Exhibit 10.1
EXECUTION COPY
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364-DAY COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of August 8, 2002
Among
THE X.X. XXXXXXX COMPANY,
as Borrower,
THE BANKS NAMED HEREIN,
JPMORGAN CHASE BANK,
as Administrative Agent,
X.X. XXXXXX SECURITIES INC.,
as Sole Advisor, Lead Arranger and
Sole Bookrunner, and
WACHOVIA BANK, N.A., US BANK N.A., MELLON BANK, N.A.,
KEYBANK NATIONAL ASSOCIATION and SUNTRUST BANK,
as Co-Syndication Agents
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.............................................................................................1
SECTION 1.01. Defined Terms............................................................................1
SECTION 1.02. Terms Generally.........................................................................11
ARTICLE II THE CREDITS...........................................................................................11
SECTION 2.01. Commitments.............................................................................11
SECTION 2.02. Loans...................................................................................12
SECTION 2.03. Competitive Bid Procedure...............................................................13
SECTION 2.04. Standby Borrowing Procedure.............................................................15
SECTION 2.05. Refinancings............................................................................16
SECTION 2.06. Fees....................................................................................16
SECTION 2.07. Repayment of Loans; Evidence of Debt....................................................17
SECTION 2.08. Interest on Loans.......................................................................17
SECTION 2.09. Default Interest........................................................................18
SECTION 2.10. Alternate Rate of Interest..............................................................18
SECTION 2.11. Termination, Reduction and Extension of Commitments.....................................18
SECTION 2.12. Prepayment..............................................................................19
SECTION 2.13. Reserve Requirements; Change in Circumstances...........................................19
SECTION 2.14. Change in Legality......................................................................21
SECTION 2.15. Indemnity...............................................................................22
SECTION 2.16. Pro Rata Treatment......................................................................22
SECTION 2.17. Sharing of Setoffs......................................................................23
SECTION 2.18. Payments................................................................................23
SECTION 2.19. Taxes...................................................................................23
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SECTION 2.20. Mandatory Assignment; Commitment Termination............................................26
ARTICLE III REPRESENTATIONS AND WARRANTIES.......................................................................27
SECTION 3.01. Organization; Powers....................................................................27
SECTION 3.02. Authorization...........................................................................27
SECTION 3.03. Enforceability..........................................................................27
SECTION 3.04. Governmental Approvals..................................................................27
SECTION 3.05. Financial Statements....................................................................28
SECTION 3.06. No Material Adverse Change..............................................................28
SECTION 3.07. Title to Properties; Possession Under Leases............................................28
SECTION 3.08. Stock of Borrower.......................................................................28
SECTION 3.09. Litigation; Compliance with Laws........................................................28
SECTION 3.10. Agreements..............................................................................29
SECTION 3.11. Federal Reserve Regulations.............................................................29
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act..............................29
SECTION 3.13. Use of Proceeds.........................................................................29
SECTION 3.14. Tax Returns.............................................................................29
SECTION 3.15. No Material Misstatements...............................................................29
SECTION 3.16. Employee Benefit Plans..................................................................29
SECTION 3.17. Environmental and Safety Matters........................................................30
ARTICLE IV CONDITIONS OF LENDING.................................................................................30
SECTION 4.01. All Borrowings..........................................................................31
SECTION 4.02. First Borrowing.........................................................................31
ARTICLE V AFFIRMATIVE COVENANTS..................................................................................32
SECTION 5.01. Existence; Businesses and Properties....................................................32
SECTION 5.02. Insurance...............................................................................33
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SECTION 5.03. Obligations and Taxes...................................................................33
SECTION 5.04. Financial Statements, Reports, etc......................................................33
SECTION 5.05. Litigation and Other Notices............................................................34
SECTION 5.06. ERISA...................................................................................34
SECTION 5.07. Maintaining Records; Access to Properties and Inspections...............................35
SECTION 5.08. Use of Proceeds.........................................................................35
SECTION 5.09. Filings.................................................................................35
ARTICLE VI NEGATIVE COVENANTS....................................................................................35
SECTION 6.01. Indebtedness............................................................................36
SECTION 6.02. Liens...................................................................................36
SECTION 6.03. Sale and Lease-Back Transactions........................................................38
SECTION 6.04. Mergers, Consolidations and Sales of Assets.............................................38
SECTION 6.05. Interest Coverage Ratio.................................................................38
SECTION 6.06. Fiscal Year.............................................................................38
ARTICLE VII EVENTS OF DEFAULT....................................................................................38
ARTICLE VIII THE AGENT...........................................................................................41
ARTICLE IX MISCELLANEOUS.........................................................................................43
SECTION 9.01. Notices.................................................................................43
SECTION 9.02. Survival of Agreement...................................................................44
SECTION 9.03. Binding Effect..........................................................................44
SECTION 9.04. Successors and Assigns..................................................................44
SECTION 9.05. Expenses; Indemnity.....................................................................47
SECTION 9.06. Rights of Setoff........................................................................48
SECTION 9.07. Applicable Law..........................................................................48
SECTION 9.08. Waivers; Amendment......................................................................48
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SECTION 9.09. Interest Rate Limitation................................................................49
SECTION 9.10. Entire Agreement........................................................................49
SECTION 9.11. Waiver of Jury Trial....................................................................49
SECTION 9.12. Severability............................................................................49
SECTION 9.13. Counterparts............................................................................50
SECTION 9.14. Headings................................................................................50
SECTION 9.15. Jurisdiction; Consent to Service of Process.............................................50
SECTION 9.16. Confidentiality.........................................................................50
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Administrative Questionnaire
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Opinion of Counsel
Schedule 2.01 Commitments
Schedule 3.09 Litigation
Schedule 3.17 Environmental
Schedule 6.01 Indebtedness
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364-DAY COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT dated as of August 8, 2002, among THE X.X. XXXXXXX COMPANY, an Ohio
corporation (the "Borrower"), the banks listed in Schedule 2.01 (the "Banks"),
JPMORGAN CHASE BANK, a New York banking corporation, as agent for the Banks (in
such capacity, the "Agent").
The Borrower has requested the Banks to extend credit to the
Borrower in order to enable it to borrow on a standby revolving credit basis on
and after the date hereof and at any time and from time to time prior to the
Availability Termination Date (as herein defined) a principal amount not in
excess of $400,000,000 at any time outstanding. The Borrower has also requested
the Banks to provide a procedure pursuant to which the Borrower may invite the
Banks to bid on an uncommitted basis on short-term borrowings by the Borrower.
The proceeds of such borrowings are to be used for general corporate purposes.
The Banks are willing to extend such credit to the Borrower on the terms and
subject to the conditions herein set forth.
Accordingly, the Borrower, the Banks and the Agent agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Administrative Fees" shall have the meaning assigned to such
term in Section 2.06(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B hereto.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
person specified.
"Aggregate Commitments": at any time, the sum of the aggregate
amount of the Commitments then in effect and the aggregate amount of the
Commitments (as defined in the Other Agreement) then in effect.
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greatest of (a)the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c)the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the rate
of interest per annum publicly announced from time to time by the Agent as its
prime rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective on the date such change is publicly announced
as effective. "Base CD Rate" shall mean the sum of (a)the product of (i)the
Three-Month Secondary CD Rate and (ii)Statutory Reserves and (b)the Assessment
Rate. "Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so reported
on such day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City time,
on such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it. "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of new York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for the day of
such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it. If for any reason the Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Base CD Rate or the Federal Funds Effective Rate
or both for any reason, including the inability or failure of the Agent to
obtain sufficient quotations in accordance with the terms thereof, the Alternate
Base Rate shall be determined without regard to clause(b) or (c), or both, of
the first sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively.
"Applicable Percentage" shall mean on any date, with respect
to the Facility Fee or the Loans comprising any Eurodollar Standby Borrowing,
the applicable percentage set forth below based upon the ratings applicable on
such date to the Borrower's implied or actual senior, unsecured,
non-credit-enhanced long-term indebtedness for borrowed money (the "Index
Debt"):
Ratings Facility A Facility A LIBOR
(S&P/Xxxxx'x) Facility Fee Spread
----------------- ------------ -----------------
Category 1 A+/A1 or higher 0.0600% 0.1650%
Category 2 A/A2 0.0600% 0.1900%
Category 3 A-/A3 0.0600% 0.2400%
Category 4 BBB+/Baa1 0.0600% 0.4400%
Category 5 BBB/Baa2 0.0600% 0.5650%
Category 6 BBB-/Baa3 or lower 0.0600% 0.6900%
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PROVIDED, HOWEVER, that after the Availability Termination Date the LIBOR Spread
shall be increased by 0.15 of 1% (15 basis points).
For purposes of the foregoing, (a)if no rating for the Index
Debt shall be available from either Xxxxx'x or S&P (other than by reason of the
circumstances referred to in the last sentence of this definition), each such
rating agency shall be deemed to have established a rating in Category 4; (b)if
only one of Xxxxx'x and S&P shall have in effect a rating for the Index Debt,
the Applicable Percentage shall be determined by reference to the available
rating; (c)if the ratings established or deemed to have been established by
Xxxxx'x and S&P shall fall within different categories, the Applicable
Percentage shall be based upon the superior (or numerically lower) category
unless the ratings differ by more than one category, in which case the governing
rating shall be the rating next below the higher of the two; and (d)if any
rating established or deemed to have been established by Xxxxx'x or S&P shall be
changed (other than as a result of a change in the rating system of either
Xxxxx'x or S&P), such change shall be effective as of the date on which such
change is first announced publicly by the rating agency making such change. Any
change in the LIBOR spread due to a change in the applicable category shall be
effective on the effective date of such change in the applicable category and
shall apply to all Eurodollar Standby Loans that are outstanding at any time
during the period commencing on the effective date of such change in the
applicable category and ending on the date immediately preceding the effective
date of the next such change in the applicable category. If the rating system of
either Xxxxx'x or S&P shall change, the Borrower and the Banks shall negotiate
in good faith to amend the references to specific ratings in this definition to
reflect such changed rating system. If either Xxxxx'x or S&P shall cease to be
in the business of rating corporate debt obligations, the Borrower and the Banks
shall negotiate in good faith to agree upon a substitute rating agency and to
amend the references to specific ratings in this definition to reflect the
ratings used by such substitute rating agency and, pending such agreement, the
Applicable Percentage shall be determined on the basis of the ratings provided
by the other rating agency.
"Assessment Rate" shall mean for any date the annual rate
(rounded upwards if necessary, to the next 1/100 of 1%) most recently estimated
by the Agent as the then current net annual assessment rate that will be
employed in determining amounts payable by the Agent to the Federal Deposit
Insurance Corporation (or such successor) of time deposits made in dollars at
the Agent's domestic offices.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Bank and an assignee, and accepted by the Agent, in
the form of Exhibit C.
"Availability Termination Date" shall mean August 7, 2003.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Borrowing" shall mean a group of Loans of a single Type made
by the Banks (or, in the case of a Competitive Borrowing, by the Bank or Banks
whose Competitive Bids have been accepted pursuant to Section 2.03) on a single
date and as to which a single Interest Period is in effect.
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"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capital Lease Obligations" of any person shall mean the
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 to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if the
Trust or the beneficiaries thereof shall not be the direct or indirect owner,
beneficially and of record, of at least 51% of the issued and outstanding Common
Voting Shares, $.01 par value per share, of the Borrower and any other common
stock at any time issued by the Borrower, other than the Borrower's Class A
Common Shares, $.01 per share.
"Closing Date" shall mean August 8, 2002.
"Code" shall mean the Internal Revenue Code of 1986, as the
same may be amended from time to time.
"Commitment" shall mean, with respect to each Bank, the
commitment of such Bank hereunder as set forth in Schedule 2.01 hereto, as such
Bank's Commitment may be permanently terminated or reduced from time to time
pursuant to Section 2.11. The Commitments shall automatically and permanently
terminate on the Availability Termination Date.
"Competitive Bid" shall mean an offer by a Bank to make a
Competitive Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a
notification made by the Borrower pursuant to Section 2.03(d) in the form of
Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid
made by a Bank pursuant to Section 2.03(b), (i)in the case of a Eurodollar Loan,
the Margin, and (ii)in the case of a Fixed Rate Loan, the fixed rate of interest
offered by the Bank making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant
to Section 2.03 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Bank or Banks whose
Competitive Bids for such Borrowing have been accepted by the Borrower under the
bidding procedure described in Section 2.03.
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"Competitive Loan" shall mean a Loan from a Bank to the
Borrower pursuant to the bidding procedure described in Section 2.03. Each
Competitive Loan shall be a Eurodollar Competitive Loan or a Fixed Rate Loan.
"Consolidated Cash Flow" shall mean with respect to any person
for any period the aggregate operating income of such person and its
consolidated subsidiaries plus any depreciation and any amortization of
intangibles arising from acquisitions that have been deduced in deriving such
operating income, all computed and consolidated in accordance with GAAP.
"Consolidated Indebtedness" with respect to any person shall
mean the aggregate Indebtedness of such person and its consolidated
subsidiaries, consolidated in accordance with GAAP.
"Consolidated Interest Expense" with respect to any person
shall mean for any period the aggregate interest expense of such person and its
consolidated subsidiaries for such period, computed and consolidated in
accordance with GAAP.
"Consolidated Net Income" with respect to any person shall
mean for any period the aggregate net income (or net deficit) of such person and
its consolidated subsidiaries for such period equal to gross revenues and other
proper income less the aggregate for such person and its consolidated
subsidiaries of (i) operating expenses, (ii) selling, administrative and general
expenses, (iii) taxes, (iv) depreciation, depletion and amortization of
properties and (v) any other items that are treated as expenses under GAAP but
excluding from the definition of Consolidated Net Income any extraordinary gains
or losses, all computed and consolidated in accordance with GAAP.
"Consolidated Stockholders' Equity" with respect to any person
shall mean the aggregate Stockholders' Equity of such person and its
consolidated subsidiaries, consolidated in accordance with GAAP.
"Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Default" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States
of America.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) that is a member of a group of which the Borrower is a member
and which is treated as a single employer under Section 414 of the Code.
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"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Competitive Loan" shall mean any Competitive Loan
bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Competitive Loan
or Eurodollar Standby Loan.
"Eurodollar Standby Borrowing" shall mean a Borrowing
comprised of Eurodollar Standby Loans.
"Eurodollar Standby Loan" shall mean any Standby Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Event of Default" shall have the meaning assigned to such
term in Article VII.
"Existing Credit Agreement" shall mean the 364-Day Competitive
Advance and Revolving Credit Facility Agreement dated as of September 26, 1997,
as amended, among the Borrower, the banks named therein and JPMorgan Chase Bank,
successor by merger to the Chase Manhattan Bank, as agent.
"Facility Fee" shall have the meaning assigned to such term in
Section 2.06(a).
"Fee Letter" shall mean the letter agreement dated July 2,
2002, between the Borrower and the Agent, providing for the payment of certain
fees or other amounts in connection with the credit facilities established by
this Agreement.
"Fees" shall mean the Facility Fee and the Administrative
Fees.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, Treasurer, Assistant Treasurer
or Controller of such corporation.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of
Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (expressed in the form of a
decimal to no more than four decimal places) specified by the Bank making such
Loan in its Competitive Bid.
"GAAP" shall mean generally accepted accounting principles,
applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantee" of or by any person shall mean any obligation,
contingent or otherwise, of such person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other person (the "primary
obligor") in any manner, whether directly or
6
indirectly, and including any obligation of such person, direct or indirect,
(a)to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Indebtedness, (b)to purchase
property, securities or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness or (c)to maintain working
capital, equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness; provided, however, that the term Guarantee shall not include
endorsements for collection or deposit, in either case in the ordinary course of
business.
"Indebtedness" of any person shall mean, 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
under conditional sale or other title retention agreements relating to property
or assets purchased by such person, (d)all obligations of such person issued or
assumed as the deferred purchase price of property or services, (e)all
Indebtedness of others secured by (or for which the holder of such Indebtedness
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 obligations
secured thereby have been assumed, (f)all Guarantees by such person of
Indebtedness of others, (g)all Capital Lease Obligations of such person, (h)all
obligations of such person in respect of interest rate protection agreements,
foreign currency exchange agreements or other interest or exchange rate hedging
arrangements, in such amount which exceeds $15,000,000 at any time and (i)all
obligations of such person as an account party in respect of letters of credit
and bankers' acceptances; provided that the definition of Indebtedness shall not
include (i)accounts payable to suppliers and (ii)programming rights, in each
case incurred in the ordinary course of business and not overdue. The
Indebtedness of any person shall include the recourse Indebtedness of any
partnership in which such person is a general partner. For purposes of this
Agreement, the amount of any Indebtedness referred to in clause(h) of the
preceding sentence shall be amounts, including any termination payments,
required to be paid to a counterparty after giving effect to any contractual
netting arrangements, and not any notional amount with regard to which payments
may be calculated.
"Interest Payment Date" shall mean, with respect to any Loan,
the last day of the Interest Period applicable thereto and, in the case of a
Eurodollar Loan with an Interest Period of more than three months' duration or a
Fixed Rate Loan with an Interest Period of more than 90 days' duration, each day
that would have been an Interest Payment Date for such Loan had successive
Interest Periods of three months' duration or 90 days' duration, as the case may
be, been applicable to such Loan and, in addition, the date of any refinancing
or conversion of such Loan with or to a Loan of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing or on the last
day of the immediately preceding Interest Period applicable to such Borrowing,
as the case may be, and ending on the numerically corresponding day (or, if
there is no numerically corresponding day, on the last day) in the calendar
month that is 1, 2, 3 or 6 months (or, if agreed to by all Banks, 9 or 12
months) thereafter, as the Borrower may elect, (b) as to any ABR Borrowing, the
period commencing on the date of such Borrowing and ending on the date 90 days
thereafter or, if earlier, on the
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Maturity Date or the date of prepayment of such Borrowing and (c)as to any Fixed
Rate Borrowing, the period commencing on the date of such Borrowing and ending
on the date specified in the Competitive Bids in which the offer to make the
Fixed Rate Loans comprising such Borrowing were extended, which shall not be
earlier than seven days after the date of such Borrowing or later than 360 days
after the date of such Borrowing; provided, however, that if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of Eurodollar
Loans only, such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding
Business Day. Interest shall accrue from and including the first day of an
Interest Period to but excluding the last day of such Interest Period.
"LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, the rate appearing on Page 3750 of the
Telerate Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
reasonably determined by the Agent from time to time for purposes of providing
quotations of interest rates applicable to dollar deposits in the London
interbank market) at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
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 Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" shall mean, with respect to any asset, (a)any mortgage,
deed of trust, lien, pledge, encumbrance, charge or security interest in or on
such asset or (b)the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset.
"Loan" shall mean a Competitive Loan or a Standby Loan,
whether made as a Eurodollar Loan, an ABR Loan or a Fixed Rate Loan, as
permitted hereby.
"Loan Documents" shall mean this Agreement and the Fee Letter.
"Margin" shall mean, as to any Eurodollar Competitive Loan,
the margin (expressed as a percentage rate per annum in the form of a decimal to
no more than four decimal places) to be added to or subtracted from the LIBO
Rate in order to determine the interest rate applicable to such Loan, as
specified in the Competitive Bid relating to such Loan.
"Margin Stock" shall have the meaning given such term under
Regulation U.
"Material Adverse Effect" shall mean (a)a materially adverse
effect on the business, assets, operations, or condition, financial or
otherwise, of the Borrower and its Subsidiaries taken as a whole, (b)material
impairment of the ability of the Borrower or any Subsidiary to perform any of
its obligations under any Loan Document to which it is or will be a
8
party or (c)material impairment of the rights of or benefits expressly available
to the Banks under any Loan Document.
"Maturity Date" shall mean the Availability Termination Date
or, in the case of Revolving Credit Loans, if the Borrower shall so elect by
notice to the Agent pursuant to Section 2.07(f), the first anniversary of the
Availability Termination Date.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate (other than one considered an ERISA Affiliate only pursuant to
subsection(m) or (o) of Code Section 414) is making or accruing an obligation to
make contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Other Agreement" shall mean the 5-Year Competitive Advance
and Revolving Credit Facility Agreement, dated as of the date hereof, among the
Borrower, the banks named therein, JPMorgan Chase Bank, as administrative agent,
and X.X. Xxxxxx Securities Inc.
"Participant" shall have the meaning set forth in Section
9.04.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
"Plan" shall mean any pension plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
and which is maintained for employees of the Borrower or any ERISA Affiliate.
"Rate" shall include the LIBO Rate, the Alternate Base Rate
and the Fixed Rate.
"Register" shall have the meaning given such term in Section
9.04(b)(iv).
"Regulation D" shall mean Regulation D of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation U" shall mean Regulation U of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation X" shall mean Regulation X of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Related Parties" shall mean, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's Affiliates.
"Reportable Event" shall mean any reportable event as defined
in Section 4043(b) of ERISA or the regulations issued thereunder with respect to
a Plan (other than a Plan
9
maintained by an ERISA Affiliate that is considered an ERISA Affiliate only
pursuant to subsection(m) or (o) of Code Section 414).
"Required Banks" shall mean, at any time, Banks having
Commitments representing at least 51% of the Total Commitment or, for purposes
of acceleration pursuant to clause(ii) of Article VII, Banks holding Loans
representing at least 51% of the aggregate principal amount of the Loans
outstanding.
"Responsible Officer" of any corporation shall mean any
executive officer or Financial Officer of such corporation and any other officer
or similar official thereof responsible for the administration of the
obligations of such corporation in respect of this Agreement.
"Standby Borrowing" shall mean a borrowing consisting of
simultaneous Standby Loans from each of the Banks.
"Standby Borrowing Request" shall mean a request made pursuant
to Section 2.04 in the form of Exhibit A-5.
"Standby Loans" shall mean the revolving loans made by the
Banks to the Borrower pursuant to Section 2.04. Each Standby Loan shall be a
Eurodollar Standby Loan or an ABR Loan.
"Statutory Reserves" shall mean 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 Board and any other banking authority to which
the Agent is subject for new negotiable nonpersonal time deposits in dollars of
over $100,000 with maturities approximately equal to the applicable Interest
Period. Statutory Reserves shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Stockholders' Equity" shall mean, for any corporation, the
consolidated total stockholders' equity of such corporation determined in
accordance with GAAP, consistently applied.
"subsidiary" shall mean, with respect to any person (herein
referred to as the "parent"), any corporation, partnership, association or other
business entity (a)of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or
more than 50% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held, or (b)which is, at the
time any determination is made, otherwise Controlled by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Total Commitment" shall mean at any time the aggregate amount
of the Banks' Commitments, as in effect at such time.
10
"Transactions" shall have the meaning assigned to such term in
Section 3.02.
"Trust" shall mean The Xxxxxx X. Scripps Trust, being that
certain trust for the benefit of descendants of Xxxxxx X. Scripps and owning
shares of capital stock of the Borrower.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined.
"Utilization Fee" shall have the meaning assigned to such term
in Section 2.06(c).
"Withdrawal Liability" shall mean 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 1.02. TERMS GENERALLY. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. 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,
HOWEVER, that, for purposes of determining compliance with any covenant set
forth in Article VI, such terms shall be construed in accordance with GAAP as in
effect on the date of this Agreement applied on a basis consistent with the
application used in preparing the Borrower's audited financial statements
referred to in Section 3.05.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each Bank
agrees, severally and not jointly, to make Standby Loans to the Borrower, at any
time and from time to time on and after the date hereof and until the earlier of
the Availability Termination Date and the termination of the Commitment of such
Bank as provided in this Agreement, in an aggregate principal amount at any time
outstanding not to exceed such Bank's Commitment minus the amount by which the
Competitive Loans outstanding at such time shall be deemed to have used such
Commitment pursuant to Section 2.16, subject, however, to the conditions that
(a)at no time shall (i)the sum of (x)the outstanding aggregate principal amount
of all Standby Loans made by all Banks plus (y)the outstanding aggregate
principal amount of all Competitive Loans made by all Banks exceed (ii)the Total
Commitment and (b)at all times the outstanding aggregate principal amount of all
Standby Loans made by each Bank shall equal the product of (i)the percentage
which its Commitment represents of the Total Commitment times (ii)the
outstanding aggregate principal amount of all Standby Loans made pursuant to
Section 2.04. Each Bank's Commitment is set
11
forth opposite its respective name in Schedule 2.01. Such Commitments may be
terminated or reduced from time to time pursuant to Section 2.11.
Within the foregoing limits, the Borrower may borrow, pay or
repay and reborrow hereunder, on and after the Closing Date and prior to the
Availability Termination Date, subject to the terms, conditions and limitations
set forth herein.
SECTION 2.02. LOANS. (a) Each Standby Loan shall be made as
part of a Borrowing consisting of Loans made by the Banks ratably in accordance
with their Commitments; PROVIDED, HOWEVER, that the failure of any Bank to make
any Standby Loan shall not in itself relieve any other Bank of its obligation to
lend hereunder (it being understood, however, that no Bank shall be responsible
for the failure of any other Bank to make any Loan required to be made by such
other Bank). Each Competitive Loan shall be made in accordance with the
procedures set forth in Section 2.03. The Standby Loans or Competitive Loans
comprising any Borrowing shall be (i) in the case of Competitive Loans, in an
aggregate principal amount which is an integral multiple of $1,000,000 and not
less than $5,000,000 and (ii)in the case of Standby Loans, in an aggregate
principal amount which is an integral multiple of $1,000,000 and not less than
$10,000,000 in the case of Eurodollar Standby Loans and $5,000,000 in the case
of ABR Loans (or an aggregate principal amount equal to the remaining balance of
the available Commitments).
(b) Each Competitive Borrowing shall be comprised entirely of
Eurodollar Competitive Loans or Fixed Rate Loans, and each Standby Borrowing
shall be comprised entirely of Eurodollar Standby Loans or ABR Loans, as the
Borrower may request pursuant to Section 2.03 or 2.04, as applicable. Each Bank
may at its option make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Bank to make such Loan; PROVIDED that any exercise
of such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement. Borrowings of more than one
Type may be outstanding at the same time; PROVIDED, HOWEVER, that the Borrower
shall not be entitled to request any Borrowing which, if made, would result in
an aggregate of more than five separate Standby Loans of any Bank being
outstanding hereunder at any one time. For purposes of the foregoing, Loans
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Loans.
(c) Subject to Section 2.05, each Bank shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Agent in New York, New York, not later than
12:00 noon, New York City time, and the Agent shall by 3:00 p.m., New York City
time, wire transfer the amounts so received to the general deposit account of
the Borrower at Mellon Bank (or other general deposit account designated by the
Borrower in writing) or, if a Borrowing shall not occur on such date because any
condition precedent herein specified shall not have been met, return the amounts
so received to the respective Banks. Competitive Loans shall be made by the Bank
or Banks whose Competitive Bids therefor are accepted pursuant to Section 2.03
in the amounts so accepted and Standby Loans shall be made by the Banks pro rata
in accordance with Section 2.16. Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will not make
available to the Agent such Bank's portion of such Borrowing, the Agent may
assume that such Bank has made such portion available to the Agent on the date
of such Borrowing in
12
accordance with this paragraph(c) and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Bank shall not have made such portion available
to the Agent, such Bank and the Borrower severally agree (without duplication)
to repay to the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Agent at (i)in the
case of the Borrower, the interest rate applicable at the time to the Loans
comprising such Borrowing and (ii)in the case of such Bank, the Federal Funds
Effective Rate. If such Bank shall repay to the Agent such corresponding amount,
such amount shall constitute such Bank's Loan as part of such Borrowing for
purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Availability Termination
Date.
SECTION 2.03. COMPETITIVE BID PROCEDURE. (a) In order to
request Competitive Bids, the Borrower shall hand deliver or telecopy to the
Agent a duly completed Competitive Bid Request in the form of Exhibit A-1
hereto, to be received by the Agent (i)in the case of a Eurodollar Competitive
Borrowing, not later than 10:00 a.m., New York City time, four Business Days
before a proposed Competitive Borrowing and (ii)in the case of a Fixed Rate
Borrowing, not later than 10:00 a.m., New York City time, one Business Day
before a proposed Competitive Borrowing. No ABR Loan shall be requested in, or
made pursuant to, a Competitive Bid Request. A Competitive Bid Request that does
not conform substantially to the format of Exhibit A-1 may be rejected in the
Agent's sole discretion, and the Agent shall as soon as practicable notify the
Borrower of such rejection by telecopier. Such request shall in each case refer
to this Agreement and specify (x) whether the Borrowing then being requested is
to be a Eurodollar Borrowing or a Fixed Rate Borrowing, (y)the date of such
Borrowing (which shall be a Business Day) and the aggregate principal amount
thereof which shall be in a minimum principal amount of $5,000,000 and in an
integral multiple of $1,000,000, and (z)the Interest Period with respect thereto
(which may not end after the Availability Termination Date). As soon as
practicable after its receipt of a Competitive Bid Request that is not rejected
as aforesaid, the Agent shall invite by telecopier (in the form set forth in
Exhibit A-2 hereto) the Banks to bid, on the terms and conditions of this
Agreement, to make Competitive Loans pursuant to the Competitive Bid Request.
(b) Each Bank may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to a Competitive Bid Request. Each
Competitive Bid by a Bank must be received by the Agent via telecopier, in the
form of Exhibit A-3 hereto, (i)in the case of a Eurodollar Competitive
Borrowing, not later than 9:30 a.m., New York City time, three Business Days
before a proposed Competitive Borrowing and (ii)in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m., New York City time, on the day of a
proposed Competitive Borrowing. Multiple bids will be accepted by the Agent.
Competitive Bids that do not conform substantially to the format of Exhibit A-3
may be rejected by the Agent after conferring with, and upon the instruction of,
the Borrower, such conference between the Agent and the Borrower to occur as
soon as practicable following the receipt by the Agent of such Competitive Bid,
and the Agent shall notify the Bank making such nonconforming bid of such
rejection as soon as practicable. Each Competitive Bid shall refer to this
Agreement and specify (x) the principal amount (which
13
shall be in a minimum principal amount of $5,000,000 and in an integral multiple
of $1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Loans that the
Bank is willing to make to the Borrower, (y)the Competitive Bid Rate or Rates at
which the Bank is prepared to make the Competitive Loan or Loans and (z)the
Interest Period and the last day thereof. If any Bank shall elect not to make a
Competitive Bid, such Bank shall so notify the Agent via telecopier (I)in the
case of Eurodollar Competitive Loans, not later than 9:30 a.m., New York City
time, three Business Days before a proposed Competitive Borrowing, and (II)in
the case of Fixed Rate Loans, not later than 9:30 a.m., New York City time, on
the day of a proposed Competitive Borrowing; PROVIDED, HOWEVER, that failure by
any Bank to give such notice shall not cause such Bank to be obligated to make
any Competitive Loan as part of such Competitive Borrowing. A Competitive Bid
submitted by a Bank pursuant to this paragraph (b) shall be irrevocable.
(c) The Agent shall as soon as practicable notify the Borrower
by telecopier (i) in the case of Eurodollar Competitive Loans, not later than
10:00 a.m., New York City time, three Business Days before a proposed
Competitive Borrowing, and (ii)in the case of Fixed Rate Loans, not later than
10:00 a.m., New York City time, on the day of a proposed Competitive Borrowing,
of all the Competitive Bids made, the Competitive Bid Rate and the principal
amount of each Competitive Loan in respect of which a Competitive Bid was made
and the identity of the Bank that made each bid. The Agent shall send a copy of
all Competitive Bids to the Borrower for its records as soon as practicable
after completion of the bidding process set forth in this Section 2.03.
(d) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph(c) above. The Borrower shall notify the
Agent by telephone, confirmed by telecopier in the form of a Competitive Bid
Accept/Reject Letter in the form of Exhibit A-4, whether and to what extent it
has decided to accept or reject any of or all the bids referred to in
paragraph(c) above, (x)in the case of a Eurodollar Competitive Borrowing, not
later than 10:00 a.m., New York City time, three Business Days before a proposed
Competitive Borrowing, and (y)in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, on the day of a proposed Competitive
Borrowing; PROVIDED, HOWEVER, that (i)the failure by the Borrower to give such
notice shall be deemed to be a rejection of all the bids referred to in
paragraph(c) above, (ii)the Borrower shall not accept a bid made at a particular
Competitive Bid Rate if the Borrower has decided to reject an unrestricted bid
made at a lower Competitive Bid Rate, (iii)the aggregate amount of the
Competitive Bids accepted by the Borrower shall not exceed the principal amount
specified in the Competitive Bid Request, (iv)if the Borrower shall accept a bid
or bids made at a particular Competitive Bid Rate but the amount of such bid or
bids shall cause the total amount of bids to be accepted by the Borrower to
exceed the amount specified in the Competitive Bid Request, then the Borrower
shall accept a portion of such bid or bids in an amount equal to the amount
specified in the Competitive Bid Request less the amount of all other
Competitive Bids accepted with respect to such Competitive Bid Request, which
acceptance, in the case of multiple bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such bid at such Competitive
Bid Rate, and (v)except pursuant to clause(iv) above, no bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of $5,000,000 and an integral multiple of $1,000,000; PROVIDED, FURTHER,
HOWEVER, that if a Competitive Loan must be in an amount less than $5,000,000
because
14
of the provisions of clause(iv) above, such Competitive Loan may be for a
minimum of $1,000,000 or any integral multiple thereof, and in calculating the
pro rata allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause(iv) the amounts shall be rounded to
integral multiples of $1,000,000 in a manner which shall be in the discretion of
the Borrower. A notice given by the Borrower pursuant to this paragraph (d)
shall be irrevocable.
(e) The Agent shall promptly notify each bidding Bank (i) in
the case of Eurodollar Competitive Loans, not later than 11:00 a.m., New York
City time, three Business Days before a proposed Competitive Borrowing, and (ii)
in the case of Fixed Rate Loans, not later than 11:00 a.m., New York City time,
on the day of a proposed Competitive Borrowing, whether or not its Competitive
Bid has been accepted (and if so, in what amount and at what Competitive Bid
Rate) by telecopy sent by the Agent, and each successful bidder will thereupon
become bound, subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its bid has been accepted.
(f) A Competitive Bid Request shall not be made within five
Business Days after the date of any previous Competitive Bid Request.
(g) If the Agent shall elect to submit a Competitive Bid in
its capacity as a Bank, it shall submit such bid directly to the Borrower one
quarter of an hour earlier than the latest time at which the other Banks are
required to submit their bids to the Agent pursuant to paragraph(b) above.
(h) All Notices required by this Section 2.03 shall be given
in accordance with Section 9.01.
SECTION 2.04. STANDBY BORROWING PROCEDURE. In order to request
a Standby Borrowing, the Borrower shall hand deliver or telecopy to the Agent in
the form of Exhibit A-5 (a) in the case of a Eurodollar Standby Borrowing, not
later than 10:00 a.m., New York City time, three Business Days before a proposed
borrowing and (b) in the case of an ABR Borrowing, not later than 10:00 a.m.,
New York City time, on the day of a proposed borrowing. No Fixed Rate Loan shall
be requested or made pursuant to a Standby Borrowing Request. Such notice shall
be irrevocable and shall in each case specify (i) whether the Borrowing then
being requested is to be a Eurodollar Standby Borrowing or an ABR Borrowing;
(ii) the date of such Standby Borrowing (which shall be a Business Day) and the
amount thereof; and (iii) if such Borrowing is to be a Eurodollar Standby
Borrowing, the Interest Period with respect thereto. If no election as to the
Type of Standby Borrowing is specified in any such notice, then the requested
Standby Borrowing shall be an ABR Borrowing. If no Interest Period with respect
to any Eurodollar Standby Borrowing is specified in such notice, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. If the Borrower shall not have given notice in accordance with this
Section 2.04 of its election to refinance a Standby Borrowing prior to the end
of the Interest Period in effect for such Borrowing, then the Borrower shall
(unless such Borrowing is repaid at the end of such Interest Period) be deemed
to have given notice of an election to refinance such Borrowing with an ABR
Borrowing. The Agent shall promptly advise the Banks of any notice given
pursuant to this Section 2.04 and of each Bank's portion of the requested
Borrowing.
15
SECTION 2.05. REFINANCINGS. The Borrower may refinance all or
any part of any Borrowing with a Borrowing of the same or a different Type made
pursuant to Section 2.03 or Section 2.04, subject to the conditions and
limitations set forth herein and elsewhere in this Agreement, including
refinancings of Competitive Borrowings with Standby Borrowings and Standby
Borrowings with Competitive Borrowings. Any Borrowing or part thereof so
refinanced shall be repaid in accordance with Section 2.07 with the proceeds of
a new Borrowing hereunder and the proceeds of the new Borrowing shall be paid by
the Banks to the Agent or by the Agent to the Borrower pursuant to Section
2.02(c); PROVIDED, HOWEVER, that (i) if the principal amount extended by a Bank
in a refinancing is greater than the principal amount extended by such Bank in
the Borrowing being refinanced, then such Bank shall pay such difference to the
Agent for distribution to the Banks described in (ii) below, (ii)if the
principal amount extended by a Bank in the Borrowing being refinanced is greater
than the principal amount being extended by such Bank in the refinancing, the
Agent shall return the difference to such Bank out of amounts received pursuant
to (i) above, and (iii)to the extent any Bank fails to pay the Agent amounts due
from it pursuant to (i) above, any Loan or portion thereof being refinanced with
such amounts shall not be deemed repaid in accordance with Section 2.07 and
shall be payable by the Borrower.
SECTION 2.06. FEES. (a) The Borrower agrees to pay to each
Bank, through the Agent, on each March 31, June 30, September 30 and December 31
and on the date on which the Commitment of such Bank shall be terminated as
provided herein, a facility fee (a "Facility Fee") at a rate per annum equal to
the Applicable Percentage from time to time in effect, on the amount of the
Commitment of such Bank, whether used or unused, during the preceding quarter
(or shorter period commencing with the date hereof) (or, if such Commitment has
been terminated, the Standby Loans of such Bank). All Facility Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days. The Facility Fee due to each Bank shall commence to accrue on the date
hereof and shall cease to accrue on the termination of the Commitment of such
Bank as provided herein and the payment in full of all Standby Loans.
(b) The Borrower agrees to pay the Agent, for its own account,
the fees (the "Administrative Fees") at the times and in the amounts agreed upon
in the Fee Letter.
(c) The Borrower agrees to pay, in immediately available
funds, to the Agent for the account of each Bank a fee (the "UTILIZATION FEE")
based upon the average daily amount of the outstanding Loans of such Bank at a
rate per annum equal to 0.10%, when and for as long as the aggregate outstanding
principal amount of the sum of (a) the Standby Loans hereunder plus (b) the
aggregate principal amount of the Standby Loans (as defined therein) under the
Other Agreement exceeds 25% of (i) until the Availability Termination Date, the
Aggregate Commitments and (ii) from the Availability Termination Date through
the Maturity Date and the payment in full of all Standby Loans, the aggregate
amount of the Commitments in effect immediately prior to the Availability
Termination Date plus the aggregate amount of the Commitments (as defined
therein) of the Other Agreement. The Utilization Fee shall be payable quarterly
in arrears on the last day of each March, June, September and December,
commencing on the first of such dates to occur after the date hereof, and on the
Maturity Date (or such later date of payment in full of all Standby Loans).
16
(d) All Fees shall be paid on the date due, in immediately
available funds, to the Agent for distribution, if and as appropriate, among the
Banks.
SECTION 2.07. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The
Borrower hereby unconditionally promises to pay (i) to the Agent for the account
of each Bank the then unpaid principal amount of each Standby Loan on the
Maturity Date and (ii) to the Agent for the account of each applicable Bank the
then unpaid principal amount of each Competitive Loan on the last day of the
Interest Period applicable to such Loan.
(b) Each Bank shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Bank resulting from each Loan made by such Bank, including the amounts of
principal and interest payable and paid to such Bank from time to time
hereunder.
(c) The Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder, whether such Loan is a Standby Loan
or a Competitive Loan, and the Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Bank hereunder and (iii) the
amount of any sum received by the Agent hereunder for the account of the Banks
and each Bank's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and(c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Bank or the Agent to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrower to repay the Loans
in accordance with the terms of this Agreement.
(e) Any Bank 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 Bank a promissory note payable to the order of such Bank (or, if
requested by such Bank, to such Bank and its registered assigns) and in a usual
and customary form for such Type approved by the Agent in its reasonable
discretion.
(f) The Borrower may elect to extend the Maturity Date to the
first anniversary of the Availability Termination Date by giving notice thereof
to the Agent by 1:00 p.m., New York City time, two Business Days prior to the
Availability Termination Date. The Agent shall promptly give notice to the Banks
of any such extension.
SECTION 2.08. INTEREST ON LOANS. (a) Subject to the provisions
of Section 2.09, the Loans comprising each Eurodollar Borrowing shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 360 days) at a rate per annum equal to (i)in the case of each Eurodollar
Standby Loan, the LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Percentage, and (ii)in the case of each Eurodollar
Competitive Loan, the LIBO Rate for the Interest Period in effect for such
Borrowing plus the Margin offered by the Bank making such Loan and accepted by
the Borrower pursuant to Section 2.03.
17
(b) Subject to the provisions of Section 2.09, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be, when determined by reference to the Prime Rate and over a year of 360 days
at all other times) at a rate per annum equal to the Alternate Base Rate.
(c) Subject to the provisions of Section 2.09, each Fixed Rate
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Bank making such Loan and accepted by the Borrower
pursuant to Section 2.03.
(d) Interest on each Loan shall be payable on each Interest
Payment Date applicable to such Loan. The LIBO Rate or the Alternate Base Rate
for each Interest Period or day within an Interest Period shall be determined by
the Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.09. DEFAULT INTEREST. If the Borrower shall default
in the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, whether by scheduled maturity, notice of prepayment,
acceleration or otherwise, the Borrower shall on demand from time to time from
the Agent pay interest, to the extent permitted by law, on such defaulted amount
up to (but not including) the date of actual payment (after as well as before
judgment) at a rate per annum (computed as provided in Section 2.08(b)) equal to
the Alternate Base Rate plus 1%.
SECTION 2.10. ALTERNATE RATE OF INTEREST. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Borrowing the Agent shall have determined
that dollar deposits in the principal amounts of the Eurodollar Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to any Bank of making or maintaining its
Eurodollar Loan during such Interest Period, or that reasonable means do not
exist for ascertaining the LIBO Rate, the Agent shall, as soon as practicable
thereafter, give written or telecopy notice of such determination to the
Borrower and the Banks. In the event of any such determination, until the Agent
shall have advised the Borrower and the Banks that the circumstances giving rise
to such notice no longer exist, (i)any request by the Borrower for a Eurodollar
Competitive Borrowing pursuant to Section 2.03 shall be of no force and effect
and shall be denied by the Agent and (ii)any request by the Borrower for a
Eurodollar Standby Borrowing pursuant to Section 2.04 shall be deemed to be a
request for an ABR Borrowing. Each determination by the Agent hereunder shall be
conclusive absent manifest error.
SECTION 2.11. TERMINATION AND REDUCTION OF COMMITMENTS. (a)
The Commitments shall be automatically terminated on the Availability
Termination Date.
(b) Upon at least three Business Days' prior irrevocable
written or telecopy notice to the Agent, the Borrower may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Total Commitment; PROVIDED, HOWEVER, that (i)each partial reduction of the Total
Commitment shall be in an integral multiple of $5,000,000 and in a minimum
principal amount of $5,000,000 and (ii)no such termination or reduction shall be
made
18
which would reduce the Total Commitment to an amount less than the aggregate
outstanding principal amount of the Loans.
(c) Each reduction in the Total Commitment hereunder shall be
made ratably among the Banks in accordance with their respective Commitments.
The Borrower shall pay to the Agent for the account of the Banks, on the date of
each termination or reduction, the Facility Fees on the amount of the
Commitments so terminated or reduced accrued to the date of such termination or
reduction.
SECTION 2.12. PREPAYMENT. (a) The Borrower shall have the
right at any time and from time to time to prepay any Standby Borrowing, in
whole or in part, upon giving written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) to the Agent: (i) before 10:00
a.m., New York City time, three Business Days prior to prepayment, in the case
of Eurodollar Loans and (ii) before 10:00 a.m., New York City time, one Business
Day prior to prepayment, in the case of ABR Loans; provided, however, that each
partial prepayment shall be in an amount which is an integral multiple of
$1,000,000 and not less than $10,000,000. The Borrower shall not have the right
to prepay any Competitive Borrowing.
(b) On the date of any termination or reduction of the
Commitments pursuant to Section 2.11, the Borrower shall pay or prepay so much
of the Standby Borrowings as shall be necessary in order that the aggregate
principal amount of the Competitive Loans and Standby Loans outstanding will not
exceed the Total Commitment after giving effect to such termination or
reduction.
(c) Each notice of prepayment shall specify the prepayment
date and the principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be irrevocable and shall commit the Borrower to prepay such
Borrowing (or portion thereof) by the amount stated therein on the date stated
therein. All prepayments under this Section 2.12 shall be subject to Section
2.15 but otherwise without premium or penalty. All prepayments under this
Section 2.12 shall be accomplished by accrued interest on the principal amount
being prepaid to the date of payment.
SECTION 2.13. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
(a) Notwithstanding any other provision herein, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Bank of the principal
of or interest on any Eurodollar Loan or Fixed Rate Loan made by such Bank or
any Fees or other amounts payable hereunder (other than changes in respect of
taxes imposed on the overall net income of such Bank by the jurisdiction in
which such Bank has its principal office or by any political subdivision or
taxing authority therein), or shall 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 such Bank, or shall impose on such
Bank or the London interbank market any other condition affecting this Agreement
or any Eurodollar Loan or Fixed Rate Loan made by such Bank, and the result of
any of the foregoing shall be to increase the cost to such Bank of making or
maintaining any Eurodollar Loan or Fixed Rate Loan or to reduce the amount of
any sum received or receivable by such Bank hereunder (whether of principal,
interest
19
or otherwise) by an amount deemed by such Bank to be material, then the Borrower
will pay to such Bank within 30 days of demand such additional costs incurred or
reduction suffered. Notwithstanding the foregoing, no Bank shall be entitled to
request compensation under this paragraph with respect to any Competitive Loan
if it shall have been aware of the change giving rise to such request at the
time of submission of the Competitive Bid pursuant to which such Competitive
Loan shall have been made.
(b) If any Bank shall have determined that the applicability
of any law, rule, regulation or guideline adopted pursuant to or arising out of
the July1988 report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of Capital Measurement
and Capital Standards", or the adoption after the date hereof of any other law,
rule, regulation or guideline regarding capital adequacy, or any change in any
of the foregoing or in the interpretation or administration of any of the
foregoing by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Bank (or any lending office of such Bank) or any Bank's holding company with any
request or directive regarding capital adequacy (whether or not having the focus
of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Bank's capital or on the
capital of such Bank's holding company, if any, as a consequence of this
Agreement or the Loans made by such Bank pursuant hereto to a level below that
which such Bank or such Bank's holding company could have achieved but for such
applicability, adoption, change or compliance (taking into consideration such
Bank's policies and the policies of such Bank's holding company with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time the Borrower shall pay to such Bank such additional amount or
amounts as will compensate such Bank or such Bank's holding company for any such
reduction suffered. It is acknowledged that the Facility Fee provided for in
this Agreement has been determined on the understanding that the Banks will not
be required to maintain capital against their Commitments under currently
applicable law, rules, regulations and regulatory guidelines. In the event the
Banks shall be advised by bank regulatory authorities responsible for
interpreting or administering such applicable laws, rules, regulations and
guidelines or shall otherwise determine, on the basis of applicable laws, rules,
regulations, guidelines or other requests or statements (whether or not having
the force of law) of such bank regulatory authorities, that such understanding
is incorrect, it is agreed that the Banks will be entitled to make claims under
this paragraph based upon prevailing market requirements for commitments under
comparable credit facilities against which capital is required to be maintained.
(c) Notwithstanding any other provision of this Section 2.13,
no Bank shall demand compensation for any increased cost or reduction referred
to in paragraph (a) or (b) above if it shall not at the time be the general
policy or practice of such Bank to demand such compensation in similar
circumstances under comparable provisions of other credit agreements, if any.
(d) A certificate of a Bank setting forth such amount or
amounts as shall be necessary to compensate such Bank as specified in paragraph
(a) or (b) above, as the case may be, shall be delivered to the Borrower and
shall be conclusive absent manifest error. The Borrower shall pay each Bank the
amount shown as due on any such certificate delivered by it
20
within 30 days after the receipt of the same. If any Bank subsequently receives
a refund of any such amount paid by the Borrower it shall remit such refund to
the Borrower.
(e) Failure on the part of any Bank to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction
in return on capital with respect to any period shall not constitute a waiver of
such Bank's right to demand compensation with respect to any other period;
PROVIDED that if any Bank fails to make such demand within 90 days after it
obtains knowledge of the event giving rise to the demand such Bank shall, with
respect to amounts payable pursuant to this Section 2.13 resulting from such
event, only be entitled to payment under this Section 2.13 for such costs
incurred or reduction in amounts or return on capital from and after the date 90
days prior to the date that such Bank does make such demand. The protection of
this Section shall be available to each Bank regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed.
SECTION 2.14. CHANGE IN LEGALITY. (a) Notwithstanding any
other provision herein, if any change in any law or regulation or in the
interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any Bank to
make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written or
telecopy notice to the Borrower and to the Agent, such Bank may:
(i) declare that Eurodollar Loans will not thereafter
be made by such Bank hereunder, whereupon such Bank shall not
submit a Competitive Bid in response to a request for
Eurodollar Competitive Loans and any request by the Borrower
for a Eurodollar Standby Borrowing shall, as to such Bank
only, be deemed a request for an ABR Loan unless such
declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically converted to ABR Loans
as of the effective date of such notice as provided in
paragraph(b) below.
In the event any Bank shall exercise its rights under (i) or (ii)above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Bank or the
converted Eurodollar Loans of such Bank shall instead be applied to repay the
ABR Loans made by such Bank in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the
Borrower by any Bank shall be effective as to each Eurodollar Loan, if lawful,
on the last day of the Interest Period currently applicable to such Eurodollar
Loan; in all other cases such notice shall be effective on the date of receipt
by the Borrower.
(c) Each Bank agrees that, upon the occurrence of any event
giving rise to the operation of paragraph (a) of this Section 2.14 with respect
to such Bank, it shall have a duty to
21
endeavor in good faith to mitigate the adverse effects that may arise as a
consequence of such event to the extent that such mitigation will not, in the
reasonable judgment of such Bank, entail any cost or disadvantage to such Bank
that such Bank is not reimbursed or compensated for by the Borrower.
SECTION 2.15. INDEMNITY. The Borrower shall indemnify each
Bank against any loss or expense which such Bank may sustain or incur as a
consequence of (a) any failure by the Borrower to fulfill on the date of any
borrowing hereunder the applicable conditions set forth in Article IV, (b) any
failure by the Borrower to borrow or to refinance or continue any Loan hereunder
after irrevocable notice of such borrowing, refinancing or continuation has been
given pursuant to Section 2.03 or 2.04, (c) any payment, prepayment or
conversion of a Eurodollar Loan or Fixed Rate Loan required by any other
provision of this Agreement or otherwise made or deemed made on a date other
than the last day of the Interest Period applicable thereto, (d) any default in
payment or prepayment of the principal amount of any Loan or any part thereof or
interest accrued thereon, as and when due and payable (at the due date thereof,
whether by scheduled maturity, acceleration, irrevocable notice of prepayment or
otherwise) or (e)the occurrence of any Event of Default, including, in each such
case, any loss or reasonable expense sustained or incurred or to be sustained or
incurred in liquidating or employing deposits from third parties acquired to
effect or maintain such Loan or any part thereof as a Eurodollar Loan or Fixed
Rate Loan. Such loss or reasonable expense shall include an amount equal to the
excess, if any, as reasonably determined by such Bank, of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, converted or not borrowed
(assumed to be the LIBO Rate or, in the case of a Fixed Rate Loan, the fixed
rate of interest applicable thereto) for the period from the date of such
payment, prepayment or failure to borrow to the last day of the Interest Period
for such Loan (or, in the case of a failure to borrow, the Interest Period for
such Loan which would have commenced on the date of such failure) over (ii)the
amount of interest (as reasonably determined by such Bank) that would be
realized by such Bank in reemploying the funds so paid, prepaid or not borrowed
for the remainder of such period or Interest Period, as the case may be. A
certificate of any Bank setting forth any amount or amounts which such Bank is
entitled to receive pursuant to this Section shall be delivered to the Borrower
and shall be conclusive absent manifest error.
Each Bank shall have a duty to mitigate the damages to such
Bank that may arise as a consequence of clause (a), (b), (c), (d) or (e) above
to the extent that such mitigation will not, in the reasonable judgment of such
Bank, entail any cost or disadvantage to such Bank that such Bank is not
reimbursed or compensated for by the Borrower.
SECTION 2.16. PRO RATA TREATMENT. Except as required under
Section 2.14, each Standby Borrowing, each payment or prepayment of principal of
any Standby Borrowing, each payment of interest on the Standby Loans, each
payment of the Facility Fees, each reduction of the Commitments and each
refinancing of any Borrowing with a Standby Borrowing of any Type, shall be
allocated pro rata among the Banks in accordance with their respective
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Standby
Loans). Each payment of principal of any Competitive borrowing shall be
allocated pro rata among the Banks participating in such Borrowing in accordance
with the respective principal amounts of their outstanding Competitive Loans
comprising such Borrowing. Each payment of interest on any
22
Competitive Borrowing shall be allocated pro rata among the Banks participating
in such Borrowing in accordance with the respective amounts of accrued and
unpaid interest on their outstanding Competitive Loans comprising such
Borrowing. For purposes of determining the available Commitments of the Banks at
any time, each outstanding Competitive Borrowing shall be deemed to have
utilized the Commitments of the Banks (including those Banks which shall not
have made Loans as part of such Competitive Borrowing) pro rata in accordance
with such respective Commitments. Each Bank agrees that in computing such Bank's
portion of any Borrowing to be made hereunder, the Agent may, in its discretion,
round each Bank's percentage of such Borrowing to the next higher or lower whole
dollar amount.
SECTION 2.17. SHARING OF SETOFFS. Each Bank agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against the Borrower, or pursuant to, a secured claim under Section 506 of title
11 of the United States Code or other security or interest arising from, or in
lieu of, such secured claim received by such Bank under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntary or involuntary) in respect of any Standby Loan or
Loans as a result of which the unpaid principal portion of the Standby Loans
shall be proportionately less than the unpaid principal portion of the Standby
Loans of any other Bank, it shall be deemed simultaneously to have purchased
from such other Bank at face value, and shall promptly pay to such other Bank
the purchase price for, a participation in the Standby Loans of such other Bank,
so that the aggregate unpaid principal amount of the Standby Loans and
participations in the Standby Loans held by each Bank shall be in the same
proportion to the aggregate unpaid principal amount of all Standby Loans then
outstanding as the principal amount of its Standby Loans prior to such exercise
of banker's lien, setoff or counterclaim or other event was to the principal
amount of all Standby Loans outstanding prior to such exercise of banker's lien,
setoff or counterclaim or other event; PROVIDED, HOWEVER, that, if any such
purchase or purchases or adjustment shall be made pursuant to this Section 2.17
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustments restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Bank holding a participation in a Standby Loan deemed to have been so purchased
may exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower to such Bank by reason
thereof as fully as if such Bank had made a Standby Loan directly to the
Borrower in the amount of such participation.
SECTION 2.18. PAYMENTS. (a) The Borrower shall initiate each
payment (including principal of or interest on any Borrowing or any Fees or
other amounts) hereunder and under any other Loan Document not later than 12:00
(noon), New York City time, on the date when due in dollars to the Agent at its
offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, in immediately available funds.
SECTION 2.19. TAXES. (a) Any and all payments by the Borrower
hereunder shall be made, in accordance with Section 2.18, free and clear of and
without deduction for any and all current or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding (i) income taxes imposed on the net income of the Agent or any Bank
(or any transferee or assignee thereof, including a participation holder (any
such entity a "Transferee")) and (ii) franchise taxes imposed on the net income
of the Agent or
23
any Bank (or Transferee), in each case by the jurisdiction under the laws of
which the Agent or such Bank (or Transferee) is organized or has its principal
place of business or any political subdivision thereof (all such nonexcluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities,
collectively or individually, "Taxes"). If the Borrower shall be required to
deduct any Taxes from or in respect of any sum payable hereunder to any Bank (or
any Transferee) or the Agent, (i) the sum payable shall be increased by the
amount (an "additional amount") necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.19) such Bank (or Transferee) or the Agent (as the case may be)
shall receive an amount equal to the sum it would have received had no such
deduction 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 agrees to pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Document ("Other Taxes").
(c) The Borrower will indemnify each Bank (or Transferee) and
the Agent for the full amount of Taxes and Other Taxes paid by such Bank (or
Transferee) or the Agent, as the case may be, and any liability (including
penalties, interest and expenses (including reasonable attorney's fees and
expenses)) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability prepared
by a Bank, or the Agent on its behalf, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Bank (or Transferee) or the Agent, as the case
may be, makes written demand therefor.
(d) If a Bank (or Transferee) or the Agent shall become aware
that it is entitled to claim a refund from a Governmental Authority in respect
of Taxes or Other Taxes as to which it has been indemnified by the Borrower, or
with respect to which the Borrower has paid additional amounts, pursuant to this
Section 2.19, it shall promptly notify the borrower of the availability of such
refund claim and shall, within 30 days after receipt of a request by the
Borrower, make a claim to such Governmental Authority for such refund at the
Borrower's expense. If a Bank (or Transferee) or the Agent receives a refund
(including pursuant to a claim for refund made pursuant to the preceding
sentence) in respect of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.19, it shall within 30 days from
the date of such receipt pay over such refund to the Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower
under this Section 2.19 with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of such Bank (or Transferee) or
the Agent and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund); provided, however, that the
Borrower, upon the request of such Bank (or Transferee) or the Agent, agrees to
repay the amount paid over to the Borrower (plus penalties, interest or other
charges) to such Bank (or Transferee) or the
24
Agent in the event such Bank (or Transferee) or the Agent is required to repay
such refund to such Governmental Authority.
(e) As soon as practicable after the date of any payment of
Taxes or Other Taxes by the Borrower to the relevant Governmental Authority, the
Borrower will deliver to the Agent, at its address referred to in Section 9.01,
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.19
shall survive the payment in full of the principal of and interest on all Loans
made hereunder.
(g) Each Bank (or Transferee) that is organized under the laws
of a jurisdiction other than the United States, any State thereof or the
District of Columbia (a "Non-U.S. Bank") shall deliver to the Borrower and the
Agent two copies of either United States Internal Revenue Service Form W-8BEN or
Form W-8ECI, or, in the case of a Non-U.S. Bank claiming exemption from U.S.
Federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest", a Form W-8BEN, or any subsequent versions
thereof or successors thereto (and, if such Non-U.S. Bank delivers a Form
W-8BEN, a certificate representing that such Non-U.S. Bank is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U.S. Bank claiming complete exemption from, or reduced rate of, U.S. Federal
withholding tax on payments by the Borrower under this Agreement and the other
Loan Documents. Such forms shall be delivered by each Non-U.S. Bank on or before
the date it becomes a party to this Agreement (or, in the case of a Transferee
that is a participation holder, on or before the date such participation holder
becomes a Transferee hereunder) and on or before the date, if any, such Non-U.S.
Bank changes its applicable lending office by designating a different lending
office (a "New Lending Office"). In addition, each Non-U.S. Bank shall deliver
such forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Bank. Notwithstanding any other provision of this
Section 2.19(g), a Non-U.S. Bank shall not be required to deliver any form
pursuant to this Section 2.19(g) that such Non-U.S. Bank is not legally able to
deliver.
(h) The Borrower shall not be required to indemnify any
Non-U.S. Bank, or to pay any additional amounts to any Non-U.S. Bank, in respect
of United States Federal withholding tax pursuant to paragraph (a) or (c) above
to the extent that (i) the obligation to withhold amounts with respect to United
States Federal withholding tax existed on the date such Non-U.S. Bank became a
party to this Agreement (or, in the case of a Transferee that is a participation
holder, on the date such participation holder became a Transferee hereunder) or,
with respect to payments to a New Lending Office, the date such Non-U.S. Bank
designated such New Lending Office with respect to a Loan; PROVIDED, HOWEVER,
that this clause (i) of this subsection 2.19(h) shall not apply to any
Transferee or New Lending Office that becomes a Transferee or New Lending Office
as a result of an assignment, participation, transfer or designation made at the
request of the Borrower; and PROVIDED FURTHER, HOWEVER, that this clause (i) of
this subsection 2.19(h) shall not apply to the extent the indemnity payment or
additional
25
amounts any Transferee, or Bank (or Transferee) through a New Lending Office,
would be entitled to receive (without regard to this clause (i) of this
subsection 2.19(h)) do not exceed the indemnity payment or additional amounts
that the person making the assignment, participation or transfer to such
Transferee, or Bank (or Transferee) making the designation of such New Lending
Office, would have been entitled to receive in the absence of such assignment,
participation, transfer or designation or (ii) the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S. Bank
to comply with the provisions of paragraph (g) above.
(i) Any Bank (or Transferee) claiming any additional amounts
payable under this Section 2.19 shall (A) to the extent legally able to do so,
upon written request from the Borrower, file any certificate or document if such
filing would avoid the need for or reduce the amount of any such additional
amounts which may thereafter accrue, and the Borrower shall not be obligated to
pay such additional amounts if, after the Borrower's request, any Bank (or
Transferee) could have filed such certificate or document and failed to do so;
or (B) consistent with legal and regulatory restrictions, use reasonable efforts
to change the jurisdiction of its applicable lending office if the making of
such change would avoid the need for or reduce the amount of any additional
amounts which may thereafter accrue and would not, in the sole determination of
such Bank (or Transferee), be otherwise disadvantageous to such Bank (or
Transferee).
(j) Nothing contained in this Section 2.19 shall require any
Bank (or Transferee) or the Agent to make available any of its tax returns (or
any other information that it deems to be confidential or proprietary).
SECTION 2.20. MANDATORY ASSIGNMENT; COMMITMENT TERMINATION. In
the event any Bank delivers to the Agent or the Borrower, as appropriate, a
certificate in accordance with Section 2.13(c) or a notice in accordance with
Section 2.10 or 2.14, or the Borrower is required to pay any additional amounts
or other payments in accordance with Section 2.19, the Borrower may, at its own
expense, and in its sole discretion (a) require such Bank to transfer and assign
in whole or in part, without recourse (in accordance with Section 9.04), all or
part of its interests, rights and obligations under this Agreement (other than
outstanding Competitive Loans) to an assignee which shall assume such assigned
obligations (which assignee may be another Bank, if a Bank accepts such
assignment); PROVIDED that (i)such assignment shall not conflict with any law,
rule or regulation or order of any court or other Governmental Authority and
(ii) the Borrower or such assignee shall have paid to the assigning Bank in
immediately available funds the principal of and interest accrued to the date of
such payment on the Loans made by it hereunder and all other amounts owed to it
hereunder or (b) terminate the Commitment of such Bank and prepay all
outstanding Loans (other than Competitive Loans) of such Bank; PROVIDED that (x)
such termination of the Commitment of such Bank and prepayment of Loans does not
conflict with any law, rule or regulation or order of any court or Governmental
Authority and (y) the Borrower shall have paid to such Bank in immediately
available funds the principal of and interest accrued to the date of such
payment on the Loans (other than Competitive Loans) made by it hereunder and all
other amounts owed to it hereunder.
26
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Banks
that:
SECTION 3.01. ORGANIZATION; POWERS. The Borrower and each
Subsidiary of the Borrower (a)is a corporation or other entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has all requisite corporate or other entity power and
authority to own its property and assets and to carry on its business as now
conducted, (c) is qualified to do business in every jurisdiction where such
qualification is required, except where the failure so to qualify would not be
reasonably likely to have a Material Adverse Effect, and (d) in the case of the
Borrower, has the corporate power and authority to execute, deliver and perform
its obligations under each of the Loan Documents to which it is a party and each
other agreement or instrument contemplated thereby to which it is or will be a
party and to borrow hereunder.
SECTION 3.02. AUTHORIZATION. The execution, delivery and
performance by the Borrower of this Agreement and the execution, delivery and
performance of each of the other Loan Documents and the borrowings hereunder
(collectively, the "Transactions") (a) have been duly authorized by all
requisite corporate and, if required, stockholder action and (b) will not (i)
violate (A) any provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive documents or
by-laws (or code of regulations) of the Borrower or any Subsidiary, (B) any
order of any Governmental Authority or (C) any provision of any indenture,
agreement or other instrument to which the Borrower or any Subsidiary is a party
or by which any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under any such indenture, agreement or other
instrument and (iii) result in the creation or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter acquired by the
Borrower or any Subsidiary, except for any such violation, conflict, creation or
imposition which does not impair the Borrower's ability to enter into and
perform the Transactions or would not be reasonably likely to have a Material
Adverse Effect or materially impair the position of the Banks with respect to
any other creditors of the Borrower.
SECTION 3.03. ENFORCEABILITY. This Agreement has been duly
executed and delivered by the Borrower and constitutes, and each other Loan
document when executed and delivered by the Borrower will constitute, a legal,
valid and binding obligation of the Borrower, enforceable against the Borrower
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws of general application affecting
the enforcement of creditors' rights or by general principles of equity.
SECTION 3.04. GOVERNMENTAL APPROVALS. No action, consent or
approval of, registration or filing with or any other action by any Governmental
Authority is or will be required by the Borrower in connection with the
Transactions, except such as have been made or obtained and are in full force
and effect.
27
SECTION 3.05. FINANCIAL STATEMENTS. The Borrower has
heretofore furnished to the Banks the consolidated balance sheet and
consolidated statements of income, retained earnings and cash flows of the
Borrower and its consolidated subsidiaries (a) as of and for the fiscal year
ended December 31, 2001, audited by and accompanied by the opinion of Deloitte &
Touche LLP, independent public accountants, and (b) as of and for the fiscal
quarter and the portion of the fiscal year ended March 31, 2002, certified by
the chief financial officer of the Borrower. Such financial statements (subject,
in the case of such interim statements, to normal year-end audit adjustments)
present fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated subsidiaries as of such dates
and for such periods. Such balance sheets and the notes thereto disclose, in
accordance with GAAP, all material liabilities, direct or contingent, of the
Borrower and its consolidated subsidiaries as of the dates thereof. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis, except that such interim financial statements do not contain
footnotes.
SECTION 3.06. NO MATERIAL ADVERSE CHANGE. There has been no
change in the business, assets, operations or condition, financial or otherwise,
of the Borrower and its Subsidiaries since December 31, 2001 that would
constitute a Material Adverse Effect which is not reflected in the financial
statements referred to in Section 3.05(b).
SECTION 3.07. TITLE TO PROPERTIES; POSSESSION UNDER LEASES.
(a) Each of the Borrower and its Subsidiaries has good and marketable title to,
or valid leasehold interests in, all its properties and assets, except for
defects in title that would not, in the aggregate, be reasonably likely to have
a Material Adverse Effect. All material properties and assets are free and clear
of Liens, other than Liens expressly permitted by Section 6.02.
(b) Each of the Borrower and its Subsidiaries has complied
with all obligations under all leases to which it is a party, all such leases
are in full force and effect and each of the Borrower and its Subsidiaries
enjoys peaceful and undisturbed possession under all such leases, except for any
noncompliance, ineffectiveness or other conditions that would not, in the
aggregate, be reasonably likely to have a Material Adverse Effect.
SECTION 3.08. STOCK OF BORROWER. More than 51% of the
outstanding Common Voting Shares, par value $.01, of the Borrower are owned
legally, beneficially and of record by the Trust or the beneficiaries thereof.
SECTION 3.09. LITIGATION; COMPLIANCE WITH LAWS. (a) Except as
set forth in Schedule 3.09 or otherwise disclosed to the Banks in writing, there
are not any actions, suits or proceedings at law or in equity or by or before
any Governmental Authority now pending or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any Subsidiary or any business,
property or rights of any such person (i) which involve any Loan Document or the
Transactions or (ii) as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, would, individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect.
(b) None of the Borrower nor any of its Subsidiaries is in
violation of any law, rule or regulation, or in default with respect to any
judgment, writ, injunction or decree of any
28
Governmental Authority, where such violation or default would be reasonably
likely to have a Material Adverse Effect.
SECTION 3.10. AGREEMENTS. (a) None of the Borrower nor any of
its Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or would be reasonably likely to result
in a Material Adverse Effect.
(b) None of the Borrower nor any of its Subsidiaries is in
default in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default would be reasonably likely to
have a Material Adverse Effect.
SECTION 3.11. FEDERAL RESERVE REGULATIONS. (a) None of 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.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately,
(i)to purchase or carry Margin Stock or to extend credit to others for the
purpose of purchasing or carrying Margin Stock or to refund indebtedness
originally incurred for such purpose, or (ii)for any purpose which entails a
violation of, or which is inconsistent with, the provisions of the Regulations
of the Board, including Regulation U or X.
SECTION 3.12. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT. None of the Borrower nor any Subsidiary is (a)an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b)a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.13. USE OF PROCEEDS. The Borrower will use the
proceeds of the Loans only for the purposes specified in the preamble to this
Agreement.
SECTION 3.14. TAX RETURNS. Each of the Borrower and its
Subsidiaries has filed or caused to be filed all Federal, state and local tax
returns required to have been filed by it and has paid or caused to be paid all
taxes shown to be due and payable on such returns or on any assessments received
by it, except taxes that are being contested in good faith by appropriate
proceedings and for which the Borrower shall have set aside on its books
adequate reserves.
SECTION 3.15. NO MATERIAL MISSTATEMENTS. No material
information, report, financial statement, exhibit or schedule furnished by the
Borrower in writing to the Agent or any Bank in connection with the negotiation
of any Loan Document or included therein or delivered pursuant thereto
contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading.
SECTION 3.16. EMPLOYEE BENEFIT PLANS. The Borrower and each of
its ERISA Affiliates is in compliance with the applicable provisions of ERISA
and the Code and the regulations and published interpretations thereunder,
except for violations which, in the
29
aggregate, would not be reasonably likely to have a Material Adverse Effect. No
Reportable Event has occurred in respect of any plan of the Borrower or any
ERISA Affiliate that would be reasonably likely to have a Material Adverse
Effect. The present value of all benefit liabilities under each Plan (based on
those assumptions used to fund such Plan) did not, as of the last annual
valuation date applicable thereto, exceed by more than $20,000,000 the value of
the assets of such Plan, and the present value of all benefit liabilities of all
underfunded Plans (based on those assumptions used to fund each such Plan) did
not, as of the last annual valuation dates applicable thereto, exceed
$40,000,000. Neither the Borrower nor any ERISA Affiliate has incurred any
Withdrawal Liability that materially adversely affects the financial condition
of the Borrower and its ERISA Affiliates taken as a whole. Neither the Borrower
nor any ERISA Affiliate has received any notification that any Multiemployer
Plan is in reorganization or has been terminated, within the meaning of Title IV
of ERISA, and no Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, where such reorganization or termination has
resulted or would reasonably be expected to result in the contributions required
to be made to such Plan that would materially and adversely affect the financial
condition of the Borrower and its ERISA Affiliates taken as a whole.
SECTION 3.17. ENVIRONMENTAL AND SAFETY MATTERS. Except as set
forth in Schedule 3.17 or otherwise previously disclosed to the Banks in
writing, each of the Borrower and each of its Subsidiaries has complied with all
Federal, state, local and other statutes, ordinances, orders, judgments, rulings
and regulations relating to environmental pollution or to environmental
regulation or control or to employee health or safety, except for violations
which, in the aggregate, would not be reasonably likely to have a Material
Adverse Effect. Except as set forth in Schedule 3.17 or otherwise previously
disclosed to the Banks in writing, none of the Borrower or any of its
Subsidiaries has received notice of any failure so to comply. Except as set
forth in Schedule 3.17 or otherwise previously disclosed to the Banks in
writing, the Borrower's and its Subsidiaries' plants do not manage any hazardous
wastes, hazardous substances, hazardous materials, toxic substances, toxic
pollutants, or substances similarly denominated, as those terms or similar terms
are used in the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Clean Air Act, the
Clean Water Act or any other applicable law relating to environmental pollution
or employee health and safety, in violation in any material respect of any law
or any regulations promulgated pursuant thereto, except for violations which, in
the aggregate, would not be reasonably likely to have a Material Adverse Effect.
Except as set forth in Schedule 3.17 or otherwise previously disclosed to the
Banks in writing, none of the Borrower nor any of its Subsidiaries is aware of
any events, conditions or circumstances involving environmental pollution or
contamination or employee health or safety that is reasonably expected to result
in liability which would have a Material Adverse Effect.
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Banks to make Loans hereunder are
subject to the satisfaction of the following conditions:
30
SECTION 4.01. ALL BORROWINGS. On the date of each Borrowing,
including each Borrowing in which Loans are refinanced with new Loans as
contemplated by Section 2.05, and on the date of the election of the term out
option pursuant to Section 2.07(f):
(a) The Agent shall have received a notice of such Borrowing
or election as required by Section 2.03, Section 2.04 or Section 2.07,
as applicable.
(b) The representations and warranties set forth in Article
III hereof (except, subject to Section 4.02(e), the representations set
forth in Section 3.06) shall be true and correct in all material
respects on and as of the date of such Borrowing or election with the
same effect as though made on and as of such date, except to the extent
such representations and warranties expressly relate to an earlier
date.
(c) At the time of and immediately after such Borrowing or
election no Event of Default or Default shall have occurred and be
continuing.
Each Borrowing or such election shall be deemed to constitute a representation
and warranty by the Borrower on the date of such Borrowing or election as to the
matters specified in paragraphs(b) and (c) of this Section 4.01.
SECTION 4.02. FIRST BORROWING. On the Closing Date:
(a) The Agent shall have received a favorable written opinion
of Xxxxx & Xxxxxxxxx LLP, counsel for the Borrower, dated the Closing Date and
addressed to the Banks, to the effect set forth in Exhibit D hereto, and the
Borrower hereby instructs such counsel to deliver such opinion to the Agent.
(b) All legal matters incident to this Agreement and the
borrowings hereunder shall be satisfactory to the Banks and their counsel and to
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent.
(c) The Agent shall have received (i) a copy of the articles
of incorporation, including all amendments thereto, of the Borrower, certified
as of a recent date by the Secretary of State of the state of its organization,
and a certificate as to the good standing of the Borrower as of a recent date,
from such Secretary of State; (ii) a certificate of the Secretary or Assistant
Secretary of the Borrower dated the Closing Date and certifying (A) that
attached thereto is a true and complete copy of the code of regulations of the
Borrower as in effect on the Closing Date and at all times since a date prior to
the date of the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board of
Directors of the Borrower authorizing the execution, delivery and performance of
the Loan Documents and the borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and effect, (C)
that the articles of incorporation of the Borrower have not been amended since
the date of the last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above, and (D) as to the incumbency and
specimen signature of each officer executing any Loan document or any other
document delivered in connection herewith on behalf of the Borrower; (iii) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to (ii)
above; and (iv) such other
31
documents as the Banks or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel
for the Agent, may reasonably request.
(d) The Agent shall have received a certificate from the
Borrower, dated the Closing Date and signed by a Financial Officer thereof,
confirming compliance with the conditions precedent set forth in paragraphs (b)
and (c) of Section 4.01.
(e) The representations and warranties set forth in Section
3.06 shall be true and correct in all material respects.
(f) Concurrently with the transactions contemplated hereby on
the Closing Date, the Borrower, the applicable Banks and the Agent shall have
executed a side letter whereby all competitive loans under the Existing Credit
Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall
have repaid in full all other amounts due under the Existing Credit Agreement
and under each other agreement related thereto, and the Agent shall have
received duly executed documentation either evidencing or necessary for (i) the
termination of the Existing Credit Agreement and each other agreement related
thereto and (ii) the cancelation of all commitments thereunder.
(g) The Agent shall have received all Fees and other amounts
due and payable on or prior to the Closing Date.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Bank that, so long
as this Agreement shall remain in effect or the principal of or interest on any
Loan, any Fees or any other expenses or amounts payable under any Loan Document
shall be unpaid, unless the Required Banks shall otherwise consent in writing,
it will, and will cause each of its Subsidiaries to:
SECTION 5.01. EXISTENCE; BUSINESSES AND PROPERTIES. (a) Do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence, except as otherwise expressly permitted under
Section 6.04 and except with respect to the Subsidiaries of the Borrower where
such failure would not reasonably be likely to have a Material Adverse Effect.
(b) Except to the extent that the failure to do or cause the
same to be done would not be reasonably likely to have a Material Adverse
Effect, do or cause to be done all things necessary to obtain, preserve, renew,
extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated
(subject to changes in the ordinary course of business); comply in all material
respects with all applicable laws, rules, regulations and orders of any
Governmental Authority, whether now in effect or hereafter enacted; and at all
times maintain and preserve all property material to the conduct of such
business and keep such
32
property in good repair, working order and condition and from time to time make,
or cause to be made all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times.
SECTION 5.02. INSURANCE. (a) Keep its insurable properties
adequately insured at all times by financially sound and reputable insurers; (b)
maintain such other insurance, to such extent and against such risks, including
fire and other risks insured against by extended coverage, as is customary with
companies in the same or similar businesses, including public liability
insurance against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any properties owned,
occupied or controlled by it, and (c)maintain such other insurance as may be
required by law; PROVIDED, HOWEVER, that, in lieu of or supplementing any such
insurance described in(a) or (b)above, it may adopt such other plan or method of
protection conforming to its self-insurance practices existing on the date
hereof.
SECTION 5.03. OBLIGATIONS AND TAXES. Except to the extent the
failure to do so would not, in the aggregate, be reasonably likely to have a
Material Adverse Effect, pay its Indebtedness and other obligations promptly and
in accordance with their terms and pay and discharge promptly when due all
taxes, assessments and governmental charges or levies imposed upon it or upon it
or upon its income or profits or in respect of its property, before the same
shall become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might give rise to a Lien
upon such properties or any part thereof; PROVIDED, HOWEVER, that such payment
and discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the Borrower shall have
set aside on its books adequate reserves with respect thereto.
SECTION 5.04. FINANCIAL STATEMENTS, REPORTS, ETC. Furnish to
the Agent and each Bank:
(a) within 120 days after the end of each fiscal year of the
Borrower, consolidated balance sheets of the Borrower and its
consolidated subsidiaries, the related consolidated statements of
operations and the related consolidated statements of stockholders'
equity and cash flows, showing the financial condition of the Borrower
and its consolidated subsidiaries as of the close of such fiscal year
and the results of its operations during such year, all such
consolidated financial statements audited by and accompanied by the
report thereon of Deloitte& Touche LLP or other independent public
accountants of recognized national standing reasonably acceptable to
the Required Banks and accompanied by an opinion of such accountants
(which shall not be qualified in any material respect) to the effect
that such consolidated financial condition and results of operations of
the Borrower on a consolidated basis;
(b) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, consolidated
balance sheets and related consolidated statements of income, retained
earnings and cash flows, showing the financial condition of the
Borrower and its consolidated subsidiaries as of the close of such
fiscal quarter and the results of its operations during such fiscal
quarter and the then elapsed portion of the
33
fiscal year, all certified by a Financial Officer of the Borrower as
fairly presenting in all material respects the financial condition and
results of operations of the Borrower on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and except for the absence of footnotes in the case
of quarterly statements;
(c) concurrently with any delivery of financial statements
under(a) or (b)above, a certificate of a Financial Officer of the
Borrower opining on or certifying such statements (i)certifying that no
Event of Default or Default has occurred or, if such an Event of
Default or Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be taken with
respect thereto and (ii)setting forth computations in reasonable detail
satisfactory to the Agent demonstrating compliance with the covenants
contained in Sections 6.01(a) and (b)(v), 6.03 and 6.05;
(d) promptly after the same become publicly available, copies
of all material periodic and other reports, proxy statements and other
materials filed by the Borrower or any Subsidiary with the Securities
and Exchange Commission, or any governmental authority succeeding to
any of or all the functions of said Commission, or with any national
securities exchange, or distributed to its public shareholders, as the
case may be;
(e) promptly after the same become publicly available, copies
of all material reports pertaining to any change in ownership filed by
the Borrower or any Subsidiary with any Governmental Authority; and
(f) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
the Borrower or any Subsidiary, or compliance with the terms of any
Loan Document, as the Agent or any Bank may reasonably request.
SECTION 5.05. LITIGATION AND OTHER NOTICES. Furnish to the
Agent and each Bank prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate thereof
which could be reasonably anticipated to be adversely determined and,
if adversely determined, could result in a Material Adverse Effect; and
(c) any development that has resulted in, or could reasonably
be anticipated by the Borrower to result in, a Material Adverse Effect.
SECTION 5.06. ERISA. (a) Comply with the applicable provisions
of ERISA and the Code except to the extent of such noncompliance which, in the
aggregate, would not be reasonably likely to have a Material Adverse Effect and
(b)furnish to the Agent (i)as soon as possible after, and in any event with
30days after any Responsible Officer of the Borrower or
34
any ERISA Affiliate knows or has reason to know that any Reportable Event has
occurred that alone or together with any other Reportable Event could reasonably
be expected to result in liability of the Borrower to the PBGC in an aggregate
amount exceeding $10,000,000, a statement of a Financial Officer setting forth
details as to such Reportable Event and the action proposed to be taken with
respect thereto, together with a copy of the notice, if any, of such Reportable
Event given to the PBGC, (ii)promptly after receipt thereof, a copy of any
notice that the Borrower or any ERISA Affiliate may receive from the PBGC
relating to the intention of the PBGC to terminate any Plan or Plans (other than
a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate
only pursuant to subsection(m) or(o) of Code Section 414 or to appoint a trustee
to administer any such Plan, (iii)within 10 days after the due date for filing
with the PBGC pursuant to Section 412(n) of the Code of a notice of failure to
make a required installment or other payment with respect to a Plan, a statement
of a Financial Officer setting forth details as to such failure and the action
proposed to be taken with respect thereto, together with a copy of such notice
given to the PBGC and (iv) promptly and in any event within 30 days after
receipt thereof by the Borrower or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the Borrower, or any ERISA
Affiliate concerning (A)the imposition of Withdrawal Liability or (B)a
determination that a Multiemployer Plan is, or is expected to be, terminated or
in reorganization, in each case within the meaning of Title IV of ERISA.
SECTION 5.07. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND
INSPECTIONS. Maintain all financial records in accordance with GAAP and permit
any representatives designated by any Bank to visit and inspect the financial
records and the properties of the Borrower or any Subsidiary upon reasonable
prior notice at reasonable times and as often as reasonably requested (PROVIDED
that such Bank shall make reasonable efforts not to interfere unreasonably with
the business of the Borrower or any Subsidiary) and to make extracts from and
copies of such financial records, and permit any representatives designated by
any Bank to discuss the affairs, finances and condition of the Borrower or any
Subsidiary with the officers thereof and independent accountants therefor;
PROVIDED that each person obtaining such information shall hold all such
information in strict confidence in accordance with the restrictions set forth
in Section 9.16.
SECTION 5.08. USE OF PROCEEDS. Use the proceeds of the Loans
only for the purposes set forth in the preamble to this Agreement.
SECTION 5.09. FILINGS. Make all material filings required to
be made by it with any Governmental Authority.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with each Bank and the Agent
that, so long as this Agreement shall remain in effect or the principal of or
interest on any Loan, any Fees or any other expenses or amounts payable under
any Loan Document shall be unpaid, unless the Required Banks shall otherwise
consent in writing, it will not, and will not cause or permit any of its
Subsidiaries to:
35
SECTION 6.01. INDEBTEDNESS. (a) Permit the ratio of
Consolidated Indebtedness of the Borrower to Consolidated Cash Flow of the
Borrower at the end of and for the most recently ended four consecutive calendar
quarters at any time to be greater than 5.0 to 1.0.
(b) Permit any Subsidiary of the Borrower to incur, create,
assume or permit to exist any Indebtedness, except:
(i) Indebtedness existing on the date hereof as set forth in
Schedule 6.01 hereto, and additional Indebtedness incurred pursuant to
commitments by persons to lend to any Subsidiary but only to the extent
such commitments are available and unused as of the date hereof as set
forth in Schedule 6.01 hereto;
(ii) Indebtedness of a Subsidiary or business existing at the
time such Subsidiary or business was acquired by the Borrower or a
Subsidiary; provided that such Indebtedness was not incurred in
contemplation of such acquisition;
(iii) Indebtedness to the Borrower or to another Subsidiary of
the Borrower; and
(iv) other Indebtedness exclusive of the Indebtedness
permitted by clauses (i) through (iii) above in an aggregate amount at
any time outstanding which, when added to the aggregate Indebtedness
secured by Liens permitted by Section 6.02(k) and to the aggregate
amount incurred by the Borrower and any of the Subsidiaries pursuant to
Section 6.03(ii) herein, shall not exceed 15% of the Consolidated
Stockholders' Equity of the Borrower at such time.
SECTION 6.02. LIENS. Create, incur, assume or permit to exist
any Lien on any property or assets (including stock or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens incurred or pledges and deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and old-age pensions and other social security
benefits;
(b) Liens securing the performance of bids, tenders, leases,
contracts (other than for the repayment of borrowed money), statutory
obligations, surety and appeal bonds and other obligations of like
nature, incurred as an incident to and in the ordinary course of
business;
(c) Liens imposed by law, such as carriers', warehousemen's,
mechanics', materialmen's, suppliers', repairmen's and vendors' liens,
incurred in good faith in the ordinary course of business with respect
to obligations not delinquent or which are being contested in good
faith by appropriate proceedings and as to which the Borrower or a
Subsidiary shall have set aside on its books adequate reserves;
36
(d) Liens securing the payment of taxes, assessments and
governmental charges or levies, either (i) not delinquent or (ii)being
contested in good faith by appropriate legal or administrative
proceedings and as to which the Borrower or a Subsidiary, as the case
may be, shall have set aside on its books adequate reserves;
(e) zoning restrictions, easements, licenses, reservations,
restrictions on the use of real property or minor irregularities
incident thereto (and with respect to leasehold interests: mortgages,
obligations, liens and other encumbrances that are incurred, created,
assumed or permitted to exist and arise by, through or under or are
asserted by a landlord or owner of the leased property, with or without
consent of the lessee) which were not incurred in connection with the
borrowing of money or the obtaining of advances or credit and which do
not in the aggregate materially detract from the value of the property
or assets of the Borrower or a Subsidiary, as the case may be, or
impair the use of such property for the purposes for which such
property is held by the Borrower or such Subsidiary;
(f) Liens to secure the purchase price of real or personal
property acquired, constructed or improved after the date hereof;
PROVIDED that any such Lien is existing or created at the time of, or
substantially simultaneously with, the acquisition, construction or
improvement by the Borrower or a Subsidiary of the property so acquired
and at all times covers only such property;
(g) Liens on property of a Subsidiary in favor of the Borrower
or another Subsidiary;
(h) Liens created by or resulting from any litigation or
proceeding which is currently being contested in good faith by
appropriate proceedings and as to which (i) levy and execution have
been stayed and continue to be stayed and (ii)the Borrower or a
Subsidiary shall have set aside on its books adequate reserves;
(i) Liens on property of a Subsidiary existing at the time it
becomes a Subsidiary; PROVIDED that such Liens were not created in
contemplation of the acquisition by the Borrower or another Subsidiary
of such Subsidiary;
(j) Liens on the property of the Borrower or a Subsidiary
incidental to the conduct of its business or the ownership of its
property which were not incurred in connection with the borrowing of
money or the obtaining of advances or credit or other financial
accommodations (including but not limited to interest rate swap
obligations or letter of credit obligations of the Borrower or any
Subsidiary), and which do not in the aggregate materially detract from
the value of its property or assets or impair the use thereof in the
operation of its business;
(k) the Borrower and any Subsidiary may incur Liens not
otherwise permitted by this covenant securing Indebtedness in an
aggregate amount at any time outstanding which, when added to the
aggregate amount incurred by Subsidiaries under Section 6.01(b)(iv) and
to the aggregate amount incurred by the Borrower and the Subsidiaries
37
under Section 6.03(ii) does not exceed 15% of Consolidated
Stockholders' Equity of the Borrower at such time;
(l) judgment Liens that do not constitute an Event of Default;
and
(m) Liens on property acquired by the Borrower or any of its
Subsidiaries after the Closing Date so long as such Liens are limited
to the property acquired and were not created in contemplation of the
acquisition.
SECTION 6.03. SALE AND LEASE-BACK TRANSACTIONS. Enter into any
arrangement, directly or indirectly, with any person 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 which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred, except that (i) any
Subsidiary may enter into such an arrangement for the sale or transfer of its
property to another Subsidiary or to the Borrower and (ii)the Borrower and the
Subsidiaries may enter into any such arrangements provided that the aggregate
sale price of all property subject to such arrangements (other than arrangements
described in clause(i) above), when added to the aggregate amount of
Indebtedness incurred by Subsidiaries under Section 6.01(b)(v) and to the
aggregate amount of Indebtedness secured by Liens permitted by Section 6.02(k),
shall not exceed 15% of the Consolidated Stockholders' Equity of the Borrower at
such time.
SECTION 6.04. MERGERS, CONSOLIDATIONS AND SALES OF ASSETS.
Merge into or consolidate with any other person, or permit any other person to
merge into or consolidate with it, or sell, transfer, lease or otherwise dispose
of (in one transaction or in a series of transactions) all or substantially all
of its assets (whether now owned or hereafter acquired) or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or
substantially all of the assets of any other person, except that if at the time
thereof and immediately after giving effect thereto no Event of Default or
Default shall have occurred and be continuing, (a)the Borrower or a Subsidiary
may merge with another corporation in a transaction in which the surviving
entity is the Borrower or such Subsidiary, respectively, and, in the case of a
Subsidiary, the surviving entity is a wholly owned Subsidiary, (b)any Subsidiary
may merge into the Borrower or another Subsidiary; or (c)the Borrower or a
Subsidiary may purchase, lease or otherwise acquire any assets of any other
person.
SECTION 6.05. INTEREST COVERAGE RATIO. Permit the ratio of
Consolidated Cash Flow of the Borrower to Consolidated Interest Expense of the
Borrower for the period of four consecutive calendar quarters most recently
ended at any time to be less than 2.5 to 1.0.
SECTION 6.06. FISCAL YEAR. Change its fiscal year.
ARTICLE VII
EVENTS OF DEFAULT
In case of the happening of any of the following events
("Events of Default"):
38
(a) any representation or warranty made or deemed made in or
in connection with any Loan Document or the borrowings hereunder, or
any representation, warranty, statement or information contained in any
report, certificate, financial statement or other instrument furnished
in connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made,
deemed made or furnished;
(b) default shall be made in the payment of any principal of
any Loan when and as the same shall become due and payable, whether at
the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on
any Loan or any Fee or any other amount (other than an amount referred
to in (b) above) due under any Loan Document, when and as the same
shall become due and payable, and such default shall continue
unremedied for a period of 5 Business Days;
(d) default shall be made in the due observance or performance
by the Borrower or any Subsidiary of any covenant, condition or
agreement contained in Section 5.01(a) or 5.05(a) or in Article VI;
(e) default shall be made in the due observance or performance
by the Borrower or any Subsidiary of any covenant, condition or
agreement contained in any Loan Document (other than those specified in
(b), (c) or (d) above) and such default shall continue unremedied for a
period of 30 days after written notice thereof from the Agent or any
Bank to the Borrower;
(f) the Borrower or any Subsidiary shall (i)fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $10,000,000, when and
as the same shall become due and payable, or (ii)fail to observe or
perform any other term, covenant, condition or agreement contained in
any agreement or instrument evidencing or governing any such
Indebtedness if the effect of any failure referred to in this
clause(ii) is to cause such Indebtedness to become due prior to its
stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i)relief in respect of the Borrower or any
Subsidiary, or of a substantial part of the property or assets of the
Borrower or a Subsidiary, under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law, (ii)the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or
for a substantial part of the property or assets of the Borrower or a
Subsidiary or (iii)the winding-up or liquidation of the Borrower or any
Subsidiary; and such proceeding or petition shall continue undismissed
for 90 days or an order or decree approving or ordering any of the
foregoing shall be unstayed and in effect for 90 days;
39
(h) the Borrower or any Subsidiary shall (i)voluntarily
commence any proceeding or file any petition seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended,
or any other Federal or state bankruptcy, insolvency, receivership or
similar law, (ii)consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or the filing of any
petition described in (g) above, (iii)apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or
for a substantial part of the property or assets of the Borrower or any
Subsidiary, (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, (vi)become unable, admit in
writing its inability or fail generally to pay its debts as they become
due or (vii)take any action for the purpose of effecting any of the
foregoing;
(i) one or more final judgments for the payment of money in
excess of $10,000,000, excluding such amounts which are covered by
insurance, shall be rendered against the Borrower, any Subsidiary or
any combination thereof and the same 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 levy upon assets or properties of the Borrower or any
Subsidiary to enforce any such judgment;
(j) a Reportable Event or Reportable Events, or a failure to
make a required installment or other payment (within the meaning of
Section 412(n)(l) of the Code), shall have occurred with respect to any
Plan or Plans that reasonably could be expected to result in liability
of the Borrower to the PBGC or to a Plan in an aggregate amount
exceeding $10,000,000 and, within 30 days after the reporting of any
such Reportable Event to the Agent or after the receipt by the Agent of
the statement required pursuant to Section 5.06, the Agent shall have
notified the Borrower in writing that (i)the Required Banks have made a
determination that, on the basis of such Reportable Event or Reportable
Events or the failure to make a required payment, there are reasonable
grounds (A)for the termination of such Plan or Plans by the PBGC,
(B)for the appointment by the appropriate United States District Court
of a trustee to administer such Plan or Plans or (C)for the imposition
of a lien in favor of a Plan and (ii)as a result thereof an Event of
Default exists hereunder; or a trustee shall be appointed by a United
States District Court to administer any such Plan or Plans; or the PBGC
shall institute proceedings to terminate any Plan or Plans; or
(k) (i) the Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan, (ii)the Borrower or
such ERISA Affiliate does not have reasonable grounds for contesting
such Withdrawal Liability or is not contesting such Withdrawal
Liability in a timely and appropriate manner and (iii)the amount of
such Withdrawal Liability specified in such notice, when aggregated
with all other amounts required to be paid to Multiemployer Plans in
connection with Withdrawal Liabilities (determined as of the date or
dates of such notification), either (A)exceeds $10,000,000 or requires
payments exceeding $10,000,000 in any year or (B)is less than
$10,000,000 but any Withdrawal Liability payment remains unpaid 30 days
after such payment is due;
40
(l) the Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, if solely as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and its
ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or have been or are being terminated have been or will
be increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan years by an
amount exceeding $10,000,000; or
(m) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph(g) or (h) above), and at any time thereafter during the
continuance of such event, the Agent, at the request of the Required Banks,
shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i)terminate forthwith the Commitments and
(ii)declare the Loans then outstanding to be forthwith due and payable in whole
or in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued Fees and
all other liabilities of the Borrower accrued hereunder and under any other Loan
Document, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrower, anything contained herein or in any other Loan Document
to the contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph(g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE VIII
THE AGENT
In order to expedite the transactions contemplated by this
Agreement, JPMorgan Chase Bank is hereby appointed to act as Agent on behalf of
the Banks. Each of the Banks, and each transferee of any Bank, hereby
irrevocably authorizes the Agent to take such actions on behalf of such Bank or
transferee and to exercise such powers as are specifically delegated to the
Agent by the terms and provisions hereof and of the other Loan Documents,
together with such actions and powers as are reasonably incidental thereto. The
Agent is hereby expressly authorized by the Banks, without hereby limiting any
implied authority, (a) to receive on behalf of the Banks all payments of
principal of and interest on the Loans and all other amounts due to the Banks
hereunder, and promptly to distribute to each Bank its proper share of each
payment so received; (b)to give notice on behalf of each of the Banks to the
Borrower of any Event of Default specified in this Agreement of which the Agent
has actual knowledge acquired in connection with its agency hereunder; and (c)to
distribute to each Bank copies of all notices, financial statements and other
materials delivered by the Borrower pursuant to this Agreement as received by
the Agent.
41
Neither the Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower of any of the terms, conditions, covenants or agreements contained in
any Loan Document. The Agent shall not be responsible to the Banks for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement or any other Loan Documents or other instruments or agreements. The
Agent shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required Banks
and, except as otherwise specifically provided herein, such instructions and any
action or inaction pursuant thereto shall be binding on all the Banks. The Agent
shall, in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper person or persons. Neither the
Agent nor any of its directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure of or delay in
performance or breach by any Bank of any of its obligations hereunder or to any
Bank on account of the failure of or delay in performance or breach by any other
Bank or the Borrower of any of their respective obligations hereunder or under
any other Loan Document or in connection herewith or therewith. The Agent may
execute any and all duties hereunder by or through agents or employees and shall
be entitled to rely upon the advice of legal counsel selected by it with respect
to all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Banks hereby acknowledge that the Agent shall be under no
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Banks.
Subject to the appointment and acceptance of a successor Agent
as provided below, the Agent may resign at any time by notifying the Banks and
the Borrower. Upon any such resignation, the Required Banks shall have the right
to appoint a successor. If no successor shall have been so appointed by the
Required Banks 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 Banks, appoint a successor Agent which shall be a bank with an
office in New York, New York, having a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Agent hereunder by a successor bank, such successor 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. After the Agent's resignation hereunder, the provisions
of this Article and Section 9.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
With respect to the Loans made by it hereunder, the Agent in
its individual capacity and not as Agent shall have the same rights and powers
as any other Bank and may exercise the same as though it were not the Agent, and
the 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
other Affiliate thereof as if it were not the Agent.
42
Each Bank agrees (i) to reimburse the Agent, on demand, in the
amount of its pro rata share (based on its Commitment hereunder) of any expenses
incurred for the benefit of the Banks by the Agent, including counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Banks, which shall not have been reimbursed by the Borrower and (ii)to indemnify
and hold harmless the Agent and any of its directors, officers, employees or
agents, on demand, in the amount of such pro rata share, from and against any
and all liabilities, taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against it in its
capacity as the Agent or any of them in any way relating to or arising out of
this Agreement or any other Loan Document or any action taken or omitted by it
or any of them under this Agreement or any other Loan Document, to the extent
the same shall not have been reimbursed by the Borrower; provided that no Bank
shall be liable to the Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or wilful misconduct of the
Agent or any of its directors, officers, employees or agents.
Each Bank acknowledges that it has, independently and without
reliance upon the Agent or any other Bank and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any other Bank and based on
such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. 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 Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxxx, Xxxx 00000, Attention of Treasurer (Telecopy No.
513-977-3729) with a copy to Xxxxx & Xxxxxxxxx LLP, counsel for the
Borrower, to it at 0000 Xxxxxxxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000,
Attention of Xxxx X .Xxxxxxxxxx, Esq. (Telecopy No. 216-696-0740) and
000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxx 00000, Attention of
Xxxxxxx Xxxxxxxx (Telecopy No. 513-929-0303);
(b) if to the Agent, to JPMorgan Chase Bank, Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxx Xxxxxxx
(Telecopy No. 212-552-5700), with copies to JPMorgan Chase Bank, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxxxxx
(Telecopy No. 212-270-4164); and
43
(c) if to a Bank, to it at its address (or telecopy number)
set forth in Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Bank shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 9.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 9.01.
SECTION 9.02. SURVIVAL OF AGREEMENT. All covenants,
agreements, representations and warranties made by the Borrower herein and in
the certificates or other material instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the Banks and shall survive the making
by the Banks of the Loans, regardless of any investigation made by the Banks or
on their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid and so long as the Commitments have not been terminated.
SECTION 9.03. BINDING EFFECT. This Agreement shall become
effective when it shall have been executed by the Borrower and the Agent and
when the Agent shall have received copies hereof which, when taken together,
bear the signatures of each Bank, and thereafter shall be binding upon and inure
to the benefit of the Borrower, the Agent and each Bank and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior consent of
all the Banks.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that
(i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Bank (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Bank may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby, Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Agent and the Banks) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Bank may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld, conditioned or delayed)
of:
44
(A) the Borrower, PROVIDED that no consent of the Borrower
shall be required for an assignment to a Bank, an Affiliate of a Bank,
an Approved Fund (as defined below) or, if an Event of Default under
clause (b), (c), (g) or (h) of Article VII has occurred and is
continuing, any other assignee; and
(B) the Agent, PROVIDED that no consent of the Agent shall be
required for an assignment to an assignee that is a Bank or an
affiliate of a Bank immediately prior to giving effect to such
assignment.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Bank or an
Affiliate of a Bank or an assignment of the entire remaining amount of
the assigning Bank's Commitment, the amount of the Commitment of the
assigning Bank subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is
delivered to the Agent) shall not be less than $5,000,000 unless each
of the Borrower and the Agent otherwise consent, PROVIDED that no such
consent of the Borrower shall be required if an Event of Default under
clause (b), (c), (g) or (h) of Article VII has occurred and is
continuing;
(B) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Bank's rights and obligations
under this Agreement, PROVIDED that this clause shall not apply to
rights in respect of outstanding Competitive Loans;
(C) the parties to each assignment shall execute and deliver
to the Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500;
(D) the assignee, if it shall not be a Bank, shall deliver to
the Agent an Administrative Questionnaire; and
(E) in the case of an assignment to a CLO (as defined below),
the assigning Bank shall retain the sole right to approve any
amendment, modification or waiver of any provision of this Agreement,
PROVIDED that the Assignment and Acceptance between such Bank and such
CLO may provide that such Bank will not, without the consent of such
CLO, agree to any amendment, modification or waiver described in the
first proviso to Section 9.08(b) that affects such CLO.
For the purposes of this Section 9.04(b), the terms "Approved
Fund" and "CLO" have the following meanings:
"APPROVED FUND" means (a) a CLO and (b) with respect to any
Bank 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 Bank or by an
Affiliate of such investment advisor.
"CLO" means any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar
45
extensions of credit in the ordinary course of its business and is administered
or managed by a Bank or an Affiliate of such Bank.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Bank under this Agreement, and
the assigning Bank thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Bank's rights and obligations under this Agreement, such Bank shall
cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.13, 2.15, 2.19 and 9.05). Any assignment or transfer by a Bank of
rights or obligations under this Agreement that does not comply with this
Section 9.04 shall be treated for purposes of this Agreement as a sale by such
Bank of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Banks, and the Commitment of, and principal amount of the Loans
owing to, each Bank pursuant to the terms hereof from time to time (the
"REGISTER"). The entries in the Register shall be conclusive, and the Borrower,
the Agent and the Banks may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Bank hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Bank, at any reasonable time
and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Bank and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Bank hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Agent shall accept such Assignment and Acceptance and
record the information contained therein in the Register. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(c) (i) Any Bank may, without the consent of the Borrower or
the Agent, sell participations to one or more banks or other entities (a
"PARTICIPANT") in all or a portion of such Bank's rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans owing
to it); PROVIDED that (A) such Bank's obligations under this Agreement shall
remain unchanged, (B) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the
Agent and the other Banks shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Bank sells such a participation
shall provide that such Bank shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; PROVIDED that such agreement or instrument may provide that
such Bank will not, without the consent of the Participant, agree to any
amendment, modification or waiver
46
described in the first proviso to Section 9.08(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.13, 2.15 and 2.19 to
the same extent as if it were a Bank and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 9.06 as though it
were a Bank, provided such Participant agrees to be subject to Section 2.17 as
though it were a Bank.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.13 or 2.19 than the applicable Bank 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
Non-U.S. Bank if it were a Bank shall not be entitled to the benefits of Section
2.19 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 2.19(g) as though it were a Bank.
(d) Any Bank 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 Bank, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; PROVIDED that no such pledge
or assignment of a security interest shall release a Bank from any of its
obligations hereunder or substitute any such pledgee or assignee for such Bank
as a party hereto.
SECTION 9.05. EXPENSES; INDEMNITY. (a) The Borrower agrees to
pay all out-of-pocket expenses incurred by the Agent in connection with the
preparation of this Agreement and the other Loan Documents or in connection with
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby contemplated shall be consummated) or
incurred by the Agent or any Bank in connection with the enforcement or
protection of their rights in connection with this Agreement and the other Loan
Documents or in connection with the Loans made hereunder, including the
reasonable fees, charges and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Agent, and, in connection with any such enforcement or
protection, the reasonable fees, charges and disbursements of any other counsel
for the Agent or any Bank. The Borrower further agrees that it shall indemnify
the Banks from and hold them harmless against any documentary taxes, assessments
or charges made by any Governmental Authority by reason of the execution and
delivery of this Agreement or any of the other Loan Documents.
(b) The Borrower agrees to indemnify the Agent, each Bank and
each of their respective directors, officers, employees and agents (each such
person being called an "Indemnitee") against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable counsel fees, charges and disbursements, incurred
by or asserted against any Indemnitee arising out of, in any way connected with,
or as a result of (i)the execution or delivery of this Agreement or any other
Loan Document or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective obligations thereunder or
the consummation of the Transactions and the other transactions contemplated
thereby, (ii)the use of the proceeds of the Loans or (iii)any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be
47
available 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 (A) in the case of the Agent or
any Bank, any unexcused breach by the Agent or such Bank of any of its
obligations under this Agreement or (b) the gross negligence or wilful
misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Agent or any Bank. All amounts due under this
Section 9.05 shall be payable on written demand therefor.
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement to a Federal Reserve Bank; provided that no such
assignment shall release a Bank from any of its obligations hereunder.
SECTION 9.06. RIGHTS OF SETOFF. If an Event of Default shall
have occurred and be continuing, each Bank is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Bank to or for
the credit or the account of the Borrower against any of and all the obligations
of the Borrower now or hereafter existing under this Agreement and other Loan
Documents held by such Bank, irrespective of whether or not such Bank shall have
made any demand under this Agreement or such other Loan Document and although
such obligations may be unmatured. The rights of each Bank under this Section
are in addition to other rights and remedies (including other rights of Setoff)
which such Bank may have.
SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
SECTION 9.08. WAIVERS; AMENDMENT. (a) No failure or delay of
the Agent or any Bank in exercising any power or right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Agent and the Banks
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies which they would otherwise have. No waiver
of any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower,
48
and the Required Banks; PROVIDED, however, that no such agreement shall (i)
decrease the principal amount of, or extend the maturity of or any scheduled
principal payment date or date for the payment of any interest on any Loan, or
waive or excuse any such payment of or any part thereof, or decrease the rate of
interest on any Loan, without the prior written consent of each Bank affected
thereby, (ii)change or extend the Commitment or decrease the Facility Fees of
any Bank without the prior written consent of such Bank, or (iii)amend or modify
the provisions of Section 2.16, the provisions of this Section, or the
definition of "Required Banks", without the prior written consent of each Bank;
PROVIDED FURTHER that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Agent hereunder without the prior written consent of
the Agent.
SECTION 9.09. INTEREST RATE LIMITATION. Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate,
together with all fees and charges which are treated as interest under
applicable law (collectively the "Charges"), as provided for herein or in any
other document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Bank, shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by such Bank in accordance with applicable law, the rate of
interest payable hereunder, together with all Charges payable to such Bank,
shall be limited to the Maximum Rate.
SECTION 9.10. ENTIRE AGREEMENT. This Agreement and the other
Loan Documents constitute the entire contract between the parties relative to
the subject matter hereof. Any previous agreement among the parties with respect
to the subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. Each party hereto hereby
waives, to the fullest extent permitted by applicable law, any right it may have
to a trial by jury in respect of any litigation directly or indirectly arising
out of, under or in connection with this Agreement or any of the other Loan
Documents. 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 and the other Loan Documents, as
applicable, by, among other things, the mutual waivers and certifications in
this Section 9.11.
SECTION 9.12. SEVERABILITY. In the event any one or more of
the provisions contained in this Agreement or in any other Loan Document should
be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible so that of the invalid, illegal or unenforceable provisions.
49
SECTION 9.13. COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
SECTION 9.14. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION 9.15. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a)
The Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdiction by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any Bank
may otherwise have to bring any action or proceeding relating to this Agreement
or the other Loan Documents against the Borrower or its properties in the courts
of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this agreement or the other
Loan Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.16. CONFIDENTIALITY. Each Bank agrees to keep
confidential (and to cause its respective officers, directors, employees, agents
and representatives to keep confidential) the Information (as defined below),
except that any Bank shall be permitted to disclose Information (i)to such of
its officers, directors, employees, agents and representatives (including
outside counsel) as need to know such Information; (ii)to the extent required by
applicable laws and regulations or by any subpoena or similar legal process, or
requested by any bank regulatory authority (provided that such Bank shall,
except (A) as prohibited by law and (B) for Information requested by any such
bank regulatory authority, promptly notify Borrower of the circumstances and
content of each such disclosure and shall request confidential treatment of any
information so disclosed); (iii)to the extent such Information (A) becomes
publicly available other than as a result of a breach of this Agreement,
(B)becomes available to such Bank on a non-confidential basis from a source
other than the Borrower or its Affiliates or (C)was available to such Bank on a
non-confidential basis prior to its disclosure to such Bank by the
50
Borrower or its Affiliates; or (iv)to the extent the Borrower shall have
consented to such disclosure in writing. As used in this Section 9.16, as to any
Bank, "Information" shall mean any financial statements, materials, documents
and other information that the Borrower or any of its Affiliates may have
furnished or made available or may hereafter furnish or make available to the
Agent or any Bank in connection with this Agreement or any other materials
prepared by any such person from any of the foregoing.
51
IN WITNESS WHEREOF, the Borrower, the Agent and the Banks have
caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
THE X. X. XXXXXXX COMPANY, as Borrower,
By: /S/ E. XXXX XXXXXXXX
--------------------------------------
Name: E. Xxxx Xxxxxxxx
Title: Treasurer
JPMORGAN CHASE BANK, individually and as
Administrative Agent,
By: /S/ XXXXX X. XXXXX
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
X.X. XXXXXX SECURITIES INC.
By: /S/ XXXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
SUNTRUST BANK
By: /S/ XXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
KEYBANK NATIONAL ASSOCIATION
By: /S/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title Vice President
MELLON BANK, N.A.
By: /S/ XXXXXX X. XXXXXXXXXX, XX.
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Lending Officer
WACHOVIA BANK, N.A.
By: /S/ J. XXXXXXX XXXXX
--------------------------------------
Name: J. Xxxxxxx Xxxxx
Title: Director
US BANK N.A.
By: /S/ XXXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
FIFTH THIRD BANK
By: /S/ XXXXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Assistant Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /S/ XXXXXXX X. XXXXXXX XX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx XX
Title: Vice President
XXXXXXX XXXXX BANK USA
By: /S/ D. XXXXX XXXXX
-------------------------------------
Name: D. Xxxxx Xxxxx
Title: Senior Credit Officer
XXXXX FARGO BANK N.A.
By: /S/ XXXXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: /S/ XXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /S/ XXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
