Exhibit 10.1
FIVE YEAR CREDIT AGREEMENT
Dated as of June 30, 2005
YORK INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") and issuers of letters of credit ("Initial Issuing
Banks") listed on Schedule I hereto, and CITIBANK, N.A. ("Citibank"), as the
administrative agent (the "Agent") for the Lenders (as hereinafter defined),
JPMORGAN CHASE BANK, N.A., as syndication agent, THE BANK OF TOKYO-MITSUBISHI,
LTD., BANK OF AMERICA, N.A., BNP PARIBAS, NORDEA BANK FINLAND PLC and WACHOVIA
BANK, NATIONAL ASSOCIATION, as documentation agents, and CITIGROUP GLOBAL
MARKETS INC. and X.X. XXXXXX SECURITIES INC., as joint lead arrangers and joint
book managers, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance, a Competitive Bid Advance
or a Swing Line Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 20% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Agent's Account" means (a) in the case of Advances denominated in
Dollars, the account of the Agent maintained by the Agent at Citibank at
its office at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000, Account No.
00000000, Attention: Bank Loan Syndications, (b) in the case of Advances
denominated in any Foreign Currency, the account of the Sub-Agent
designated in writing from time to time by the Agent to the Company and the
Lenders for such purpose and (c) in any such case, such other account of
the Agent as is designated in writing from time to time by the Agent to the
Company and the Lenders for such purpose.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance and, in the case of a Competitive Bid Advance, the office of
such Lender notified by such Lender to the Agent as its Applicable Lending
Office with respect to such Competitive Bid Advance.
"Applicable Margin" means as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
--------------------------------------------------------------------------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Base Rate Advances Eurocurrency Rate Advances
--------------------------------------------------------------------------------------------
Level 1
BBB+ or Baa1 or above 0.000% 0.350%
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Base Rate Advances Eurocurrency Rate Advances
--------------------------------------------------------------------------------------------
Level 2
BBB or Baa2 0.000% 0.600%
--------------------------------------------------------------------------------------------
Xxxxx 0
XXX- xxx Xxx0 0.000% 0.675%
--------------------------------------------------------------------------------------------
Xxxxx 0
XXX- xx Xxx0 0.125% 0.775%
--------------------------------------------------------------------------------------------
Xxxxx 0
BB+ or Ba1 0.375% 1.000%
--------------------------------------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.750% 1.200%
--------------------------------------------------------------------------------------------
"Applicable Percentage" means, as of any date a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
--------------------------------------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
--------------------------------------------------------------
Level 1
BBB+ or Baa1 or above 0.100%
--------------------------------------------------------------
Level 2
BBB or Baa2 0.150%
--------------------------------------------------------------
Xxxxx 0
XXX- xxx Xxx0 0.200%
--------------------------------------------------------------
Xxxxx 0
XXX- xx Xxx0 0.225%
--------------------------------------------------------------
Level 5
BB+ or Ba1 0.250%
--------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.300%
--------------------------------------------------------------
"Applicable Utilization Fee" means, as of any date that the aggregate
principal amount of the Advances plus the aggregate Available Amount of the
Letters of Credit outstanding exceed 50% of the aggregate Revolving Credit
Commitments, a percentage per annum determined by reference to the Public
Debt Rating in effect on such date as set forth below:
--------------------------------------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
--------------------------------------------------------------
Level 1
BBB+ or Baa1 or above 0.100%
--------------------------------------------------------------
Level 2
BBB or Baa2 0.125%
--------------------------------------------------------------
Xxxxx 0
XXX- xxx Xxx0 0.125%
--------------------------------------------------------------
Xxxxx 0
XXX- xx Xxx0 0.125%
--------------------------------------------------------------
Level 5
BB+ or Ba1 0.125%
--------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.250%
--------------------------------------------------------------
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"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Bankruptcy Law" means any proceeding of the type referred to in
Section 6.01(e) or Title 11, U.S. Code, or any similar foreign, federal or
state law for the relief of debtors.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or, if there is no
nearest 1/16 of 1%, to the next higher 1/16 of 1%) of (i) 1/2 of 1%
per annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such three-week period of
the annual assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the Federal
Deposit Insurance Corporation (or any successor) for insuring U.S.
dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance denominated in Dollars that bears
interest as provided in Section 2.08(a)(i).
"Borrowers" means, collectively, the Company and the Designated
Subsidiaries from time to time.
"Borrowing" means a Revolving Credit Borrowing, a Competitive Bid
Borrowing or a Swing Line Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurocurrency Rate Advances or LIBO Rate
Advances, on which dealings are carried on in the London interbank market
and banks are open for business in London and in the country of issue of
the currency of such Eurocurrency Rate Advances or LIBO Rate Advances, on
which (or, in the case of an Advance denominated in Euro, on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer
(TARGET) System is open).
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"Commitment" means a Revolving Credit Commitment, a Letter of Credit
Commitment or a Swing Line Commitment.
"Committed Currencies" means lawful currency of the United Kingdom of
Great Britain and Northern Ireland, Euros and any other currencies freely
transferable into Dollars and made available by all Lenders.
"Company Information" has the meaning specified in Section 9.08.
"Competitive Bid Advance" means an advance by a Lender to a Borrower
as part of a Competitive Bid Borrowing resulting from the competitive
bidding procedure described in Section 2.04 and refers to a Fixed Rate
Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of such borrowing has
been accepted under the competitive bidding procedure described in Section
2.04.
"Competitive Bid Note" means a promissory note of a Borrower payable
to the order of any Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of such Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender to such
Borrower.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated Net Interest Expense" means (a) until the Redemption
Date, consolidated interest expense net of interest income and (b)
thereafter, consolidated interest expense, in each case as reported on the
consolidated statements of income of the Company.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.09 or 2.10 or a continuation of a
Revolving Credit Advance as the same Type for an additional Interest
Period.
"Covenant Debt" means (a) until the Redemption Date, the sum of,
without duplication, (i) all items that, in accordance with GAAP, would be
classified as indebtedness on a Consolidated balance sheet of the Company
and its Subsidiaries, plus (ii) Debt of the Company and its Subsidiaries of
the type described in clause (f) of the definition of "Debt" plus (iii) the
portion of any item that, in accordance with GAAP, would be classified as
indebtedness on a Consolidated balance sheet of any Person that is
guaranteed by the Company and its Subsidiaries minus (iv) domestic cash in
excess of $2,500,000 as reflected on the consolidated balance sheet of the
Company and (b) on and after the Redemption Date, the sum of the amounts
described in clauses (i), (ii) and (iii) above.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for
the deferred purchase price of property or services (other than trade
payables incurred in the ordinary course of such Person's business), (c)
all obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all obligations of such Person created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations of such Person as lessee under leases that have been or should
be, in accordance with GAAP, recorded as capital leases, (f) the portion of
the cash purchase price related to the purchase of accounts receivable from
such Person (including without limitation, in the case of the Company, the
cash proceeds received from time to time from the sale of the Company's
accounts receivable) that shall not have been recovered by the purchaser
thereof (excluding up to $75,000,000 of receivables owing by foreign
obligors that are sold by the Company and its Subsidiaries), (g) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (h) all
obligations of such Person in respect of
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Hedge Agreements, (i) all Debt of others referred to in clauses (a) through
(h) above or clause (j) below and other payment obligations guaranteed
directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement (1)
to pay or purchase such Debt or to advance or supply funds for the payment
or purchase of such Debt, (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Debt or to assure
the holder of such Debt against loss, (3) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or
such services are rendered) or (4) otherwise to assure a creditor against
loss, and (j) all Debt referred to in clauses (a) through (i) above secured
by (or for which the holder of such Debt has an existing right, contingent
or otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such Debt,
the amount of such Debt being the lesser of the amount of the obligations
secured by such Lien and the fair market value of the assets subject to
such Lien.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Designated Subsidiary" means any direct or indirect wholly-owned
Subsidiary of the Company designated for borrowing privileges under this
Agreement pursuant to Section 9.09.
"Designation Agreement" means, with respect to any Designated
Subsidiary, an agreement in the form of Exhibit E hereto signed by such
Designated Subsidiary and the Company.
"Dollars" and the "$" sign each means lawful currency of the United
States of America.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Company and the Agent.
"EBITDA" means, for any Person for any period, net income (or net
loss) plus the sum of (a) Consolidated Net Interest Expense, (b) income tax
expense, (c) depreciation expense, (d) amortization expense, and (e) any
extraordinary or non-recurring losses (in the case of the Company and its
Subsidiaries, inclusive of losses related to Statement of Financial
Accounting Standards No. 142 and No. 144 in an aggregate amount not to
exceed $350,000,000) minus any extraordinary or non-recurring gains, for
such period in each case determined for such Person in accordance with
GAAP.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
or (iii) any other Person approved by the Agent, each Issuing Bank and,
unless an Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 9.07, the Company, such
approval not to be unreasonably withheld or delayed; provided, however,
that neither the Company nor an Affiliate of the Company shall qualify as
an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, Environmental
Permit or Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment, including, without limitation,
(a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief.
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"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance relating to pollution
or protection of the environment, natural resources or, to the extent
related to exposure to Hazardous Materials, health or safety, including,
without limitation, those relating to the use, handling, transportation,
treatment, storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"Equivalent" in Dollars of any Foreign Currency on any date, means the
quoted spot rate at which the Sub-Agent's principal office in London offers
to exchange Dollars for such Foreign Currency in London prior to 11:00 A.M.
(London time) on such date and (ii) in any Foreign Currency of Dollars on
any date, means the quoted spot rate at which the Sub-Agent's principal
office in London offers to exchange such Foreign Currency for Dollars in
London prior to 11:00 A.M. (London time) on such date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Company's controlled group, or under common
control with the Company, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are met
with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (b) the application
for a minimum funding waiver with respect to a Plan; (c) the provision by
the administrator of any Plan of a notice of intent to terminate such Plan
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA); (d)
the cessation of operations at a facility of the Company or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Company or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (f) the conditions for the
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, a Plan.
"EURIBO Rate" means, for any Interest Period, the rate appearing on
Page 248 of the Moneyline 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 determined by the Agent from time to time
for purposes of providing quotations of interest rates applicable to
deposits in Euro by reference to the Banking Federation of the European
Union Settlement Rates for deposits in Euro) at approximately 10:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for deposits in Euro with a maturity comparable to such
Interest Period or, if for any reason such rate is not available, the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the respective rates per
annum at which deposits in Euros are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to such
Reference Bank's Eurocurrency Rate Advance comprising part of such
Revolving Credit Borrowing to be
6
outstanding during such Interest Period and for a period equal to such
Interest Period (subject, however, to the provisions of Section 2.09).
"Euro" means the lawful currency of the European Union as constituted
by the Treaty of Rome which established the European Community, as such
treaty may be amended from time to time and as referred to in the EMU
legislation.
"Eurocurrency Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurocurrency Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Company and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum obtained
by dividing (a)(i) in the case of any Revolving Credit Advance denominated
in Dollars or any Committed Currency other than Euro, the rate per annum
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum)
appearing on Moneyline Telerate Markets Page 3750 (or any successor page)
as the London interbank offered rate for deposits in Dollars or the
applicable Committed Currency at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period or, if for any reason such rate is not
available, the average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple) of the rate
per annum at which deposits in Dollars or the applicable Committed Currency
is offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to such Reference Bank's
Eurocurrency Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period or, (ii) in the case of any Revolving Credit
Advance denominated in Euros, the EURIBO Rate by (b) a percentage equal to
100% minus the Eurocurrency Rate Reserve Percentage for such Interest
Period. If the Moneyline Telerate Markets Page 3750 (or any successor page)
is unavailable, the Eurocurrency Rate for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing shall be determined by the Agent on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.09.
"Eurocurrency Rate Advance" means a Revolving Credit Advance
denominated in Dollars or a Committed Currency that bears interest as
provided in Section 2.08(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period for all
Eurocurrency Rate Advances or LIBO Rate Advances comprising part of the
same Borrowing means the reserve percentage applicable two Business Days
before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate
on Eurocurrency Rate Advances or LIBO Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
7
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by
it.
"Fixed Rate Advances" has the meaning specified in Section 2.04(a)(i),
which Advances shall be denominated in Dollars or in any Foreign Currency.
"Foreign Currency" means any Committed Currency and any other lawful
currency (other than Dollars) that is freely transferable or convertible
into Dollars.
"Foreign Subsidiary" means any Subsidiary organized under the laws of
a jurisdiction other than the United States of America or any political
subdivision thereof.
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in Section 7.01.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials and polychlorinated biphenyls and (b) any
other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements.
"Information Memorandum" means the information memorandum dated June,
2005 used by the Agent in connection with the syndication of the Revolving
Credit Commitments, as supplemented by reports of the Company filed with
the Securities and Exchange Commission prior to June 9, 2005.
"Interest Period" means, for each Eurocurrency Rate Advance comprising
part of the same Revolving Credit Borrowing and each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such Eurocurrency Rate Advance or LIBO Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurocurrency Rate Advance and ending on the last day of the period selected
by the Borrower requesting such Borrowing pursuant to the provisions below
and, thereafter, with respect to Eurocurrency Rate Advances, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by such
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, and subject to
clause (c) of this definition, nine or twelve months, as the applicable
Borrower may, upon notice received by the Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(a) the Borrowers may not select any Interest Period that ends
after the Termination Date;
(b) Interest Periods commencing on the same date for Eurocurrency
Rate Advances comprising part of the same Revolving Credit Borrowing
or for LIBO Rate Advances comprising part of the same Competitive Bid
Borrowing shall be of the same duration;
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(c) in the case of any such Revolving Credit Borrowing, the
Borrowers shall not be entitled to select an Interest Period having
duration of nine or twelve months unless, by 2:00 P.M. (New York City
time) on the third Business Day prior to the first day of such
Interest Period, each Lender notifies the Agent that such Lender will
be providing funding for such Revolving Credit Borrowing with such
Interest Period (the failure of any Lender to so respond by such time
being deemed for all purposes of this Agreement as an objection by
such Lender to the requested duration of such Interest Period);
provided that, if any or all of the Lenders object to the requested
duration of such Interest Period, the duration of the Interest Period
for such Revolving Credit Borrowing shall be one, two, three or six
months, as specified by the Borrower requesting such Revolving Credit
Borrowing in the applicable Notice of Revolving Credit Borrowing as
the desired alternative to an Interest Period of nine or twelve
months;
(d) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(e) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Interim Financial Statements" has the meaning specified in Section
4.01(e).
"Issuance" with respect to any Letter of Credit means the issuance,
amendment, renewal or extension of such Letter of Credit.
"Issuing Bank" means an Initial Issuing Bank or any Lender designated
as an "Issuing Bank" hereunder by written notice to such effect to the
Agent by the Company and such Lender so long as such Lender expressly
agrees to perform in accordance with their terms all of the obligations
that by the terms of this Agreement are required to be performed by it as
an Issuing Bank and notifies the Agent of its Applicable Lending Office
(which information shall be recorded by the Agent in the Register).
"L/C Cash Deposit Account" means an interest bearing cash deposit
account to be established and maintained by the Agent, over which the Agent
shall have sole dominion and control, upon terms as may be satisfactory to
the Agent.
"L/C Related Documents" has the meaning specified in Section
2.07(b)(i).
"Lenders" means each Initial Lender, each Issuing Bank and each Person
that shall become a party hereto pursuant to Section 9.07.
"Letter of Credit" has the meaning specified in Section 2.01(b).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Commitment" means, with respect to each Issuing
Bank, the obligation of such Issuing Bank to issue Letters of Credit for
the account of the Borrowers and their specified Subsidiaries in (a) the
amount set forth opposite the Issuing Bank's name on Schedule I hereto or
(b) in the notice
9
designating such Issuing Bank as an Issuing Bank hereunder, in each case as
such amount may be reduced prior to such time pursuant to Section 2.06.
"Letter of Credit Facility" means, at any time, an amount equal to the
least of (a) the aggregate amount of the Issuing Banks' Letter of Credit
Commitments at such time, (b) $200,000,000 and (c) the aggregate amount of
the Revolving Credit Commitments, as such amount may be reduced at or prior
to such time pursuant to Section 2.06.
"LIBO Rate" means, for any Interest Period for all LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a)(i) in the case
of any Competitive Bid Borrowing denominated in Dollars or any Foreign
Currency other than Euros, the rate per annum (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum) appearing on Moneyline
Telerate Markets Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars or the applicable Foreign Currency at
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period
or, if for any reason such rate is not available, the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rate per annum at which deposits in
Dollars or the applicable Foreign Currency is offered by the principal
office of each of the Reference Banks in London, England to prime banks in
the London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to the amount that would be the Reference Banks' respective ratable
shares of such Borrowing if such Borrowing were to be a Revolving Credit
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period or (ii) in the case of any Competitive Bid
Borrowing denominated in Euros, the EURIBO Rate by (b) a percentage equal
to 100% minus the Eurocurrency Rate Reserve Percentage for such Interest
Period. If the Moneyline Telerate Markets Page 3750 (or any successor page)
is unavailable, the LIBO Rate for any Interest Period for each LIBO Rate
Advance comprising part of the same Competitive Bid Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
Section 2.09.
"LIBO Rate Advances" means a Competitive Bid Advance denominated in
Dollars or in any Foreign Currency and bearing interest based on the LIBO
Rate.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, including, without limitation, the lien or
retained security title of a conditional vendor and any easement, right of
way or other encumbrance on title to real property; provided, however, that
no transfer of assets that is treated as a sale in accordance with GAAP
shall be deemed to constitute a Lien for purposes of this Agreement.
"Loan Document" means this Agreement and the Notes (if any).
"Local Rate Advance" means a Competitive Bid Advance denominated in
any Foreign Currency sourced from the jurisdiction of issuance of such
Foreign Currency and bearing interest at a fixed rate.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance or
properties of the Company or the Company and its Subsidiaries taken as a
whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Company or the Company and its Subsidiaries taken as a
whole, (b) the rights and remedies of the Agent or any Lender under this
Agreement or any Note or (c) the ability of the Company to perform its
obligations under this Agreement or any Note.
"Moody's" means Xxxxx'x Investors Service, Inc.
10
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate is making
or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any ERISA Affiliate and at least one Person other than the
Company and the ERISA Affiliates or (b) was so maintained and in respect of
which the Company or any ERISA Affiliate could have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Net Worth" means, on any date, all amounts which, in accordance with
GAAP, would be included under stockholders' equity on a Consolidated
balance sheet of the Company and its Subsidiaries at such date, adjusted to
exclude (x) accumulated foreign currency translation adjustments and, (y)
accumulated losses related to Statement of Financial Accounting Standards
No. 142 and No. 144 in an aggregate amount not to exceed $350,000,000.
"Non-Material Subsidiary" means any Subsidiary of the Company the
aggregate book value of the assets of which do not exceed 10% of the
Consolidated shareholders' equity of the Company.
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.04(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.02(a).
"Notice of Swing Line Borrowing" has the meaning specified in Section
2.02(b).
"OFAC" means the U.S. Department of Treasury's Office of Foreign
Assets Control.
"OFAC Sanctions" shall mean the sanctions enforced by U.S. Department
of the Treasury's Office of Foreign Assets Control.
"Patriot Act" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Pub. L. 107-56, signed into law October 26, 2001.
"Payment Office" means, for any Foreign Currency, such office of
Citibank as shall be from time to time selected by the Agent and notified
by the Agent to the Company and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section
5.01(b) hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other similar
Liens arising in the ordinary course of business securing obligations that
are not overdue for a period of more than 60 days; (c) pledges or deposits
to secure obligations under workers' compensation laws or similar
legislation or to secure public or statutory obligations; (d) easements,
rights of way and other encumbrances on title to real property that do not
render title to the property encumbered thereby unmarketable or materially
adversely affect the use of such property for its present purposes and (e)
Liens securing performance of bids, trade contracts (other than for
borrowed money), leases, surety and appeal
11
bonds, performance bonds and similar obligations incurred in the ordinary
course of business or securing commercial letters of credit issued in
respect of the importation of goods in the ordinary course of business.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Post-Petition Interest" has the meaning specified in Section 7.05.
"Public Debt Rating" means, as of any date, the rating that has been
most recently announced by either S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by
the Company (and, if either such rating agency has issued more than one
such rating, the lowest thereof). For purposes of the foregoing, (a) if
only one of S&P and Moody's shall have in effect a Public Debt Rating, the
Applicable Margin, the Applicable Percentage and the Applicable Utilization
Fee shall be determined by reference to the available rating; (b) if
neither S&P nor Moody's shall have in effect a Public Debt Rating, the
Applicable Margin, the Applicable Percentage and the Applicable Utilization
Fee will be set in accordance with Level 6 under the definition of
"Applicable Margin", "Applicable Percentage" or "Applicable Utilization
Fee", as the case may be; (c) if the ratings established by S&P and Moody's
shall fall within different levels, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee shall be based upon the
higher rating unless such ratings differ by two or more levels, in which
case the applicable level will be deemed to be one level above the lower of
such levels; (d) if any rating established by S&P or Moody's shall be
changed, such change shall be effective as of the date on which such change
is first announced publicly by the rating agency making such change; and
(e) if S&P or Moody's shall change the basis on which ratings are
established, each reference to the Public Debt Rating announced by S&P or
Moody's, as the case may be, shall refer to the then equivalent rating by
S&P or Moody's, as the case may be.
"Ratable Share" means, with respect to any Lender at any time, a
fraction the numerator of which is such Lender's Revolving Credit
Commitment at such time and the denominator of which is the Revolving
Credit Facility at such time.
"Redemption Date" means the date that the Company's public 6.625%
senior notes due 2006 are paid in full.
"Reference Banks" means Citibank, JPMorgan Chase Bank, N.A. and The
Bank of Tokyo-Mitsubishi, Ltd., New York Branch.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means at any time Lenders owed at least a majority
in interest of the then aggregate unpaid principal amount (based on the
Equivalent in Dollars at such time) of the Revolving Credit Advances owing
to Lenders, or, if no such principal amount is then outstanding, Lenders
having at least a majority in interest of the Revolving Credit Commitments.
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurocurrency Rate Advance (each of which shall be a "Type" of
Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of the
Lenders.
12
"Revolving Credit Borrowing Minimum" means, in respect of Revolving
Credit Advances denominated in Dollars, $10,000,000, in respect of
Revolving Credit Advances denominated in Sterling, Pound
Sterling10,000,000, in respect of Revolving Credit Advances denominated in
Euros, Euro10,000,000 and, in respect of any other Committed Currency, the
approximate Equivalent to $10,000,000, rounded up to the nearest 1,000,000
units of such currency.
"Revolving Credit Borrowing Multiple" means, in respect of Revolving
Credit Advances denominated in Dollars, $1,000,000, in respect of Revolving
Credit Advances denominated in Sterling, Pound Sterling1,000,000, in
respect of Revolving Credit Advances denominated in Euros, Euro1,000,000
and, in respect of any other Committed Currency, the approximate Equivalent
to $1,000,000, rounded up to the nearest 100,000 units of such currency.
"Revolving Credit Commitment" means as to any Lender (a) the Dollar
amount set forth opposite such Lender's name on Schedule I hereto as such
Lender's "Revolving Credit Commitment" or (b) if such Lender has entered
into any Assignment and Acceptance, the Dollar amount set forth for such
Lender in the Register maintained by the Agent pursuant to Section 9.07(d)
as such Lender's "Revolving Credit Commitment", as such amount may be
reduced pursuant to Section 2.06.
"Revolving Credit Facility" means the aggregate of the Revolving
Credit Commitments.
"Revolving Credit Note" means a promissory note of a Borrower payable
to the order of any Lender, delivered pursuant to a request made under
Section 2.17 in substantially the form of Exhibit A-1 hereto, evidencing
the aggregate indebtedness of such Borrower to such Lender resulting from
the Revolving Credit Advances and Swing Line Advances made by such Lender
to such Borrower.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any ERISA Affiliate and no Person other than the Company and the
ERISA Affiliates or (b) was so maintained and in respect of which the
Company or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Sub-Agent" means Citibank International plc.
"Subordinated Obligations" has the meaning specified in Section 7.05.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Swing Line Advance" means an advance made by any Swing Line Bank
pursuant to Section 2.01(c) or any Lender pursuant to Section 2.02(b).
"Swing Line Bank" means Citibank or any Lender designated as a "Swing
Line Bank" hereunder by written notice to such effect to the Agent by the
Company and such Lender so long as such Lender expressly agrees to perform
in accordance with their terms all of the obligations that by the terms of
this Agreement are required to be performed by it as a Swing Line Bank and
notifies the Agent of its Applicable Lending Office (which information
shall be recorded by the Agent in the Register).
13
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Advance made by any Swing Line Bank.
"Swing Line Commitment" means with respect to any Swing Line Bank at
any time the amount set forth opposite such Swing Line Bank's name on
Schedule I hereto, as such amount may be reduced pursuant to Section 2.06.
"Termination Date" means the earlier of June 30, 2010 and the date of
termination in whole of the Commitments pursuant to Section 2.06 or 6.01.
"Unissued Letter of Credit Commitment" means, with respect to any
Issuing Bank, the obligation of such Issuing Bank to issue Letters of
Credit for the account of the Company or its specified Subsidiaries in an
amount equal to the excess of (a) the amount of its Letter of Credit
Commitment over (b) the aggregate Available Amount of all Letters of Credit
issued by such Issuing Bank.
"Unused Revolving Credit Commitment" means, with respect to any Lender
at any time, (a) such Lender's Revolving Credit Commitment at such time
minus (b) the sum of (i) the aggregate principal amount of all Revolving
Credit Advances (based in respect of any Revolving Credit Advance
denominated in a Committed Currency by reference to the Equivalent thereof
in Dollars at such time) made by such Lender (in its capacity as a Lender)
and outstanding at such time, plus (ii) such Lender's Ratable Share of (A)
the aggregate Available Amount of all the Letters of Credit outstanding at
such time, (B) the aggregate principal amount of all Revolving Credit
Advances made by each Issuing Bank pursuant to Section 2.03(c) that have
not been ratably funded by such Lender and outstanding at such time, (C)
the aggregate principal amount of all Swing Line Advances then outstanding
and (D) the aggregate principal amount of all Competitive Bid Advances
(based in respect of any Competitive Bid Advance denominated in a Foreign
Currency by reference to the Equivalent thereof in Dollars at such time)
outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
audited financial statements of the Company as of December 31, 2004 ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. The Advances and Letters of Credit. (a) The Revolving
Credit Advances. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Revolving Credit Advances to any Borrower from
time to time on any Business Day during the period from the Effective Date until
the Termination Date in an amount (based in respect of any Revolving Credit
Advances to be denominated in a Committed Currency by reference to the
Equivalent thereof in Dollars determined on the date of delivery of the
applicable Notice of Revolving Credit Borrowing) not to exceed such Lender's
Unused Revolving Credit Commitment. Each Revolving Credit Borrowing shall be in
an amount not less than the Revolving Credit Borrowing Minimum or a Revolving
Credit Borrowing Multiple in excess thereof and shall consist of Revolving
Credit Advances of the same Type and in the same currency made on the same day
by the Lenders ratably according to their respective Revolving Credit
Commitments. Within the limits of each Lender's Revolving Credit
14
Commitment, any Borrower may borrow under this Section 2.01(a), prepay pursuant
to Section 2.11 and reborrow under this Section 2.01(a).
(b) Letters of Credit. Each Issuing Bank agrees, on the terms and
conditions hereinafter set forth, in reliance upon the agreements of the other
Lenders set forth in this Agreement, to issue letters of credit (each, a "Letter
of Credit") denominated in Dollars for the account of any Borrower and its
specified Subsidiaries from time to time on any Business Day during the period
from the Effective Date until 30 days before the Termination Date in an
aggregate Available Amount (i) for all Letters of Credit issued by each Issuing
Bank not to exceed at any time the lesser of (x) the Letter of Credit Facility
at such time and (y) such Issuing Bank's Letter of Credit Commitment at such
time and (ii) for each such Letter of Credit not to exceed an amount equal to
the Unused Revolving Credit Commitments of the Lenders at such time. No Letter
of Credit shall have an expiration date (including all rights of the applicable
Borrower or the beneficiary to require renewal) later than 10 Business Days
before the Termination Date. Within the limits referred to above, the Borrowers
may from time to time request the Issuance of Letters of Credit under this
Section 2.01(b). Each letter of credit listed on Schedule 2.01(b) shall be
deemed to constitute a Letter of Credit issued hereunder, and each Lender that
is an issuer of such a Letter of Credit shall, for purposes of Section 2.03, be
deemed to be an Issuing Bank for each such letter of credit, provided than any
renewal or replacement of any such letter of credit shall be issued by an
Issuing Bank pursuant to the terms of this Agreement.
(c) The Swing Line Advances. Each Swing Line Bank severally agrees, on
the terms and conditions hereinafter set forth, to make Swing Line Advances
denominated in Dollars to any Borrower from time to time on any Business Day
during the period from the date hereof until the Termination Date (i) in an
aggregate amount not to exceed at any time outstanding $25,000,000 (the "Swing
Line Facility") and (ii) in an amount for each such Advance not to exceed the
Unused Revolving Credit Commitments of the Lenders on such Business Day. No
Swing Line Advance shall be used for the purpose of funding the payment of
principal of any other Swing Line Advance. Each Swing Line Borrowing shall be in
an amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof
and shall consist of a Base Rate Advance. Within the limits of the Swing Line
Facility and within the limits referred to in clause (ii) above, the Borrowers
may borrow under this Section 2.01(c), prepay pursuant to Section 2.11 and
reborrow under this Section 2.01(c).
SECTION 2.02. Making the Advances. (a) Except as otherwise provided in
Section 2.03(c), each Revolving Credit Borrowing shall be made on notice, given
not later than (x) 11:00 A.M. (New York City time) on the third Business Day
prior to the date of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Eurocurrency Rate Advances denominated
in Dollars, (y) 4:00 P.M. (London time) on the third Business Day prior to the
date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances denominated in any
Committed Currency, or (z) 11:00 A.M. (New York City time) on the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Base Rate Advances, by any Borrower to the Agent (and, in the case
of a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances,
simultaneously to the Sub-Agent), which shall give to each Lender prompt notice
thereof by telecopier. Each such notice of a Revolving Credit Borrowing (a
"Notice of Revolving Credit Borrowing") shall be by telephone, confirmed
immediately in writing, or telecopier in substantially the form of Exhibit B-1
hereto, specifying therein the requested (i) date of such Revolving Credit
Borrowing, (ii) Type of Advances comprising such Revolving Credit Borrowing,
(iii) aggregate amount of such Revolving Credit Borrowing, and (iv) in the case
of a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances,
initial Interest Period and currency for each such Revolving Credit Advance.
Each Lender shall, before 11:00 A.M. (New York City time) on the date of such
Revolving Credit Borrowing, in the case of a Revolving Credit Borrowing
consisting of Advances denominated in Dollars, and before 11:00 A.M. (London
time) on the date of such Revolving Credit Borrowing, in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances denominated in any
Committed Currency, make available for the account of its Applicable Lending
Office to the Agent at the applicable Agent's Account, in same day funds, such
Lender's ratable portion of such Revolving Credit Borrowing. After the Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will make such funds available to the Borrower
requesting the Revolving Credit Borrowing at the Agent's address referred to in
Section 9.02 or at the applicable Payment Office, as the case may be; provided,
however, that, if such Borrowing is denominated in Dollars, the Agent shall
first make a portion of such funds equal to the aggregate principal amount of
any Swing Line Advances made by the Swing Line Banks and by any other Lender and
outstanding on the date of such Revolving Credit Borrowing, plus
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interest accrued and unpaid thereon to and as of such date, available to the
Swing Line Banks and such other Lenders for repayment of such Swing Line
Advances.
(b) Each Swing Line Borrowing shall be made on notice, given not later
than 3:00 P.M. (New York City time) on the date of the proposed Swing Line
Borrowing by the applicable Borrower to each Swing Line Bank and the Agent, of
which the Agent shall give prompt notice to the Lenders. Each such notice of a
Swing Line Borrowing (a "Notice of Swing Line Borrowing") shall be by telephone,
confirmed at once in writing, or telecopier, specifying therein the requested
(i) date of such Borrowing, (ii) amount of such Borrowing and (iii) maturity of
such Borrowing (which maturity shall be no later than the fifth Business Day
after the requested date of such Borrowing). Each Swing Line Bank shall, before
5:00 P.M. (New York City time) on the date of such Swing Line Borrowing, make
such Swing Line Bank's ratable portion of such Swing Line Borrowing available
(based on the respective Swing Line Commitments of the Swing Line Banks) to the
Agent at the Agent's Account, in same day funds. After the Agent's receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Agent will make such funds available to the applicable Borrower
at the Agent's address referred to in Section 9.02. Upon written demand by any
Swing Line Bank with a Swing Line Advance, with a copy of such demand to the
Agent, each other Lender will purchase from such Swing Line Bank, and such Swing
Line Bank shall sell and assign to each such other Lender, such other Lender's
Ratable Share of such outstanding Swing Line Advance, by making available for
the account of its Applicable Lending Office to the Agent for the account of
such Swing Line Bank, by deposit to the Agent's Account, in same day funds, an
amount equal to the portion of the outstanding principal amount of such Swing
Line Advance to be purchased by such Lender. Each Borrower hereby agrees to each
such sale and assignment. Each Lender agrees to purchase its Ratable Share of an
outstanding Swing Line Advance on (i) the Business Day on which demand therefor
is made by the Swing Line Bank which made such Advance, provided that notice of
such demand is given not later than 11:00 A.M. (New York City time) on such
Business Day or (ii) the first Business Day next succeeding such demand if
notice of such demand is given after such time. Upon any such assignment by
Swing Line Bank to any other Lender of a portion of a Swing Line Advance, such
Swing Line Bank represents and warrants to such other Lender that such Swing
Line Bank is the legal and beneficial owner of such interest being assigned by
it, but makes no other representation or warranty and assumes no responsibility
with respect to such Swing Line Advance, this Agreement, the Notes or the
Borrowers. If and to the extent that any Lender shall not have so made the
amount of such Swing Line Advance available to the Agent, such Lender agrees to
pay to the Agent forthwith on demand such amount together with interest thereon,
for each day from the date such Lender is required to have made such amount
available to the Agent until the date such amount is paid to the Agent, at the
Federal Funds Rate. If such Lender shall pay to the Agent such amount for the
account of such Swing Line Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Swing Line Advance made by such Lender
on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Swing Line Advance made by such Swing Line Bank shall be
reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrowers may not select Eurocurrency Rate Advances for any Revolving
Credit Borrowing if the aggregate amount of such Revolving Credit Borrowing is
less than the Revolving Credit Borrowing Minimum or if the obligation of the
Lenders to make Eurocurrency Rate Advances shall then be suspended pursuant to
Section 2.09 or 2.13 and (ii) the Eurocurrency Rate Advances may not be
outstanding as part of more than ten separate Revolving Credit Borrowings.
(d) Each Notice of Revolving Credit Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower requesting the
Borrowing. In the case of any Revolving Credit Borrowing that the related Notice
of Revolving Credit Borrowing specifies is to be comprised of Eurocurrency Rate
Advances, such Borrower shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Revolving Credit Borrowing for such
Revolving Credit Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Revolving Credit
Advance to be made by such Lender as part of such Revolving Credit Borrowing
when such Revolving Credit Advance, as a result of such failure, is not made on
such date.
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(e) Unless the Agent shall have received notice from a Lender or a
Swing Line Bank prior to the time of any Revolving Credit Borrowing or Swing
Line Borrowing, as the case may be, that such Lender or Swing Line Bank will not
make available to the Agent such Lender's or Swing Line Bank's ratable portion
of such Revolving Credit Borrowing or Swing Line Borrowing, as the case may be,
the Agent may assume that such Lender or Swing Line Bank has made such portion
available to the Agent on the date of such Borrowing in accordance with
subsection (a) or (b) of this Section 2.02, as applicable, and the Agent may, in
reliance upon such assumption, make available to the Borrower requesting the
Borrowing on such date a corresponding amount. If and to the extent that such
Lender or Swing Line Bank shall not have so made such ratable portion available
to the Agent, such Lender and such Borrower severally agree 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 such
Borrower until the date such amount is repaid to the Agent, at (i) in the case
of such Borrower, the higher of (A) the interest rate applicable at the time to
the Advances comprising such Borrowing and (B) the cost of funds incurred by the
Agent in respect of such amount and (ii) in the case of such Lender or Swing
Line Bank, (A) the Federal Funds Rate in the case of Advances denominated in
Dollars or (B) the cost of funds incurred by the Agent in respect of such amount
in the case of Advances denominated in Committed Currencies. If such Lender or
Swing Line Bank shall repay to the Agent such corresponding amount, such amount
so repaid shall constitute such Lender's or Swing Line Bank's Advance as part of
such Borrowing for purposes of this Agreement.
(f) The failure of any Lender or Swing Line Bank to make the Revolving
Credit Advance or Swing Line Advance to be made by it as part of any Borrowing
shall not relieve any other Lender or Swing Line Bank of its obligation, if any,
hereunder to make its Revolving Credit Advance or Swing Line Advance on the date
of such Revolving Credit Borrowing or Swing Line Borrowing as the case may be,
but no Lender or Swing Line Bank shall be responsible for the failure of any
other Lender or Swing Line Bank to make the Revolving Credit Advance or Swing
Line Advance to be made by such other Lender or Swing Line Bank on the date of
any Revolving Credit Borrowing or Swing Line Borrowing, as the case may be.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters
of Credit. (a) Request for Issuance. (i) Each Letter of Credit shall be issued
upon notice, given not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Issuance of such Letter of Credit
(or on such shorter notice as the applicable Issuing Bank may agree), by any
Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent, prompt
notice thereof. Each such notice by a Borrower of Issuance of a Letter of Credit
(a "Notice of Issuance") shall be by telecopier or telephone, confirmed
immediately in writing, specifying therein the requested (A) date of such
Issuance (which shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit (which shall not be later
than 10 Business Days before the Termination Date), (D) name and address of the
beneficiary of such Letter of Credit and (E) form of such Letter of Credit, such
Letter of Credit shall be issued pursuant to such application and agreement for
letter of credit as such Issuing Bank and the applicable Borrower shall agree
for use in connection with such requested Letter of Credit (a "Letter of Credit
Agreement"). If the requested form of such Letter of Credit is acceptable to
such Issuing Bank in its reasonable discretion (it being understood that any
such form shall have only explicit documentary conditions to draw and shall not
include discretionary conditions), such Issuing Bank will, upon fulfillment of
the applicable conditions set forth in Section 3.04, make such Letter of Credit
available to the applicable Borrower at its office referred to in Section 9.02
or as otherwise agreed with such Borrower in connection with such Issuance. In
the event and to the extent that the provisions of any Letter of Credit
Agreement shall conflict with this Agreement, the provisions of this Agreement
shall govern.
(b) Participations. By the Issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing or decreasing the amount thereof) and
without any further action on the part of the applicable Issuing Bank or the
Lenders, such Issuing Bank hereby grants to each Lender, and each Lender hereby
acquires from such Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Ratable Share of the Available Amount of such Letter of Credit.
Each Borrower hereby agrees to each such participation. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay to the Agent, for the account of such Issuing Bank, such Lender's
Ratable Share of each drawing made under a Letter of Credit funded by such
Issuing Bank and not reimbursed by the applicable Borrower on the date made, or
of any reimbursement payment required to be refunded to such Borrower for any
reason, which amount will be advanced, and deemed to be an Advance to such
Borrower hereunder, regardless of the satisfaction of the conditions set forth
in Section 3.04. Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant
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to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Revolving Credit
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Lender further acknowledges
and agrees that its participation in each Letter of Credit will be automatically
adjusted to reflect such Lender's Ratable Share of the Available Amount of such
Letter of Credit at each time such Lender's Revolving Credit Commitment is
amended pursuant to an assignment in accordance with Section 9.07 or otherwise
pursuant to this Agreement.
(c) Drawing and Reimbursement. The payment by an Issuing Bank of a
draft drawn under any Letter of Credit which is not reimbursed by the applicable
Borrower on the date made shall constitute for all purposes of this Agreement
the making by any such Issuing Bank of an Advance, which shall be a Base Rate
Advance, in the amount of such draft, without regard to whether the making of
such an Advance would exceed such Issuing Bank's Unused Revolving Credit
Commitment. Each Issuing Bank shall give prompt notice of each drawing under any
Letter of Credit issued by it to the applicable Borrower and the Agent. Upon
written demand by such Issuing Bank, with a copy of such demand to the Agent and
the applicable Borrower, each Lender shall pay to the Agent such Lender's
Ratable Share of such outstanding Advance pursuant to Section 2.03(b). Each
Lender acknowledges and agrees that its obligation to make Advances pursuant to
this paragraph in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance
of a Default or reduction or termination of the Revolving Credit Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Promptly after receipt thereof, the Agent
shall transfer such funds to such Issuing Bank. Each Lender agrees to fund its
Ratable Share of an outstanding Advance on (i) the Business Day on which demand
therefor is made by such Issuing Bank, provided that notice of such demand is
given not later than 11:00 A.M. (New York City time) on such Business Day, or
(ii) the first Business Day next succeeding such demand if notice of such demand
is given after such time. If and to the extent that any Lender shall not have so
made the amount of such Advance available to the Agent, such Lender agrees to
pay to the Agent forthwith on demand such amount together with interest thereon,
for each day from the date of demand by any such Issuing Bank until the date
such amount is paid to the Agent, at the Federal Funds Rate for its account or
the account of such Issuing Bank, as applicable. If such Lender shall pay to the
Agent such amount for the account of any such Issuing Bank on any Business Day,
such amount so paid in respect of principal shall constitute an Advance made by
such Lender on such Business Day for purposes of this Agreement, and the
outstanding principal amount of the Advance made by such Issuing Bank shall be
reduced by such amount on such Business Day.
(d) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to
the Agent and each Lender (with a copy to the Company) on the first Business Day
of each month a written report summarizing Issuance and expiration dates of
Letters of Credit issued by such Issuing Bank during the preceding month and
drawings during such month under all Letters of Credit and (B) to the Agent and
each Lender (with a copy to the Company) on the first Business Day of each
calendar quarter a written report setting forth the average daily aggregate
Available Amount during the preceding calendar quarter of all Letters of Credit
issued by such Issuing Bank.
(e) Failure to Make Advances. The failure of any Lender to make the
Revolving Credit Advance to be made by it on the date specified in Section
2.03(c) shall not relieve any other Lender of its obligation hereunder to make
its Advance on such date, but no Lender shall be responsible for the failure of
any other Lender to make the Advance to be made by such other Lender on such
date.
SECTION 2.04. The Competitive Bid Advances. (a) Each Lender severally
agrees that the Borrowers may make Competitive Bid Borrowings under this Section
2.04 from time to time on any Business Day during the period from the date
hereof until the date occurring 30 days prior to the Termination Date in the
manner set forth below; provided that the principal amount of each Competitive
Bid Borrowing shall not exceed the aggregate amount of the Unused Revolving
Credit Commitments of the Lenders.
(i) Any Borrower may request a Competitive Bid Borrowing under this
Section 2.04 by delivering to the Agent (and, in the case of a Competitive
Bid Borrowing not consisting of Fixed Rate Advances or LIBO Rate Advances
to be denominated in Dollars, simultaneously to the Sub-Agent), by
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telecopier, a notice of a Competitive Bid Borrowing (a "Notice of
Competitive Bid Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (A) date of such proposed
Competitive Bid Borrowing, (B) aggregate amount of such proposed
Competitive Bid Borrowing, (C) interest rate basis and day count convention
to be offered by the Lenders, (D) currency of such proposed Competitive Bid
Borrowing, (E) in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, Interest Period, or in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances or Local Rate Advances,
maturity date for repayment of each Fixed Rate Advance or Local Rate
Advance to be made as part of such Competitive Bid Borrowing (which
maturity date may not be earlier than the date occurring seven days after
the date of such Competitive Bid Borrowing or later than the earlier of (I)
180 days after the date of such Competitive Bid Borrowing and (II) the
Termination Date), (F) interest payment date or dates relating thereto, (G)
location of the applicable Borrower's account to which funds are to be
advanced and (H) other terms (if any) to be applicable to such Competitive
Bid Borrowing, not later than (w) 8:00 A.M. (New York City time) at least
one Business Day prior to the date of the proposed Competitive Bid
Borrowing, if such Borrower shall specify in the Notice of Competitive Bid
Borrowing that the rates of interest to be offered by the Lenders shall be
fixed rates per annum (the Advances comprising any such Competitive Bid
Borrowing being referred to herein as "Fixed Rate Advances") and that the
Advances comprising such proposed Competitive Bid Borrowing shall be
denominated in Dollars, (x) 10:00 A.M. (New York City time) at least four
Business Days prior to the date of the proposed Competitive Bid Borrowing,
if such Borrower shall specify in the Notice of Competitive Bid Borrowing
that the Advances comprising such Competitive Bid Borrowing shall be LIBO
Rate Advances denominated in Dollars, (y) 10:00 A.M. (London time) at least
two Business Days prior to the date of the proposed Competitive Bid
Borrowing, if such Borrower shall specify in the Notice of Competitive Bid
Borrowing that the Advances comprising such proposed Competitive Bid
Borrowing shall be either Fixed Rate Advances denominated in any Foreign
Currency or Local Rate Advances and (z) 10:00 A.M. (London time) at least
four Business Days prior to the date of the proposed Competitive Bid
Borrowing, if such Borrower shall instead specify in the Notice of
Competitive Bid Borrowing that the Advances comprising such Competitive Bid
Borrowing shall be LIBO Rate Advances denominated in any Foreign Currency.
Each Notice of Competitive Bid Borrowing shall be irrevocable and binding
on the Borrower requesting such Competitive Bid Borrowing. The Agent or the
Sub-Agent, as the case may be, shall in turn promptly notify each Lender of
each request for a Competitive Bid Borrowing received by it from a Borrower
by sending such Lender a copy of the related Notice of Competitive Bid
Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more Competitive Bid Advances to the
applicable Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole discretion,
by notifying the Agent or the Sub-Agent, as the case may be (which shall
give prompt notice thereof to such Borrower), (A) before 9:30 A.M. (New
York City time) on the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Fixed Rate Advances
denominated in Dollars, (B) before 10:00 A.M. (New York City time) three
Business Days before the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances, denominated in Dollars, (C) before 12:00 noon (London time) on
the Business Day prior to the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of either
Fixed Rate Advances denominated in any Foreign Currency or Local Rate
Advances and (D) before 12:00 noon (London time) on the third Business Day
prior to the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances denominated
in any Foreign Currency, of the minimum amount and maximum amount of each
Competitive Bid Advance which such Lender would be willing to make as part
of such proposed Competitive Bid Borrowing (which amounts or the Equivalent
thereof in Dollars, as the case may be, of such proposed Competitive Bid
may, subject to the proviso to the first sentence of this Section 2.04(a),
exceed such Lender's Commitment, if any), the rate or rates of interest
therefor and such Lender's Applicable Lending Office with respect to such
Competitive Bid Advance; provided that if the Agent in its capacity as a
Lender shall, in its sole discretion, elect to make any such offer, it
shall notify the applicable Borrower of such offer at least 30 minutes
before the time and on the date on which notice of such election is to be
given to the Agent or to the Sub-Agent, as the case may be, by the other
Lenders. If any Lender
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shall elect not to make such an offer, such Lender shall so notify the
Agent before 10:00 A.M. (New York City time) or the Sub-Agent before 12:00
noon (London time) on the date on which notice of such election is to be
given to the Agent or to the Sub-Agent, as the case may be, by the other
Lenders, and such Lender shall not be obligated to, and shall not, make any
Competitive Bid Advance as part of such Competitive Bid Borrowing; provided
that the failure by any Lender to give such notice shall not cause such
Lender to be obligated to make any Competitive Bid Advance as part of such
proposed Competitive Bid Borrowing.
(iii) The Borrower requesting such Competitive Bid Borrowing shall, in
turn, (A) before 10:30 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances denominated in Dollars, (B)
before 11:00 A.M. (New York City time) three Business Days before the date
of such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances denominated in Dollars, (C)
before 3:00 P.M. (London time) on the Business Day prior to the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of either Fixed Rate Advances denominated in any
Foreign Currency or Local Rate Advances and (D) before 3:00 P.M. (London
time) on the third Business Day prior to the date of such Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of LIBO
Rate Advances denominated in any Foreign Currency, either:
(x) cancel such Competitive Bid Borrowing by giving the Agent
notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion, by
giving notice to the Agent or to the Sub-Agent, as the case may be, of
the amount of each Competitive Bid Advance (which amount shall be
equal to or greater than the minimum amount, and equal to or less than
the maximum amount, notified to the applicable Borrower by the Agent
or the Sub-Agent, as the case may be, on behalf of such Lender for
such Competitive Bid Advance pursuant to paragraph (ii) above) to be
made by each Lender as part of such Competitive Bid Borrowing, and
reject any remaining offers made by Lenders pursuant to paragraph (ii)
above by giving the Agent or the Sub-Agent, as the case may be, notice
to that effect. The Borrower requesting such Competitive Bid Borrowing
shall accept the offers made by any Lender or Lenders to make
Competitive Bid Advances in order of the lowest to the highest rates
of interest offered by such Lenders. If two or more Lenders have
offered the same interest rate, the amount to be borrowed at such
interest rate will be allocated among such Lenders in proportion to
the amount that each such Lender offered at such interest rate.
(iv) If the Borrower requesting such Competitive Bid Borrowing
notifies the Agent or the Sub-Agent, as the case may be, that such
Competitive Bid Borrowing is cancelled pursuant to paragraph (iii)(x)
above, the Agent or the Sub-Agent, as the case may be, shall give prompt
notice thereof to the Lenders and such Competitive Bid Borrowing shall not
be made.
(v) If the Borrower requesting such Competitive Bid Borrowing accepts
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, the Agent or the Sub-Agent, as the case may be,
shall in turn promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of such
Competitive Bid Borrowing and whether or not any offer or offers made by
such Lender pursuant to paragraph (ii) above have been accepted by such
Borrower, (B) each Lender that is to make a Competitive Bid Advance as part
of such Competitive Bid Borrowing, of the amount of each Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing, upon receipt, that the Agent or the
Sub-Agent, as the case may be, has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a Competitive Bid Advance as part of such Competitive Bid
Borrowing shall, before 12:00 noon (New York City time), in the case of
Competitive Bid Advances to be denominated in Dollars
20
or 11:00 A.M. (London time), in the case of Competitive Bid Advances to be
denominated in any Foreign Currency, on the date of such Competitive Bid
Borrowing specified in the notice received from the Agent or the Sub-Agent,
as the case may be, pursuant to clause (A) of the preceding sentence or any
later time when such Lender shall have received notice from the Agent or
the Sub-Agent, as the case may be pursuant to clause (C) of the preceding
sentence, make available for the account of its Applicable Lending Office
to the Agent (x) in the case of a Competitive Bid Borrowing denominated in
Dollars, at its address referred to in Section 9.02, in same day funds,
such Lender's portion of such Competitive Bid Borrowing in Dollars and (y)
in the case of a Competitive Bid Borrowing in a Foreign Currency, at the
Payment Office for such Foreign Currency as shall have been notified by the
Agent to the Lenders prior thereto, in same day funds, such Lender's
portion of such Competitive Bid Borrowing in such Foreign Currency. Upon
fulfillment of the applicable conditions set forth in Article III and after
receipt by the Agent of such funds, the Agent will make such funds
available to the applicable Borrower at the location specified by such
Borrower in its Notice of Competitive Bid Borrowing. Promptly after each
Competitive Bid Borrowing the Agent will notify each Lender of the amount
of the Competitive Bid Borrowing and the dates upon which such Competitive
Bid Borrowing commenced and will terminate.
(vi) If the Borrower requesting such Competitive Bid Borrowing
notifies the Agent or the Sub-Agent, as the case may be, that it accepts
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, such notice of acceptance shall be irrevocable
and binding on such Borrower. The Borrower requesting such Competitive Bid
Borrowing shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before
the date specified in the related Notice of Competitive Bid Borrowing for
such Competitive Bid Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to fund
the Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing when such Competitive Bid Advance, as a result of
such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of
$10,000,000 (or the Equivalent thereof in any Foreign Currency, determined as of
the time of the applicable Notice of Competitive Bid Borrowing) or an integral
multiple of $1,000,000 (or the Equivalent thereof in any Foreign Currency,
determined as of the time of the applicable Notice of Competitive Bid Borrowing)
in excess thereof and, following the making of each Competitive Bid Borrowing,
the Borrowers shall be in compliance with the limitation set forth in the
proviso to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section
2.04, the Borrowers may from time to time borrow under this Section 2.04, repay
or prepay pursuant to subsection (d) below, and reborrow under this Section
2.04, provided that a Competitive Bid Borrowing shall not be made within three
Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower requesting such Competitive Bid Borrowing shall repay
to the Agent for the account of each Lender that has made a Competitive Bid
Advance, on the maturity date of each Competitive Bid Advance (such maturity
date being that specified by such Borrower for repayment of such Competitive Bid
Advance in the related Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and provided in the Competitive Bid Note evidencing such
Competitive Bid Advance), the then unpaid principal amount of such Competitive
Bid Advance. The applicable Borrower shall have no right to prepay any principal
amount of any Competitive Bid Advance unless, and then only on the terms,
specified by such Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above and set forth in the Competitive Bid Note evidencing such Competitive Bid
Advance.
(e) The Borrower requesting such Competitive Bid Borrowing shall pay
interest on the unpaid principal amount of each Competitive Bid Advance from the
date of such Competitive Bid Advance to the date the principal amount of such
Competitive Bid Advance is repaid in full, at the rate of interest for such
Competitive Bid Advance specified by the Lender making such Competitive Bid
Advance in its notice with respect thereto delivered pursuant to subsection
(a)(ii) above, payable on the interest payment date or dates specified by
21
such Borrower for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above, as
provided in the Competitive Bid Note evidencing such Competitive Bid Advance.
Upon the occurrence and during the continuance of an Event of Default, the
applicable Borrower shall pay interest on the amount of unpaid principal of and
interest on each Competitive Bid Advance owing to a Lender, payable in arrears
on the date or dates interest is payable thereon, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be paid on such
Competitive Bid Advance under the terms of the Competitive Bid Note evidencing
such Competitive Bid Advance unless otherwise agreed in such Competitive Bid
Note.
(f) The indebtedness of the applicable Borrower resulting from each
Competitive Bid Advance made to such Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of such Borrower
payable to the order of the Lender making such Competitive Bid Advance.
SECTION 2.05. Fees. (a) Facility Fee. The Company agrees to pay to the
Agent for the account of each Lender a facility fee on the aggregate amount of
such Lender's Revolving Credit Commitment from the Effective Date in the case of
each Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other Lender
until the Termination Date at a rate per annum equal to the Applicable
Percentage in effect from time to time, payable in arrears quarterly on the last
day of each March, June, September and December, commencing September 30, 2005,
and on the Termination Date.
(b) Letter of Credit Fees. (i) Each Borrower shall pay to the Agent
for the account of each Lender a commission on such Lender's Ratable Share of
the average daily aggregate Available Amount of all Letters of Credit issued for
the account of such Borrower and outstanding from time to time at a rate per
annum equal to the sum of (x) the Applicable Margin for Eurocurrency Rate
Advances in effect from time to time during such calendar quarter plus (y) the
Applicable Utilization Fee in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing with the quarter ended September 30, 2005, and on the Termination
Date; provided that the Applicable Margin shall be 2% above the Applicable
Margin in effect upon the occurrence and during the continuation of an Event of
Default if such Borrower is required to pay default interest pursuant to Section
2.08(b).
(ii) Each Borrower shall pay to each Issuing Bank, for its own
account, a fronting fee and such other commissions, issuance fees, transfer
fees and other fees and charges in connection with the Issuance or
administration of each Letter of Credit as such Borrower and such Issuing
Bank shall agree.
(c) Agent's Fees. The Company shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Company and the
Agent.
SECTION 2.06. Termination or Reduction of the Commitments. The Company
shall have the right, upon at least three Business Days' notice to the Agent, to
terminate in whole or permanently reduce ratably in part the Unused Revolving
Credit Commitments or the Unissued Letter of Credit Commitments of the Lenders,
provided that each partial reduction shall be in the aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof.
SECTION 2.07. Repayment of Advances and Letter of Credit Drawings. (a)
Revolving Credit Advances. Each Borrower shall repay to the Agent for the
ratable account of the Lenders on the Termination Date the aggregate principal
amount of the Revolving Credit Advances made to it and then outstanding.
(b) Letter of Credit Drawings. The obligations of each Borrower under
any Letter of Credit Agreement and any other agreement or instrument relating to
any Letter of Credit issued for the account of such Borrower shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement, such Letter of Credit Agreement and such other
agreement or instrument under all circumstances, including, without limitation,
the following circumstances (it being understood that any such payment by such
Borrower is without prejudice to, and does not constitute a waiver of, any
rights such Borrower might have or might acquire as a result of the payment by
any Lender of any draft or the reimbursement by such Borrower thereof):
22
(i) any lack of validity or enforceability of this Agreement, any
Note, any Letter of Credit Agreement, any Letter of Credit or any other
agreement or instrument relating thereto (all of the foregoing being,
collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of such Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right that
such Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank, the
Agent, any Lender or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated
transaction;
(iv) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(v) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of such Borrower in respect of
the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, such Borrower or a guarantor.
(c) Swing Line Advances. Each Borrower shall repay to the Agent for
the ratable account of the Swing Line Banks and each other Lender which has made
a Swing Line Advance the outstanding principal amount of each Swing Line Advance
made to it by each of them on the earlier of the maturity date specified in the
applicable Notice of Swing Line Borrowing (which maturity shall be no later than
five Business Days after the requested date of such Borrowing) and the
Termination Date.
SECTION 2.08. Interest on Advances. (a) Scheduled Interest. Each
Borrower shall pay interest on the unpaid principal amount of each Revolving
Credit Advance and Swing Line Advance made to it and owing to each Lender from
the date of such Advance until such principal amount shall be paid in full, at
the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving Credit
Advance is a Base Rate Advance and for each Swing Line Advance, a rate per
annum equal at all times to the sum of (x) the Base Rate in effect from
time to time plus (y) the Applicable Margin in effect from time to time
plus (z) the Applicable Utilization Fee in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September
and December during such periods and on the date such Base Rate Advance
shall be Converted or paid in full or Swing Line Advance is paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such Revolving
Credit Advance is a Eurocurrency Rate Advance, a rate per annum equal at
all times during each Interest Period for such Revolving Credit Advance to
the sum of (x) the Eurocurrency Rate for such Interest Period for such
Revolving Credit Advance plus (y) the Applicable Margin in effect from time
to time plus (z) the Applicable Utilization Fee in effect from time to
time, payable in arrears on the last day of such Interest Period and, if
such Interest Period has a duration of more than three months, on each day
that occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurocurrency Rate Advance
shall be Converted or paid in full.
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(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default, the Agent may, and upon the request of the Required
Lenders shall, require the Borrowers to pay interest ("Default Interest") on (i)
the unpaid principal amount of each Revolving Credit Advance and Swing Line
Advance owing to each Lender, payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on such Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law,
the amount of any interest, fee or other amount payable hereunder that is not
paid when due, from the date such amount shall be due until such amount shall be
paid in full, payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on Base Rate Advances pursuant to clause
(a)(i) above; provided, however, that following acceleration of the Advances
pursuant to Section 6.01, Default Interest shall accrue and be payable hereunder
whether or not previously required by the Agent.
SECTION 2.09. Interest Rate Determination. (a) Each Reference Bank
agrees, if requested by the Agent, to furnish to the Agent timely information
for the purpose of determining each Eurocurrency Rate and each LIBO Rate. If any
one or more of the Reference Banks shall not furnish such timely information to
the Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Agent shall give prompt notice to the Company and
the Lenders of the applicable interest rate determined by the Agent for purposes
of Section 2.08(a)(i) or (ii), and the rate, if any, furnished by each Reference
Bank for the purpose of determining the interest rate under Section 2.08(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Agent that (i) they are unable to obtain matching deposits in
the London inter-bank market at or about 11:00 A.M. (London time) on the second
Business Day before the making of a Borrowing in sufficient amounts to fund
their respective Revolving Credit Advances as a part of such Borrowing during
its Interest Period or (ii) the Eurocurrency Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurocurrency Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Company and the
Lenders, whereupon (A) the Borrower of such Eurocurrency Rate Advances will, on
the last day of the then existing Interest Period therefor, (1) if such
Eurocurrency Rate Advances are denominated in Dollars, either (x) prepay such
Advances or (y) Convert such Advances into Base Rate Advances and (2) if such
Eurocurrency Rate Advances are denominated in any Committed Currency, either (x)
prepay such Advances or (y) exchange such Advances into an Equivalent amount of
Dollars and Convert such Advances into Base Rate Advances and (B) the obligation
of the Lenders to make, or to Convert Revolving Credit Advances into,
Eurocurrency Rate Advances shall be suspended until the Agent shall notify the
Company and the Lenders that the circumstances causing such suspension no longer
exist.
(c) If any Borrower shall fail to select the duration of any Interest
Period for any Eurocurrency Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify such Borrower and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
(i) if such Eurocurrency Rate Advances are denominated in Dollars, Convert into
Base Rate Advances and (ii) if such Eurocurrency Rate Advances are denominated
in a Committed Currency, be exchanged for an Equivalent amount of Dollars and
Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than the Revolving Credit Borrowing Minimum,
such Advances shall automatically (i) if such Eurocurrency Rate Advances are
denominated in Dollars, Convert into Base Rate Advances and (ii) if such
Eurocurrency Rate Advances are denominated in a Committed Currency, be exchanged
for an Equivalent amount of Dollars and Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurocurrency Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, (A) if such Eurocurrency Rate
Advances are denominated in Dollars, be Converted into Base Rate Advances and
(B) if such Eurocurrency Rate Advances are denominated in any Committed
Currency, be exchanged for an Equivalent
24
amount of Dollars and be Converted into Base Rate Advances and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurocurrency
Rate Advances shall be suspended.
(f) If Moneyline Telerate Markets Page 3750 is unavailable and fewer
than two Reference Banks furnish timely information to the Agent for determining
the Eurocurrency Rate or LIBO Rate for any Eurocurrency Rate Advances or LIBO
Rate Advances after the Agent has requested such information,
(i) the Agent shall forthwith notify the applicable Borrower and the
Lenders that the interest rate cannot be determined for such Eurocurrency
Rate Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurocurrency Rate Advances, each such Advance
will automatically, on the last day of the then existing Interest Period
therefor, (A) if such Eurocurrency Rate Advance is denominated in Dollars,
Convert into a Base Rate Advance and (B) if such Eurocurrency Rate Advance
is denominated in any Committed Currency, be prepaid by the applicable
Borrower or be automatically exchanged for an Equivalent amount of Dollars
and be Converted into a Base Rate Advance (or if such Advance is then a
Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate Advances
or LIBO Rate Advances or to Convert Revolving Credit Advances into
Eurocurrency Rate Advances shall be suspended until the Agent shall notify
the Company and the Lenders that the circumstances causing such suspension
no longer exist.
SECTION 2.10. Optional Conversion of Revolving Credit Advances. The
Borrower of any Advance may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.09 and 2.13, Convert all Revolving Credit Advances denominated in Dollars of
one Type comprising the same Borrowing into Revolving Credit Advances
denominated in Dollars of the same or the other Type; provided, however, that
any Conversion of Eurocurrency Rate Advances, whether into Eurocurrency Rate
Advances with a new Interest Period or into Base Rate Advances, shall be made
only on the last day of an Interest Period for such Eurocurrency Rate Advances,
any Conversion of Base Rate Advances into Eurocurrency Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(c) and no
Conversion of any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under Section 2.02(c). Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Dollar denominated Revolving Credit
Advances to be Converted, and (iii) if such Conversion is into Eurocurrency Rate
Advances, the duration of the initial Interest Period for each such Advance.
Each notice of Conversion shall be irrevocable and binding on the Borrower
giving such notice.
SECTION 2.11. Prepayments of Revolving Credit Advances and Swing Line
Advances. (a) Optional. Each Borrower may, upon notice at least three Business
Days' prior to the date of such prepayment, in the case of Eurocurrency Rate
Advances, and not later than 11:00 A.M. (New York City time) on the date of such
prepayment, in the case of Base Rate Advances, to the Agent stating the proposed
date and aggregate principal amount of the prepayment, and if such notice is
given such Borrower shall, prepay the outstanding principal amount of the
Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x) each partial prepayment of Revolving
Credit Advances shall be in an aggregate principal amount of not less than the
Revolving Credit Borrowing Minimum or a Revolving Credit Borrowing Multiple in
excess thereof, (y) each partial prepayment of Swing Line Advances shall be in
an aggregate principal amount of not less than $1,000,000 and (z) in the event
of any such prepayment of a Eurocurrency Rate Advance, such Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section
9.04(c).
(b) Mandatory. (i) If, on any date, the Agent notifies the Company
that, on any interest payment date, the sum of (A) the aggregate principal
amount of all Advances denominated in Dollars plus the aggregate Available
Amount of all Letters of Credit then outstanding plus (B) the Equivalent in
Dollars (determined
25
on the third Business Day prior to such interest payment date) of the aggregate
principal amount of all Advances denominated in Foreign Currencies then
outstanding exceeds 103% of the aggregate Commitments of the Lenders on such
date, the Borrowers shall, as soon as practicable and in any event within two
Business Days after receipt of such notice, prepay the outstanding principal
amount of any Advances owing by the Borrowers in an aggregate amount sufficient
to reduce such sum to an amount not to exceed 100% of the aggregate Commitments
of the Lenders on such date.
(ii) Each prepayment made pursuant to this Section 2.11(b) shall be
made together with any interest accrued to the date of such prepayment on the
principal amounts prepaid and, in the case of any prepayment of a Eurocurrency
Rate Advance on a date other than the last day of an Interest Period or at its
maturity, any additional amounts which the applicable Borrower shall be
obligated to reimburse to the Lenders in respect thereof pursuant to Section
9.04(c). The Agent shall give prompt notice of any prepayment required under
this Section 2.11(b) to the Company and the Lenders.
SECTION 2.12. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority including, without limitation, any agency
of the European Union or similar monetary or multinational authority (whether or
not having the force of law), there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining Eurocurrency Rate
Advances or LIBOR Rate Advances or of agreeing to issue or of issuing or
maintaining or participating in Letters of Credit (excluding for purposes of
this Section 2.12 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.15 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Company shall from time to time, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost; provided, however, that before making any such demand, each
Lender agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Applicable Lending
Office if the making of such designation would avoid the need for, or reduce the
amount of, such increased cost and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender. A certificate as to the
amount of such increased cost, submitted to the Company and the Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend or to issue or participate in Letters of Credit hereunder and other
commitments of such type or the issuance or maintenance of or participation in
the Letters of Credit (or similar contingent obligations), then, upon demand by
such Lender (with a copy of such demand to the Agent), the Company shall pay to
the Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend or to issue or participate in Letters of
Credit hereunder or to the issuance or maintenance of or participation in any
Letters of Credit. A certificate as to such amounts submitted to the Company and
the Agent by such Lender shall be conclusive and binding for all purposes,
absent manifest error.
(c) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section 2.12 shall not constitute a waiver of such Lender's
right to demand such compensation; provided that the Company shall not be
required to compensate such Lender pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the date that such
Lender notifies the Company of the event giving rise to such increased costs or
reductions and of such Lender's intention to claim compensation therefor;
provided, further that, if the event giving rise to such increased costs or
reductions is retroactive, then the 180 day period referred to above shall be
extended to include the period of retroactive effect thereof.
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SECTION 2.13. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender or its Eurocurrency Lending Office to perform its obligations
hereunder to make Eurocurrency Rate Advances or LIBO Rate Advances in Dollars or
any Committed Currency or to fund or maintain Eurocurrency Rate Advances or LIBO
Rate Advances in Dollars or any Foreign Currency hereunder, (a) each
Eurocurrency Rate Advance or LIBO Rate Advance, as the case may be, will
automatically, at the end of the applicable Interest Period then in effect if
permitted and otherwise upon such demand (i) if such Eurocurrency Rate Advance
or LIBO Rate Advance is denominated in Dollars, be Converted into a Base Rate
Advance or an Advance that bears interest at the rate set forth in Section
2.08(a)(i), as the case may be, and (ii) if such Eurocurrency Rate Advance or
LIBO Rate Advance is denominated in any Foreign Currency, be exchanged into an
Equivalent amount of Dollars and be Converted into a Base Rate Advance or an
Advance that bears interest at the rate set forth in Section 2.08(a)(i), as the
case may be, and (b) the obligation of the Lenders to make Eurocurrency Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances into
Eurocurrency Rate Advances shall be suspended until the Agent shall notify the
Company and the Lenders that the circumstances causing such suspension no longer
exist; provided, however, that before making any such demand, each Lender agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Eurocurrency Lending Office if
the making of such a designation would allow such Lender or its Eurocurrency
Lending Office to continue to perform its obligations to make Eurocurrency Rate
Advances or to continue to fund or maintain Eurocurrency Rate Advances and would
not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender.
SECTION 2.14. Payments and Computations. (a) Each Borrower shall make
each payment hereunder (except with respect to principal of, interest on, and
other amounts relating to, Advances denominated in a Foreign Currency),
irrespective of any right of counterclaim or set-off, not later than 11:00 A.M.
(New York City time) on the day when due in U.S. Dollars to the Agent at the
applicable Agent's Account in same day funds. Each Borrower shall make each
payment hereunder with respect to principal of, interest on, and other amounts
relating to, Advances denominated in a Foreign Currency, irrespective of any
right of counterclaim or set-off, not later than 11:00 A.M. (at the Payment
Office for such Foreign Currency) on the day when due in such Foreign Currency
to the Agent, by deposit of such funds to the applicable Agent's Account in same
day funds. The Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest, fees or commissions ratably
(other than amounts payable pursuant to Section 2.04, 2.05(b), 2.12, 2.15 or
9.04(c)) to the Lenders for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to
any Lender to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 9.07(c), from and after
the effective date specified in such Assignment and Acceptance, the Agent shall
make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall be made
by the Agent on the basis of a year of 365 or 366 days, as the case may be, and
all computations of interest based on the Eurocurrency Rate or the Federal Funds
Rate or in respect of Fixed Rate Advances and of fees and Letter of Credit
commissions shall be made by the Agent on the basis of a year of 360 days (or,
in each case of Advances denominated in Foreign Currencies where market practice
differs, in accordance with market practice), in each case for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest, fees or commissions are payable. Each
determination by the Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest, fee or commission, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
27
(d) Unless the Agent shall have received notice from any Borrower
prior to the date on which any payment is due to the Lenders hereunder that such
Borrower will not make such payment in full, the Agent may assume that such
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at (i) the Federal Funds Rate in the case of Advances
denominated in Dollars or (ii) the cost of funds incurred by the Agent in
respect of such amount in the case of Advances denominated in Foreign
Currencies.
(e) To the extent that the Agent receives funds for application to the
amounts owing by any Borrower under or in respect of this Agreement or any Note
in currencies other than the currency or currencies required to enable the Agent
to distribute funds to the Lenders in accordance with the terms of this Section
2.14, the Agent shall be entitled to convert or exchange such funds into Dollars
or into a Foreign Currency or from Dollars to a Foreign Currency or from a
Foreign Currency to Dollars, as the case may be, to the extent necessary to
enable the Agent to distribute such funds in accordance with the terms of this
Section 2.14; provided that each Borrower and each of the Lenders hereby agree
that the Agent shall not be liable or responsible for any loss, cost or expense
suffered by such Borrower or such Lender as a result of any conversion or
exchange of currencies affected pursuant to this Section 2.14(f) or as a result
of the failure of the Agent to effect any such conversion or exchange; and
provided further that the Borrowers agree to indemnify the Agent and each
Lender, and hold the Agent and each Lender harmless, for any and all losses,
costs and expenses incurred by the Agent or any Lender for any conversion or
exchange of currencies (or the failure to convert or exchange any currencies) in
accordance with this Section 2.14(f).
SECTION 2.15. Taxes. (a) Any and all payments by each Borrower to or
for the account of any Lender or the Agent hereunder or under the Notes or any
other documents to be delivered hereunder shall be made, in accordance with
Section 2.14 or the applicable provisions of such other documents, free and
clear of and without deduction for any and all present or future withholding
taxes, including levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction under the laws of which such
Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If any
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note or any other documents to be delivered
hereunder to any Lender or the Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.15) such
Lender or the Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Borrower shall
make such deductions and (iii) such Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Company shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or any
other documents to be delivered hereunder or from the execution, delivery or
registration of, performing under, or otherwise with respect to, this Agreement
or the Notes or any other documents to be delivered hereunder, but excluding all
other United States federal taxes other than withholding taxes (hereinafter
referred to as "Other Taxes").
(c) Each Borrower shall indemnify each Lender and the Agent for and
hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed or asserted by any jurisdiction on
amounts payable under this Section 2.15) imposed on or paid by such Lender or
the Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect
28
thereto. This indemnification shall be made within 30 days from the date such
Lender or the Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, each
Borrower shall furnish to the Agent, at its address referred to in Section 9.02,
the original or a certified copy of a receipt evidencing such payment to the
extent such a receipt is issued therefor, or other written proof of payment
thereof that is reasonably satisfactory to the Agent. In the case of any payment
hereunder or under the Notes or any other documents to be delivered hereunder by
or on behalf of such Borrower through an account or branch outside the United
States or by or on behalf of such Borrower by a payor that is not a United
States person, if such Borrower determines that no Taxes are payable in respect
thereof, such Borrower shall furnish, or shall cause such payor to furnish, to
the Agent, at such address, a certificate from the appropriate taxing authority
or an opinion of counsel acceptable to the Agent stating that such payment is
exempt from Taxes. For purposes of this subsection (d) and subsection (e), the
terms "United States" and "United States person" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as reasonably requested in writing by
the Company (but only so long as such Lender remains lawfully able to do so),
shall provide each of the Agent and the Company with two original Internal
Revenue Service Forms W-8BEN or W-8ECI, as appropriate, or any successor or
other form prescribed by the Internal Revenue Service, certifying that such
Lender is exempt from or entitled to a reduced rate of United States withholding
tax on payments pursuant to this Agreement or the Notes. If the form provided by
a Lender at the time such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such form; provided, however, that,
if at the date of the Assignment and Acceptance pursuant to which a Lender
assignee becomes a party to this Agreement, the Lender assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignor on such date. If any
form or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service Form W-8BEN
or W-8ECI, that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Company and shall not be obligated to include
in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Company with the appropriate form, certificate or other document
described in Section 2.15(e) (other than if such failure is due to a change in
law, or in the interpretation or application thereof, occurring subsequent to
the date on which a form, certificate or other document originally was required
to be provided, or if such form, certificate or other document otherwise is not
required under subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.15(a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Company shall take such
steps as the Lender shall reasonably request to assist the Lender to recover
such Taxes.
SECTION 2.16. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Revolving Credit Advances or Swing Line
Advances owing to it (other than (x) as payment of an Advance made by a
Revolving Credit Issuing Bank pursuant to the first sentence of Section 2.03(c),
(y) as a payment of a Swing Line Advance made by a Swing Line Bank that has not
been participated to the other Lenders pursuant to Section 2.02(b) or (z)
pursuant to Section 2.12, 2.15 or 9.04(c)) in excess of its Ratable Share of
payments on account of the Revolving Credit Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such
29
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
Each Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.16 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of such Borrower in the amount of such participation.
SECTION 2.17. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Revolving
Credit Advance and each Swing Line Advance owing to such Lender from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder in respect of such Advances. Each Borrower
agrees that upon notice by any Lender to such Borrower (with a copy of such
notice to the Agent) to the effect that a Note is required or appropriate in
order for such Lender to evidence (whether for purposes of pledge, enforcement
or otherwise) the Revolving Credit Advances and Swing Line Advances owing to, or
to be made by, such Lender, such Borrower shall promptly execute and deliver to
such Lender a Revolving Credit Note payable to the order of such Lender in a
principal amount up to the Revolving Credit Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.07(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Revolving Credit Borrowing and each Swing Line Borrowing made hereunder,
the Type of Advances comprising such Borrowing and, if appropriate, the Interest
Period applicable thereto, (ii) the terms of each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or interest
due and payable or to become due and payable from each Borrower to each Lender
hereunder and (iv) the amount of any sum received by the Agent from such
Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant
to subsection (b) above, and by each Lender in its account or accounts pursuant
to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from each
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of any
Borrower under this Agreement.
SECTION 2.18. Use of Proceeds. The proceeds of the Advances shall be
available (and each Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of such Borrower and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.04. Sections 2.01 and 2.04 of this Agreement shall become effective on and
as of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 2004, except as disclosed in the Interim Financial Statements.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Company or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could be reasonably expected to have a Material Adverse Effect or (ii)
purports to affect
30
the legality, validity or enforceability of this Agreement or any Note or
the consummation of the transactions contemplated hereby.
(c) Nothing shall have come to the attention of the Lenders during the
course of their due diligence investigation to lead them to believe that
the Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect; without limiting the generality of the
foregoing, the Lenders shall have been given such access to the management,
records, books of account, contracts and properties of the Company and its
Subsidiaries as they shall have requested.
(d) All governmental and third party consents and approvals necessary
in connection with the transactions contemplated hereby shall have been
obtained (without the imposition of any conditions that are not acceptable
to the Lenders) and shall remain in effect, and no law or regulation shall
be applicable in the reasonable judgment of the Lenders that restrains,
prevents or imposes materially adverse conditions upon the transactions
contemplated hereby.
(e) The Company shall have notified the Agent, who will promptly
notify each Lender, in writing as to the proposed Effective Date.
(f) The Company shall have paid all accrued fees and expenses of the
Agent and the Lenders (including the accrued fees and expenses of counsel
to the Agent).
(g) On the Effective Date, the following statements shall be true and
the Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of the Company, dated the Effective
Date, stating that:
(i) The representations and warranties contained in Section 4.01
are correct on and as of the Effective Date,
(ii) No event has occurred and is continuing that constitutes a
Default, and
(iii) The Company has terminated the commitments of the lenders
and repaid or prepaid in full all amounts outstanding under (A) the
364-Day Revolving Credit Agreement dated as of March 11, 2005 among
the Company, the lenders parties thereto and Citibank, N.A., as agent,
and (B) the Five Year Revolving Credit Agreement dated as of May 29,
2001 among the Company, the lenders parties thereto and Citibank,
N.A., as agent.
By execution of this Agreement, each of the Lenders that is a
lender under the credit agreement referred to in clause (iii) above
hereby waives the requirement set forth in Section 2.06 of each such
credit agreement of three business days' prior notice to the
termination of their commitments thereunder.
(h) The Agent shall have received on or before the Effective Date the
following, each dated such day, in form and substance satisfactory to the
Agent and (except for the Revolving Credit Notes) in sufficient copies for
each Lender:
(i) The Revolving Credit Notes to the order of the Lenders to the
extent requested by any Lender pursuant to Section 2.17.
(ii) Certified copies of the resolutions of the Board of
Directors of the Company approving the Loan Documents, and of all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to the Loan Documents.
31
(iii) A certificate of the Secretary or an Assistant Secretary of
the Company certifying the names and true signatures of the officers
of the Company authorized to sign the Loan Documents and the other
documents to be delivered hereunder.
(iv) A favorable opinion of each of Xxxx X. Xxxxx, Vice
President, Secretary and General Counsel of the Borrower, and Miles &
Stockbridge P.C., counsel for the Borrower, substantially in the form
of Exhibit D-1 and Exhibit D-2 hereto, respectively, and as to such
other matters as any Lender through the Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling LLP, counsel for
the Agent, in form and substance satisfactory to the Agent.
(i) The Borrower shall have terminated the commitments, and paid in
full all Debt, interest, fees and other amounts outstanding, under (i) the
$200,000,000 364-Day Credit Agreement dated as of March 11, 2005 among the
Borrower, the lenders parties thereto and Citibank, N.A., as administrative
agent, and (ii) the $400,000,000 Five Year Credit Agreement dated as of May
29, 2001 among the Borrower, the lenders parties thereto and Citibank,
N.A., as administrative agent. Each of the Lenders that is a party to the
either of the above described credit agreements, by execution hereof,
hereby waives the requirement of prior notice to the termination of the
commitments thereunder.
SECTION 3.02. Initial Advance to Each Designated Subsidiary. The
obligation of each Lender to make an initial Advance to each Designated
Subsidiary is subject to the receipt by the Agent on or before the date of such
initial Advance of each of the following, in form and substance reasonably
satisfactory to the Agent and dated such date, and (except for the Revolving
Credit Notes) in sufficient copies for each Lender:
(a) The Revolving Credit Notes of such Designated Subsidiary to the
order of the Lenders to the extent requested by any Lender pursuant to
Section 2.17.
(b) Certified copies of the resolutions of the Board of Directors of
such Designated Subsidiary (with a certified English translation if the
original thereof is not in English) approving this Agreement and the Notes
to be delivered by it, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this
Agreement.
(c) A certificate of a proper officer of such Designated Subsidiary
certifying the names and true signatures of the officers of such Designated
Subsidiary authorized to sign its Designation Agreement and the Notes to be
delivered by it and the other documents to be delivered by it hereunder.
(d) A certificate signed by a duly authorized officer of the Company,
certifying that such Designated Subsidiary has obtained all governmental
and third party authorizations, consents, approvals (including exchange
control approvals) and licenses required under applicable laws and
regulations necessary for such Designated Subsidiary to execute and deliver
its Designation Agreement and the Notes to be delivered by it and to
perform its obligations hereunder and thereunder.
(e) A Designation Agreement duly executed by such Designated
Subsidiary and the Company.
(f) Favorable opinions of counsel (which may be in-house counsel) to
such Designated Subsidiary substantially in the form of Exhibit D hereto,
and as to such other matters as any Lender through the Agent may request.
(g) Such other approvals, opinions or documents as any Lender, through
the Agent may reasonably request.
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SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing,
each Swing Line Borrowing and Each Issuance. The obligation of each Lender and
each Swing Line Bank to make an Advance (other than (x) a Swing Line Advance
made by a Lender pursuant to Section 2.02(b), (y) an Advance made by any Issuing
Bank or any Lender pursuant to Section 2.03(c) or (z) a Competitive Bid Advance)
on the occasion of each Borrowing and the obligation of each Issuing Bank to
issue a Letter of Credit shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such Borrowing or such
Issuance (as the case may be) (a) the following statements shall be true (and
each of the giving of the applicable Notice of Revolving Credit Borrowing,
Notice of Swing Line Borrowing or Notice of Issuance and the acceptance by any
Borrower of the proceeds of such Borrowing or such Issuance shall constitute a
representation and warranty by such Borrower that on the date of such Borrowing
or such Issuance such statements are true):
(i) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f)(i) thereof) are correct on and as of such
date, before and after giving effect to such Borrowing or such Issuance and
to the application of the proceeds therefrom, as though made on and as of
such date, and additionally, if such Borrowing or Issuance shall have been
requested by a Designated Subsidiary, the representations and warranties of
such Designated Subsidiary contained in its Designation Agreement are
correct on and as of the date of such Borrowing or such Issuance, before
and after giving effect to such Borrowing or such Issuance and to the
application of the proceeds therefrom, as though made on and as of such
date, and
(ii) no event has occurred and is continuing, or would result from
such Borrowing or such Issuance or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing.
The obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as
part of such Competitive Bid Borrowing is subject to the conditions precedent
that (a) the Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, (b) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the
Agent shall have received a Competitive Bid Note payable to the order of such
Lender for each of the one or more Competitive Bid Advances to be made by such
Lender as part of such Competitive Bid Borrowing, in a principal amount equal to
the principal amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.04, and (c) on the date of such Competitive Bid
Borrowing the following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance by the
applicable Borrower of the proceeds of such Competitive Bid Borrowing shall
constitute a representation and warranty by such Borrower that on the date of
such Competitive Bid Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f)(i) thereof) are correct on and as of such
date, before and after giving effect to such Competitive Bid Borrowing and
to the application of the proceeds therefrom, as though made on and as of
such date, and additionally, if such Competitive Bid Borrowing shall have
been requested by a Designated Subsidiary, the representations and
warranties of such Designated Subsidiary contained in its Designation
Agreement are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid Borrowing
and to the application of the proceeds therefrom, as though made on and as
of such date, and
(ii) no event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default, and
(iii) no event has occurred and no circumstance exists as a result of
which the information concerning the Company that has been provided to the
Agent and each Lender by the Company in connection herewith would include
an untrue statement of a material fact or omit to state any material fact
33
or any fact necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not misleading.
SECTION 3.05. Determinations Under Sections 3.01 and 3.02. For
purposes of determining compliance with the conditions specified in Sections
3.01 and 3.02, each Lender shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Lenders unless an officer of the Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender prior
to the date that the Company, by notice to the Lenders, designates as the
proposed Effective Date or the date of the initial Advance to the applicable
Designated Subsidiary, as the case may be, specifying its objection thereto. The
Agent shall promptly notify the Lenders of the occurrence of the Effective Date
and each date of initial Advance to a Designated Subsidiary, as applicable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company. The
Company represents and warrants as follows:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Company of the Loan
Documents and the consummation of the transactions contemplated hereby, are
within the Company's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the Company's charter
or by-laws or (ii) law or any contractual restriction binding on or
affecting the Company.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Company of the Loan Documents.
(d) This Agreement has been, and each of the other Loan Documents when
delivered hereunder will have been, duly executed and delivered by the
Company. This Agreement is, and each of the other Loan Documents when
delivered hereunder will be, the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at
law).
(e) The Consolidated balance sheet of the Company and its Subsidiaries
as at December 31, 2004, and the related Consolidated statements of income
and cash flows of the Company and its Subsidiaries for the fiscal year then
ended, accompanied by an opinion of KPMG LLP, independent public
accountants, and the Consolidated balance sheet of the Company and its
Subsidiaries as at March 31, 2005, and the related Consolidated statements
of income and cash flows (together with said balance sheet, the "Interim
Financial Statements") of the Company and its Subsidiaries for the three
months then ended, duly certified by the chief financial officer of the
Company, copies of which have been furnished to each Lender, fairly
present, subject, in the case of said balance sheet as at March 31, 2005,
and said statements of income and cash flows for the three months then
ended, to year-end audit adjustments, the Consolidated financial condition
of the Company and its Subsidiaries as at such dates and the Consolidated
results of the operations of the Company and its Subsidiaries for the
periods ended on such dates, all in accordance with generally accepted
accounting principles consistently applied. Since December 31, 2004, there
has been no Material Adverse Change, except as disclosed in the Interim
Financial Statements.
34
(f) There is no pending or, to the knowledge of the Company,
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Company or any of its Subsidiaries before any court, governmental agency or
arbitrator that (i) could be reasonably expected to have a Material Adverse
Effect or (ii) purports to affect the legality, validity or enforceability
of this Agreement or any Note or the consummation of the transactions
contemplated hereby.
(g) The Company is not engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(h) The Company is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall remain outstanding or any Lender shall
have any Commitment hereunder, the Company will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and Environmental Laws.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided, however, that neither the
Company nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge or claim that (i) does not singly or in
the aggregate exceed $25,000,000 or (ii) is being contested in good faith
and by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to its
property and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Company or such
Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided,
however, that (i) the Company and its Subsidiaries may consummate any
transaction permitted under Section 5.02(b), (ii) any Non-Material
Subsidiary will not be subject to this Section 5.01(d) and (iii) neither
the Company nor any of its Subsidiaries shall be required to preserve any
right or franchise or, in the case of any Non-Material Subsidiary, its
existence, if the Company or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company or such Subsidiary, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to the Company, such
Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to time
upon reasonable notice, permit the Agent or any of the Lenders or any
agents or representatives thereof, to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, the Company
35
and any of its Subsidiaries, and to discuss the affairs, finances and
accounts of the Company and any of its Subsidiaries with any of their
officers or directors and with their independent certified public
accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
the Company and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its material
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates (other than the Company and its
Subsidiaries) on terms that are fair and reasonable and no less favorable
to the Company or such Subsidiary than it would obtain in a comparable
arm's-length transaction with a Person not an Affiliate, except for
transactions with joint ventures in which the Company owns, directly or
indirectly, an interest of at least 20%, which could not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the
Company, the Consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter and Consolidated statements
of income and cash flows of the Company and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to year-end
audit adjustments) by the chief financial officer or treasurer of the
Company as having been prepared in accordance with generally accepted
accounting principles and certificates of the chief financial officer
or treasurer of the Company as to compliance with the terms of this
Agreement and setting forth in reasonable detail the calculations
necessary to demonstrate compliance with Section 5.03, provided that
in the event of any change in generally accepted accounting principles
used in the preparation of such financial statements, the Company
shall also provide, if necessary for the determination of compliance
with Section 5.03, a statement of reconciliation conforming such
financial statements to GAAP;
(ii) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, a copy of the annual audit
report for such year for the Company and its Subsidiaries, containing
the Consolidated balance sheet of the Company and its Subsidiaries as
of the end of such fiscal year and Consolidated statements of income
and cash flows of the Company and its Subsidiaries for such fiscal
year, in each case accompanied by an opinion without a "going concern"
or like qualification or exception, or qualification arising out of
the scope of the audit, acceptable to the Required Lenders by KPMG LLP
or other independent public accountants of nationally recognized
standing and certificates of the chief financial officer or treasurer
of the Company as to compliance with the terms of this Agreement and
setting forth in reasonable detail the calculations necessary to
demonstrate compliance with Section 5.03, provided that in the event
of any change in generally accepted accounting principles used in the
preparation of such financial statements, the Company shall also
provide, if necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial
statements to GAAP;
(iii) as soon as possible and in any event within five days after
the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer or treasurer of
the Company setting forth details of such Default and the action that
the Company has taken and proposes to take with respect thereto;
36
(iv) promptly after the sending or filing thereof, copies of all
reports that the Company sends to any of its securityholders, and
copies of all reports and registration statements that the Company or
any Subsidiary files with the Securities and Exchange Commission;
(v) promptly after the commencement (or, if later, promptly after
the Company becomes aware) thereof, notice of all actions and
proceedings before any court, governmental agency or arbitrator
affecting the Company or any of its Subsidiaries of the type described
in Section 4.01(f);
(vi) promptly after the Company becomes aware thereof, notice of
a development or event which could reasonably be expected to have a
Material Adverse Effect; and
(vii) such other information respecting the Company or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
(j) Change in Nature of Business. Continue, and cause its Subsidiaries
to continue, to engage in business of the same general type as conducted by
it and its Subsidiaries, taken as a whole, on the date hereof.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit shall remain outstanding or any Lender shall have
any Commitment hereunder, the Company will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any right to receive income,
other than:
(i) Permitted Liens and Liens on assets of Subsidiaries of the
Company for the benefit of other Subsidiaries of the Company or for
the benefit of the Company,
(ii) purchase money Liens upon or in any assets acquired or held
by the Company or any Subsidiary in the ordinary course of business to
secure the purchase price of such assets or to secure Debt incurred
solely for the purpose of financing the acquisition of such assets, or
Liens existing on such assets at the time of or substantially
contemporaneously with its acquisition (other than any such Liens
created in contemplation of such acquisition that were not incurred to
finance the acquisition of such assets) or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount,
provided, however, that no such Lien shall extend to or cover any
properties of any character other than the assets being acquired, and
no such extension, renewal or replacement shall extend to or cover any
properties not theretofore subject to the Lien being extended, renewed
or replaced,
(iii) the Liens existing on the Effective Date and described on
Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or any
Subsidiary of the Company or becomes a Subsidiary of the Company;
provided that such Liens were not created in contemplation of such
merger, consolidation or acquisition and do not extend to any assets
other than those of the Person so merged into or consolidated with the
Company or such Subsidiary or acquired by the Company or such
Subsidiary,
(v) the replacement, extension or renewal of any Lien permitted
by clause (iii) or (iv) above upon or in the same property theretofore
subject thereto or the replacement, extension or renewal (without
increase in the amount or change in any direct or contingent obligor)
of the Debt secured thereby,
37
(vi) Liens on cash deposits, certificates of deposit or other
similar financial institution obligations securing indebtedness to a
financial institution or its affiliates (which indebtedness may be in
a different currency from the cash deposits, certificates of deposit
or other financial institution obligations) in amounts substantially
equal in value (determined at the time the Lien is created) to the
cash deposits, certificates of deposit or other financial institution
obligations,
(vii) Liens on the L/C Cash Deposit Account,
(viii) Liens on any capital stock which is not Voting Stock, and
on not more than 20% of the Voting Stock, of any Foreign Subsidiary
securing Debt of the Company or any Foreign Subsidiary in an aggregate
amount at any time outstanding for the Company and all Foreign
Subsidiaries not to exceed 25% of Net Worth; and
(ix) Liens not otherwise permitted by this Section 5.02(a)
securing obligations in an aggregate amount not to exceed 10% of Net
Worth.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, or permit any of its
Subsidiaries to do so, except that (i) any Subsidiary of the Company may
merge or consolidate with or into, or dispose of assets to, any other
Subsidiary of the Company, (ii) any Subsidiary of the Company may merge
into or dispose of assets to the Company and (iii) any Subsidiary of the
Company may sell, lease, transfer or otherwise dispose of any or all of its
assets in connection with an investment in a joint venture engaged in a
business of the same general type as that engaged in by the Company and its
Subsidiaries, provided, in each case, that no Default shall have occurred
and be continuing at the time of such proposed transaction or would result
therefrom and provided, further, that any Non-Material Subsidiary of the
Company shall not be subject to this Section 5.02(b).
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally accepted
accounting principles.
SECTION 5.03. Financial Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit shall remain outstanding or any Lender shall have
any Commitment hereunder, the Company will:
(a) Interest Coverage Ratio. Maintain a ratio of Consolidated EBITDA
of the Company and its Subsidiaries for the period of four fiscal quarters
most recently ended to Consolidated Net Interest Expense of the Company and
its Subsidiaries for that period as reported on the Consolidated statements
of income (or comparable statement) of not less than 3.50 : 1.00
(b) Covenant Debt to Capital. Maintain a ratio of Consolidated
Covenant Debt to the sum of Consolidated Covenant Debt plus Net Worth of
not greater than 0.50 : 1.00, measured as of the end of each fiscal
quarter.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Advance when
the same becomes due and payable; or any Borrower shall fail to pay any
interest on any Advance or make any other payment of
38
fees or other amounts payable under this Agreement or any Note within five
Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Borrower herein or by
any Borrower (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) (i) The Company shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (e), (h) or (i), 5.02
or 5.03, or (ii) any Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after written notice thereof shall have been given to the Company by the
Agent or any Lender; or
(d) The Company or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal or notional amount of at least $25,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of the Company or such Subsidiary (as
the case may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem, purchase
or defease such Debt shall be required to be made, in each case prior to
the stated maturity thereof; or
(e) The Company or any of its Subsidiaries shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against the
Company or any of its Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any
law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of
a receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding
shall remain undismissed or unstayed for a period of 60 days, or any of the
actions sought in such proceeding (including, without limitation, the entry
of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of
its property) shall occur; or the Company or any of its Subsidiaries shall
take any corporate action to authorize any of the actions set forth above
in this subsection (e), except that this paragraph (e) will not be
applicable to any Non-Material Subsidiary; or
(f) Judgments or orders for the payment of money in excess of
$25,000,000 in the aggregate shall be rendered against the Company or any
of its Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 10 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(g) (i) Any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of the Company (or other
securities convertible into such Voting Stock) representing 30% or more of
the combined voting power of all Voting Stock of the Company; or (ii)
during any period of up to 24 consecutive months, commencing before or
after the date of this Agreement, individuals who at the beginning of such
24-month period were
39
directors of the Company shall cease for any reason to constitute a
majority of the board of directors of the Company (except to the extent
that individuals who at the beginning of such 24-month period were replaced
by individuals (x) elected by a majority of the remaining members of the
board of directors of the Company or (y) nominated for election by a
majority of the remaining members of the board of directors of the Company
and thereafter elected as directors by the shareholders of the Company) or
(h) The Company or any of its ERISA Affiliates shall incur, or, in the
reasonable opinion of the Required Lenders, shall be reasonably likely to
incur liability in excess of $25,000,000 in the aggregate as a result of
one or more of the following: (i) the occurrence of any ERISA Event; (ii)
the partial or complete withdrawal of the Company or any of its ERISA
Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the
obligation of each Lender to make Advances (other than Advances to be made by a
Lender pursuant to Section 2.02(b) or by an Issuing Bank or a Lender pursuant to
Section 2.03(c)) and of the Issuing Banks to issue Letters of Credit to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrowers, declare the Advances, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Advances, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by each Borrower; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Company or any other Borrower under the Federal Bankruptcy
Code, (A) the obligation of each Lender to make Advances (other than Advances to
be made by a Lender pursuant to Section 2.02(b) or by an Issuing Bank or a
Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue Letters of
Credit shall automatically be terminated and (B) the Advances, all such interest
and all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by each Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Agent may with the consent, or shall at the request, of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrowers to, and forthwith upon such
demand the Borrowers will, (a) pay to the Agent on behalf of the Lenders in same
day funds at the Agent's office designated in such demand, for deposit in the
L/C Cash Deposit Account, an amount equal to the aggregate Available Amount of
all Letters of Credit then outstanding or (b) make such other arrangements in
respect of the outstanding Letters of Credit as shall be acceptable to the
Required Lenders and not more disadvantageous to the Borrowers than clause (a);
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to any Borrower under the Federal Bankruptcy Code, an
amount equal to the aggregate Available Amount of all outstanding Letters of
Credit shall be immediately due and payable to the Agent for the account of the
Lenders without notice to or demand upon the Borrowers, which are expressly
waived by each Borrower, to be held in the L/C Cash Deposit Account. If at any
time an Event of Default is continuing the Agent determines that any funds held
in the L/C Cash Deposit Account are subject to any right or claim of any Person
other than the Agent and the Lenders or that the total amount of such funds is
less than the aggregate Available Amount of all Letters of Credit, the Borrowers
will, forthwith upon demand by the Agent, pay to the Agent, as additional funds
to be deposited and held in the L/C Cash Deposit Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Deposit Account that the Agent
determines to be free and clear of any such right and claim. Upon the drawing of
any Letter of Credit, to the extent funds are on deposit in the L/C Cash Deposit
Account, such funds shall be applied to reimburse the Issuing Banks to the
extent permitted by applicable law. After all such Letters of Credit shall have
expired or been fully drawn upon and all other obligations of the Borrowers
hereunder and under the Notes shall have been paid in full, the balance, if any,
in such L/C Cash Deposit Account shall be returned to the Borrowers.
ARTICLE VII
GUARANTY
40
SECTION 7.01. Unconditional Guaranty. The Company hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all obligations of each other Borrower now
or hereafter existing under or in respect of this Agreement and the Notes
(including, without limitation, any extensions, modifications, substitutions,
amendments or renewals of any or all of the foregoing obligations), whether
direct or indirect, absolute or contingent, and whether for principal, interest,
premiums, fees, indemnities, contract causes of action, costs, expenses or
otherwise (such obligations being the "Guaranteed Obligations"), and agrees to
pay any and all expenses (including, without limitation, reasonable fees and
expenses of counsel) incurred by the Agent or any Lender in enforcing any rights
under this Agreement. Without limiting the generality of the foregoing, the
Company's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by such Borrower to the Agent or any
Lender under or in respect of this Agreement and the Notes but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Borrower.
SECTION 7.02. Guaranty Absolute. (a) The Company guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the Notes, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agent or any Lender with respect thereto. The obligations of the
Company under or in respect of this Guaranty are independent of the Guaranteed
Obligations or any other obligations of any other Borrower under or in respect
of this Agreement and the Notes, and a separate action or actions may be brought
and prosecuted against the Company to enforce this Guaranty, irrespective of
whether any action is brought against any Borrower or whether any Borrower is
joined in any such action or actions. The liability of the Company under this
Guaranty shall be irrevocable, absolute and unconditional irrespective of, and
the Company hereby irrevocably waives any defenses it may now have or hereafter
acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement, any Note
or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
obligations of any Borrower under or in respect of this Agreement and the
Notes, or any other amendment or waiver of or any consent to departure from
this Agreement or any Note, including, without limitation, any increase in
the Guaranteed Obligations resulting from the extension of additional
credit to any Borrower or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral,
or any taking, release or amendment or waiver of, or consent to departure
from, any other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of any collateral, or proceeds thereof,
to all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations
or any other obligations of any Borrower under this Agreement and the Notes
or any other assets of any Borrower or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Borrower or any of its Subsidiaries;
(f) any failure of the Agent or any Lender to disclose to the Company
any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any
Borrower now or hereafter known to the Agent or such Lender (the Company
waiving any duty on the part of the Agent and the Lenders to disclose such
information);
(g) the failure of any other Person to execute or deliver this
Guaranty or any other guaranty or agreement or the release or reduction of
liability of the Company or other guarantor or surety with respect to the
Guaranteed Obligations; or
41
(h) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
the Agent or any Lender that might otherwise constitute a defense available
to, or a discharge of, any Borrower or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Agent or any Lender or any other Person
upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise,
all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) The Company hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Agent or any Lender protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Borrower or
any other Person or any collateral.
(b) The Company hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.
(c) The Company hereby unconditionally and irrevocably waives (i) any
defense arising by reason of any claim or defense based upon an election of
remedies by the Agent or any Lender that in any manner impairs, reduces,
releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of the Company or other
rights of the Company to proceed against any Borrower, any other guarantor
or any other Person or any collateral and (ii) any defense based on any
right of set-off or counterclaim against or in respect of the obligations
of the Company hereunder.
(d) The Company hereby unconditionally and irrevocably waives any duty
on the part of the Agent or any Lender to disclose to the Company any
matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any
Borrower or any of its Subsidiaries now or hereafter known by the Agent or
such Lender.
(e) The Company acknowledges that it will receive substantial direct
and indirect benefits from the financing arrangements contemplated by this
Agreement and the Notes and that the waivers set forth in Section 7.02 and
this Section 7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. The Company hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against any Borrower or any other insider guarantor that arise from the
existence, payment, performance or enforcement of the Company's obligations
under or in respect of this Guaranty, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of the Agent or any Lender
against any Borrower or any other insider guarantor or any collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
any Borrower or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash, all Letters of Credit shall have expired or been
terminated and the Commitments shall have expired or been terminated. If any
amount shall be paid to the Company in violation of the immediately preceding
sentence at any time prior to the latest of (a) the payment in full in cash of
the Guaranteed Obligations and all other amounts payable under this Guaranty,
(b) the Termination Date and (c) the latest date of expiration or termination of
all Letters of Credit, such amount shall be received and held in trust for the
benefit of the Agent and the Lenders, shall be segregated from other property
and funds of the Company and shall forthwith be paid or delivered to the Agent
in the same form as so received (with any necessary endorsement or assignment)
to be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of this Agreement and the Notes, or to be held as collateral for any
Guaranteed Obligations or other
42
amounts payable under this Guaranty thereafter arising. If (i) the Company shall
make payment to the Agent or any Lender of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been paid in full in cash, (iii) the
Termination Date shall have occurred and (iv) all Letters of Credit shall have
expired or been terminated, the Agent and the Lenders will, at the Company's
request and expense, execute and deliver to the Company appropriate documents,
without recourse and without representation or warranty, necessary to evidence
the transfer by subrogation to the Company of an interest in the Guaranteed
Obligations resulting from such payment made by the Company pursuant to this
Guaranty.
SECTION 7.05. Subordination. The Company hereby subordinates any and
all debts, liabilities and other obligations owed to the Company by any Borrower
(the "Subordinated Obligations") to the Guaranteed Obligations to the extent and
in the manner hereinafter set forth in this Section 7.05:
(a) Prohibited Payments, Etc. Except during the continuance of an
Event of Default under Section 6.01(e) (including the commencement and
continuation of any proceeding under any Bankruptcy Law relating to such
Borrower), the Company may receive regularly scheduled payments from such
Borrower on account of the Subordinated Obligations. After the occurrence
and during the continuance of any Event of Default under Section 6.01(e)
(including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to such Borrower), however, unless the Required
Lenders otherwise agree, the Company shall not demand, accept or take any
action to collect any payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under
any Bankruptcy Law relating to such Borrower, the Company agrees that the
Agent and the Lenders shall be entitled to receive payment in full in cash
of all Guaranteed Obligations (including all interest and expenses accruing
after the commencement of a proceeding under any Bankruptcy Law, whether or
not constituting an allowed claim in such proceeding ("Post Petition
Interest")) before the Company receives payment of any Subordinated
Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
Event of Default under Section 6.01(e) (including the commencement and
continuation of any proceeding under any Bankruptcy Law relating to such
Borrower), the Company shall, if the Agent so requests, collect, enforce
and receive payments on account of the Subordinated Obligations as trustee
for the Agent and the Lenders and deliver such payments to the Agent on
account of the Guaranteed Obligations (including all Post Petition
Interest), together with any necessary endorsements or other instruments of
transfer, but without reducing or affecting in any manner the liability of
the Company under the other provisions of this Guaranty.
(d) Agent Authorization. After the occurrence and during the
continuance of any Event of Default under Section 6.01(e) (including the
commencement and continuation of any proceeding under any Bankruptcy Law
relating to such Borrower), the Agent is authorized and empowered (but
without any obligation to so do), in its discretion, (i) in the name of the
Company, to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and to apply any amounts received thereon to the
Guaranteed Obligations (including any and all Post Petition Interest), and
(ii) to require the Company (A) to collect and enforce, and to submit
claims in respect of, Subordinated Obligations and (B) to pay any amounts
received on such obligations to the Agent for application to the Guaranteed
Obligations (including any and all Post Petition Interest).
SECTION 7.06. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty, (ii) the Termination Date and (iii)
the latest date of expiration or termination of all Letters of Credit, (b) be
binding upon the Company, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Agent and the Lenders and their successors,
transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, the Agent or any Lender may assign or otherwise
transfer all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or any portion of its Commitments, the
Advances owing to it and the Note or Notes held by it) to any other Person, and
such other Person shall thereupon become vested with all the benefits in
43
respect thereof granted to the Agent or such Lender herein or otherwise, in each
case as and to the extent provided in Section 9.07.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender (in its capacities
as a Lender and Issuing Bank, as applicable) hereby appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes), the
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders and all holders
of Notes; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to this
Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by the Company or any other Borrower pursuant
to the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
Lender that made any Advance as the holder of the Debt resulting therefrom until
the Agent receives and accepts an Assignment and Acceptance entered into by such
Lender, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 9.07; (ii) may consult with legal counsel (including counsel for the
Company), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance, observance or
satisfaction of any of the terms, covenants or conditions of this Agreement on
the part of any Borrower or the existence at any time of any Default or to
inspect the property (including the books and records) of the Company or any
other Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier
or telegram) believed by it to be genuine and signed or sent by the proper party
or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the Company,
any of its Subsidiaries and any Person who may do business with or own
securities of the Company or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders. The Agent
shall have no duty to disclose any information obtained or received by it or any
of its Affiliates relating to the Company or any of its Subsidiaries to the
extent such information was obtained or received in any capacity other than as
Agent.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
44
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. Indemnification. (a) Each Lender severally agrees to
indemnify the Agent (to the extent not reimbursed by the Company) from and
against such Lender's Ratable Share of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Agent, in its capacity as such, in any way relating
to or arising out of this Agreement or any action taken or omitted by the Agent,
in its capacity as such, under this Agreement (collectively, the "Indemnified
Costs"), provided that no Lender shall be liable for any portion of the
Indemnified Costs resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for such Lender's Ratable Share of any
out-of-pocket expenses (including reasonable counsel fees) incurred by the Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Company. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section 8.05
applies whether any such investigation, litigation or proceeding is brought by
the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to
the extent not promptly reimbursed by the Company) from and against such
Lender's Ratable Share of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against any such Issuing Bank in any way relating to or arising out of the Loan
Documents or any action taken or omitted by such Issuing Bank hereunder or in
connection herewith; provided, however, that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Issuing
Bank's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon
demand for its Ratable Share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Company under Section
9.04, to the extent that such Issuing Bank is not promptly reimbursed for such
costs and expenses by the Company.
(c) The failure of any Lender to reimburse the Agent or any Issuing
Bank promptly upon demand for its Ratable Share of any amount required to be
paid by the Lenders to the Agent as provided herein shall not relieve any other
Lender of its obligation hereunder to reimburse the Agent or any Issuing Bank
for its Ratable Share of such amount, but no Lender shall be responsible for the
failure of any other Lender to reimburse the Agent or any Issuing Bank for such
other Lender's Ratable Share of such amount. Without prejudice to the survival
of any other agreement of any Lender hereunder, the agreement and obligations of
each Lender contained in this Section 8.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes.
Each of the Agent and each Issuing Bank agrees to return to the Lenders their
respective Ratable Shares of any amounts paid under this Section 8.05 that are
subsequently reimbursed by the Company.
SECTION 8.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Company and may be removed
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 8.07. Sub-Agent. The Sub-Agent has been designated under this
Agreement to carry out duties of the Agent. The Sub-Agent shall be subject to
each of the obligations in this Agreement to be
45
performed by the Sub-Agent, and each of the Company, each other Borrower and the
Lenders agrees that the Sub-Agent shall be entitled to exercise each of the
rights and shall be entitled to each of the benefits of the Agent under this
Agreement as relate to the performance of its obligations hereunder.
SECTION 8.08. Other Agents. Each Lender hereby acknowledges that
neither the syndication agent, any documentation agent nor any other Lender
designated as any "Agent" on the signature pages hereof has any liability
hereunder other than in its capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes, nor consent to any departure by any Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Section 3.01, (b) increase the aggregate Revolving
Credit Commitments of the Lenders, (c) reduce the principal of, or interest on,
the Revolving Credit Advances or any fees or other amounts payable hereunder,
(d) postpone any date fixed for any payment of principal of, or interest on, the
Revolving Credit Advances or any fees or other amounts payable hereunder, (e)
change the percentage of the Revolving Credit Commitments or of the aggregate
unpaid principal amount of the Revolving Credit Advances, or the number of
Lenders, that shall be required for the Lenders or any of them to take any
action hereunder, (f) release the Company from any of its obligations under
Article VII or (g) amend this Section 9.01; and provided further that (x) no
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Agent under this Agreement or any Note, (y) no amendment, waiver
or consent shall, unless in writing and signed by each Swing Line Bank, in
addition to the Lenders required above to take such action, affect the rights or
obligations of the Swing Line Banks under this Agreement, and (z) no amendment,
waiver or consent shall, unless in writing and signed by the Issuing Banks in
addition to the Lenders required above to take such action, adversely affect the
rights or obligations of the Issuing Banks in their capacities as such under
this Agreement.
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier or
telegraphic communication) and mailed, telecopied, telegraphed or delivered or
(y) as and to the extent set forth in Section 9.02(b) and in the proviso to this
Section 9.02(a), if to the Company or any other Borrower, at the Company's
address at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxx, Xxxxxxxxxxxx 00000, Attention:
Treasurer, Telephone: (000) 000-0000, Fax: (000) 000-0000; if to any Initial
Lender, at its Domestic Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Agent, at its address at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000, Attention:
Bank Loan Syndications Department; or, as to the Company or the Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Company and the Agent,
provided that materials required to be delivered pursuant to Section 5.01(i)(i),
(ii) or (iv) shall be delivered to the Agent as specified in Section 9.02(b) or
as otherwise specified to any Borrower by the Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or e-mailed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by e-mail, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VIII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
(b) So long as Citibank or any of its Affiliates is the Agent,
materials required to be delivered pursuant to Section 5.01(i)(i), (ii) and (iv)
shall be delivered to the Agent in an electronic medium in a format acceptable
to the Agent and the Lenders by e-mail at xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. The
Company agrees that the Agent may make such materials, as well as any other
written information, documents, instruments and other material relating to the
Company, any of its Subsidiaries or any other materials or matters relating to
this
46
Agreement, the Notes or any of the transactions contemplated hereby
(collectively, the "Communications") available to the Lenders by posting such
notices on Intralinks or a substantially similar electronic system reasonably
approved by the Company (the "Platform"). The Company acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided "as is" and "as available" and (iii)
neither the Agent nor any of its Affiliates warrants the accuracy, adequacy or
completeness of the Communications or the Platform and each expressly disclaims
liability for errors or omissions in the Communications or the Platform. No
warranty of any kind, express, implied or statutory, including, without
limitation, any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code
defects, is made by the Agent or any of its Affiliates in connection with the
Platform.
(c) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted to
the Platform shall constitute effective delivery of such information, documents
or other materials to such Lender for purposes of this Agreement; provided that
if requested by any Lender the Agent shall deliver a copy of the Communications
to such Lender by email or telecopier. Each Lender agrees (i) to notify the
Agent in writing of such Lender's e-mail address to which a Notice may be sent
by electronic transmission (including by electronic communication) on or before
the date such Lender becomes a party to this Agreement (and from time to time
thereafter to ensure that the Agent has on record an effective e-mail address
for such Lender) and (ii) that any Notice may be sent to such e-mail address.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Company agrees to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Company further agrees to pay on demand all costs and expenses of
the Agent and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 9.04(a).
(b) The Company agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances or Letters of Credit, (ii) the actual or alleged presence of
Hazardous Materials on any property of the Company or any of its Subsidiaries or
any Environmental Action relating in any way to the Company or any of its
Subsidiaries or (iii) any civil penalty or fine assessed by OFAC against the
Agent, any Issuing Bank or any Lender as a result of conduct of any Borrower
that violates any OFAC Sanctions, except to the extent such claim, damage, loss,
liability or expense is found by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 9.04(b) applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by the
Company, its directors, equityholders or creditors or an Indemnified Party or
any other Person, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated hereby are consummated.
The Company also agrees not to assert any claim for special, indirect,
consequential or punitive damages against the Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees, attorneys
and agents, on any theory of liability, arising out of or otherwise
47
relating to the Notes, this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Advances. The
Company further agrees to pay any civil penalty or fine assessed by OFAC against
the Agent or any Lender and all reasonable costs and expenses (including,
without limitation, reasonable counsel fees and expenses) incurred in connection
with the defense thereof, as a result of making Advances or the acceptance of
payments due under any Loan Document.
(c) If any payment of principal of, or Conversion of, any Eurocurrency
Rate Advance or LIBO Rate Advance is made by any Borrower to or for the account
of a Lender (i) other than on the last day of the Interest Period for such
Advance, as a result of a payment or Conversion pursuant to Section 2.09(d) or
(e), 2.11 or 2.13, acceleration of the maturity of the Notes pursuant to Section
6.01 or for any other reason, or by an Eligible Assignee to a Lender other than
on the last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this Agreement pursuant to Section 9.07 as a result
of a demand by the Company pursuant to Section 9.07(a) or (ii) as a result of a
payment or Conversion pursuant to Section 2.09, 2.11 or 2.13, such Borrower
shall, upon demand by such Lender (with a copy of such demand to the Agent), pay
to the Agent for the account of such Lender any amounts required to compensate
such Lender for any additional losses, costs or expenses that it may reasonably
incur as a result of such payment or Conversion, including, without limitation,
any loss (excluding loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
any Lender to fund or maintain such Advance. If the amount of the Committed
Currency purchased by any Lender in the case of a Conversion or exchange of
Advances in the case of Section 2.09 or 2.13 exceeds the sum required to satisfy
such Lender's liability in respect of such Advances, such Lender agrees to remit
to the applicable Borrower such excess.
(d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in Sections 2.12, 2.15 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Advances due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Company or any Borrower
against any and all of the obligations of the Company or any Borrower now or
hereafter existing under this Agreement and the Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Company or the applicable Borrower after any such set-off
and application, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
(other than Sections 2.01 and 2.04, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Company and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the Company,
the Agent and each Lender and their respective successors and assigns, except
that neither the Company nor any other Borrower shall have the right to assign
its rights hereunder or any interest herein without the prior written consent of
the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender may with
the consent of each Issuing Bank (which consent shall not be unreasonably
withheld or delayed) and, if demanded by the Company (so long as no Default
shall have occurred and be continuing and following a demand by such Lender
pursuant to Section 2.12 or 2.15) upon at least five Business Days' notice to
such Lender and the Agent, will assign to one or more Persons all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Revolving Credit Commitment, the Revolving
Credit Advances owing to it, its participations in Letters of Credit and the
Revolving Credit Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a constant, and not a varying, percentage of all
rights and obligations under this Agreement
48
(other than any right to make Competitive Bid Advances, Competitive Bid Advances
owing to it and Competitive Bid Notes), (ii) except in the case of an assignment
to a Person that, immediately prior to such assignment, was a Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, the
amount of the Revolving Credit Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof, unless the
Company and the Agent otherwise agree (iii) each such assignment shall be to an
Eligible Assignee, (iv) each such assignment made as a result of a demand by the
Company pursuant to this Section 9.07(a) shall be arranged by the Company after
consultation with the Agent and shall be either an assignment of all of the
rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of the
rights and obligations of the assigning Lender under this Agreement, (v) no
Lender shall be obligated to make any such assignment as a result of a demand by
the Company pursuant to this Section 9.07(a) unless and until such Lender shall
have received one or more payments from either the Borrowers or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon and any accrued fees and commissions to the date of
payment of such principal amount and all other amounts payable to such Lender
under this Agreement, (vi) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Revolving Credit Note subject to
such assignment and a processing and recordation fee of $3,500 payable by the
parties to each such assignment, provided, however, that in the case of each
assignment made as a result of a demand by the Company, such recordation fee
shall be payable by the Company except that no such recordation fee shall be
payable in the case of an assignment made at the request of the Company to an
Eligible Assignee that is an existing Lender and (viii) any Lender may, without
the approval of the Company, any Issuing Bank and the Agent, assign all or a
portion of its rights to any of its Affiliates. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights (other than its rights
under Sections 2.12, 2.15 and 9.04 to the extent any claim thereunder relates to
an event arising prior to such assignment) and be released from its obligations
(other than its obligations under Section 8.05 to the extent any claim
thereunder relates to an event arising prior to such assignment) under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or any other Borrower or the
performance or observance by the Company or any other Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
49
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment, the
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Company.
(d) The Agent shall maintain at its address referred to in Section
9.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Revolving Credit Commitment of, and principal amount of the Advances owing
to, each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Company and the other Borrowers, the Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Company or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Company or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Revolving Credit Commitment, the Revolving
Credit Advances owing to it and any Revolving Credit Note or Notes held by it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Revolving Credit Commitment to the Borrowers
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Company , the other Borrowers, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by the Company or any other Borrower therefrom, except
to the extent that such amendment, waiver or consent would reduce the principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 9.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Company furnished to such Lender by or on behalf of
the Company; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Company Information relating to the Company received by
it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and any Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 9.08. Confidentiality. Neither the Agent nor any Lender may
disclose to any Person any information that the Company furnishes to the Agent
or any Lender in a writing designated as confidential or that is otherwise
specifically identified as being confidential (such information being referred
to collectively herein as the "Company Information"), except that each of the
Agent and each of the Lenders may disclose Company Information (i) to its and
its affiliates' employees, officers, directors, agents and advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Company Information and will expressly agree to
keep such Company Information confidential on substantially the same terms as
provided herein), (ii) to the extent requested by any regulatory authority,
(iii) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (iv) to any other party to this Agreement,
(v) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (vi) subject to an agreement containing provisions substantially the
same as those of this Section 9.08, to any assignee of or participant in, or any
prospective assignee of or participant in, any of its rights or obligations
under this Agreement, (vii) to the extent such Company Information
50
(A) is or becomes generally available to the public on a non-confidential basis
other than as a result of a breach of this Section 9.08 by the Agent or such
Lender, or (B) is or becomes available to the Agent or such Lender on a
nonconfidential basis from a source other than the Company and (viii) with the
written consent of the Company.
SECTION 9.09. Designated Subsidiaries. (a) Designation. The Company
may at any time, and from time to time, by delivery to the Agent of a
Designation Agreement duly executed by the Company and the respective Subsidiary
and substantially in the form of Exhibit D hereto, designate such Subsidiary as
a "Designated Subsidiary" for purposes of this Agreement and such Subsidiary
shall thereupon become a "Designated Subsidiary" for purposes of this Agreement
and, as such, shall have all of the rights and obligations of a Borrower
hereunder. The Agent shall promptly notify each Lender of each such designation
by the Company and the identity of the respective Subsidiary.
(b) Termination. Upon the indefeasible payment and performance in full
of all of the indebtedness, liabilities and obligations under this Agreement of
any Designated Subsidiary then, so long as at the time no Notice of Borrowing or
Notice of Issuance in respect of such Designated Subsidiary is outstanding, such
Subsidiary's status as a "Designated Subsidiary" shall terminate upon notice to
such effect from the Agent to the Lenders (which notice the Agent shall give
promptly, and only upon its receipt of a request therefor from the Company).
Thereafter, the Lenders shall be under no further obligation to make any Advance
hereunder to such Designated Subsidiary.
SECTION 9.10. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.12. Judgment. (a) If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due hereunder in Dollars into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase Dollars with
such other currency at Citibank's principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.
(b) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in a Foreign Currency into Dollars, the
parties agree to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Agent could purchase such Foreign Currency with Dollars at
Citibank's principal office in London at 11:00 A.M. (London time) on the
Business Day preceding that on which final judgment is given.
(c) The obligation of any Borrower in respect of any sum due from it
in any currency (the "Primary Currency") to any Lender or the Agent hereunder
shall, notwithstanding any judgment in any other currency, be discharged only to
the extent that on the Business Day following receipt by such Lender or the
Agent (as the case may be), of any sum adjudged to be so due in such other
currency, such Lender or the Agent (as the case may be) may in accordance with
normal banking procedures purchase the applicable Primary Currency with such
other currency; if the amount of the applicable Primary Currency so purchased is
less than such sum due to such Lender or the Agent (as the case may be) in the
applicable Primary Currency, each Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Agent (as the
case may be) against such loss, and if the amount of the applicable Primary
Currency so purchased exceeds such sum due to any Lender or the Agent (as the
case may be) in the applicable Primary Currency, such Lender or the Agent (as
the case may be) agrees to remit to such Borrower such excess.
SECTION 9.13. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in
51
any action or proceeding arising out of or relating to this Agreement or the
Notes, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the extent permitted by law, in such federal court.
Each Designated Subsidiary hereby agrees that service of process in any such
action or proceeding brought in the any such New York State court or in such
federal court may be made upon the Company and each Designated Subsidiary hereby
irrevocably appoints the Company its authorized agent to accept such service of
process, and agrees that the failure of the Company to give any notice of any
such service shall not impair or affect the validity of such service or of any
judgment rendered in any action or proceeding based thereon. The Company and
each Designated Subsidiary hereby further irrevocably consent to the service of
process in any action or proceeding in such courts by the mailing thereof by any
parties hereto by registered or certified mail, postage prepaid, to the Company
at its address specified pursuant to Section 9.02. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction. To
the extent that each Designated Subsidiary has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, each
Designated Subsidiary hereby irrevocably waives such immunity in respect of its
obligations under this Agreement.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
SECTION 9.14. Substitution of Currency. If a change in any Foreign
Currency occurs pursuant to any applicable law, rule or regulation of any
governmental, monetary or multi-national authority, this Agreement (including,
without limitation, the definitions of Eurocurrency Rate and LIBO Rate) will be
amended to the extent determined by the Agent (acting reasonably and in
consultation with the Company) to be necessary to reflect the change in currency
and to put the Lenders and the Borrowers in the same position, so far as
possible, that they would have been in if no change in such Foreign Currency had
occurred.
SECTION 9.15. No Liability of the Issuing Banks. The Borrowers assume
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit. Neither an
Issuing Bank nor any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
applicable Borrower shall have a claim against such Issuing Bank, and such
Issuing Bank shall be liable to such Borrower, to the extent of any direct, but
not consequential, damages suffered by such Borrower that such Borrower proves
were caused by such Issuing Bank's willful misconduct or gross negligence when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. In furtherance and not in limitation of
the foregoing, such Issuing Bank may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary; provided that nothing herein shall be
deemed to excuse such Issuing Bank if it acts with gross negligence or willful
misconduct in accepting such documents.
SECTION 9.16. Patriot Act Notice. Each Lender and the Agent (for
itself and not on behalf of any Lender) hereby notifies each Borrower that
pursuant to the requirements of the Patriot Act, it is required to obtain,
verify and record information that identifies each Borrower, which information
includes the name and address of each Borrower and other information that will
allow such Lender or the Agent, as applicable, to identify each Borrower in
accordance with the Patriot Act. Each Borrower shall provide such information
and take such
52
actions as are reasonably requested by the Agent or any Lenders in order to
assist the Agent and the Lenders in maintaining compliance with the Patriot Act.
SECTION 9.17. Power of Attorney. Each Subsidiary of the Company may
from time to time authorize and appoint the Company as its attorney-in-fact to
execute and deliver (a) any amendment, waiver or consent in accordance with
Section 9.01 on behalf of and in the name of such Subsidiary and (b) any notice
or other communication hereunder, on behalf of and in the name of such
Subsidiary. Such authorization shall become effective as of the date on which
such Subsidiary delivers to the Agent a power of attorney enforceable under
applicable law and any additional information to the Agent as necessary to make
such power of attorney the legal, valid and binding obligation of such
Subsidiary.
53
SECTION 9.18. Waiver of Jury Trial. Each of the Company, the other
Borrowers, the Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
YORK INTERNATIONAL CORPORATION
By
---------------------
Title:
CITIBANK, N.A.,
as Agent
By
------------------------
Title:
Initial Lenders
_______________
Administrative Agent
____________________
CITIBANK, N.A.
By _______________________
Name:
Title:
Syndication Agent
_________________
JPMORGAN CHASE BANK, N.A.
By _______________________
Name:
Title:
Co-Documentation Agents
_______________________
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By _______________________
Name:
Title:
BANK OF AMERICA, N.A.
By _______________________
Name:
Title:
BNP PARIBAS
By _______________________
Name:
Title:
By _______________________
Name:
Title:
NORDEA BANK FINLAND PLC
By _______________________
Name:
Title:
By _______________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By _______________________
Name:
Title:
Lenders
_______
DANSKE BANK
By _______________________
Name:
Title:
ING BANK N.V.
By _______________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By _______________________
Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC
By _______________________
Name:
Title:
BANK AUSTRIA CREDITANSTALT AG
By _______________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By _______________________
Name:
Title:
NATIONAL CITY BANK
By _______________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By _______________________
Name:
Title:
SUMITOMO MITSUI BANKING CORPORATION
By _______________________
Name:
Title:
THE BANK OF NEW YORK
By _______________________
Name:
Title:
SCHEDULE I
YORK INTERNATIONAL CORPORATION
FIVE YEAR CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
------------------------------------------------------------------------------------------------------------------------------------
Name of Initial Lender Revolving Credit Letter of Credit Swing Line Domestic Lending Eurocurrency Lending
Commitment Commitment Commitment Office Office
------------------------------------------------------------------------------------------------------------------------------------
Bank Austria Creditanstalt $20,000,000
AG
------------------------------------------------------------------------------------------------------------------------------------
The Bank of $60,000,000 BTM Information BTM Information
Tokyo-Mitsubishi, Ltd., Services, Inc. Services, Inc.
New York Branch c/o Bank of c/o Bank of
Tokyo-Mitsubishi Trust Tokyo-Mitsubishi
Company Trust Company
1251 Avenue of the 0000 Xxxxxx xx
Xxxxxxxx the Americas
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xx Attn: Xxxxxxx Xx
T: 000 000-0000 T: 000 000-0000
F: 000 0000-0000 F: 000 0000-0000
------------------------------------------------------------------------------------------------------------------------------------
Bank of America, N.A. $54,000,000 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Mail Stop: Mail Stop: MA5-100-09-03
MA5-100-09-03 Xxxxxx, XX 00000
Xxxxxx, XX 00000 Attn: Xxxxx X. Xxxxxxxx
Attn: Xxxxx X. Xxxxxxxx T: 000 000-0000
T: 000 000-0000 F: 000 000-0000
F: 000 000-0000
------------------------------------------------------------------------------------------------------------------------------------
The Bank of Nova
Scotia $40,000,000
------------------------------------------------------------------------------------------------------------------------------------
The Bank of New York $20,000,000
------------------------------------------------------------------------------------------------------------------------------------
BNP Paribas $54,000,000 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxx Attn: Xxxxxxx Xxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Name of Initial Lender Revolving Credit Letter of Credit Swing Line Domestic Lending Eurocurrency Lending
Commitment Commitment Commitment Office Office
------------------------------------------------------------------------------------------------------------------------------------
Citibank, N.A. $72,000,000 Two Penns Way, Xxxxx 000 Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxx Attn: Xxxxx Xxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------------------------------
Danske Bank $40,000,000
------------------------------------------------------------------------------------------------------------------------------------
ING Bank, N.V. $40,000,000
------------------------------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank, N.A. $72,000,000 000 Xxxx Xxxxxx, 0xx 000 Xxxx Xxxxxx, 0xx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxx Attn: Xxxxxxxx Xxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------------------------------
KeyBank National $20,000,000
Association
------------------------------------------------------------------------------------------------------------------------------------
National City Bank $20,000,000
------------------------------------------------------------------------------------------------------------------------------------
Nordea Bank Finland plc $54,000,000 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xx (Loan Attn: Xxxxxx Xx (Loan
Admin) Admin)
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------------------------------
PNC Bank, National $20,000,000
Association
------------------------------------------------------------------------------------------------------------------------------------
The Royal Bank of Scotland $40,000,000
Plc
------------------------------------------------------------------------------------------------------------------------------------
Sumitomo Mitsui Banking $20,000,000
Corporation
------------------------------------------------------------------------------------------------------------------------------------
Wachovia Bank, National $54,000,000 000 X. Xxxxxxx Xxxxxx 000 X. Xxxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx Attn: Xxxxxx Xxxxxxxx
T: 704 715-1459 T: 704 715-1459
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------------------------------
Total: $700,000,000 $200,000,000 $25,000,000
------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a __________
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (each as defined in the Credit Agreement
referred to below) the principal sum of U.S.$[amount of the Lender's Commitment
in figures] or, if less, the aggregate principal amount of the Advances made by
the Lender to the Borrower pursuant to the Five Year Credit Agreement dated as
of June 30, 2005 among the Borrower, [York International Corporation,] the
Lender and certain other lenders parties thereto, and Citibank, N.A. as Agent
for the Lender and such other lenders (as amended or modified from time to time,
the "Credit Agreement"; the terms defined therein being used herein as therein
defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Revolving Credit Advance and each Swing Line Advance from the date of
such Advance until such principal amount is paid in full, at such interest
rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest in respect of each Revolving Credit
Advance and each Swing Line Advance (i) in Dollars are payable in lawful money
of the United States of America to the Agent at its account maintained at Xxx
Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000, in same day funds and (ii) in any
Committed Currency are payable in such currency at the applicable Payment Office
in same day funds. Each Revolving Credit Advance and each Swing Line Advance
owing to the Lender by the Borrower pursuant to the Credit Agreement, and all
payments made on account of principal thereof, shall be recorded by the Lender
and, prior to any transfer hereof, endorsed on the grid attached hereto which is
part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the making of Revolving Credit
Advances and Swing Line Advances by the Lender to the Borrower from time to time
in an aggregate amount not to exceed at any time outstanding the U.S. dollar
amount first above mentioned, the indebtedness of the Borrower resulting from
each such Advance being evidenced by this Promissory Note, (ii) contains
provisions for determining the Dollar Equivalent of Advances denominated in
Committed Currencies and (iii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
[NAME OF BORROWER]
By_____________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------------------------------------
AMOUNT OF
DATE AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
ADVANCE OR PREPAID BALANCE MADE BY
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
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--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
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EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a __________
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of __________
(the "Lender") for the account of its Applicable Lending Office (as defined in
the Five Year Credit Agreement dated as of June 30, 2005 among the Borrower,
[York International Corporation,] the Lender and certain other lenders parties
thereto, and Citibank, N.A., as Agent for the Lender and such other lenders (as
amended or modified from time to time, the "Credit Agreement"; the terms defined
therein being used herein as therein defined)), on __________, 200_, the
principal amount of [U.S.$__________] [for a Competitive Bid Advance in a
Foreign Currency, list currency and amount of such Advance].
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of _____
days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of __________
to Citibank, as agent, for the account of the Lender at the office of Citibank,
at __________ in same day funds.
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
[NAME OF BORROWER]
By ________________________
Title:
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five Year Credit
Agreement, dated as of June 30, 2005 (as amended or modified from time to time,
the "Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, [York International Corporation,] the certain
Lenders parties thereto and Citibank, N.A., as Agent for said Lenders, and
hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit
Agreement that the undersigned hereby requests a Revolving Credit Borrowing
under the Credit Agreement, and in that connection sets forth below the
information relating to such Revolving Credit Borrowing (the "Proposed Revolving
Credit Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing is
_______________, 200_.
(ii) The Type of Advances comprising the Proposed Revolving Credit
Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit Borrowing
is $_______________][for a Revolving Credit Borrowing in a Committed
Currency, list currency and amount of Revolving Credit Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate Advance
made as part of the Proposed Revolving Credit Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Revolving
Credit Borrowing:
(A) the representations and warranties contained in Section 4.01
of the Credit Agreement (except the representations set forth in the
last sentence of subsection (e) thereof and in subsection (f) thereof
(other than clause (ii) thereof)) and, in the case of any Revolving
Credit Borrowing made to a Designated Subsidiary, in the Designation
Agreement for such Designated Subsidiary, are correct, before and
after giving effect to the Proposed Revolving Credit Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Revolving Credit Borrowing or from the application of
the proceeds therefrom, that constitutes a Default.
Very truly yours,
[NAME OF BORROWER]
By _______________________
Title:
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five Year
Credit Agreement, dated as of June 30, 2005 (as amended or modified
from time to time, the "Credit Agreement", the terms defined therein
being used herein as therein defined), among the undersigned, [York
International Corporation,] certain Lenders parties thereto and
Citibank, N.A., as Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.04 of the Credit Agreement
that the undersigned hereby requests a Competitive Bid Borrowing under
the Credit Agreement, and in that connection sets forth the terms on
which such Competitive Bid Borrowing (the "Proposed Competitive Bid
Borrowing") is requested to be made:
(A) Date of Competitive Bid Borrowing ________________________
(B) Amount of Competitive Bid Borrowing ________________________
(C) [Maturity Date] [Interest Period] ________________________
(D) Interest Rate Basis ________________________
(E) Day Count Convention ________________________
(F) Interest Payment Date(s) ________________________
(G) Currency ________________________
(H) Borrower's Account Location ________________________
(I) ___________________ ________________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties contained in Section 4.01
of the Credit Agreement (except the representations set forth in the
last sentence of subsection (e) thereof and in subsection (f) thereof
(other than clause (ii) thereof)) are correct, before and after giving
effect to the Proposed Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of
such date;
(b) no event has occurred and is continuing, or would result from
the Proposed Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default;
(c) no event has occurred and no circumstance exists as a result
of which the information concerning the undersigned that has been
provided to the Agent and each Lender by the undersigned in connection
with the Credit Agreement would include an untrue statement of a
material fact or omit to state any material fact or any fact necessary
to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading; and
(d) the aggregate amount of the Proposed Competitive Bid Borrowing
and all other Borrowings to be made on the same day under the Credit
Agreement is within the aggregate amount of the unused Revolving
Credit Commitments of the Lenders.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.04(a)(v) of
the Credit Agreement.
Very truly yours,
[NAME OF BORROWER]
By __________________________
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Five Year Credit Agreement dated as of June 30,
2005 (as amended or modified from time to time, the "Credit Agreement") among
York International Corporation, a Delaware corporation (the "Company"), the
Lenders (as defined in the Credit Agreement) and Citibank, N.A., as agent for
the Lenders (the "Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, an interest in and to the
Assignor's rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Advances and Competitive Bid
Notes) equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes) together with
participations in Letters of Credit held by the Assignor on the date hereof.
After giving effect to such sale and assignment, the Assignee's Revolving Credit
Commitment and the amount of the Revolving Credit Advances owing to the Assignee
will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, the Credit
Agreement or any other instrument or document furnished pursuant thereto; (iii)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Company or any other Borrower or the
performance or observance by the Company or any other Borrower of any of its
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Revolving Credit Note, if any,
held by the Assignor [and requests that the Agent exchange such Note for a new
Revolving Credit Note payable to the order of [the Assignee in an amount equal
to the Revolving Credit Commitment assumed by the Assignee pursuant hereto or
new Revolving Credit Notes payable to the order of the Assignee in an amount
equal to the Revolving Credit Commitment assumed by the Assignee pursuant hereto
and] the Assignor in an amount equal to the Revolving Credit Commitment retained
by the Assignor under the Credit Agreement[, respectively,] as specified on
Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service forms required under Section 2.15 of the Credit
Agreement.
4. Following the execution of this Assignment and Acceptance, it will be
delivered to the Agent for acceptance and recording by the Agent. The effective
date for this Assignment and Acceptance (the "Effective Date") shall be the date
of acceptance hereof by the Agent, unless otherwise specified on Schedule 1
hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Revolving Credit Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the
Revolving Credit Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Revolving Credit Commitment: $______
Aggregate outstanding principal amount of Revolving Credit Advances
assigned: $______
Principal amount of Revolving Credit Note payable to Assignee: $______
Principal amount of Revolving Credit Note payable to Assignor: $______
Effective Date*: _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By____________________________
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By___________________________
Title:
Dated: _______________, 200_
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
-----------------------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
Accepted [and Approved]** this
__________ day of _______________, 200_
CITIBANK, N.A., as Agent
By __________________________________________
Title:
[Approved this __________ day
of _______________, 200_
YORK INTERNATIONAL CORPORATION
By ]*
__________________________________________
Title:
--------------------------------------
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
EXHIBIT D - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
[Effective Date]
EXHIBIT E - FORM OF
DESIGNATION AGREEMENT
[DATE]
To each of the Lenders
parties to the Credit Agreement
(as defined below) and to Citibank, N.A.,
as Agent for such Lenders
Ladies and Gentlemen:
Reference is made to the Five Year Credit Agreement dated as of June
30, 2005 (as amended or modified from time to time, the "Credit Agreement")
among York International Corporation, a Delaware corporation (the "Company"),
the Lenders (as defined in the Credit Agreement), and Citibank, N.A., as agent
for the Lenders (the "Agent"). Terms defined in the Credit Agreement are used
herein with the same meaning.
Please be advised that the Company hereby designates its undersigned
Subsidiary, ____________ ("Designated Subsidiary"), as a "Designated Subsidiary"
under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's agreement
to extend credit to it under and on the terms and conditions set forth in the
Credit Agreement, does hereby assume each of the obligations imposed upon a
"Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Lender as follows:
(a) The Designated Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of ______________________.
(b) The execution, delivery and performance by the Designated
Subsidiary of this Designation Agreement, the Credit Agreement and the Loan
Documents are within the Designated Subsidiary's corporate or other powers,
have been duly authorized by all necessary corporate or other action and do
not contravene (i) the Designated Subsidiary's charter or by-laws or (ii)
law or any contractual restriction binding on or affecting the Designated
Subsidiary.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any third
party is required for the due execution, delivery and performance by the
Designated Subsidiary of this Designation Agreement or the Loan Documents,
except for those authorizations, approvals, actions, notices and filings
which have been duly obtained, taken, given or made and are in full force
and effect.
(d) The Designation Agreement and the Revolving Credit Notes delivered
by it have been duly executed and delivered on behalf of the Designated
Subsidiary. This Designation Agreement is, and each of the other Loan
Documents when delivered will be, the legal, valid and binding obligations
of the Designated Subsidiary enforceable against the Designated Subsidiary
in accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
by general equitable principles (whether enforcement is sought by
proceedings in equity or law).
(e) There is no pending or, to the knowledge of the Designated
Subsidiary, threatened action, suit, investigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Designated Subsidiary or any of its Subsidiaries before any court,
governmental agency or arbitrator that
purports to affect the legality, validity or enforceability of this
Designation Agreement, the Credit Agreement or any Note of the Designated
Subsidiary.
The Designated Subsidiary hereby agrees that service of process in any
action or proceeding brought in any New York State court or in federal court may
be made upon the Company at its offices at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxx,
Xxxxxxxxxxxx 00000, Attention: Treasurer (the "Process Agent") and the
Designated Subsidiary hereby irrevocably appoints the Process Agent to give any
notice of any such service of process, and agrees that the failure of the
Process Agent to give any notice of any such service shall not impair or affect
the validity of such service or of any judgment rendered in any action or
proceeding based thereon.
The Company hereby accepts such appointment as Process Agent and
agrees with you that (i) the Company will maintain an office in York,
Pennsylvania through the Termination Date and will give the Agent prompt notice
of any change of address of the Company, (ii) the Company will perform its
duties as Process Agent to receive on behalf of the Designated Subsidiary and
its property service of copies of the summons and complaint and any other
process which may be served in any action or proceeding in any New York State or
federal court sitting in New York City arising out of or relating to the Credit
Agreement and (iii) the Company will forward forthwith to the Designated
Subsidiary at its address at ___________________ or, if different, its then
current address, copies of any summons, complaint and other process which the
Company received in connection with its appointment as Process Agent.
This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Very truly yours,
YORK INTERNATIONAL CORPORATION
By _________________________
Name:
Title:
[THE DESIGNATED SUBSIDIARY]
By__________________________
Name:
Title:
EXECUTION COPY
U.S. $700,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of June 30, 2005
Among
YORK INTERNATIONAL CORPORATION
as Borrower
-----------
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
------------------
and
CITIBANK, N.A.
as Administrative Agent
-----------------------
and
JPMORGAN CHASE BANK, N.A.
as Syndication Agent
--------------------
and
THE BANK OF TOKYO-MITSUBISHI, LTD.,
BANK OF AMERICA, N.A.
BNP PARIBAS
NORDEA BANK FINLAND PLC
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Documentation Agents
-----------------------
and
CITIGROUP GLOBAL MARKETS INC.
and
X.X. XXXXXX SECURITIES INC.
as Joint Lead Arrangers and Joint Bookrunners
---------------------------------------------
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 14
SECTION 1.03. Accounting Terms 14
ARTICLE II
SECTION 2.01. The Advances and Letters of Credit 14
SECTION 2.02. Making the Advances 15
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit 17
SECTION 2.04. The Competitive Bid Advances 18
SECTION 2.05. Fees 22
SECTION 2.06. Termination or Reduction of the Commitments 22
SECTION 2.07. Repayment of Advances and Letter of Credit Drawings 22
SECTION 2.08. Interest on Revolving Credit Advances 23
SECTION 2.09. Interest Rate Determination 24
SECTION 2.10. Optional Conversion of Revolving Credit Advances 25
SECTION 2.11. Prepayments of Revolving Credit Advances and Swing Line Advances 25
SECTION 2.12. Increased Costs 26
SECTION 2.13. Illegality 27
SECTION 2.14. Payments and Computations 27
SECTION 2.15. Taxes 28
SECTION 2.16. Sharing of Payments, Etc. 29
SECTION 2.17. Evidence of Debt 30
SECTION 2.18. Use of Proceeds 30
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.04 30
SECTION 3.02. Initial Advance to Each Designated Subsidiary 32
SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing,
each Swing Line Borrowing and Each Issuance. 33
SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing 33
SECTION 3.05. Determinations Under Sections 3.01 and 3.02 34
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Company 34
ARTICLE V
SECTION 5.01. Affirmative Covenants 35
SECTION 5.02. Negative Covenants 37
SECTION 5.03. Financial Covenants 38
ARTICLE VI
SECTION 6.01. Events of Default 38
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default 40
ARTICLE VII
SECTION 7.01. Unconditional Guaranty 41
SECTION 7.02. Guaranty Absolute 41
SECTION 7.03. Waivers and Acknowledgments 42
SECTION 7.04. Subrogation 42
SECTION 7.05. Subordination 43
SECTION 7.06. Continuing Guaranty; Assignments 43
ARTICLE VIII
SECTION 8.01. Authorization and Action 44
SECTION 8.02. Agent's Reliance, Etc. 44
SECTION 8.03. Citibank and Affiliates 44
ii
SECTION 8.04. Lender Credit Decision 44
SECTION 8.05. Indemnification 45
SECTION 8.06. Successor Agent 45
SECTION 8.07. Sub-Agent 45
SECTION 8.08. Other Agents. 46
ARTICLE IX
SECTION 9.01. Amendments, Etc. 46
SECTION 9.02. Notices, Etc. 46
SECTION 9.03. No Waiver; Remedies 47
SECTION 9.04. Costs and Expenses 47
SECTION 9.05. Right of Set-off 48
SECTION 9.06. Binding Effect 48
SECTION 9.07. Assignments and Participations 48
SECTION 9.08. Confidentiality 50
SECTION 9.09. Designated Subsidiaries 51
SECTION 9.10. Governing Law 51
SECTION 9.11. Execution in Counterparts 51
SECTION 9.12. Judgment 51
SECTION 9.13. Jurisdiction, Etc. 51
SECTION 9.14. Substitution of Currency 52
SECTION 9.15. No Liability of the Issuing Banks 52
SECTION 9.16. Patriot Act Notice 52
SECTION 9.17. Power of Attorney 53
SECTION 9.18. Waiver of Jury Trial 1
iii
Schedules
---------
Schedule I - List of Applicable Lending Offices
Schedule 2.01(b) - Existing Letters of Credit
Schedule 5.02(a) - Existing Liens
Exhibits
--------
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Company
Exhibit E - Form of Designation Agreement
iv
