from, the terms or provisions of the Effective Date Receivables
Financing. The Borrower shall not, without the prior written consent of the
Required
75
Lenders, amend, modify or otherwise change or obtain a consent to a departure
from (i) the definitions of "USS Credit Agreement" or "USS Security Agreement"
contained in the Receivables Purchase Agreement or (ii) any other provision of
(including by the addition of a provision) the Effective Date Receivables
Financing which could in any way impair the interests of the Lender Parties in
the Collateral.
Section 4.14. Designation of Subsidiaries. The Borrower's board of
directors may at any time designate any Restricted Subsidiary as an Unrestricted
Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided
that (i) immediately before and after such designation, no Default shall have
occurred and be continuing (including, without limitation, any Default as a
result of a breach of the covenants set forth in Sections 6.01, 6.02 and 6.04),
(ii) immediately after giving effect to such designation, the Borrower shall be
in compliance, on a pro forma basis, with the covenants set forth in Section
6.13 and Section 6.14 (and, as a condition precedent to the effectiveness of any
such designation, the Borrower shall deliver to the Administrative Agent a copy
of the board resolution giving effect to such designation and a certificate of a
Financial Officer setting forth in reasonable detail the calculations
demonstrating such compliance), (iii) no Subsidiary may be designated as an
Unrestricted Subsidiary under this Agreement unless it is, or will concurrently
become, an "Unrestricted Subsidiary" as defined in, and for all purposes of, the
Senior Unsecured Debt Documents and (iv) no Unrestricted Subsidiary may be
designated as a Restricted Subsidiary under this Agreement unless it is, or will
concurrently become, a "Restricted Subsidiary" as defined in, and for all
purposes of, the Senior Unsecured Debt Documents. The designation of any
Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an
investment by the Borrower therein at the date of designation in an amount equal
to the net book value of the Borrower's investment therein. The designation of
any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the
incurrence at the time of designation of any Debt or Liens of such Subsidiary
existing at such time.
ARTICLE 5
NEGATIVE COVENANTS
Until all the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or been cancelled and all LC
Disbursements have been reimbursed, the Borrower covenants and agrees with the
Lenders that:
76
Section 5.1. Debt; Certain Equity Securities. (a) The Borrower will not
create, incur, assume or permit to exist any Debt, except:
(i) Debt created under the Loan Documents;
(ii) other Debt that would be permitted to be incurred by the Borrower
pursuant to and in accordance with Section 4.12(b) of the Senior Unsecured
Debt Documents (as such Senior Unsecured Debt Documents are in effect on
the date of this Agreement, and without giving effect to any suspension or
release of the Borrower's obligation to comply with such Section 4.12(b)
which may occur pursuant to Section 4.9 of the Senior Unsecured Debt
Documents); and
(iii) other unsecured Debt in an aggregate principal amount not
exceeding $100,000,000 at any time outstanding, to the extent that the
Borrower would be permitted to incur such Debt pursuant to and in
accordance with Section 4.12(a) of the Senior Unsecured Debt Documents (as
such Senior Unsecured Debt Documents are in effect on the date of this
Agreement, and without giving effect to any suspension or release of the
Borrower's obligation to comply with such Section 4.12(a) which may occur
pursuant to Section 4.9 of the Senior Unsecured Debt Documents); provided
that all such Debt is on terms and conditions and subject to covenants
that, taken as a whole, are no more restrictive than the terms, conditions
and covenants contained in this Agreement; and provided further that the
aggregate principal amount of all such Debt having a final maturity date on
or before the Maturity Date does not exceed $25,000,000;
provided that, notwithstanding anything to the contrary in this Section
6.08(a), the Borrower will not create, incur, assume or permit to exist any Debt
arising from a Receivables Financing, except to the extent that the aggregate
amount of such Debt, together with the aggregate amount of Debt incurred by
Restricted Subsidiaries in reliance on Section 6.06(g), does not exceed
$600,000,000 (it being understood that for purposes of determining the amount of
Debt arising in connection with a Receivables Financing, Debt arising from
transactions among the Borrower and its Subsidiaries in connection therewith
shall be disregarded).
(b) The Borrower will not issue any preferred stock or other preferred
Equity Interests, which in either case, is subject to mandatory redemption at
any time prior to the first anniversary of the Maturity Date.
Section 5.2. Liens. The Borrower will not, and will not permit any of its
Subsidiaries (other than any Unrestricted Subsidiary) to, create or permit to
exist any Lien on any property now owned or hereafter acquired
77
by it, or assign or sell any income or revenues (including accounts receivable)
or rights in respect of any thereof, except:
(i) Liens on Collateral granted by the Borrower under the Security
Documents;
(ii) Permitted Liens;
(iii) any Lien on any property of the Borrower or any Restricted
Subsidiary existing on the date hereof and listed in Schedule 6.02;
provided that (A) such Lien shall not apply to any other property of the
Borrower or any Restricted Subsidiary and (B) such Lien shall secure only
those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(iv) any Lien existing on any property or asset before the acquisition
thereof by the Borrower or any Restricted Subsidiary or existing on any
property or asset of any Person that first becomes a Restricted Subsidiary
after the date hereof before the time such Person becomes a Restricted
Subsidiary; provided that (A) such Lien is not created in contemplation of
or in connection with such acquisition or such Person becoming a Restricted
Subsidiary, as the case may be, (B) such Lien will not apply to any other
property or asset of the Borrower or any Restricted Subsidiary and (C) such
Lien will secure only those obligations which it secures on the date of
such acquisition or the date such Person first becomes a Restricted
Subsidiary, as the case may be, and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
(v) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Restricted Subsidiary; provided that (A) the Debt
secured by such liens is permitted by Section 6.01, (B) such Liens and the
Debt secured thereby are incurred before or within 90 days after such
acquisition or the completion of such construction or improvement, (C) the
Debt secured thereby does not exceed 90% of the cost of acquiring,
constructing or improving such fixed or capital assets and (D) such Liens
will not apply to any other property of the Borrower or any Restricted
Subsidiary;
(vi) Liens to secure a Debt owing to the Borrower;
(vii) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by a Lien permitted by any of clauses (iii),
(iv) or (v) of this Section; provided that such Debt is not increased
(except by the amount of fees, expenses and premiums required to be paid in
78
connection with such refinancing, extension, renewal or refunding) and is
not secured by any additional assets;
(viii) Liens securing Debt arising out of a Receivables Financing;
(ix) Liens securing industrial revenue or pollution control bonds
issued by the Borrower (or prior to the Separation, by USX Corporation);
provided, however, that such Liens relate solely to the project being
financed and are removed within 90 days following completion of the project
being financed; and
(x) Liens not otherwise permitted by the foregoing clauses of this
Section 6.02 on assets not constituting Collateral, securing Debt in an
aggregate principal amount at any time outstanding not to exceed
$10,000,000.
Section 5.3. Fundamental Changes. (a) The Borrower will not, and will not
permit any of its Subsidiaries (other than any Unrestricted Subsidiary) to,
merge into or consolidate with any other Person, or liquidate or dissolve, or
permit any other Person to merge into or consolidate with it, except that, if at
the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing, (i) any Person organized under the laws of the
United States of America or one of its States or the District of Columbia may
merge into the Borrower in a transaction in which the Borrower is the surviving
corporation, (ii) any Person (other than the Borrower) organized under the laws
of the United States of America or one of its States or the District of Columbia
may merge into any Restricted Subsidiary in a transaction in which the surviving
entity is a Restricted Subsidiary and, (iii) any Restricted Subsidiary may
liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; provided that, if any such merger
involves a Person that is not a wholly owned Subsidiary immediately before such
merger, such merger shall not be permitted unless also permitted by Section
6.04.
(b) Neither the Borrower nor any Subsidiary (other than a Special Purpose
Financing Subsidiary or any Unrestricted Subsidiary) will engage to any material
extent in any business except businesses of the types conducted by the Borrower
and its respective Subsidiaries on the date of this Agreement and businesses
reasonably related, ancillary or complementary thereto.
Section 5.4. Investments, Loans, Advances, Guarantees and Acquisitions. (a)
The Borrower will not, and will not permit any of its Subsidiaries (other than
an Unrestricted Subsidiary) to, purchase, hold or acquire (including pursuant to
any merger with any Person that was not a
79
wholly owned Subsidiary before such merger) any Equity Interest in or evidence
of indebtedness or other security (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loan or advance
to, Guarantee any obligation of, or make or permit to exist any investment or
other interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(i) Permitted Investments and investments in cash;
(ii) investments existing on the date of this Agreement, which
investments (other than investments that, individually, do not exceed
$10,000,000) are listed in Schedule 6.04;
(iii) investments by the Borrower and its Restricted Subsidiaries in
Equity Interests in their respective Restricted Subsidiaries (or in any
Person that will, upon the making of such investment, become a Restricted
Subsidiary); provided that the aggregate amount of investments by the
Borrower in, and loans and advances by the Borrower to, and Guarantees by
the Borrower of Debt of, Restricted Subsidiaries permitted solely in
reliance on this clause (iii), taken together with the aggregate amount of
loans and advances made by the Borrower to Restricted Subsidiaries in
reliance on clause (iv), shall not exceed an amount at any time outstanding
equal to 5% of the Borrower's Net Worth (and, for purposes hereof, the
"Borrower's Net Worth" at any date shall be equal to the shareholders'
equity of the Borrower (other than any amount attributable to stock which
is required to be redeemed or is redeemable at the option of the holder, if
certain events or conditions occur or exist or otherwise) as determined by
reference to the financial statements of the Borrower then most recently
delivered pursuant to Section 5.01(a)(i) or Section 5.01(a)(ii));
(iv) loans or advances made by the Borrower to any Restricted
Subsidiary or made by any Restricted Subsidiary to the Borrower or any
other Restricted Subsidiary; provided that the amount of such loans and
advances made by the Borrower to Restricted Subsidiaries shall be subject
to the limitation set forth in clause 6.04(a)(iii) above and provided
further that the amount of such loans and advances made by a Restricted
Subsidiary to another Restricted Subsidiary shall be subject to the
limitations set forth in Section 6.06(c) and Section 6.06(e);
(v) investments by the Borrower in one or more Restricted Subsidiaries
(or in any Person that will, upon the making of such investment, become a
Restricted Subsidiary) in connection with the Borrower's sale or spin-off
of all or part of one or more lines of business (including, without
limitation, the Borrower's Tubular Line of Business
80
and/or the Borrower's StraightLine Lines of Business); provided that (x)
such sale or spin-off actually occurs within 360 days following the date of
any such investment, (y) the Leverage Ratio will not exceed 3.75:1.00 on a
pro forma basis after giving effect to such spin-off and (z) the Borrower
has delivered to the Administrative Agent financial projections (in form
and substance satisfactory to the Administrative Agent) demonstrating
compliance, after giving effect to such spin-off, with Sections 6.13 and
6.14 through and including September 30, 2002;
(vi) investments by the Borrower or a Restricted Subsidiary in a
Restricted Subsidiary in respect of ordinary cash management activities;
(vii) so long as no Default has occurred and is continuing,
investments by the Borrower or a Restricted Subsidiary in one or more
Restricted Subsidiaries, Unrestricted Subsidiaries (which investments in
Unrestricted Subsidiaries include, in accordance with Section 5.14, any
designation of a Subsidiary as an Unrestricted Subsidiary) or any other
Person; provided that the aggregate amount of all investments permitted by
this clause (vii) (excluding investments in Unrestricted Subsidiaries where
the consideration consists of Equity Interests of the Borrower, to the
extent of such Equity Interest consideration) shall not exceed $20,000,000
at any time outstanding;
(viii) Guarantees constituting Debt permitted by Section 6.01 and
Section 6.06; provided that the aggregate principal amount of Debt of
Subsidiaries that is Guaranteed by the Borrower shall be subject to the
limitation set forth in clause 6.04(a)(iii) above;
(ix) investments received in connection with (x) the bankruptcy,
reorganization or recapitalization of, or settlement of delinquent accounts
and disputes with, customers and suppliers or (y) foreclosure by the
Borrower or any of its Restricted Subsidiaries with respect to any secured
investment or other transfer of title with respect to any secured
investment in default, in each case in the ordinary course of business;
(x) receivables owing to the Borrower or any Restricted Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided, however,
that such trade terms may include such concessionary trade terms as the
Borrower or any such Restricted Subsidiary deems reasonable under the
circumstances;
(xi) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary course
of business;
81
(xii) loans or advances to employees made in the ordinary course
of business consistent with past practices of the Borrower or such
Restricted Subsidiary;
(xiii) investments in stock, obligations or securities received
in settlement of debts created in the ordinary course of business and owing
to the Borrower or any Restricted Subsidiary or in satisfaction of
judgments;
(xiv) investments in any Person to the extent such investment
represents the non-cash portion of the consideration received for an asset
sale permitted under Section 6.05(b), (e) or (f);
(xv) loans or advances to USS/POSCO Industries for repairs of
damages and business interruption caused by the fire that occurred on May
31, 2001 in an aggregate amount not to exceed $25,000,000; provided that to
the extent such loans or advances are not repaid with the proceeds of
insurance on or before June 30, 2003, (A) any such loans or advances made
by the Borrower shall be subject to the limitations set forth in Section
6.01 and (B) any such loans or advances made by a Restricted Subsidiary
shall be subject to the limitations set forth in Section 6.06(c);
(xvi) investments in the Borrower;
(xvii) investments in any Person if, as a result of such
investment, such other Person is merged with or consolidated into, or
transfers or conveys all or substantially all its assets to, the Borrower
or a Restricted Subsidiary, in each case subject to the limitations set
forth in Section 6.04(b); and
(xviii) Receivables Financings otherwise permitted under this
Agreement.
provided that the foregoing shall not prohibit a spin-off of a portion (not to
exceed 25%) of the Borrower's Tubular Line of Business if (A) of the aggregate
gross proceeds from such spin-off transaction (the "Total Spin-Off Proceeds"),
at least 75% is in the form of cash or cash equivalents ("Cash Spin-Off
Proceeds"), (B) Cash Spin-Off Proceeds are applied to permanently reduce Debt of
the Borrower to the extent the Borrower elects and (C) an amount equal to the
excess of (1) the Total Spin-Off Proceeds over (2) the amount of Cash Spin-Off
Proceeds applied within 45 days after receipt thereof to permanently reduce Debt
of the Borrower, shall increase the amount of the Availability Block (in
accordance with the definition of "Availability Block" set forth in Section
1.01).
82
(b) The Borrower will not, and will not permit any of its Subsidiaries
(other than an Unrestricted Subsidiary) to make any material acquisition unless
(i) immediately before and after giving effect thereto, no Default shall have
occurred and be continuing , (ii) in the case of any acquisition of a Person,
such acquisition is non-hostile, (iii) the assets received by the Borrower or
its Restricted Subsidiary in connection therewith are used or usable in the same
line of business in which the Borrower or such Restricted Subsidiary have
previously been engaged, (iv) immediately before and after giving effect
thereto, Facility Availability is at least $100,000,000 and (v) immediately
before and after giving effect thereto, the Borrower would be in pro forma
compliance with the covenants set forth in Section 6.13 and Section 6.14
(calculated giving effect to such acquisition as if it had been consummated on
the first day of the fiscal period with respect to which such covenant is
calculated).
Section 5.5. Asset Sales. The Borrower will not, and will not permit any of
its Subsidiaries (other than any Unrestricted Subsidiary) to, sell, transfer,
lease or otherwise dispose of any property, including any Equity Interest owned
by it, nor will any Subsidiary (other than an Unrestricted Subsidiary) issue any
additional Equity Interest in such Subsidiary, except:
(a) sales of inventory, used or surplus equipment and Permitted
Investments in the ordinary course of business;
(b) sales, transfers and other dispositions to the Borrower or a
Restricted Subsidiary; provided that the aggregate fair market value of all
assets sold or otherwise transferred to a Foreign Subsidiary in reliance on
this clause (b) shall not exceed $50,000,000; and provided further that any
sales, transfers or dispositions involving a Restricted Subsidiary are
entered into in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's business and
on fair and reasonable terms and conditions no less favorable to the
Borrower or such Subsidiary as the terms and conditions which would apply
in a comparable transaction on an arm's length basis with a Person other
than a Subsidiary or Affiliate of the Borrower;
(c) transfers of assets in connection with a Receivables Financing
that is otherwise permitted under this Agreement.
(d) sales, transfers and other dispositions of assets (except Equity
Interests in a Restricted Subsidiary) that are not permitted by any other
clause of this Section; provided that the aggregate fair market value of
all assets sold, transferred or otherwise disposed of in reliance on this
clause shall not exceed $25,000,000 during any Fiscal Year;
83
(e) sale of real property in the ordinary course of business;
(f) sales of real property that has not been used by the Borrower or
any Restricted Subsidiary in the production of steel or steel products at
any time within 90 days prior to the date of sale;
(g) sales that are permitted pursuant to Section 6.04(a)(v); and
(h) Sale-Leaseback Transactions permitted pursuant to Section 6.07.
provided that all sales, transfers, leases and other dispositions permitted by
this Section (except those permitted by clause (b), (e) or (f) above) shall be
made for fair value and solely for cash consideration and provided further that
any sale of real property having a value in excess of $10,000,000 that is
permitted by clause (e) or (f) of this Section shall be made for fair value and
for at least 10% cash consideration.
Section 5.6. Subsidiary Debt. The Borrower will not permit any of its
Restricted Subsidiaries to incur or otherwise be liable in respect of any Debt
other than:
(a) Debt of such Restricted Subsidiary existing on the date of this
Agreement and identified on Schedule 6.06, and refinancings, extensions,
renewals or refundings of such Debt that do not increase the outstanding
principal amount thereof or result in an earlier maturity date or decreased
weighted average life thereof;
(b) Debt of such Restricted Subsidiary owing to the Borrower;
(c) Debt of such Restricted Subsidiary owing to a Domestic Subsidiary that
is a Restricted Subsidiary; provided that the aggregate amount for all
Subsidiaries of all Debt permitted by this clause (c) shall not exceed
$50,000,000 at any time outstanding and provided further that the aggregate
amount for all Foreign Subsidiaries of all Debt permitted by this clause (c)
shall not exceed $25,000,000 at any time outstanding;
(d) Debt of such Restricted Subsidiary in respect of capital leases;
provided that the aggregate amount for all Restricted Subsidiaries of all such
Debt permitted by this clause (d) shall not exceed $20,000,000;
(e) Debt of such Restricted Subsidiary owing to a Foreign Subsidiary that
is a Restricted Subsidiary; provided that the aggregate amount for all
Restricted Subsidiaries (other than Foreign Subsidiaries) of all such Debt shall
not exceed $5,000,000;
84
(f) Debt of any Person that first becomes a Restricted Subsidiary after the
date of this Agreement; provided that (i) such Debt exists at the time such
Person first becomes a Restricted Subsidiary and is not created in contemplation
of or in connection with such Person becoming a Restricted Subsidiary and (ii)
the aggregate principal amount of Debt permitted by this clause (f) shall not
exceed $50,000,000 at any time outstanding;
(g) Debt arising from Receivables Financings; provided that the aggregate
amount for all Restricted Subsidiaries of such Debt shall not exceed
$600,000,000 (it being understood that for purposes of determining the amount of
Debt arising in connection with a Receivables Financing, Debt arising from
transactions among the Borrower and its Subsidiaries in connection therewith
shall be disregarded);
(h) Debt of any Restricted Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital
Lease Obligations and any Debt assumed in connection with the acquisition of any
such assets or secured by a Lien on any such assets before the acquisition
thereof, and extensions, renewals and replacements of any such Debt that do not
increase the outstanding principal amount thereof or result in an earlier
maturity date or decreased weighted average life thereof; provided that (A) such
Debt is incurred before or within 90 days after such acquisition or the
completion of such construction or improvement and (B) the aggregate principal
amount of Debt permitted by this clause (h) shall not exceed $25,000,000 at any
time outstanding;
(i) Debt of such Subsidiary owing to another Subsidiary in respect of
ordinary cash management activities; and
(j) Debt of USSK incurred pursuant to one or more working capital
facilities in an aggregate amount not to exceed $50,000,000 at any time
outstanding.
Section 5.7. Sale and Leaseback Transactions. The Borrower will not, and
will not permit any of its Subsidiaries (other than any Unrestricted Subsidiary)
to, enter into any arrangement, directly or indirectly, whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property that it intends to use for substantially the same purpose or
purposes as the property sold or transferred (a "Sale-Leaseback Transaction"),
except for Sale-Leaseback Transactions, that, considered in the aggregate with
all Sale-Leaseback Transactions engaged in by the Borrower and its Restricted
Subsidiaries during the term of this Agreement, do not involve properties having
a fair market value in excess of $150,000,000; provided that all obligations
85
under such sale-leaseback agreements shall constitute Debt for purposes of
calculating compliance with the covenants set forth in this Article 6.
Section 5.8. Restricted Payments. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, declare or make, or agree to pay
or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, unless (a) Facility Availability is equal to
or greater than $100,000,000 (both immediately before and after giving effect to
such Restricted Payment) and (b) the Borrower is in compliance with the
covenants set forth in Sections 6.13 and 6.14 immediately before and after
giving effect to such Restricted Payment; provided that, notwithstanding the
foregoing, the Borrower may (i) pay regular quarterly dividends on its capital
stock in an aggregate amount not exceeding $40,000,000 in any Fiscal Year and
(ii) make other Restricted Payments in the ordinary course of business as
required pursuant to and in accordance with the Borrower's stock option plans or
other benefit plans for management and/or employees of the Borrower.
Section 5.9. Transactions with Affiliates. The Borrower will not, and will
not permit any of its Subsidiaries (other than any Unrestricted Subsidiary) to,
directly or indirectly, pay any funds to or for the account of, make any
investment (whether by acquisition of stock or indebtedness, by loan, advance,
transfer of property, Guarantee or other agreement to pay, purchase or service,
directly or indirectly, any Debt, or otherwise) in, Guarantee any Debt of, sell,
lease or otherwise transfer any property to, or purchase, lease or otherwise
acquire any property or services from, or otherwise engage in or effect any
other transaction with, any of its Affiliates; provided that this Section 6.09
shall not prohibit:
(i) the Borrower or any of its Restricted Subsidiaries from performing
its respective obligations under the agreements and transactions described
on Schedule 6.09;
(ii) the Borrower or any of its Restricted Subsidiaries from entering
into transactions with any Affiliate if such transactions are entered into
in the ordinary course of business and pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's business and on fair
and reasonable terms and conditions no less favorable to the Borrower or
such Subsidiary as the terms and conditions which would apply in a
comparable transaction on an arm's length basis with a Person other than an
Affiliate or a Subsidiary; and
(iii) Restricted Payments permitted by Section 6.08, so long as,
immediately after giving effect thereto, no Default shall have occurred and
be continuing.
86
Section 5.10. Restrictive Agreements. The Borrower will not and will not
permit any of its Subsidiaries (other than any Unrestricted Subsidiary) to,
directly or indirectly, enter into or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition on (a) the
ability of the Borrower or any Restricted Subsidiary to create or permit to
exist any Lien on any of its property or (b) the ability of any Restricted
Subsidiary to pay dividends or other distributions with respect to any shares of
its capital stock or to make or repay loans or advances to the Borrower or any
other Restricted Subsidiary or to Guarantee Debt of the Borrower or any other
Restricted Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by any Loan Document, any Senior
Unsecured Debt Document or any document evidencing any Receivables Financing,
(ii) the foregoing shall not apply to restrictions and conditions existing on
the date hereof and identified on Schedule 6.10 (but shall apply to any
amendment or modification expanding the scope of , or any extension or renewal
of, any such restriction or condition), (iii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided that such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iv) clause (a) of this Section shall not apply to
restrictions or conditions imposed by any agreement relating to secured Debt
permitted by this Agreement if such restrictions or conditions apply only to the
property securing such Debt and (v) clause (a) of this Section shall not apply
to customary provisions in leases and other contracts restricting the assignment
thereof.
Section 5.11. Designation of Unrestricted Subsidiaries. The Borrower will
not cause or permit any Subsidiary that is a Restricted Subsidiary on the date
of this Agreement to be designated as or otherwise become an Unrestricted
Subsidiary.
Section 5.12. Capital Expenditures. The Borrower will not permit the
aggregate amount of Capital Expenditures made by the Borrower and its Restricted
Subsidiaries (other than Foreign Subsidiaries) in any Fiscal Year referred to
below (or other fiscal period referred to below) to exceed the sum of:
(i) $145,000,000 (in the case of the period of two consecutive Fiscal
Quarters ending December 31, 2001), $380,000,000 (in the case of the Fiscal
Year ending December 31, 2002), $340,000,000 (in the case of the Fiscal
Year ending December 31, 2003) or $400,000,000 (in the case of the Fiscal
Year ending December 31, 2004); plus
(ii) for each Fiscal Year ending after December 31, 2001, the amount
(if any) by which (x) the amount of Capital Expenditures for the
87
immediately preceding Fiscal Year (or other fiscal period specified in
clause (i)) permitted pursuant to clause (i) above (without including any
carryover amount from any prior Fiscal Year or fiscal period) exceeded (y)
the amount of Capital Expenditures actually made during such immediately
preceding Fiscal Year (or other fiscal period specified in clause (i));
provided that, in any Fiscal Year ending after December 31, 2001, the aggregate
amount of Capital Expenditures made by the Borrower and its Restricted
Subsidiaries (other than Foreign Subsidiaries) may exceed the sum determined
pursuant to clauses (i) and (ii) above for such Fiscal Year (such sum, the
"General CapEx Limit" for such Fiscal Year) by an aggregate amount not to exceed
$75,000,000, if (but only to the extent that) immediately after giving effect to
each Capital Expenditure that would, taken together with all prior Capital
Expenditures made by the Borrower and its Restricted Subsidiaries (other than
Foreign Subsidiaries) during such Fiscal Year, exceed the General CapEx Limit,
Facility Availability would be greater than $200,000,000.
Section 5.13. Interest Expense Coverage Ratio. At the last day of any
Fiscal Quarter ending during any period set forth below, the Borrower will not
permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Cash Interest
Expense, in each case for any period of four consecutive Fiscal Quarters
(subject to Section 6.15) ending on such date, to be less than the ratio set
forth below opposite such period:
Period Ratio
September 30, 2002 - March 30, 2003 2.00:1.00
March 31, 2003 and thereafter 2.50:1.00
Section 5.14. Leverage Ratio. The Borrower will not permit the Leverage
Ratio at any time during any period set forth below to exceed the ratio set
forth opposite such period:
Period Ratio
September 30, 2002 - December 30, 2002 6.00:1.00
December 31, 2002 - March 30, 2003 5.50:1.00
March 31, 2003 - June 29, 2003 5.00:1.00
June 30, 2003 - September 29, 2003 4.50:1.00
September 30, 2003 - March 30, 2004 4.00:1.00
March 31, 2004 and thereafter 3.75:1.00
88
Section 5.15. Periods of Less Than Four Fiscal Quarters. If any
determination hereunder is required by the terms hereof to be made for a period
of four consecutive Fiscal Quarters at a time when fewer than four full Fiscal
Quarters have elapsed since the Effective Date, such determination shall be made
for the period elapsed from the first day of the first Fiscal Quarter beginning
after the Effective Date through the last day of the most recent Fiscal Quarter
then ended (annualized on a simple arithmetic basis, if such determination is to
be used in a ratio with a balance sheet item).
Section 5.16. Hedging Agreements. The Borrower will not, and will not
permit any of its Subsidiaries (other than any Unrestricted Subsidiary) to,
enter into any Hedging Agreement, except Hedging Agreements entered into in the
ordinary course of business to hedge or mitigate risks to which the Borrower or
any of its Restricted Subsidiaries is exposed in the conduct of its business or
the management of its liabilities.
Section 5.17. Environmental Matters. The Borrower will, and will cause each
of its Subsidiaries (other than any Unrestricted Subsidiary) to, comply with all
applicable Environmental Laws except where failure to do so, individually or in
the aggregate, does not, and would not reasonably be expected to, have a
material adverse effect on the Borrower's ability to perform its obligations
under any Loan Document or impose any liability on any Lender.
Section 5.18. Amendment of Material Documents. The Borrower will not, and
will not permit any of its Subsidiaries (other than, with respect to clause (b)
hereof, any Unrestricted Subsidiary) to, without the prior written consent of
the Required Lenders, amend, modify or waive any of its rights under (a) any
Senior Unsecured Debt Document or (b) its certificate of formation, limited
liability company agreement, certificate of incorporation, by-laws or other
organizational documents, in each case in any manner that would reasonably be
expected to be adverse to the Lender Parties.
ARTICLE 6
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any LC
Reimbursement Obligation when the same shall become due, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
89
(b) the Borrower shall fail to pay when due any interest on any Loan
or any fee or other amount (except an amount referred to in clause (a)
above) payable under any Loan Document, and such failure shall continue
unremedied for a period of five days;
(c) any representation, warranty or certification made or deemed made
by or on behalf of the Borrower or any Restricted Subsidiary in or in
connection with any Loan Document or any amendment or modification thereof
or waiver thereunder, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder,
shall prove to have been incorrect when made or deemed made and, if the
circumstances giving rise to such false or misleading representation or
warranty are susceptible to being cured in all material respects, such
false or misleading representation or warranty shall not be cured in all
material respects for five days after the earlier to occur of (i) the date
on which an officer of the Borrower shall obtain knowledge thereof, or (ii)
the date on which written notice thereof shall have been given to the
Borrower by the Administrative Agent;
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in Section 5.01(a)(ii), Section 5.01(a)(iv), Section
5.02, Section 5.03(c), Section 5.04, Sections 5.06 through 5.08, Sections
5.11 through 5.14 or in Article 6;
(e) the Borrower shall fail to observe or perform (i) any covenant or
agreement contained in Section 5.01(b) or Section 5.03(d) and such failure
shall continue for 3 days after the earlier of notice of such failure to
the Borrower from the Administrative Agent or knowledge of such failure by
an officer of the Borrower, or (ii) any covenant or agreement contained in
Section 5.01(a)(i), Section 5.01(a)(iii), Sections 5.01(a)(v) through
5.01(a)(xi), Section 5.03(a), Section 5.03(b) and such failure shall
continue for ten days after the earlier of notice of such failure to the
Borrower from the Administrative Agent or knowledge of such failure by an
officer of the Borrower;
(f) the Borrower shall fail to observe or perform any provision of any
Loan Document (other than those failures covered by clauses (a), (b), (d)
and (e) of this Article 7) and such failure shall continue for 30 days
after the earlier of notice of such failure to the Borrower from the
Administrative Agent or knowledge of such failure by an officer of the
Borrower;
(g) the Borrower or any of its Restricted Subsidiaries shall fail to
make a payment or payments (whether of principal or interest and regardless
of amount) in respect of any Material Debt when the same shall
90
become due, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;
(h) any event or condition occurs that (i) results in any Material
Debt becoming due before its scheduled maturity or (ii) enables or permits
(with or without the giving of notice, the lapse of time or both) the
holder or holders of Material Debt or any trustee or agent on its or their
behalf to cause any Material Debt to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, before its
scheduled maturity or (iii) results in the termination of or enables one or
more banks or financial institutions to terminate commitments to provide in
excess of $20,000,000 aggregate principal amount of credit to the Borrower
and/or its Restricted Subsidiaries; provided that, in the case of any event
described in clauses (ii) or (iii) that would permit Material Debt to be
accelerated or would permit termination of such commitments only after the
lapse of a cure period, so long as the Borrower has notified the
Administrative Agent immediately upon occurrence of such event, such event
shall give rise to an Event of Default hereunder upon expiration of such
cure period;
(i) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any of its Significant Subsidiaries or
its debts, or of a substantial part of its assets, under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower
or any of its Significant Subsidiaries or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;
(j) the Borrower or any of its Significant Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or petition described in
clause (h) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for any the Borrower or any of its Significant Subsidiaries or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;
91
(k) the Borrower or any of its Significant Subsidiaries shall become
unable, admit in writing its inability or fail generally to pay its debts
as they become due;
(l) one or more judgments for the payment of money in an aggregate
amount exceeding $20,000,000 shall be rendered against the Borrower or any
of its Significant Subsidiaries and shall remain undischarged for a period
of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to
attach or levy upon any asset of the Borrower or any of its Significant
Subsidiaries to enforce any such judgment;
(m) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, would reasonably be expected to result in a Material Adverse
Effect;
(n) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by the Borrower not to be, a valid and
perfected Lien on any Collateral, with the priority required by the
applicable Security Document, except as a result of a sale or other
disposition of the applicable Collateral in a transaction permitted under
the Loan Documents; or
(o) the Effective Date Receivables Financing (or any replacement
Receivables Financing entered into in accordance with this Agreement and on
terms satisfactory to the Administrative Agent) shall have been terminated,
whether voluntarily or otherwise; provided that any such termination of the
Effective Date Receivables Financing (or any such replacement Receivables
Financing) shall not constitute an Event of Default hereunder if (a) the
Effective Date Receivables Financing (or such replacement Receivables
Financing) has been replaced with another Receivables Financing on terms
satisfactory to the Administrative Agent or (b) Facility Availability
(calculated on the date of termination of the Effective Date Receivables
Financing) is equal to or greater than 125% of the aggregate amount of the
outstandings under the Effective Date Receivables Financing (or such
replacement Receivables Financing) (calculated immediately before giving
effect to its termination);
then, and in every such event (except an event with respect to the Borrower
described in clause (h) or (i) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to
92
be due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are waived by the Borrower; and in the case of any event with
respect to the Borrower described in clause (h) or (i) above, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
waived by the Borrower. Additionally, and without limiting the generality of the
foregoing, on each Business Day during a Sweep Period (as defined in the
Security Agreement), the Collateral Agent may apply funds on deposit in the Cash
Collateral Account in accordance with Section 5(f) of the Security Agreement.
ARTICLE 7
THE AGENTS
Section 7.1. Appointment and Authorization. Each Lender Party irrevocably
appoints each Agent as its agent and authorizes each Agent to take such actions
as agent on its behalf and to exercise such powers as are delegated to the Agent
by the terms of the Loan Documents, together with such actions and powers as are
reasonably incidental thereto.
Section 7.2. Rights and Powers as a Lender. Each Agent shall, in its
capacity as a Lender, have the same rights and powers as any other Lender and
may exercise or refrain from exercising the same as though it were not one of
the Agents. Each Agent and its Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with the Borrower or any
Subsidiary or Affiliate of the Borrower as if it were not an Agent hereunder.
Section 7.3. Limited Duties and Responsibilities . None of the Agents shall
have any duties or obligations except those expressly set forth in the Loan
Documents. Without limiting the generality of the foregoing, (a) none of the
Agents shall be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) none of the Agents shall
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated by the
Loan Documents that such Agent is required in writing to exercise by the
93
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (c) except
as expressly set forth in the Loan Documents, none of the Agents shall have any
duty to disclose, or shall be liable for any failure to disclose, any
information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the Agent or any of its Affiliates in any
capacity. None of the Agents shall be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or wilful misconduct. Each Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to
such Agent by the Borrower or a Lender, and none of the Agents shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered thereunder
or in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article 4 or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to such Agent.
Section 7.4. Authority to Rely on Certain Writings, Statements and Advice.
Each Agent shall be entitled to rely on, and shall not incur any liability for
relying on, 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. Each Agent also may rely on 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. Each Agent may consult
with legal counsel (who may be counsel for the Borrower), 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.
Section 7.5. Sub-Agents and Related Parties. Each Agent may perform any and
all its duties and exercise its rights and powers by or through one or more
sub-agents appointed by it. Each 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 Sections of this
Article shall apply to any such sub-agent and to the Related Parties of each
Agent and any such sub-agent, and shall apply to activities in connection with
the syndication of the
94
credit facilities provided for herein as well as activities as an Agent
hereunder.
Section 7.6. Resignation; Successor Agents. Subject to the appointment and
acceptance of a successor Agent as provided in this Section, any Agent may
resign at any time (and, upon the request of the Required Lenders, JPMorgan
Chase Bank will so resign) by notifying the Lenders, the LC Issuing Bank and the
Borrower. Upon any such resignation, the Required Lenders shall have the right,
in consultation with the Borrower, to appoint a successor Agent; provided that
consultation with the Borrower shall not be required if an Event of Default
shall have occurred and be continuing. If no successor Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders and the LC Issuing Bank,
appoint a successor Agent which shall be a bank or financial institution with an
office in New York, New York, or an Affiliate of any such bank or financial
institution. Upon acceptance of its appointment as Agent hereunder by a
successor Agent, such successor Agent shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
The fees payable by the Borrower to a successor Agent shall be the same as those
payable to its predecessor unless otherwise agreed by the Borrower and such
successor Agent. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Agent was acting as an Agent hereunder.
Section 7.7. Credit Decisions by Lenders. Each Lender acknowledges that it
has, independently and without reliance on any Agent or any other Lender Party
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 on any Agent
or any other Lender Party 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 on this Agreement, any other Loan
Document or related agreement or any document furnished hereunder or thereunder.
Section 7.8. Agents' Fees. The Borrower shall pay to each Agent for its own
account fees in the amounts and at the times previously agreed upon by the
Borrower and such Agent.
95
Section 7.9. Documentation Agent and Co-Collateral Agent. General Electric
Capital Corporation, in its capacities as Documentation Agent and Co-Collateral
Agent, shall not have any duties or obligations of any kind under this
Agreement.
ARTICLE 8
MISCELLANEOUS
Section 8.1. 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 Borrower, to it at 000 Xxxxx Xxxxxx, Xxxx 0000,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention of Treasurer (Facsimile No. (412)
433-4567;
(b) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and
Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Xxxxx X. Xxxx (Facsimile No. 000-000-0000; with a
copy to JPMorgan Chase Bank, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Xxxxx Xxxxxx (Facsimile No. (000) 000-0000);
(c) if to the Collateral Agent, to JPMorgan Chase Bank, 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx
Xxxxxx-Xxxxxxxxxx (Facsimile No. (000) 000-0000);
(d) if to the Co-Collateral Agent, to General Electric Capital
Corporation, 000 Xxxxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000,
Attention of Account Manager - United States Steel (Facsimile No. (203)
852-3660);
(e) if to JPMorgan Chase Bank, as LC Issuing Bank, to it at 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxxx Xxxxxxx
(Facsimile No. (000) 000-0000); if to PNC Bank, National Association, as LC
Issuing Bank, to it at Firstside Center, 000 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxxx, XX 00000, Attention of Xxxx Xxxxxxxx (Facsimile No. (412)
768-6118); if to Mellon Bank, N.A., as LC Issuing Bank, to it at 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, XX 00000-0000, Attention of Xxx Xxxxxxx
(Facsimile No. (000) 000-0000);
96
(f) if to the Swingline Lender, to it at One Chase Manhattan Plaza,
8th Fl, Xxx Xxxx, XX 00000, Attention of Xxxxx X. Xxxx (Facsimile No. (212)
552-7490);
(g) if to any other Lender, to it at its address (or facsimile 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 Administrative Agent and the Borrower.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement will be deemed to have been given on the
date of receipt.
Section 8.2. Waivers; Amendments. (a) No failure or delay by any Lender
Party in exercising any right or power hereunder or under any other Loan
Document 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 Lender Parties under the Loan Documents are cumulative and are not exclusive
of any rights or remedies that they would otherwise have. No waiver of any
provision of any Loan Document or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
subsection (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, neither the making of a Loan
nor the issuance, amendment, renewal or extension of a Letter of Credit shall be
construed as a waiver of any Default, regardless of whether any Lender Party had
notice or knowledge of such Default at the time.
(b) No Loan Document or provision thereof may be waived, amended or
modified except, in the case of this Agreement, by an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or, in the case of
any other Loan Document, by an agreement or agreements in writing entered into
by the parties thereto with the consent of the Required Lenders; provided that
no such agreement shall:
(i) increase the Commitment of any Lender without its written consent;
(ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fee payable hereunder,
without the written consent of each Lender Party affected thereby;
(iii) postpone the maturity of any Loan, or the required date of
97
any mandatory payment of principal (including without limitation pursuant
to Section 2.10(b), or the required date of reimbursement of any LC
Disbursement, or any date for the payment of any interest or fee 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 Party affected thereby;
(iv) change Section 2.18(b) or 2.18(c) in a manner that would alter
the pro rata sharing of payments required thereby, without the written
consent of each Lender;
(v) change any provision of this Section or the percentage set forth
in the definition of "Required Lenders" or any other provision of any Loan
Document specifying the number or percentage of Lenders required to take
any action thereunder, without the written consent of each Lender;
(vi) release all or any substantial portion of the Collateral from the
Transaction Liens, without the written consent of each Lender (it being
understood that, for purposes of this Section 9.02(b)(vi), a release of
Collateral comprising 10% or more of the Borrowing Base in effect on the
date of such release shall constitute release of a substantial portion of
Collateral);
(vii) reduce the amount of the Availability Block, without the written
consent of each Lender;
(viii) increase the Borrowing Base advance rates, eliminate or reduce
Availability Reserves or otherwise cause the Borrowing Base to be
increased, without the written consent of Lenders having aggregate
Exposures and unused Commitments representing at least 85% of the sum of
all Exposures and unused Commitments at such time;
(ix) increase the aggregate amount of the Commitments by an amount in
excess of the amount permitted pursuant to Section 2.20(c), or amend
Section 2.20(c) to permit increases in the aggregate Commitments in excess
of an aggregate amount equal to $150,000,000 during the term of this
Agreement, without the written consent of Lenders having aggregate
Exposures and unused Commitments representing at least 75% of the sum of
all Exposures and unused Commitments at such time; or
(x) unless signed by a Designated Lender or its Designating Lender,
subject such Designated Lender to any additional obligation or affect its
rights hereunder (unless the rights of all the Lenders are similarly
affected); and
98
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of any Agent, the LC Issuing Bank or the Swingline Lender
without its prior written consent; and provided further that neither a reduction
or termination of Commitments pursuant to Section 2.08 or 2.11, nor an increase
in Commitments pursuant to Section 2.20, constitutes an amendment, waiver or
modification for purposes of this Section 9.02.
(c) Notwithstanding the foregoing, if the Required Lenders enter into or
consent to any waiver, amendment or modification pursuant to subsection (b) of
this Section, no consent of any other Lender will be required if, when such
waiver, amendment or modification becomes effective, (i) the Commitment of each
Lender not consenting thereto terminates and (ii) all amounts owing to it or
accrued for its account hereunder are paid in full.
Section 8.3. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay
(i) all reasonable and documented out-of-pocket expenses incurred by each Agent
and its Affiliates, including the reasonable fees, charges and disbursements of
Xxxxx Xxxx & Xxxxxxxx, special counsel for the Administrative Agent, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of the Loan Documents and any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable and documented out-of-pocket expenses incurred by the LC Issuing Bank
in connection with the issuance, amendment, renewal or extension of any Letter
of Credit or any demand for payment thereunder and (iii) all out-of-pocket
expenses incurred by any Lender Party, including the fees, charges and
disbursements of any counsel for any Lender Party, in connection with the
enforcement or protection of its rights in connection with the Loan Documents
(including its rights under this Section), the Letters of Credit or the Loans,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of the Letters of Credit or the Loans.
(b) The Borrower shall indemnify each of the Lender Parties and their
respective Related Parties (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of 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 any Loan Document or any other agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Financing
Transactions or any other transactions contemplated hereby, (ii) any Loan or
Letter of Credit or the use of the proceeds therefrom (including any refusal by
the
99
LC Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property currently or formerly owned or
operated by the Borrower or any Subsidiary, 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 (i) such indemnity shall not be
available to any Indemnitee to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from such
Indemnitee's gross negligence or wilful misconduct; (ii) such indemnity shall
not be available to any Indemnitee for losses, claims, damages, liabilities or
related expenses arising out of a proceeding in which such Indemnitee and the
Borrower are adverse parties to the extent that the Borrower prevails on the
merits, as determined by a court of competent jurisdiction (it being understood
that nothing in this Agreement shall preclude a claim or suit by the Borrower
against any Indemnitee for such Indemnitee's failure to perform any of its
obligations to the Borrower under the Loan Documents); (iii) the Borrower shall
not, in connection with any such proceeding or related proceedings in the same
jurisdiction and in the absence of conflicts of interest, be liable for the fees
and expenses of more than one law firm at any one time for the Indemnitees
(which law firm shall be selected (x) by mutual agreement of the Administrative
Agent and the Borrower or (y) if no such agreement has been reached following
the Administrative Agent's good faith consultation with the Borrower with
respect thereto, by the Administrative Agent in its sole discretion); (iv) each
Indemnitee shall give the Borrower (x) prompt notice of any such action brought
against such Indemnitee in connection with a claim for which it is entitled to
indemnity under this Section and (y) an opportunity to consult from time to time
with such Indemnitee regarding defensive measures and potential settlement; and
(v) the Borrower shall not be obligated to pay the amount of any settlement
entered into without its written consent (which consent shall not be
unreasonably withheld).
(c) To the extent that the Borrower fails to pay any amount required to be
paid by it to any Agent, the LC Issuing Bank or the Swingline Lender under
subsection (a) or (b) of this Section, each Lender severally agrees to pay to
such Agent, the LC Issuing Bank or the Swingline Lender, as the case may be,
such Lender's pro rata share (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 such Agent, the LC Issuing Bank or the Swingline Lender in its capacity
as such. For purposes hereof, a Lender's "pro rata share" shall be determined
based on its share of the sum of the total Exposures and unused Commitments at
the time.
100
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and each 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 Financing Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable within five
Business Days after written demand therefor.
Section 8.4. Successors and Assigns. (a) The provisions of this Agreement
shall be binding on and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
the LC Issuing Bank that issues any Letter of Credit), except that the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (except the parties hereto, their respective successors and
assigns permitted hereby (including any Affiliate of the LC Issuing Bank that
issues any Letter of Credit) and, to the extent expressly provided herein, the
Related Parties of the Lender Parties) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) 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 any
Commitment it has at the time and any Loans at the time owing to it); provided
that:
(i) except in the case of an assignment to a Lender or a Lender
Affiliate, each of the Borrower and the Administrative Agent (and, in the
case of an assignment of all or a portion of a Commitment or any Lender's
obligations in respect of its LC Exposure or Swingline Exposure, the LC
Issuing Bank and the Swingline Lender) must give their prior written
consent to such assignment (which consents shall not be unreasonably
withheld);
(ii) 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;
(iii) unless each of the Borrower and the Administrative Agent
otherwise consent, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date on which
the relevant Assignment is delivered to the Administrative
101
Agent) shall not be less than $5,000,000; provided that this clause (iii)
shall not apply to an assignment to a Lender or a Lender Affiliate or an
assignment of the entire remaining amount of the assigning Lender's
Commitment or Loans;
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment, together with a processing and
recordation fee of $3,500; provided that only one such fee shall be due in
respect of a simultaneous assignment to more than one Lender Affiliate; and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent a completed Administrative Questionnaire;
and provided further that any consent of the Borrower otherwise required under
this subsection shall not be required if an Event of Default has occurred and is
continuing. Subject to acceptance and recording thereof pursuant to subsection
(d) of this Section, from and after the effective date specified in each
Assignment the assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment, be released from its
obligations under this Agreement (and, in the case of an Assignment 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 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this subsection 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
subsection (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in New York City a copy of each
Assignment delivered to it and a register for the recordation of the names and
addresses of the Lenders, their respective Commitments and the principal amounts
of the Loans and LC Disbursements owing to each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive (absent manifest error), and the parties hereto may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by any party hereto at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment executed by an
102
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 subsection (b) of this Section and
any written consent to such assignment required by subsection (b) of this
Section, the Administrative Agent shall accept such Assignment 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 subsection.
(e) Any Lender may, without the consent of the Borrower or any other Lender
Party, sell participations to one or more banks or other entities
("Participants") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower and the other Lender Parties 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 the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; 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 clause (i), (ii), (iii) or (vii) of the first proviso to Section
9.02(b) that affects such Participant. Subject to subsection (f) of this
Section, each Participant shall be entitled to the benefits of Sections 2.15,
2.16 and 2.17 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 9.09 as though it were a Lender, provided that such Participant agrees
to be subject to Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 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 Borrower'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 2.17 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.17(e) as
though it were a Lender.
(g) 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
103
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 8.5. Designated Lenders. (a) Subject to the provisions of this
Section 9.05(a), any Lender may from time to time elect to designate an Eligible
Designee to provide all or a portion of the Loans to be made by such Lender
pursuant to this Agreement; provided that such designation shall not be
effective unless the Borrower and the Administrative Agent consent thereto. When
a Lender and its Eligible Designee shall have signed an agreement substantially
in the form of Exhibit H hereto (a "Designation Agreement") and the Borrower and
the Administrative Agent shall have signed their respective consents thereto,
such Eligible Designee shall become a Designated Lender for purposes of this
Agreement. The Designating Lender shall thereafter have the right to permit such
Designated Lender to provide all or a portion of the loans to be made by such
Designating Lender pursuant to Section 2.01 and the making of such Loans or
portions thereof shall satisfy the obligation of the Designating Lender to the
same extent, and as if, such Loans or portion thereof were made by the
Designating Lender. As to any Loans or portion thereof made by it, each
Designated Lender shall have all the rights that a Lender making such Loans or
portion thereof would have had under this Agreement and otherwise; provided that
(x) its voting rights under this Agreement shall be exercised solely by its
Designating Lender and (y) its Designating Lender shall remain solely
responsible to the other parties hereto for the performance of its obligations
under this Agreement, including its obligations in respect of the Loans or
portion thereof made by it. No additional promissory note shall be required to
evidence Loans or portions thereof made by a Designated Lender; and the
Designating Lender shall be deemed to hold any promissory note issued pursuant
to Section 2.09(e) as agent for its Designated Lender to the extent of the Loans
or portion thereof funded by such Designated Lender. Each Designating Lender
shall act as administrative agent for its Designated Lender and give and receive
notices and other communications on its behalf. Any payments for the account of
any Designated Lender shall be paid to its Designating Lender as administrative
agent for such Designated Lender and neither the Borrower nor the Administrative
Agent shall be responsible for any Designating Lender's application of such
payments. In addition, any Designated Lender may (i) with notice to, but without
the prior written consent of, the Borrower or the Administrative Agent, assign
all or portions of its interest in any Loans to its Designating Lender or to any
financial institutions consented to by the Borrower and the Administrative Agent
providing liquidity and/or credit facilities to or for the account of such
Designated Lender to support the funding of Loans or portions thereof made by
such Designated Lender and (ii) disclose on a
104
confidential basis any non-public information relating to its Loans or portions
thereof to any rating agency, commercial paper dealer or provider of any
guarantee, surety, credit or liquidity enhancement to such Designated Lender.
(b) Each party to this Agreement agrees that it will not institute against,
or join any other Person in instituting against, any Designated Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceeding under any federal or state bankruptcy or similar law, for one
year and a day after all outstanding senior indebtedness of such Designated
Lender is paid in full. The Designating Lender for each Designated Lender agrees
to indemnify, save, and hold harmless each other party hereto for any loss,
cost, damage and expense arising out of its inability to institute any such
proceeding against such Designated Lender. This Section 9.05(b) shall survive
the termination of this Agreement.
Section 8.6. Survival. All covenants, agreements, representations and
warranties made by the Borrower in the Loan Documents and in certificates or
other instruments delivered in connection with or pursuant to the Loan Documents
shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of the Loan Documents and the making of
any Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that any
Lender Party 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 any principal of or accrued
interest on any Loan or any fee or other amount payable hereunder is outstanding
and unpaid or any Letter of Credit is outstanding or any Commitment has not
expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and
Article 8 shall survive and remain in full force and effect regardless of the
consummation of the Financing Transactions, the repayment of the Loans, the
expiration or termination of the Letters of Credit and the Commitments or the
termination of this Agreement or any provision hereof.
Section 8.7. 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, the other
Loan Documents and any separate letter agreements with respect to fees payable
to the Administrative Agent constitute the entire contract 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 4.01, this Agreement (i) will become
105
effective when the Administrative Agent shall have signed this Agreement and
received counterparts hereof that, when taken together, bear the signatures of
each of the other parties hereto and (ii) thereafter will 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 of this
Agreement by telecopy will be effective as delivery of a manually executed
counterpart of this Agreement.
Section 8.8. Severability. If any provision of any Loan Document is
invalid, illegal or unenforceable in any jurisdiction then, to the fullest
extent permitted by law, (i) such provision shall, as to such jurisdiction, be
ineffective to the extent (but only to the extent) of such invalidity,
illegality or unenforceability, (ii) the other provisions of the Loan Documents
shall remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Lender Parties in order to carry out the
intentions of the parties thereto as nearly as may be possible and (iii) the
invalidity, illegality or unenforceability of any such provision in any
jurisdiction shall not affect the validity, legality or enforceability of such
provision in any other jurisdiction.
Section 8.9. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is 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 obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of the Borrower against
any obligations of the Borrower now or hereafter existing hereunder and held by
such Lender, irrespective of whether or not such Lender shall have made any
demand hereunder 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) that such Lender may have.
Section 8.10. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law
of the State of New York.
(b) The Borrower 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 relevant appellate court, in any
action or proceeding arising out of or relating to any Loan Document, or for
recognition or enforcement of any judgment, and each party hereto 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 court or, to the
extent permitted by law, in such Federal court. Each party hereto agrees that a
final
106
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 any Loan Document shall affect any right that any
Lender Party may otherwise have to bring any action or proceeding relating to
any Loan Document against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to any Loan Document in any court referred to in subsection
(b) of this Section. Each party hereto irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of any
such suit, action or proceeding in any such court.
(d) Each party hereto irrevocably consents to service of process in the
manner provided for notices in Section 9.01. Nothing in any Loan Document will
affect the right of any party hereto to serve process in any other manner
permitted by law.
Section 8.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO 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 ANY LOAN DOCUMENT OR ANY TRANSACTION CONTEMPLATED THEREBY (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 8.12. Headings. Article and Section headings and the Table of
Contents 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 8.13. Confidentiality. Each Lender Party agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such
107
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedy hereunder or any suit, action or proceeding relating to any Loan Document
or the enforcement of any right thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any actual or prospective assignee of or Participant in any of its rights or
obligations under this Agreement or (ii) any actual or prospective counterparty
(or its advisors) to any swap or derivative transaction relating to the Borrower
and its obligations, (g) with the consent of the Borrower or (h) to the extent
such Information either (i) becomes publicly available other than as a result of
a breach of this Section or (ii) becomes available to any Lender Party on a
nonconfidential basis from a source other than the Borrower. For the purposes of
this Section, "Information" means all information received from the Borrower
relating to the Borrower or its business, other than any such information that
is available to any Lender Party on a nonconfidential basis before disclosure by
the Borrower; provided that, in the case of information received from the
Borrower after the date hereof, such information is clearly identified at the
time of delivery as confidential.
Section 8.14. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts that are treated as interest on such
Loan under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") that may be contracted for, charged or
otherwise received by the Lender holding such Loan in accordance with applicable
law, the rate of interest payable in respect of such Loan hereunder, together
with all Charges payable in respect thereof, shall be limited to the Maximum
Rate and, to the extent lawful, the interest and Charges that would have been
payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such Lender shall have received
such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of payment.
108
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.
UNITED STATES STEEL LLC
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title:Vice President -
Accounting & Finance
JPMORGAN CHASE BANK,
as Administrative Agent, Collateral Agent,
Swingline Lender,and Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title:Managing Director
GENERAL ELECTRIC CAPITAL
CORPORATION,
as Documentation Agent, Co-Collateral
Agent, and Lender
By: /s/ Xxxxxxxxxxx Xxx
-------------------------------------
Name: Xxxxxxxxxxx Xxx
Title:Duly Authorized Signatory
FOOTHILL CAPITAL CORPORATION,
as Co-Syndication Agent and Lender
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title:Assistant Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agent and Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title:Vice President
MELLON BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title:Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title:Vice President
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title:Associate
GMAC CAPITAL COMMERCIAL
CREDIT LLC
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title:Senior Vice President
XXXXXX FINANCIAL INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title:Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title:Vice President
THE BANK OF NOVA SCOTIA
By: /s/ M. D. Xxxxx
-------------------------------------
Name: M. D. Xxxxx
Title:Agent
XXXXXXX SACHS CREDIT
PARTNERS L.P.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name:Xxxxxx Xxxxxx
Title:Authorized Signatory
NATIONAL CITY BANK
By: /s/ Xxxxxxx X. XxXxxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title:Vice President
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title:Vice President
