TERM LOAN AGREEMENT Among THE DOW CHEMICAL COMPANY and THE BANKS LISTED HEREIN and CITIBANK, N.A. as Administrative Agent MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and MORGAN STANLEY SENIOR FUNDING, INC. as Co-Syndication Agents CITIGROUP...
EXECUTION
COPY
$13,000,000,000
Among
THE DOW
CHEMICAL COMPANY
and
THE BANKS
LISTED HEREIN
and
CITIBANK,
N.A.
as
Administrative Agent
_______________
XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and
XXXXXX
XXXXXXX SENIOR FUNDING, INC.
as
Co-Syndication Agents
CITIGROUP
GLOBAL MARKETS INC.,
XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and
XXXXXX
XXXXXXX SENIOR FUNDING, INC.
as Joint
Lead Arrangers and Joint Bookrunners
_______________
Dated as
of September 8, 2008
TABLE OF CONTENTS
Page
ARTICLE
I Definitions
|
1
|
|
Section
1.01
|
Definitions
|
1
|
Section
1.02
|
Accounting
Terms and Determinations
|
12
|
Section
1.03
|
Types
of Borrowings
|
13
|
ARTICLE
II The Credits
|
13
|
|
Section
2.01
|
Commitments
to Lend
|
13
|
Section
2.02
|
Notice
of Borrowing
|
13
|
Section
2.03
|
[Intentionally
Omitted.]
|
13
|
Section
2.04
|
Notice
to Banks; Funding of Loans
|
13
|
Section
2.05
|
Evidence
of Debt
|
14
|
Section
2.06
|
Maturity
of Loans
|
15
|
Section
2.07
|
Interest
Rates
|
15
|
Section
2.08
|
Fees
|
15
|
Section
2.09
|
Optional
Termination or Reduction of Commitments
|
16
|
Section
2.10
|
Scheduled
and Mandatory Termination and Reduction of Commitments
|
16
|
Section
2.11
|
Optional
Prepayments
|
17
|
Section
2.12
|
Mandatory
Prepayments and/or Reduction of Commitments
|
17
|
Section
2.13
|
General
Provisions as to Payments
|
18
|
Section
2.14
|
Funding
Losses
|
18
|
Section
2.15
|
Computation
of Interest and Fees
|
19
|
Section
2.16
|
Net
Payments
|
19
|
Section
2.17
|
Regulation
D Compensation
|
20
|
Section
2.18
|
Conversion
and Continuation of Committed Loans
|
20
|
ARTICLE
III Conditions
|
21
|
|
Section
3.01
|
Effective
Date
|
21
|
Section
3.02
|
Closing
Date
|
22
|
ARTICLE
IV Representations and Warranties
|
23
|
|
Section
4.01
|
Corporate
Existence
|
23
|
Section
4.02
|
Corporate
and Governmental Authorization; No Contravention
|
23
|
Section
4.03
|
Binding
Effect
|
24
|
Section
4.04
|
Financial
Information
|
24
|
Section
4.05
|
Litigation
|
24
|
Section
4.06
|
Compliance
with ERISA
|
24
|
Section
4.07
|
Domestic
Subsidiaries
|
24
|
Section
4.08
|
Not
An Investment Company
|
24
|
Section
4.09
|
Consummation
of Acquisition
|
25
|
(i)
Page
ARTICLE
V Covenants
|
24
|
|
Section
5.01
|
Information
|
24
|
Section
5.02
|
Maintenance
of Property; Insurance
|
26
|
Section
5.03
|
Conduct
of Business and Maintenance of Existence
|
26
|
Section
5.04
|
Compliance
with Laws
|
26
|
Section
5.05
|
Negative
Pledge
|
26
|
Section
5.06
|
Debt
|
28
|
Section
5.07
|
Sale
and Lease-Back Transactions
|
28
|
Section
5.08
|
Consolidations,
Mergers and Sales of Assets
|
29
|
Section
5.09
|
Use
of Proceeds
|
29
|
Section
5.10
|
Total
Leverage Ratio
|
29
|
ARTICLE
VI Defaults
|
29
|
|
Section
6.01
|
Events
of Default
|
29
|
Section
6.02
|
Notice
of Default
|
31
|
ARTICLE
VII The Administrative Agent
|
32
|
|
Section
7.01
|
Appointment
and Authorization
|
32
|
Section
7.02
|
Administrative
Agent and Affiliates
|
32
|
Section
7.03
|
Action
by Administrative Agent
|
32
|
Section
7.04
|
Consultation
with Experts
|
32
|
Section
7.05
|
Liability
of Administrative Agent
|
32
|
Section
7.06
|
Indemnification
|
32
|
Section
7.07
|
Credit
Decision
|
33
|
Section
7.08
|
Successor
Administrative Agent
|
33
|
Section
7.09
|
Administrative
Agent Fee
|
33
|
Section
7.10
|
Co-Syndication
Agents
|
33
|
ARTICLE
VIII Change in Circumstances
|
34
|
|
Section
8.01
|
Basis
for Determining Interest Rate Inadequate or Unfair
|
34
|
Section
8.02
|
Illegality
|
34
|
Section
8.03
|
Increased
Cost and Reduced Return
|
34
|
Section
8.04
|
Base
Rate Loans Substituted for Affected Eurodollar Loans
|
36
|
Section
8.05
|
Substitution
of Bank
|
36
|
ARTICLE
IX Miscellaneous
|
37
|
|
Section
9.01
|
Notices
|
37
|
Section
9.02
|
No
Waivers
|
37
|
Section
9.03
|
Expenses;
Documentary Taxes; Indemnification
|
37
|
Section
9.04
|
Sharing
of Payments
|
38
|
Section
9.05
|
Amendments
and Waivers
|
39
|
Section
9.06
|
Successors
and Assigns
|
39
|
Section
9.07
|
No
Collateral
|
42
|
(ii)
Page
Section
9.08
|
GOVERNING
LAW; Venue
|
42
|
Section
9.09
|
Counterparts;
Integration
|
42
|
Section
9.10
|
WAIVER
OF JURY TRIAL
|
42
|
Section
9.11
|
[Intentionally
Omitted.]
|
42
|
Section
9.12
|
Headings
|
42
|
Section
9.13
|
Confidentiality
|
42
|
Section
9.14
|
USA
Patriot Act
|
43
|
EXHIBIT
A
|
Note
|
EXHIBIT
B-1
|
Opinion
of Assistant General Counsel, Corporate and Financial Law, of the
Borrower
|
EXHIBIT
B-2
|
Opinion
of Special Counsel for the Borrower
|
EXHIBIT
C
|
Opinion
of Special Counsel for the Administrative Agent
|
EXHIBIT
D
|
Assignment
and Assumption Agreement
|
EXHIBIT
E
|
Officer’s
Certificate
|
SCHEDULE
2.01
|
Commitments
|
SCHEDULE
2.04
|
Administrative
Agent Account
|
(iii)
AGREEMENT
dated as of September 8, 2008, among THE DOW CHEMICAL COMPANY, a Delaware
corporation, the BANKS party hereto and CITIBANK, N.A., as administrative agent
for the Banks (in such capacity the “Administrative
Agent”) (as amended, modified or supplemented from time to time in
accordance with the terms hereof, the “Agreement”).
The
parties hereto agree as follows:
ARTICLE
I
Section
1.01 Definitions. The
following terms, as used herein, have the following meanings:
“Acquisition” means
the acquisition by the Borrower, by merger of Ramses with and into the Target,
of all the capital stock of the Target pursuant to the Acquisition
Agreement.
“Acquisition
Agreement” means the Agreement and Plan of Merger dated July 10,
2008, among the Borrower, Ramses and the Target, together with the related
“Company Disclosure Schedule” attached thereto, each as amended, modified or
supplemented from time to time.
“Acquisition
Consideration” means the aggregate cash consideration payable by the
Borrower in respect of the Acquisition.
“Administrative
Questionnaire” means, with respect to each Bank, an administrative
questionnaire in the form prepared by the Administrative Agent and submitted to
the Administrative Agent (with a copy to the Borrower) duly completed by such
Bank.
“Applicable Commitment Fee
Percentage” means, for any day, the percentage set forth below opposite
the Public Debt Rating then in effect:
Public Debt
Rating
|
Applicable
Commitment Fee Percentage
|
BBB+/Baa1
or higher
|
0.100%
|
BBB/Baa2
|
0.150%
|
BBB-/Baa3
|
0.200%
|
BB+/Ba1
or lower, or if unrated by Moody’s and/or S&P
|
0.375%
|
2
“Applicable Lending
Office” means, with respect to any Bank, (a) in the case of its Base
Rate Loans, its Domestic Lending Office and (b) in the case of its
Eurodollar Loans, its Eurodollar Lending Office.
“Applicable Margin”
means, for any day, the rate per annum set forth below opposite the Public Debt
Rating then in effect:
Public Debt
Rating
|
Applicable
Margin for
Loans
maintained as
Eurodollar
Loans
|
Applicable
Margin for
Loans
maintained as
Base Rate
Loans
|
BBB+/Baa1
or higher
|
1.250%
|
0.250%
|
BBB/Baa2
|
1.500%
|
0.500%
|
BBB-/Baa3
|
2.000%
|
1.000%
|
BB+/Bal
or lower, or if unrated by Moody’s and/or S&P
|
3.000%
|
2.000%
|
“Arrangers” means,
collectively, Citigroup Global Markets Inc., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, and Xxxxxx Xxxxxxx Senior Funding, Inc., in their respective
capacities as joint lead arrangers and joint bookrunners hereunder.
“Asset Sale” means any
asset sale or disposition by the Borrower or any of its Consolidated
Subsidiaries (including, without limitation, the consummation of the K-Xxx XX
Transaction), other than (a) sales or dispositions in the ordinary course of
business, (b) the sale or disposition of any accounts receivable pursuant to any
Receivables Facility, (c) any asset sale or disposition or series of related
asset sales or dispositions the net cash consideration in respect of which is
$250,000,000 or less, (d) sales or dispositions of damaged, obsolete or worn out
property and of property no longer used or useful in the conduct of the business
of the Borrower or any of its Consolidated Subsidiaries, (e) sales or
dispositions of property to the extent that (i) such property is exchanged for
credit against the purchase price of similar replacement property or (ii) the
proceeds of such sale are promptly applied to the purchase price of such
replacement property, (f) sales or dispositions of property to the Borrower or
any Consolidated Subsidiary, (g) dispositions of cash and Cash Equivalents, (h)
leases, subleases, licenses or sublicenses (including the provision of
software), in each case in the normal course of business and which do not
materially interfere with the business of the Company and its Consolidated
Subsidiaries, (i) dispositions of accounts receivable in connection with the
collection or compromise thereof in the normal course of business, and (j)
transfers of interests in leased assets and/or rights and/or obligations under
leases (whether characterized as capital leases or otherwise) as to which the
Borrower or any of its Consolidated Subsidiaries is the lessee or
sublessee.
“Assignee” has the
meaning set forth in Section 9.06(c).
“Assignment and Assumption
Agreement” means an Assignment and Assumption, substantially in the form
of Exhibit D hereto.
3
“Bank” means each bank
and other financial institution listed on the signature pages hereof, each
assignee which becomes a Bank pursuant to Section 9.06(c), and their
respective successors.
“Bank Default” means
(a) the refusal (which has not been retracted) or the failure of a Bank to make
available its portion of the Loans to be incurred on the Closing Date or (b) a
Bank having notified in writing the Borrower and the Administrative Agent (which
notice has not been retracted) that such Bank does not intend to comply with its
obligations under Section 2.01.
“Base Rate” means, for
any day, a rate per annum equal to the higher of (a) the Prime Rate for
such day and (b) the sum of 0.50% plus the Federal Funds Rate for such
day.
“Base Rate Loan” means
a Loan to be made by a Bank as a Base Rate Loan in accordance with the Notice of
Borrowing or pursuant to Section 2.18 or Article VIII.
“Borrower” means The
Dow Chemical Company, a Delaware corporation, and its successors.
“Borrower’s 2007 Form
10-K” means the Borrower’s annual report on Form 10-K for the fiscal
year ended December 31, 2007 as filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934.
“Borrowing” has the
meaning set forth in Section 1.03.
“Closing Date” means
the date occurring on or after the Effective Date on which the borrowing of
Loans occurs pursuant to Section 2.01.
“Commitment” means,
with respect to each Bank, the amount set forth opposite the name of such Bank
on Schedule 2.01, as such amount may be reduced from time to time pursuant
to Section 2.09, 2.10 and/or 2.12.
“Commitment Termination
Date” means the earliest of (a) the Closing Date, (b) July 9, 2009
and (c) any date on which the Acquisition Agreement is terminated and abandoned
in accordance with the terms of the Acquisition Agreement (other than with
respect to indemnities and other provisions which expressly survive such
termination and abandonment thereof).
“Consolidated Debt”
means, at any date of determination, the Indebtedness of the Borrower and its
Consolidated Subsidiaries as of such date determined on a consolidated
basis.
“Consolidated EBITDA”
means, for any period, Consolidated Net Income for such period (without giving
effect to (x) any extraordinary gains or extraordinary losses, (y) any non-cash
income, and (z) any gains or losses from sales of assets other than inventory
sold in the ordinary course of business) adjusted by (A) adding thereto (in each
case to the extent deducted in determining Consolidated Net Income for such
period), without duplication, the amount of (i) total interest expense
(inclusive of amortization of deferred financing fees and other original issue
discount and banking fees, charges and commissions (including, without
limitation, letter
4
of credit
fees and commitment fees)) of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis for such period, (ii) provision for taxes
based on income, profits or capital of the Borrower and its Consolidated
Subsidiaries (including, without limitation, state single business unitary and
similar taxes imposed in lieu of income taxes), franchise or similar taxes, and
foreign withholding taxes paid or accrued during such period and determined on a
consolidated basis for such period, (iii) all depreciation and amortization
expense of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis for such period, (iv) the amount of all other non-cash
charges of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis for such period (including, without limitation, non-cash
asset impairment charges, non-cash restructuring charges, non-cash costs of
exiting a facility and non-cash charges associated with equity compensation),
and (v) the amount of all costs and expenses paid or incurred by the Borrower
and its Consolidated Subsidiaries in connection with the Acquisition, and
(B) subtracting therefrom (to the extent not otherwise deducted in
determining Consolidated Net Income for such period) the amount of all cash
payments or cash charges made (or incurred) by the Borrower or any of its
Consolidated Subsidiaries for such period on account of any non-cash charges
added back to Consolidated EBITDA pursuant to preceding sub-clause (A)(iv) in a
previous period. For the avoidance of doubt, it is understood and agreed
that, to the extent any amounts are excluded from Consolidated Net Income by
virtue of the proviso to the definition thereof contained herein, any add backs
to Consolidated Net Income in determining Consolidated EBITDA as provided above
shall be limited (or denied) in a fashion consistent with the proviso to the
definition of Consolidated Net Income contained
herein. Notwithstanding anything to the contrary contained herein,
for purposes of determining Consolidated EBITDA for any Test Period which ends
on or prior to the first anniversary of the Closing Date, Consolidated EBITDA
shall be the actual Consolidated EBITDA as determined above in this definition
without regard to this sentence but determined on a pro forma basis as if the
Acquisition (and related financings) had occurred on the first day of such Test
Period.
“Consolidated Net
Income” means, for any period, the net income (or loss) of the Borrower
and its Consolidated Subsidiaries determined on a consolidated basis for such
period (taken as a single accounting period) in accordance with applicable
generally accepted accounting principles (or interpretations thereof); provided that the
following items shall be excluded in computing Consolidated Net Income (without
duplication): (i) the net income (or loss) of any Consolidated
Subsidiary of the Borrower in which a Person or Persons other than the Borrower
and its wholly owned Consolidated Subsidiaries has an Equity Interest or Equity
Interests to the extent of such Equity Interests held by Persons other than the
Borrower and its wholly owned Consolidated Subsidiaries in such Subsidiary, (ii)
the net income (or loss) of any Person (other than a Consolidated Subsidiary of
the Borrower) in which a Person or Persons other than the Borrower and its
wholly owned Consolidated Subsidiaries has an Equity Interest or Equity
Interests except (x) with respect to net income, to the extent of the amount of
dividends or other distributions actually paid in cash to the Borrower or any of
its Consolidated Subsidiaries by such Person during such period and (y) with
respect to net losses, to the extent of the amount of cash contributed by the
Borrower or any Consolidated Subsidiary of the Borrower to any such Person
during such period, (iii) the net income (or loss) of any Person accrued prior
to the date it becomes a Consolidated Subsidiary of the Borrower or on or prior
to the date all or substantially all of the property or assets of such Person
are acquired by a Consolidated Subsidiary of the Borrower and (iv) the net
income of any Consolidated Subsidiary of the
5
Borrower
to the extent that the declaration or payment of cash dividends or similar cash
distributions by such Consolidated Subsidiary of such net income is not at the
time permitted by the operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Consolidated Subsidiary.
“Consolidated Net Tangible
Assets” means the total assets of the Borrower and its Consolidated
Subsidiaries shown on or reflected in its balance sheet less (a) all
current liabilities (excluding liabilities which could be classified as
long-term debt in conformity with applicable generally accepted
accounting principles and current liabilities which are by their terms
extendible or renewable at the option of the obligor thereon to a time more than
12 months after the time as of which the amount thereof is being computed),
(b) advances to entities accounted for on the equity method of accounting
and (c) intangible assets. “Intangible assets”
means the aggregate value (net of any applicable reserves), as shown on or
reflected in such balance sheet, of: (i) all trade names,
trademarks, licenses, patents, copyrights and goodwill; (ii) organizational
and development costs; (iii) deferred charges (other than prepaid items
such as insurance, taxes, interest, commissions, rents and similar items and
tangible assets being amortized); and (iv) unamortized debt discount and
expense, less unamortized premium.
“Consolidated
Subsidiary” means at any date any Subsidiary or other entity the accounts
of which would be consolidated with those of the Borrower in its consolidated
financial statements if such statements were prepared as of such
date.
“Default” means any
condition or event which constitutes an Event of Default or which with the
giving of notice or lapse of time or both would, unless cured or waived, become
an Event of Default.
“Defaulting Bank”
means any Bank with respect to which a Bank Default is in effect.
“Dollars” or “$” means the lawful
money of the United States of America.
“Domestic Business
Day” means any day except a Saturday, Sunday or other day on which
commercial banks in New York are authorized by law to close.
“Domestic Lending
Office” means, as to each Bank, its office located at its address set
forth in its Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Domestic Lending Office) or such other office as such Bank
may hereafter designate as its Domestic Lending Office by notice to the Borrower
and the Administrative Agent.
“Domestic Subsidiary”
means any Subsidiary (a) substantially all of the property of which is
located, and substantially all of the business of which is carried on, within
the United States of America (excluding its territories and possessions and
the Commonwealth of Puerto Rico), and (b) which (x) owns one or more
Principal Properties or (y) owns capital stock of another Domestic
Subsidiary; except that neither a
Subsidiary which is primarily engaged in the business of a finance company or
insurance company nor any Public Subsidiary shall constitute a Domestic
Subsidiary hereunder.
6
“Effective Date” has
the meaning set forth in Section 3.01.
“Eligible Assignee”
means (a) a commercial bank organized under the laws of the United States,
or any State thereof or the District of Columbia; (b) a commercial bank
organized under the laws of any other country which is a member of the OECD or
has concluded special lending arrangements with the International Monetary Fund
associated with its General Arrangements to Borrow, or a political subdivision
of any such country; provided that such
bank is acting through a branch or agency located in the United States;
(c) the central bank of any country which is a member of the OECD; and
(d) a finance company, insurance company or other financial institution or
fund (whether a corporation, partnership or other entity, but excluding any
savings and loan association) which is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business;
provided, however, that in no
event shall any Eligible Assignee have outstanding any obligations with a credit
rating less than investment grade as of the date of the Assignment and
Assumption Agreement relating thereto from S&P or Moody’s (or other
nationally recognized rating service), unless an Event of Default shall have
occurred and be continuing on such date.
“Equity Interests” of
any Person means any and all shares, interests, rights to purchase, warrants,
options, participation or other equivalents of or interest in (however
designated) equity of such Person, including any common stock, any preferred
stock, any limited or general partnership interest and any limited liability
company membership interest.
“Equity-Linked
Securities” means any securities convertible or exchangeable into, or the
value of which is based on or derived from the value of, Equity
Interests.
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended.
“ERISA Group” means
all members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414 of the
Internal Revenue Code.
“Eurodollar Business
Day” means any Domestic Business Day on which commercial banks are open
for international business (including dealings in dollar deposits) in
London.
“Eurodollar Lending
Office” means, as to each Bank, its office, branch or affiliate located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Eurodollar Lending Office) or such other
office, branch or affiliate of such Bank as it may hereafter designate as its
Eurodollar Lending Office by notice to the Borrower and the Administrative
Agent.
“Eurodollar Loan”
means a Loan to be made by a Bank as a Eurodollar Loan in accordance with the
applicable Notice of Borrowing or Notice of Interest Rate Election.
“Eurodollar Reserve
Percentage” means for any day that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum reserve
requirement for a
7
member
bank of the Federal Reserve System in New York City with deposits exceeding
five billion dollars in respect of “Eurocurrency
liabilities” (or in respect of any other category of liabilities which
includes deposits by reference to which the interest rate on Eurodollar Loans is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of any Bank to United States
residents).
“Event of Default” has
the meaning set forth in Section 6.01.
“Excluded
Indebtedness” means (i) commercial paper issued by the Borrower in the
normal course of business and consistent with past practice, (ii) refinancings,
renewals, replacements and refundings of any Indebtedness of the Borrower and
its Subsidiaries, whether outstanding on the Effective Date or thereafter, (iii)
any Indebtedness (including pursuant to one or more receivables facilities)
incurred to finance the day-to-day operations of the Borrower and its
Subsidiaries in the normal course of business (including, without limitation,
any Indebtedness incurred in lieu of commercial paper and other short term
borrowings) and any Indebtedness incurred to finance loans to, or other
investments in, joint ventures of the Borrower and its Subsidiaries, (iv)
capitalized leases, purchase money Indebtedness, non-recourse Indebtedness and
other secured Indebtedness incurred by the Borrower and its Subsidiaries in
connection with project financings or acquisitions of or improvements to
property (other than the Acquisition and other material acquisitions of other
companies or business units), and (v) any other Indebtedness in an aggregate
amount not to exceed $500,000,000 outstanding at any time.
“Exempted
Indebtedness” means the sum of (a) all outstanding indebtedness of
the Borrower and its Consolidated Subsidiaries incurred after the date of this
Agreement and secured by liens proscribed (or, if incurred prior to the date of
this Agreement, which would have been proscribed if incurred after the date of
this Agreement) in Section 5.05(a), and (b) the aggregate of present
values (discounted in accordance with sound financial practice at a rate per
annum equal to the weighted average interest rate at the time of the
indebtedness for borrowed money of the Borrower and its Consolidated
Subsidiaries) of the obligations of the Borrower or any Consolidated
Subsidiaries for rental payments during the remaining term of all leases
(including any period for which any such lease has been extended or may, at the
option of the lessor, be extended) of all Principal Property other than those
leases expressly permitted by Section 5.07(a). The net amount of
rent required to be paid under any such lease for any such term shall be the
amount of the rent payable by the lessee with respect to such period, after
excluding amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water rates and similar charges and contingent
rents such as those based on sales. In the case of any such lease
which is terminable by the lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but no rent shall be considered
as required to be paid under such lease subsequent to the first date upon which
it may be so terminated.
“Federal Funds Rate”
means, for any day, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100th of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Domestic Business Day next succeeding such day; provided that
(a) if such day is not a Domestic Business Day, the Federal Funds Rate for
such day shall be such rate on such
8
transactions
on the next preceding Domestic Business Day as so published on the next
succeeding Domestic Business Day, and (b) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Citibank, N.A., on such day on such
transactions as determined by the Administrative Agent.
“Indebtedness” has the
meaning set forth in Section 5.06.
“Indebtedness to be
Refinanced” means (a) all Indebtedness and other obligations of the
Target and its Subsidiaries under the Credit Agreement, dated December 16, 2005,
as amended on December 16, 2006 and November 27, 2007, among the Target, the
subsidiaries of the Target party thereto, the banks, financial institutions and
other institutional lenders listed on the signature pages thereof, and Citibank,
N.A., as administrative agent and (b) any other Indebtedness of the Target and
its subsidiaries that the Borrower elects to repay on the Closing
Date.
“Interest Period”
means (a) with respect to each Eurodollar Borrowing, the period commencing on
the date of such Borrowing and ending one, two, three or six months
thereafter, as the Borrower may elect in the applicable Notice of Borrowing or
Notice of Interest Rate Election; provided
that:
(i) any
Interest Period which would otherwise end on a day which is not a Eurodollar
Business Day shall be extended to the next succeeding Eurodollar Business Day
unless such Eurodollar Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Eurodollar Business
Day;
(ii) any
Interest Period which begins on the last Eurodollar Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall, subject to
clause (iii) below, end on the last Eurodollar Business Day of a calendar
month; and
(iii) any
Interest Period which would otherwise end after the Maturity Date shall end on
the Maturity Date; and
(b) with
respect to each Base Rate Borrowing, the period commencing on the date of such
Borrowing and ending on the next Quarterly Payment Date; provided
that:
(i) any
Interest Period which would otherwise end on a day which is not a Domestic
Business Day shall be extended to the next succeeding Domestic Business Day;
and
(ii) any
Interest Period which would otherwise end after the Maturity Date shall end on
the Maturity Date.
For
purposes of this definition, the date of a Borrowing initially shall be the date
on which such Borrowing is to be advanced and thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing pursuant to
Section 2.18.
9
“Internal Revenue
Code” means the Internal Revenue Code of 1986, as amended, or any
successor statute.
“K-Xxx XX
Transaction” means a joint venture transaction contemplated with
Petrochemical Industries Company (K.S.C.), a company incorporated in the State
of Kuwait and a wholly owned subsidiary of Kuwait Petroleum Corporation, with
respect to the formation of the K-Dow Petrochemicals group of companies and the
contribution thereto of certain assets used by the Borrower in the research,
development, manufacture, distribution, marketing and sale of polyethylene,
polypropylene, polycarbonate and polycarbonate compounds and blends,
ethyleneamines and ethanolamines products and related licensing
activities.
“Loan” means a Base
Rate Loan or a Eurodollar Loan.
“London Interbank Offered
Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, the rate appearing on Page 3750 of the Dow Xxxxx Market Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in the relevant currency in the London
interbank market) at approximately 11:00 a.m., London time, two Eurodollar
Business Days prior to the commencement of such Interest Period, as the rate for
deposits in Dollars with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for
any reason, then the “London Interbank Offered
Rate” with respect to such Eurodollar Borrowing for such Interest Period
shall be the rate at which deposits in Dollars of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of
the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Eurodollar Business
Days prior to the commencement of such Interest Period.
“Maturity Date” means
the earlier of (a) the first anniversary of the Closing Date and (b) April 14,
2010.
“Moody’s” means
Xxxxx’x Investors Service, Inc.
“Moody’s Credit
Rating” means the Moody’s credit rating for the long term senior
unsecured debt of the Borrower.
“Net Cash Proceeds”
means, for any event requiring a reduction of the Commitments and/or repayment
of Loans pursuant to Section 2.12, the gross cash proceeds (including any cash
received by way of deferred payment pursuant to a promissory note, receivable or
otherwise, but only as and when received) actually received by the Borrower or
its Subsidiaries from such event, net of (a) transaction costs (including, as
applicable, (i) any underwriting, brokerage or other customary commissions, (ii)
reasonable legal, accounting, investment banking and advisory fees, (iii) survey
costs, title insurance premiums, search and recording costs, transfer taxes and
similar charges, (iv) the amount of any Indebtedness (other than Indebtedness
hereunder) or other obligation required to be paid or prepaid in connection with
such event, and (v) any other fees and expenses associated therewith) related to
any such
10
event and
(b) in the case of Section 2.12(a), (i) the amount of any reasonable reserve
established in accordance with applicable generally accepted accounting
principles against any adjustment to the sale price or any liabilities (other
than any taxes deducted pursuant to clause (ii) below) related to any of the
applicable assets and retained by the Borrower or any of its Subsidiaries
including, without limitation, pension and other post-employment benefit
liabilities and liabilities related to environmental matters or against any
indemnification obligations, and (ii) taxes as estimated by the Borrower payable
by the Borrower and its Consolidated Subsidiaries as a result of such
event.
“Non-Defaulting Bank”
means each Bank other than a Defaulting Bank.
“Notice of Borrowing”
has the meaning set forth in Section 2.02.
“Notice of Interest Rate
Election” has the meaning set forth in Section 2.18.
“OECD” means the
Organization for Economic Cooperation and Development.
“Parent” means, with
respect to any Bank, any Person controlling such Bank.
“Participant” has the
meaning set forth in Section 9.06(b).
“Patriot Act” means
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)).
“PBGC” means the
Pension Benefit Guaranty Corporation or any entity succeeding to any or all of
its functions under ERISA.
“Person” means an
individual, a corporation, a partnership, an association, a trust or any other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
“Plan” means at any
time an employee pension benefit plan which is covered by Title IV of ERISA
or subject to the minimum funding standards under Section 412 of the
Internal Revenue Code and is either (a) maintained by a member of the ERISA
Group for employees of a member of the ERISA Group or (b) maintained
pursuant to a collective bargaining agreement or any other arrangement under
which more than one employer makes contributions and to which a member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions.
“Prime Rate” means the
rate of interest publicly announced by Citibank, N.A., in New York City from
time to time as its Prime Rate.
“Principal Property”
means any manufacturing or processing facility owned by the Borrower or any
Subsidiary and located within the United States of America (excluding its
territories and possessions and the Commonwealth of Puerto Rico) the gross book
value (without deduction of any depreciation reserves) of which as of the date
as of which the determination is being made exceeds one percent of Consolidated
Net Tangible Assets, other than any such
11
facility
or portion thereof which the Board of Directors of the Borrower reasonably
determines is not material to the business conducted by the Borrower and its
Subsidiaries as a whole.
“Public Debt Rating”
means (a) the Xxxxx’x Credit Rating and the S&P Credit Rating, if the same,
(b) if the Xxxxx’x Credit Rating and the S&P Credit Rating differ by one
rating level, the higher of such credit ratings, and (c) if the Xxxxx’x Credit
Rating and the S&P Credit Rating differ by two or more rating levels, one
rating level above the lower of such credit ratings.
“Public Subsidiary”
means any Subsidiary, the capital stock of which is publicly traded in the
United States and of which less than 80% of the Voting Stock is at the time
owned directly or indirectly by the Borrower.
“Quarterly Payment
Date” means the last Domestic Business Day of each March, June, September
and December occurring after the Effective Date.
“Ramses” means Ramses
Acquisition Corp., a Delaware corporation and a wholly owned Subsidiary of the
Borrower.
“Receivables Facility”
means (a) the Borrower’s and its Consolidated Subsidiaries’ accounts receivable
financing facility or facilities in existence on the Effective Date, as the same
may be renewed, extended, replaced, refinanced, modified or amended from time to
time, and (b) any other receivables financing agreement or facility, as amended,
modified or supplemented from time to time, the obligations of which are
non-recourse (except for customary representations, warranties, covenants and
indemnities made in connection with such facilities) to the Borrower and its
Consolidated Subsidiaries, other than any Subsidiary established in connection
with any such facility which is organized in a manner intended to reduce the
likelihood that it would be substantively consolidated with the Borrower or any
of its Consolidated Subsidiaries in the event of any bankruptcy or insolvency of
the Borrower or any such Consolidated Subsidiary.
“Regulation U” means
Regulation U of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
“Required Banks”
means, at any time, Non-Defaulting Banks having at least a majority of the
aggregate amount of the Commitments of all Non-Defaulting Banks or, if the
Commitments shall have been terminated, holding Loans evidencing at least a
majority of the aggregate unpaid principal amount of the Loans of all
Non-Defaulting Banks.
“S&P” means
Standard & Poor’s Ratings Services, a division of XxXxxx-Xxxx,
Inc.
“S&P Credit
Rating” means the S&P credit rating for the long term senior
unsecured debt of the Borrower.
“SPC” has the meaning
set forth in Section 9.06(f).
12
“Subsidiary” means any
corporation of which at least a majority of the Voting Stock is at the time
owned directly or indirectly by the Borrower or by the Borrower and its other
Subsidiaries.
“Target” means Rohm
and Xxxx Company, a Delaware corporation.
“Target Material Adverse
Effect“ means any “Company Material Adverse Effect” as defined in the
Acquisition Agreement, without giving effect to any amendment, modification or
waiver thereof which is materially adverse to the Banks without the prior
consent of the Arrangers (which consent shall not be unreasonably withheld or
delayed) and which, for the avoidance of doubt, shall be determined under
Delaware law.
“Test Period” means,
at any time, the period of four consecutive fiscal quarters of the Borrower then
last ended, taken as one accounting period.
“Total Leverage Ratio”
means, on any date of determination, the ratio of (a) Consolidated Debt on
the last day of the Test Period most recently ended on or prior to such date to
(b) Consolidated EBITDA for the Test Period most recently ended on or prior to
such date.
“Transaction Costs”
means the fees, costs and expenses incurred or paid by the Borrower and its
Subsidiaries in connection with the Acquisition, the repayment and termination
of the Indebtedness to be Refinanced and the transactions contemplated or
evidenced by this Agreement.
“Unfunded Vested
Liabilities” means, with respect to any Plan at any time, the amount (if
any) by which (a) the present value of all accumulated benefit obligations
under such Plan exceeds (b) the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most recent valuation
date for such Plan, but only to the extent that such excess represents a
potential liability of a member of the ERISA Group to the PBGC or the Plan under
Title IV of ERISA.
“Voting Stock” means
outstanding shares of stock having voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power because of default in dividends or some other default.
Section
1.02 Accounting
Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with applicable generally accepted accounting principles as in effect
from time to time, applied on a basis consistent (except for changes concurred
in by the Borrower’s independent public accountants) with the most recent
audited consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the
Borrower notifies the Administrative Agent that the Borrower wishes to amend any
covenant in Article V to eliminate the effect of any change in applicable
generally accepted accounting principles on the operation of such covenant (or
if the Administrative Agent notifies the Borrower that the Required Banks wish
to amend Article V for such purpose), then the Borrower’s compliance with
such covenant shall be determined on the
13
basis of
applicable generally accepted accounting principles in effect immediately before
the relevant change in applicable generally accepted accounting principles
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrower and the Required
Banks.
Section
1.03 Types of
Borrowings. The term “Borrowing” denotes the aggregation of
Loans of one or more Banks to be made to the Borrower pursuant to
Article II on a single date and for a single Interest
Period. Borrowings are classified for purposes of this Agreement by
reference to the pricing of Loans comprising such Borrowing (e.g., a “Eurodollar Borrowing” is a Borrowing
comprised of Eurodollar Loans).
ARTICLE
II
Section
2.01 Commitments
to Lend. On the Closing Date each Bank severally agrees, on
the terms and conditions set forth in this Agreement, to make Loans to the
Borrower pursuant to this Section in an amount up to its Commitment as in effect
on the Closing Date. Any Borrowing under this Section shall not
exceed the aggregate amount available in accordance with Section 3.02(f)
and shall be made from the several Banks ratably in proportion to their
respective Commitments. The Loans will be made in a single drawdown
on the Closing Date. Once repaid, Loans incurred hereunder may not be
reborrowed.
Section
2.02 Notice of
Borrowing. The Borrower shall give the Administrative Agent
notice (a “Notice of Borrowing”) not later than (a) 9:00 a.m. (New York
City time) on the Domestic Business Day before the date of a Base Rate
Borrowing and (b) 10:30 a.m. (New York City time) on the third
Eurodollar Business Day before the date of a Eurodollar Borrowing,
specifying:
(i) the
date of such Borrowing, which shall be a Domestic Business Day in the case of a
Base Rate Borrowing or a Eurodollar Business Day in the case of a Eurodollar
Borrowing;
(ii) the
aggregate amount of such Borrowing;
(iii) whether
the Loans comprising such Borrowing are to be Base Rate Loans or Eurodollar
Loans;
(iv) in
the case of a Eurodollar Borrowing, the duration of the Interest Period
applicable thereto, subject to the provisions of the definition of Interest
Period; and
(v) the
number and location of the account to which funds are to be disbursed (which
shall be an account in the name of the Borrower).
Section
2.03 [Intentionally
Omitted.]
14
Section
2.04 Notice to
Banks; Funding of Loans. (a) Upon receipt of a Notice
of Borrowing, the Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank’s share of such Borrowing and the Notice of
Borrowing shall not thereafter be revocable by the Borrower (except as
contemplated by Section 8.01).
(b) Each
Bank shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 10:00 a.m.,
New York City time to the account of the Administrative Agent specified in
Schedule 2.04. Unless the Administrative Agent determines that any
applicable condition specified in Article III has not been satisfied, the
Administrative Agent will make the funds so received from the Banks available to
the Borrower by promptly crediting the amounts so received, in like funds, to
the account of the Borrower designated by the Borrower in the Notice of
Borrowing.
(c) Unless
the Administrative Agent shall have received notice from a Bank prior to the
date of any Borrowing that such Bank will not make available to the
Administrative Agent such Bank’s share of such Borrowing, the Administrative
Agent may assume that such Bank has made such share available to the
Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section 2.04 and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not
have so made such share available to the Administrative Agent, such Bank and, if
such Bank shall not have made such payment within two Domestic Business Days of
demand therefor, the Borrower agrees to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at a rate per annum
equal to (i) in the case of the Borrower, the interest rate applicable
thereto pursuant to Section 2.07 and (ii) in the case of such Bank,
the Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank’s Loan included in such Borrowing for purposes of this
Agreement.
(d) The
failure of any Bank to make the Loan to be made by it as part of any Borrowing
shall not relieve any other Bank of its obligation, if any, hereunder to make a
Loan on the date of such Borrowing, but no Bank shall be responsible for the
failure of any other Bank to make a Loan to be made by such other
Bank.
Section
2.05 Evidence of
Debt. (a) Each
Bank shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Bank resulting from each
Loan made by such Bank, including the amounts of principal and interest payable
and paid to such Bank from time to time hereunder.
(b) The
Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder, the type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Bank hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Banks and each Bank’s
share thereof.
15
(c) The
entries made in the accounts maintained pursuant to paragraph (a)
or (b) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Bank or the Administrative Agent to maintain such accounts or any
error therein shall not in any manner affect the obligation of the Borrower to
repay the Loans in accordance with the terms of this Agreement.
(d) Any
Bank may request that Loans of any type made by it be evidenced by a promissory
note. In such event, the Borrower shall prepare, execute and deliver
to such Bank a promissory note payable to the order of such Bank (or, if
requested by such Bank, to such Bank and its registered assigns) and
substantially in the form of Exhibit A or otherwise in a form approved by the
Administrative Agent. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.06) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered
assigns).
Section
2.06 Maturity of
Loans. Each Loan shall mature, and the principal amount
thereof shall be due and payable, on the Maturity Date.
Section
2.07 Interest
Rates. (a) Each Base Rate
Loan shall bear interest on the outstanding principal amount thereof, for each
day from the date such Loan is made until it becomes due, at a rate per annum
equal to the sum of the relevant Applicable Margin and the Base Rate for such
day. Such interest shall be payable for each Interest Period on the
last day thereof, on the date of any repayment or prepayment of the relevant
Borrowing of Base Rate Loans and on the Maturity Date. Any overdue
principal of or interest on any Base Rate Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2% plus
the rate otherwise applicable to Base Rate Loans for such day.
(b) Each
Eurodollar Loan shall bear interest on the outstanding principal amount thereof,
for the Interest Period applicable thereto, at a rate per annum equal to the sum
of the relevant Applicable Margin plus the applicable London Interbank Offered
Rate. Such interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof, on the date of any
repayment or prepayment of the relevant Borrowing of Eurodollar Loans and on the
Maturity Date. Any overdue principal of or interest on any Eurodollar
Loan shall bear interest, payable on demand, for each day from and including the
date payment thereof was due to but excluding the date of actual payment, at a
rate per annum equal to the sum of 2% plus the Base Rate for such day plus the
relevant Applicable Margin for Base Rate Loans (provided that until the
expiration of an Interest Period applicable to any Eurodollar Loans, interest on
the principal amount of such Eurodollar Loans pursuant to this sentence shall be
at a rate equal to 2% in excess of the rate otherwise applicable to such
Eurodollar Loans).
(c) The
Administrative Agent shall determine each interest rate applicable to the Loans
hereunder. The Administrative Agent shall give prompt notice to the
Borrower and the participating Banks of each rate of interest so determined, and
such determination thereof shall be conclusive in the absence of manifest
error.
16
(d) Overdue
amounts (other than principal or interest) payable hereunder shall bear interest
payable on demand, for each day until paid, at a rate per annum equal to the
rate which is 2% in excess of the rate otherwise applicable to Base Rate Loans
from time to time.
Section
2.08 Fees. (a) The Borrower
shall pay to the Administrative Agent for the account of the Banks ratably, in
accordance with their respective Commitments, a commitment fee on the daily
aggregate amount of the Commitments at a per annum rate equal to the Applicable
Commitment Fee Percentage. Such commitment fee shall accrue from and
including September 8, 2008 to but excluding the Commitment Termination
Date. Accrued fees under this subsection (a) shall be payable on each
Quarterly Payment Date and upon the date of termination of the Commitments in
their entirety. The Administrative Agent shall notify the Borrower at
least two Domestic Business Days prior to each Quarterly Payment Date of the
amount of fees then payable by the Borrower, and the Administrative Agent’s
determination thereof shall be conclusive in the absence of manifest
error.
(b) The
Borrower shall pay to the Administrative Agent for the account of the Banks
ratably, in accordance with their respective outstanding Loans, a duration fee
on each of (x) the first Quarterly Payment Date following the Closing Date
(“Date 1”), (y)
the Quarterly Payment Date next following Date 1 (“Date 2”), and (z) the
Quarterly Payment Date next following Date 2 (“Date 3”) equal to (i)
the aggregate principal amount of Loans outstanding on such date multiplied by
(ii) a percentage set forth opposite such date in the relevant column below,
where (A) “Column A” will apply if the aggregate outstanding Loans are less than
or equal to $5,900,000,000, (B) “Column B” will apply if the aggregate
outstanding Loans are greater than $5,900,000,000 and less than or equal to
$8,900,000,000 and (C) ”Column C” will apply if the aggregate outstanding
Loans are greater than $8,900,000,000:
Date
|
Column
A
|
Column
B
|
Column
C
|
Date
1
|
0.25%
|
0.50%
|
0.75%
|
Date
2
|
0.50%
|
1.00%
|
1.25%
|
Date
3
|
0.75%
|
1.00%
|
1.50%
|
(c) The
Borrower shall pay to the Administrative Agent for the account of Arrangers the
fees required to be paid under the fee letter, dated July 10, 2008, among
the Borrower, the Administrative Agent, the Co-Syndication Agents and the other
financial institutions party thereto (except to the extent any fees thereunder
have been expressly incorporated into this Agreement), which fee letter shall
survive the execution and delivery of this Agreement.
Section
2.09 Optional
Termination or Reduction of Commitments. Prior to the
Commitment Termination Date, the Borrower may, upon at least three Domestic
Business Days’ notice to the Administrative Agent, (i) terminate the Commitments
at any time or (ii) ratably reduce from time to time by an aggregate amount of
$50,000,000 or any larger integral multiple thereof, the aggregate amount of the
Commitments.
17
Section
2.10 Scheduled
and Mandatory Termination and Reduction of Commitments. (a) The
Commitments shall terminate on the Commitment Termination Date after the
incurrence of Loans (if any) on such date.
(b) In
the event that immediately prior to the incurrence of Loans on the Closing Date
the aggregate Commitments exceed the sum of (i) the Acquisition Consideration,
(ii) the Indebtedness to be Refinanced and (iii) the Transaction Costs, the
Commitments shall at such time be permanently reduced by an amount equal to such
excess, which reduction shall be applied to the Commitment of each Bank on a pro
rata basis based on the Banks’ respective Commitments.
(c) In
addition to the Commitment reductions set forth above, the Commitments shall be
reduced as and to the extent required by Section 2.12.
Section
2.11 Optional
Prepayments. (a) The
Borrower may, by notice to the Administrative Agent not later than 10:00 a.m.
(New York City time) on any Domestic Business Day, prepay any Base Rate
Borrowing, in whole at any time, or from time to time in part in amounts
aggregating $50,000,000 or any larger integral multiple of $1,000,000, by paying
the principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. The Borrower may, upon at least three Eurodollar
Business Days’ notice to the Administrative Agent, prepay any Eurodollar
Borrowing, in whole at any time, or from time to time in part in amounts
aggregating $50,000,000 or any larger integral multiple of $1,000,000, by paying
the principal amount to be prepaid together with accrued interest thereon to the
date of prepayment and together with any additional amounts payable pursuant to
Section 2.14. Each such optional prepayment shall be applied to
prepay ratably the Loans of the several Banks included in such
Borrowing.
(b) Upon
receipt of a notice of prepayment pursuant to this Section, the Administrative
Agent shall promptly notify each Bank of the contents thereof and of such Bank’s
ratable share of such prepayment and such notice shall not thereafter be
revocable by the Borrower.
Section
2.12 Mandatory
Prepayments and/or Reduction of Commitments. Prior to the
Commitment Termination Date, the Commitments shall be automatically reduced
(with such reductions to be applied to the Commitment of each Bank on a pro rata
basis based on the Banks’ respective Commitments), and on and after the Closing
Date, the Borrower shall be required to prepay the principal of the Loans, in
each case in connection with the following events and in the amounts set forth
below (with any such reduction to occur on the date of the applicable event and
any such prepayment to be made within two Domestic Business Days following the
date of the applicable event):
(a) receipt
by the Borrower or any of its Consolidated Subsidiaries of the Net Cash Proceeds
of any Asset Sale, in an amount equal to such Net Cash Proceeds;
(b) receipt
by the Borrower or any of its Consolidated Subsidiaries of the Net Cash Proceeds
from the incurrence or issuance of any Indebtedness for borrowed money (other
than Excluded Indebtedness), in an amount equal to such Net Cash
18
Proceeds;
and
(c) receipt
by the Borrower or any of its Consolidated Subsidiaries of the Net Cash Proceeds
from the sale or issuance of any of its Equity Interests or Equity-Linked
Securities (other than (i) sales or issuances to the Borrower or any of its
Consolidated Subsidiaries, (ii) sales or issuances to directors, officers and
employees pursuant to benefit plans or in connection with other compensation
arrangements, (iii) sales or issuances generating Net Cash Proceeds of up to
$4,000,000,000 so long as all such Net Cash Proceeds are used for the purposes
described in Section 5.09, and (iv) any single sale or issuance in an amount not
greater than $10,000,000), in an amount equal to such Net Cash
Proceeds.
Section
2.13 General
Provisions as to Payments. (a) The Borrower
shall make each payment of principal of, and interest on, the Loans on the date
when due, without setoff or counterclaim, by wire transfer of immediately
available funds by 12:00 noon, New York City time to the account of
the Administrative Agent specified in Schedule 2.04. The Borrower
shall make each payment of fees hereunder on the date when due by wire transfer
of immediately available funds by 12:00 noon, New York City time to
the account of the Administrative Agent specified in Schedule
2.04. The Administrative Agent will promptly distribute to each Bank
its ratable share of each such payment of principal, interest and fees received
by the Administrative Agent for the account of the Banks. Whenever
any payment of principal of, or interest on, the Base Rate Loans or of fees
shall be due on a day which is not a Domestic Business Day, the date for payment
thereof shall be extended to the next succeeding Domestic Business
Day. Whenever any payment of principal of, or interest on, the
Eurodollar Loans shall be due on a day which is not a Eurodollar Business Day,
the date for payment thereof shall be extended to the next succeeding Eurodollar
Business Day unless such Eurodollar Business Day falls in another calendar
month, in which case the date for payment thereof shall be the next preceding
Eurodollar Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable for
such extended time.
(b) Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the Administrative Agent may assume that the
Borrower has made such payment in full to the Administrative Agent on such date
and the Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent that the Borrower shall not have so
made such payment, each Bank shall repay to the Administrative Agent forthwith
on demand such amount distributed to such Bank together with interest thereon,
for each day from the date such amount is distributed to such Bank until the
date such Bank repays such amount to the Administrative Agent, at the Federal
Funds Rate.
Section
2.14 Funding
Losses. If (a) the Borrower makes any payment of principal
with respect to any Eurodollar Loan (pursuant to Article II, VI or VIII or
otherwise), or converts any Eurodollar Loan in accordance with Section 2.18, on
any day other than the last day of the Interest Period applicable thereto, (b)
the Borrower fails to borrow any Eurodollar Loans after notice has been given to
any Bank in accordance with Section 2.04(a), or (c) the Borrower fails to prepay
any Eurodollar Loans on the date fixed for prepayment pursuant to
Section
19
2.11(a),
then the Borrower shall reimburse each Bank within 15 days after demand for any
resulting loss or expense incurred by it (or by an existing or prospective
Participant in the related Loan), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such payment or failure to
borrow or prepay; provided that
such Bank shall have delivered to the Borrower a certificate as to the amount of
such loss or expense and describing in reasonable detail the calculation
thereof, which certificate shall be conclusive in the absence of manifest
error.
Section
2.15 Computation
of Interest and Fees. Interest based on the Prime Rate
hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other
interest and fees shall be computed on the basis of a year of 360 days and
paid for the actual number of days elapsed (including the first day but
excluding the last day).
Section
2.16 Net
Payments. (a) Except as provided in Section 2.16(b), and
without duplication of amounts payable pursuant to Section 8.03(a), all payments
made by the Borrower hereunder will be made free and clear of, and without
deduction or withholding for, any present or future taxes, levies, imposts,
duties, fees, assessments or other charges of whatever nature now or hereafter
imposed by any jurisdiction or by any political subdivision or taxing authority
thereof or therein with respect to such payments (but excluding, except as
provided in the second succeeding sentence, any tax imposed on or measured by
the net income of a Bank pursuant to the laws of the jurisdiction in which it is
organized or the jurisdiction in which the principal office or applicable
lending office of such Bank is located or any subdivision thereof or therein)
and all interest, penalties or similar liabilities with respect thereto (all
such non-excluded taxes, levies, imposts, duties, fees, assessments or other
charges being referred to collectively as “Taxes”). If any Taxes are
so levied or imposed, the Borrower agrees to pay the full amount of such Taxes
and such additional amounts as may be necessary so that every payment of all
amounts due hereunder or under any note, after withholding or deduction for or
on account of any Taxes, will not be less than the amount provided for herein or
in such note. The Borrower will furnish to the Administrative Agent
within 45 days after the date of the payment of any Taxes due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each
Bank, and reimburse such Bank upon its written request, for the amount of any
Taxes so levied or imposed and paid by such Bank.
(b) At
least five Domestic Business Days prior to the first date on which interest or
fees are payable hereunder for the account of any Bank, each Bank that is not
incorporated under the laws of the United States of America or a state thereof
agrees that it will deliver to each of the Borrower and the Administrative Agent
two duly completed copies of United States Internal Revenue Service
Form X-0 XXX, X-0 ECI or W-9, certifying on the applicable form
that such Bank is entitled to receive payments under this Agreement and any
promissory note issued to it pursuant to Section 2.05 without deduction or
withholding of any United States Federal income taxes; provided, however, that an
Assignee pursuant to Section 9.06 shall only be required to provide
certification for a complete or, if an event contemplated in the penultimate
sentence of this Section 2.16(b) has occurred prior to the time of an
assignment, reduced exemption from United States federal income taxes to the
extent the relevant assigning Bank was eligible for a complete or reduced
exemption at the time of the Assignment. Each
20
Bank
which so delivers a Form X-0 XXX, X-0 ECI or W-9 further
undertakes to deliver to each of the Borrower and the Administrative Agent two
additional copies of such form (or a successor form) on or before the date that
such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Administrative Agent, in each case certifying
that such Bank is entitled to receive payments under this Agreement and any
promissory note issued to it pursuant to Section 2.05 without deduction or
withholding of any United States Federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Bank from duly completing and delivering any such form with respect to it and
such Bank advises the Borrower and the Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of United
States Federal income taxes; provided, however, that
following any such event such Bank shall deliver to the Borrower and the
Administrative Agent any other such properly completed and executed
documentation as required by applicable law that will permit payment to be made
at a reduced rate of withholding. The Borrower shall not be required
to make any payments pursuant to Section 2.16(a) to the extent such payments are
attributable to such Non-U.S. Bank’s failure to comply with this Section
2.16(b).
Section
2.17 Regulation
D Compensation. For so long as a Bank shall be required
pursuant to the requirements of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets consisting of
or including “Eurocurrency
liabilities” (or any other category of liabilities which includes
deposits by reference to which the interest rate on Eurodollar Loans is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of any Bank to United States
residents), then such Bank may require the Borrower to pay, contemporaneously
with each payment of interest on the Eurodollar Loans, additional interest on
the related Eurodollar Loan of such Bank at a rate per annum determined by such
Bank up to but not exceeding the excess of (a)(i) the applicable London
Interbank Offered Rate divided by (ii) one minus the Eurodollar Reserve
Percentage over (b) the applicable London Interbank Offered
Rate. Any Bank wishing to require payment of such additional interest
(x) shall so notify the Borrower and the Administrative Agent, in which
case such additional interest on the Eurodollar Loans of such Bank shall be
payable to such Bank at the place indicated in such notice with respect to each
Interest Period commencing at least three Eurodollar Business Days after the
giving of such notice and (y) shall notify the Borrower at least three
Eurodollar Business Days prior to each date on which interest is payable on the
Eurodollar Loans of the amount then due it under this Section.
Section
2.18 Conversion
and Continuation of Loans. The Borrower shall have the right
at any time upon prior irrevocable notice (a “Notice of Interest Rate Election”) to
the Administrative Agent (i) not later than 10:30 a.m., New York City
time, on the day of conversion, to convert all or any part of any Eurodollar
Borrowing into a Base Rate Borrowing, and (ii) not later than
10:30 a.m., New York City time, three Eurodollar Business Days prior to
conversion or continuation, to convert any Base Rate Borrowing into a Eurodollar
Borrowing or to continue any Eurodollar Borrowing as a Eurodollar Borrowing for
an additional Interest Period, subject in each case to the
following:
21
(a) each
conversion or continuation shall be made pro rata among the Banks in accordance
with the respective principal amounts of the Loans comprising the converted or
continued Borrowing;
(b) if
less than all the outstanding principal amount of any Borrowing shall be
converted or continued, the aggregate principal amount of the Borrowing
converted or continued shall be an integral multiple of $1,000,000 and not less
than $50,000,000;
(c) accrued
interest on a Borrowing (or portion thereof) being converted shall be paid by
the Borrower at the time of conversion;
(d) if
any Eurodollar Borrowing is converted at a time other than the end of the
Interest Period applicable thereto, the Borrower shall pay, upon demand, any
amounts due to the Banks pursuant to Section 2.14;
(e) no
Interest Period may be selected for any Eurodollar Borrowing that would end
later than the Maturity Date; and
(f) if
an Event of Default shall have occurred and be continuing, the Borrower shall
not have the right to convert or to continue any Borrowing as a Eurodollar
Borrowing.
Each
Notice of Interest Rate Election shall be irrevocable and shall refer to this
Agreement and specify (i) the identity and amount of the Borrowing to be
converted or continued, (ii) whether such Borrowing is to be converted to
or continued as a Eurodollar Borrowing or a Base Rate Borrowing, (iii) the
date of such conversion or continuation (which shall be a Eurodollar Business
Day) and (iv) if such Borrowing is to be converted to or continued as a
Eurodollar Borrowing, the Interest Period with respect thereto. If no
Interest Period is specified in any such Notice of Interest Rate Election with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month’s
duration. If no Notice of Interest Rate Election shall have been
given in accordance with this Section 2.18 to convert or continue any
Borrowing, such Borrowing shall, at the end of the Interest Period applicable
thereto (unless repaid pursuant to the terms hereof), automatically be continued
into a new Interest Period as a Base Rate Borrowing.
Upon
receipt of a Notice of Interest Rate Election, the Administrative Agent shall
promptly notify each Bank of the contents thereof and of each Bank’s share of
each converted or continued Borrowing.
ARTICLE
III
Section
3.01 Effective
Date. This Agreement shall become effective on the date (the
“Effective Date”) that each of
the following conditions shall have been satisfied (or waived in accordance with
Section 9.05):
(a) receipt
by the Administrative Agent of counterparts hereof signed by each of the parties
hereto (or, in the case of any party as to which an executed counterpart shall
not
22
have been
received, receipt by the Administrative Agent in form satisfactory to it of
telegraphic, telex, facsimile transmission or other written confirmation from
such party of execution of a counterpart hereof by such party);
(b) receipt
by the Administrative Agent for the account of each Bank that has requested a
promissory note pursuant to Section 2.05 of a duly executed promissory note
dated on or before the Effective Date complying with the provisions of
Section 2.05;
(c) receipt
by the Administrative Agent of (i) an opinion of the Assistant General
Counsel, Corporate and Financial Law, of the Borrower, substantially in the form
of Exhibit B-1 hereto and (ii) an opinion of Shearman & Sterling LLP,
special counsel to the Borrower, substantially in the form of Exhibit B-2
hereto;
(d) receipt
by the Administrative Agent of an opinion of White & Case LLP, special
counsel for the Administrative Agent, substantially in the form of
Exhibit C hereto;
(e) receipt
by the Administrative Agent of all documents it may reasonably request relating
to the existence of the Borrower, the corporate authority for and the validity
of this Agreement, including certification thereof by the Chief Financial
Officer or Corporate Vice President and Treasurer of the Borrower substantially
in the form of Exhibit E hereto, all in form and substance satisfactory to the
Administrative Agent;
(f) receipt
by the Administrative Agent of payment by the Borrower of all fees and expenses
payable by the Borrower under or in respect of this Agreement on or prior to the
Effective Date for the account of the Administrative Agent, the Arrangers or any
of the Banks; and
(g) receipt
by the Banks by the date hereof of all documentation and other information
reasonably requested in writing by the Banks to satisfy the requirements of bank
regulatory authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including the USA Patriot Act.
The
Administrative Agent shall promptly notify the Borrower and the Banks of the
satisfaction of the foregoing conditions, and such notice shall be conclusive
and binding on all parties hereto. By execution hereof, each Bank
acknowledges that the condition specified in Section 3.01(g) has been satisfied
as to itself.
Section
3.02 Closing
Date. The obligation of any Bank to make a Loan on the Closing
Date is subject to the satisfaction of the following conditions:
(a) receipt
by the Administrative Agent of the Notice of Borrowing as required by
Section 2.02;
(b) the
Effective Date shall have occurred;
(c) (i)
the Acquisition shall have been consummated or shall be consummated
simultaneously with the incurrence of Loans hereunder in accordance with the
Acquisition Agreement, without giving effect to any amendment, modification or
waiver thereof which is
23
materially
adverse to the Banks without the prior consent of the Arrangers (which consent
shall not be unreasonably withheld or delayed) and (ii) the Borrower shall have
delivered to the Arrangers a copy of the Acquisition Agreement, together with
all modifications, amendments and waivers thereto through and including the
Closing Date, certified as true and correct by the Corporate Vice President and
Treasurer of the Borrower;
(d) receipt
by the Administrative Agent of evidence satisfactory to it that the Indebtedness
to be Refinanced will be repaid in full simultaneously with the incurrence of
Loans hereunder, and all commitments in respect thereof shall have been
terminated;
(e) (i)
the absence, since December 31, 2007, of a Target Material Adverse Effect and
(ii) the receipt by the Administrative Agent of any information with respect to
the Target and its subsidiaries (or their respective businesses, operations,
assets, liabilities and pending or threatened claims or litigation) which has
been received by the Borrower on or prior to the Closing Date and has been
reasonably requested by the Administrative Agent or any Arranger;
(f) the
aggregate amount of Loans to be incurred hereunder shall not exceed the sum of
(i) the Acquisition Consideration, (ii) the Indebtedness to be Refinanced and
(iii) the Transaction Costs;
(g) receipt
by the Administrative Agent of payment by the Borrower of all fees and expenses
payable by the Borrower under or in respect of this Agreement on or prior to the
Closing Date for the account of the Administrative Agent, the Arrangers or any
of the Banks;
(h) the
aggregate principal amount of the Loans to be incurred will not exceed the
aggregate amount of the Commitments as of the Closing Date;
(i) immediately
before and after giving effect to such Borrowing, no Default shall have occurred
and be continuing; and
(j) the
representations and warranties of the Borrower contained in this Agreement
(except the representations and warranties set forth in Section 4.05) shall
be true and correct on and as of the date of such Borrowing.
The
incurrence of Loans hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the facts specified
in clauses (c), (d), (f), (h), (i) and (j) of this Section.
ARTICLE
IV
The
Borrower represents and warrants that:
Section
4.01 Corporate
Existence. The Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of Delaware.
24
Section
4.02 Corporate
and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Borrower of this Agreement is within
the Borrower’s corporate powers, has been duly authorized by all necessary
corporate action, requires no action by or in respect of, or filing with, any
governmental body, agency or official and does not contravene, or constitute a
default under, any provision of applicable law or regulation or of the Restated
Certificate of Incorporation or Bylaws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or result in the creation or imposition of any lien on any asset of the
Borrower or on any material assets of its Subsidiaries.
Section
4.03 Binding
Effect. This Agreement and any promissory note issued pursuant
to this Agreement constitutes a valid and binding agreement of the Borrower,
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency or similar laws affecting creditors’ rights generally and
by general principles of equity.
Section
4.04 Financial
Information. The consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of December 31, 2007 and the related
consolidated statements of income and cash flows for the fiscal year then ended,
audited by Deloitte & Touche LLP and set forth in the Borrower’s
2007 Form 10-K, a copy of which has been made available to each of the
Banks, fairly present in all material respects, in conformity with applicable
generally accepted accounting principles, the consolidated financial position of
the Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such fiscal
year.
Section
4.05 Litigation. There
is no action, suit or proceeding pending against, or to the knowledge of the
Borrower threatened against or affecting, the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official (a) in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business, consolidated
financial position or consolidated results of operations of the Borrower and its
Consolidated Subsidiaries considered as a whole (except as disclosed in the
Borrower’s 2007 Form 10-K) or (b) which in any manner draws into
question the validity of this Agreement or the Loans.
Section
4.06 Compliance
with ERISA. Each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance in all material
respects with the presently applicable provisions of ERISA and the Internal
Revenue Code, and has not incurred any liability to the PBGC or a Plan under
Title IV of ERISA other than a liability to the PBGC for premiums under
Section 4007 of ERISA.
Section
4.07 Domestic
Subsidiaries. Each of the Borrower’s Domestic Subsidiaries is
a corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation.
Section
4.08 Not An
Investment Company. The Borrower is not an “investment
company” within the meaning of the Investment Company Act of 1940, as
amended.
25
Section
4.09 Consummation of
Acquisition. The Acquisition has been consummated or will be
consummated on the Closing Date.
ARTICLE
V
The
Borrower agrees that, so long as any Bank has any Commitment hereunder or the
principal of or interest on any Loan remains unpaid:
Section
5.01 Information. The
Borrower will deliver to each of the Banks:
(a) as
soon as available and in any event within the greater of (i) 90 days after the
end of each fiscal year of the Borrower or (ii) the date such information is
required to be filed with the Securities and Exchange Commission (without giving
effect to any extension), a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported on in a manner acceptable to the Securities and Exchange Commission
by Deloitte & Touche LLP or other independent public accountants of
nationally recognized standing;
(b) as
soon as available and in any event within the greater of (i) 45 days after
the end of each of the first three quarters of each fiscal year of the Borrower
or (ii) the date such information is required to be filed with the Securities
and Exchange Commission (without giving effect to any extension), a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of
such quarter and the related consolidated statements of income and cash flows
for such quarter and for the portion of the Borrower’s fiscal year ended at the
end of such quarter, setting forth in the case of the consolidated statements of
income and cash flows in comparative form the figures for the corresponding
quarter and the corresponding portion of the Borrower’s previous fiscal year,
all certified (subject to normal year end adjustments) as to fairness of
presentation, applicable generally accepted accounting principles and
consistency by the chief financial officer or the chief accounting officer of
the Borrower; provided that the
Borrower’s quarterly reports on Form 10-Q shall satisfy all requirements of
this Section 5.01(b);
(c) within
five days after the president, any vice president or the treasurer of the
Borrower obtains knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer, the treasurer or the chief
accounting officer of the Borrower setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect
thereto;
(d) promptly
upon the mailing thereof to the shareholders of the Borrower generally, copies
of all financial statements, reports and proxy statements so
mailed;
(e) promptly
upon the filing thereof, copies of all reports on Forms 10-K, 10-Q and 8-K
(or their equivalents) which the Borrower shall have filed with the Securities
and Exchange Commission;
26
(f) if
and when any member of the ERISA Group (i) gives or is required to give
notice to the PBGC of any “reportable event” (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA,
or knows that the plan administrator of any Plan has given or is required to
give notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA,
a copy of such notice; or (iii) receives notice from the PBGC under
Title IV of ERISA of an intent to terminate or appoint a trustee to
administer any Plan, a copy of such notice; and
(g) from
time to time such additional information regarding the consolidated financial
position or consolidated results of operations of the Borrower and its
Subsidiaries as any Bank may reasonably deem material and request from the
Borrower through the Administrative Agent.
Reports
and financial statements required to be delivered pursuant to paragraphs (a),
(b), (d) and (e) of this Section 5.01 shall be deemed to have been delivered on
the date on which the Borrower posts such reports, or reports containing such
financial statements, on the Borrower’s website on the Internet at xxx.xxx.xxx
or when such reports, or reports containing such financial statements, are
posted on the Securities and Exchange Commission’s website at xxx.xxx.xxx; provided that the
Borrower shall deliver paper copies of the reports and financial statements
referred to in paragraphs (a), (b), (d) and (e) of this Section 5.01, or provide
notice of its filing or mailing of such reports or financial statements, to the
Administrative Agent or any Bank who requests the Borrower to deliver such paper
copies or notice until written notice to cease delivering paper copies or notice
is given by the Administrative Agent or any such Bank.
Section
5.02 Maintenance
of Property; Insurance. (a) The
Borrower will keep, and will cause each Domestic Subsidiary to keep, all
property used or useful in its business in good working order and condition,
ordinary wear and tear excepted, except where the failure to do so would not
have a material adverse effect on the Borrower and its Domestic Subsidiaries,
taken as a whole.
(b) The
Borrower will, and will cause each of its Domestic Subsidiaries to, maintain
(either in the name of the Borrower or in such Subsidiary’s own name) with
financially sound and responsible insurance companies (which can be affiliates
of the Borrower), insurance on all their respective properties in at least such
amounts and against at least such risks (and with such risk retention) as the
Borrower in good faith determines is necessary or appropriate for the prudent
management of its business; and will furnish to the Banks, upon request from the
Administrative Agent, information presented in reasonable detail as to the
insurance so carried.
Section
5.03 Conduct of
Business and Maintenance of Existence. The Borrower will
continue to engage in business of the same general type as now conducted by the
Borrower and its Subsidiaries, and will preserve, renew and keep in full force
and effect its corporate existence and its rights, privileges and franchises
necessary or desirable in the normal conduct of business.
27
Section
5.04 Compliance
with Laws. The Borrower will comply, and cause each Domestic
Subsidiary to comply, in all material respects with all applicable laws
(including environmental laws), ordinances, rules, regulations, and requirements
of governmental authorities except where (a) the necessity of compliance
therewith is contested in good faith by appropriate proceedings or
(b) noncompliance therewith would not have a material adverse effect on the
Borrower and its Domestic Subsidiaries, taken as a whole.
Section
5.05 Negative
Pledge. (a) The Borrower
will not create, assume or suffer to exist and will not cause, suffer or permit
any Domestic Subsidiary to create, assume or suffer to exist, any mortgage,
pledge, security interest or other lien or encumbrance (hereinafter in this
Section 5.05 referred to as “liens”) of or upon any Principal
Property or additions thereto or shares of capital stock of any Domestic
Subsidiary, whether such Principal Property, additions thereto or shares of
capital stock are owned at the date of this Agreement or thereafter acquired,
without making effective provision, and the Borrower covenants that in any such
case it will make or cause to be made effective provision, whereby the
obligations of the Borrower hereunder from time to time outstanding shall be
secured by such liens equally and ratably with any and all other obligations and
indebtedness thereby secured so long as such indebtedness is so secured; provided that the foregoing covenant
shall not apply to any liens of the following character:
(i) liens
on Principal Property existing at the time of acquisition of such property or to
secure the payment of all or any part of the purchase price of such Principal
Property or any addition thereto or to secure any indebtedness incurred at the
time of, or within 120 days after the acquisition of such Principal
Property or any addition thereto for the purpose of financing all or any part of
the purchase price thereof (provided such liens
are limited to such Principal Property or additions thereto);
(ii) liens
on property or shares of capital stock, or arising out of any indebtedness, of
any corporation existing at the time such corporation became or was merged into
the Borrower or a Domestic Subsidiary;
(iii) liens
executed by any Domestic Subsidiary and exclusively securing indebtedness or
evidences of indebtedness incurred or issued by such Domestic Subsidiary either
to the Borrower or to any other Domestic Subsidiary;
(iv) liens
arising from assignments of money due and to become due under contracts between
the Borrower or any Domestic Subsidiary and the United States of America or any
State, or any department, agency or political subdivision thereof;
(v) liens
of carriers, warehousemen, mechanics and materialmen incurred in the ordinary
course of business for sums not yet due or being contested in good
faith;
(vi) liens
arising by reason of any judgment, decree or order of any court, so long as any
appropriate legal proceedings which may have been duly initiated for the review
of such judgment, decree or order shall not have been finally terminated or so
long as the period within which such proceedings may be initiated shall not
have
28
expired;
or pledges or deposits to secure payment of workmen’s compensation or other
insurance, good faith deposits in connection with tenders, contracts (other than
contracts for the payment of money) or leases, deposits to secure public or
statutory obligations, deposits to secure or in lieu of surety or appeal bonds,
or deposits as security for the payment of taxes;
(vii) liens
in connection with the issuance of tax exempt industrial development or
pollution control bonds or other similar bonds issued pursuant to
Section 103(b) of the Internal Revenue Code to finance all or any part of
the purchase price of or the cost of constructing, equipping or improving
property; provided that such
liens shall be limited to such property acquired (including personal property)
or constructed or such improvement and to theretofore substantially unimproved
real property on which such construction or improvement is located; and provided further that
the Borrower and Domestic Subsidiaries may further secure all or any part of
such purchase price or the cost of construction of such improvements and
personal property by an interest on additional property of the Borrower and
Domestic Subsidiaries only to the extent necessary for the construction,
maintenance and operation of, and access to, such property so acquired or
constructed or such improvement;
(viii) liens
in favor of any customer arising in respect of partial, progress, advance or
other payments made by or on behalf of such customer for goods produced for or
services rendered to such customer in the ordinary course of business not
exceeding the amount of such payments;
(ix)
extensions, renewals or replacements, in whole or in part, of any lien referred
to in the foregoing clauses (i) to (viii), inclusive; provided that the
principal amount of indebtedness secured thereby shall not exceed the principal
amount of indebtedness so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement shall be limited to
all or any part of the same property that secured the lien extended, renewed or
replaced (plus improvements on such property); or
(x)
liens for taxes or assessments or governmental charges or
levies not yet due or delinquent, or which can thereafter be paid without
penalty, or which are being contested in good faith by appropriate proceedings;
landlord’s liens on property held under lease, and tenants’ rights under leases;
easements; and any other liens of a nature similar to those hereinabove
described in this clause (x) which do not, in the opinion of the Borrower,
materially impair the use of such property in the operation of the business of
the Borrower or a Domestic Subsidiary or the value of such property for the
purposes of such business.
(b) Notwithstanding
subsection (a), no provision of this Section 5.05 shall prohibit the
creation or assumption of liens by the Borrower or any Domestic Subsidiary if,
at the time of such creation or assumption, and after giving effect thereto,
Exempted Indebtedness does not exceed 10% of Consolidated Net Tangible Assets at
such time.
29
Section
5.06 Debt. The
Borrower will not create, incur, assume or suffer to exist, nor permit any
Consolidated Subsidiaries to create, incur, assume or suffer to exist, any
Indebtedness unless, after giving effect to such Indebtedness, the ratio of the
Borrower’s consolidated Indebtedness to the Borrower’s consolidated
capitalization (being the sum of consolidated Indebtedness plus stockholders’
equity (unadjusted for accrual of postretirement medical benefit obligations
pursuant to Employers’ Accounting for
Postretirement Benefits Other than Pensions, Statement of Financial
Accounting Standards No. 106)) is not greater than 0.65 to 1.00. For
the purposes of this Section 5.06, “Indebtedness” shall mean (a) all
indebtedness for borrowed money and (b) all obligations as lessee under
leases which are, or should be, in accordance with applicable generally accepted
accounting principles, recorded as capitalized leases.
Section
5.07 Sale and
Lease-Back Transactions. (a) The
Borrower will not, nor will it permit any Domestic Subsidiary to, enter into any
arrangement providing for the leasing by the Borrower or any Domestic Subsidiary
of any Principal Property (except for (i) temporary leases for a term,
including any renewal thereof, of not more than three years, (ii) leases
between the Borrower and a Domestic Subsidiary or between Domestic Subsidiaries
and (iii) leases between the Borrower or a Domestic Subsidiary on the one
hand and a Subsidiary other than a Domestic Subsidiary on the other hand; provided that the aggregate fair value
(as determined by the Board of Directors of the Borrower) of all property
subject to leases permitted by this clause (iii) shall not exceed 10% of
the aggregate fair value (as determined as aforesaid) of all Principal Property
held by the Borrower and all Domestic Subsidiaries), which Principal Property
has been or is to be sold or transferred by the Borrower or such Domestic
Subsidiary (herein referred to as a “Sale and Lease-Back Transaction”)
unless the net proceeds of such sale are at least equal to the fair value (as
determined as aforesaid) of such property.
(b) Notwithstanding
the provisions of subsection (a) of this Section 5.07, the Borrower or
any Domestic Subsidiary may enter into Sale and Lease-Back Transactions; provided that at the
time of such entering into, and after giving effect thereto, Exempted
Indebtedness does not exceed 10% of Consolidated Net Tangible Assets at such
time.
Section
5.08 Consolidations, Mergers and
Sales of Assets. The Borrower will not (a) consolidate or
merge with or into any other Person or (b) sell, lease or otherwise
transfer, directly or indirectly, all or substantially all of its assets to any
other Person; provided that (1)
the Borrower may enter into the K-Xxx XX Transaction and (2) the Borrower may
merge with another Person if (i) either (A) the Borrower is the corporation
surviving such merger or (B) such merger is with a Subsidiary that is a
corporation organized under the laws of a jurisdiction in the United States of
America, such Subsidiary is the corporation surviving such merger and such
Subsidiary confirms in writing to the Administrative Agent, in a form reasonably
satisfactory to the Administrative Agent, that as a result of such merger it has
become the Borrower hereunder, and (iii) after giving effect thereto, no
Default shall have occurred and be continuing.
Section
5.09 Use of
Proceeds. The proceeds of the Loans made under this Agreement
will be used by the Borrower solely to (i) finance the Acquisition
Consideration, (ii) repay the Indebtedness to be Refinanced and (iii)
finance the Transaction Costs. None of such proceeds will be used in
violation of any applicable law or regulation, including without limitation,
Regulations T, U and X of the Board of Governors of the Federal Reserve
System.
30
Section
5.10 Total
Leverage Ratio. At any time when (i) the Xxxxx’x Credit Rating
is Baa3 or lower (or the Borrower’s long term senior unsecured debt is not rated
by Xxxxx’x) or (ii) the S&P Credit Rating is BBB- or lower (or
the Borrower’s long term senior unsecured debt is not rated by S&P), the
Borrower shall not permit the Total Leverage Ratio at any such time to be
greater than 4.25:1.00.
ARTICLE
VI
Section
6.01 Events of
Default. If one or more of the following events (“Events of
Default”) shall have occurred and be continuing:
(a) the
Borrower shall fail to pay, within five days of the due date thereof, any
principal of any Loan, or shall fail to pay, within 10 days of the due date
thereof, any interest or fees payable hereunder;
(b) the
Borrower shall fail to observe or perform any covenant contained in
Section 5.06, 5.08, 5.09 or 5.10;
(c) the
Borrower shall fail to observe or perform any covenant or agreement contained in
this Agreement (other than those covered by clause (a) or (b) above) for 30
days after notice thereof has been given to the Borrower by the Administrative
Agent at the request of any Bank;
(d) any
representation, warranty, certification or statement made by the Borrower in
this Agreement or in any certificate, financial statement or other document
delivered pursuant to this Agreement shall prove to have been incorrect in any
material respect when made (or deemed made);
(e) the
Borrower or any of its Domestic Subsidiaries shall fail to make any payment,
whether of principal, premium or interest, in an aggregate amount equal to or
greater than $50,000,000 in respect of any indebtedness (other than the Loans)
of, or guaranteed by, the Borrower or such Domestic Subsidiary (as the case may
be) when due (whether at scheduled maturity or by 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 indebtedness; or any other default under any agreement or
instrument relating to any such indebtedness, or any other event (including a
default in payment of a lesser amount than that specified above if such default
would cause or permit acceleration as described in this clause) shall occur and
shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such default or event (i) is to permit
the acceleration of the maturity of any such indebtedness in an aggregate
principal amount equal to or greater than $200,000,000 or (ii) results in the
acceleration of the maturity of any such indebtedness in an aggregate principal
amount equal to or greater than $100,000,000;
(f) the
Borrower or any Domestic Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or
31
seeking
the appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any corporate action to authorize
any of the foregoing;
(g) an
involuntary case or other proceeding shall be commenced against the Borrower or
any Domestic Subsidiary seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief
shall be entered against the Borrower or any Domestic Subsidiary under the
Federal bankruptcy laws as now or hereafter in effect;
(h) a
final judgment or order for the payment of money in excess of $200,000,000 shall
be rendered against the Borrower or any Domestic Subsidiary and the Borrower or
such Subsidiary shall not discharge the same or provide for its discharge in
accordance with its terms, or procure a stay of execution thereof, within
30 days after the date of entry thereof and within said period of
30 days (or such longer period during which execution of such judgment
shall have been stayed) appeal therefrom and cause the execution thereof to be
stayed during such appeal; provided, however, that no
Event of Default shall exist under this subsection (h) if, upon the
occurrence of any event specified above following the entry of a final judgment
or order by a court or other body outside of the United States, the Board of
Directors of the Borrower shall pass a resolution stating that, in the good
faith opinion of such Board, the final judgment or order in question is not
enforceable against the Borrower, any Domestic Subsidiary or any of their
respective assets in the United States of America; or
(i) any
member of the ERISA Group shall fail to pay within 15 days of the due date
thereof an amount or amounts aggregating in excess of $5,000,000 which it shall
have become liable to pay to the PBGC or to a Plan under Title IV of ERISA;
or notice of intent to terminate a Plan or Plans having aggregate Unfunded
Vested Liabilities in excess of $50,000,000 (collectively, a “Material Plan”) shall
be filed under Title IV of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee to
be appointed to administer any Material Plan or a proceeding shall be instituted
by a fiduciary of any Material Plan against any member of the ERISA Group to
enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not
have been dismissed within 30 days thereafter;
then, and
in every such event, the Administrative Agent shall (A) if requested by the
Required Banks, by notice to the Borrower terminate the Commitments and they
shall thereupon terminate, and (B) if requested by the Required Banks, by
notice to the Borrower declare the Loans (together with accrued interest
thereon) to be, and the Loans shall thereupon become, immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower; provided that in the
case of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal bankruptcy laws,
32
without
any notice to the Borrower or any other act by the Administrative Agent or the
Banks, the Commitments shall thereupon terminate and the Loans (together with
accrued interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
Section
6.02 Notice of
Default. The Administrative Agent shall give notice to the
Borrower under Section 6.01(c) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
ARTICLE
VII
Section
7.01 Appointment
and Authorization. Each Bank irrevocably appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
Section
7.02 Administrative Agent and
Affiliates. Citibank, N.A. shall have the same rights and
powers under this Agreement as any other Bank and may exercise or refrain from
exercising the same as though it were not the Administrative Agent, and
Citibank, N.A. and its affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or
affiliate of the Borrower as if it were not the Administrative Agent
hereunder.
Section
7.03 Action by
Administrative Agent. The obligations of the Administrative
Agent hereunder are only those expressly set forth herein. Without
limiting the generality of the foregoing, the Administrative Agent shall not be
required to take any action with respect to any Default, except as expressly
provided in Article VI.
Section
7.04 Consultation with
Experts. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
Section
7.05 Liability
of Administrative Agent. Neither the Administrative Agent nor
any of its affiliates nor any of its directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(a) with the consent or at the request of the Required Banks or (b) in
the absence of its own gross negligence or willful misconduct (as determined by
a court of competent jurisdiction in a final, non-appealable
judgment). Neither the Administrative Agent nor any of its affiliates
nor any of its directors, officers, agents or employees shall be responsible for
or have any duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this Agreement or any
borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of the Borrower; (iii) the satisfaction of any
condition specified in Article III, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness
or genuineness of this Agreement, or any other instrument or writing furnished
in
33
connection
herewith. The Administrative Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex, facsimile transmission or similar
writing) believed by it to be genuine or to be signed by the proper party or
parties.
Section
7.06 Indemnification. Each
Bank shall, ratably in accordance with its Commitment or Loans, as applicable,
indemnify the Administrative Agent, its affiliates and its directors, officers,
agents and employees (to the extent not reimbursed by the Borrower) against any
cost, expense (including counsel fees and disbursements), claim, demand, action,
loss or liability (except such as result from such indemnitees’ gross negligence
or willful misconduct (as determined by a court of competent jurisdiction in a
final, non-appealable judgment)) that such indemnitees may suffer or incur in
connection with its role as the Administrative Agent hereunder or any action
taken or omitted by such indemnitees in connection therewith.
Section
7.07 Credit
Decision. Each Bank acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Bank, 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 any action under this
Agreement.
Section
7.08 Successor
Administrative Agent. The Administrative Agent may resign at
any time by giving notice thereof to the Banks and the Borrower. Upon
any such resignation, the Borrower shall have the right, with the consent of the
Required Banks, to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Borrower
(with the consent of the Required Banks), and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent gives
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Banks, appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed 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 its appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent’s resignation
hereunder as Administrative Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent.
Section
7.09 Administrative Agent
Fee. The Borrower shall pay to the Administrative Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Borrower and the Administrative Agent.
Section
7.10 Co-Syndication
Agents. None of the Persons identified on the facing page of
this Agreement as a “Co-Syndication
Agent” shall have any right, power, obligation, liability, responsibility
or duty under this Agreement other than those applicable to all
Banks. Without limiting the foregoing, none of such Persons so
identified as a “Co-Syndication
34
Agent” shall have or be deemed to have
any fiduciary relationship with any Bank. Each Bank acknowledges that
it has not relied, and will not rely, on any of the Persons so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE
VIII
Section
8.01 Basis for
Determining Interest Rate Inadequate or Unfair. If on or prior
to the first day of any Interest Period for any Eurodollar
Borrowing:
(a) the
Administrative Agent determines that adequate and reasonable means do not exist
for ascertaining the London Interbank Offered Rate to be used in determining the
interest rate applicable to the Loans comprising such Borrowing; or
(b) the
Required Banks advise the Administrative Agent that the London Interbank Offered
Rate as determined by the Administrative Agent will not adequately and fairly
reflect the cost to such Banks of funding their Eurodollar Loans for such
Interest Period,
the
Administrative Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, the obligations of
the Banks to make Eurodollar Loans shall be suspended. If the
obligations of the Banks to make Eurodollar Loans have been suspended pursuant
to this Section 8.01, unless the Borrower notifies the Administrative Agent at
least two Domestic Business Days before the date of any Borrowing of Eurodollar
Loans for which a Notice of Borrowing has previously been given that it elects
not to borrow on such date, such Borrowing shall instead be made as a Base Rate
Borrowing.
Section
8.02 Illegality. If,
after the Effective Date, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Eurodollar Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Bank (or its Eurodollar Lending Office) to make, maintain
or fund its Eurodollar Loans and such Bank shall so notify the Administrative
Agent, the Administrative Agent shall forthwith give notice thereof to the other
Banks and the Borrower, whereupon until such Bank notifies the Borrower and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Eurodollar Loans shall be
suspended. Before giving any notice to the Administrative Agent
pursuant to this Section, such Bank shall designate a different Eurodollar
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, result in any economic or regulatory
disadvantage to such Bank. If such Bank shall determine that it may
not lawfully continue to maintain and fund any of its outstanding Eurodollar
Loans to maturity and shall so specify in such notice, the Borrower shall
immediately convert in full the then outstanding principal amount of each such
Eurodollar Loan to a Base
35
Rate Loan
(on which interest and principal shall be payable contemporaneously with the
related Eurodollar Loans of the other Banks).
Section
8.03 Increased
Cost and Reduced Return. (a) If the
adoption after the Effective Date of any applicable law, rule or regulation, or
any change after the Effective Date in any applicable law, rule or regulation,
or any change after the Effective Date in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance after the
Effective Date by any Bank (or its Applicable Lending Office) with any request
or directive (whether or not having the force of law) of any such authority,
central bank or comparable agency issued after the Effective Date :
(i) shall
subject any Bank (or its Applicable Lending Office) to any tax, duty or other
charge with respect to its Eurodollar Loans or its obligation to make Eurodollar
Loans, or shall change the basis of taxation of payments to any Bank (or its
Applicable Lending Office) of the principal of or interest on its Eurodollar
Loans or any other amounts due under this Agreement in respect of its Eurodollar
Loans or its obligation to make Eurodollar Loans (except for (A) franchise
taxes, taxes or other charges related to the general authority of such Bank or
its Applicable Lending Office to do business or taxes on the overall income of
such Bank or its Applicable Lending Office, in each case imposed by the
jurisdiction where such Bank is incorporated (or any political subdivision
thereof) or where it is managed or controlled or where its Applicable Lending
Office is located, or (B) withholding taxes imposed under the laws of any
jurisdiction other than the United States or any State thereof); or
(ii) shall
impose, modify or deem applicable any reserve (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Eurodollar Loan any such requirement
with respect to which such Bank is entitled to compensation during the current
Interest Period pursuant to Section 2.17), special deposit, insurance
assessment or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank (or its Applicable Lending Office)
or shall impose on any Bank (or its Applicable Lending Office) or on the London
interbank market any other condition affecting its Eurodollar Loans or its
obligation to make Eurodollar Loans;
and the
result of any of the foregoing is to increase the cost to such Bank (or its
Applicable Lending Office) of making or maintaining any Eurodollar Loan, or to
reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement, by an amount deemed by such
Bank to be material, then, within 15 days after demand by such Bank (with a
copy to the Administrative Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction; provided that no such
amount shall be payable with respect to any such increased costs or reductions
incurred more than 180 days before the date such Bank first notifies the
Borrower of its intention to demand compensation under this
Section 8.03(a); provided further that
if the adoption of or change in applicable law, rule or regulation, or change in
the interpretation or administration thereof, that gives rise to such increased
cost or reduction is
36
retroactive,
then the 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.
(b) If
any Bank shall have determined that any change after the Effective Date in any
applicable law, rule, guideline or regulation regarding capital adequacy, or in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive issued after the Effective
Date regarding capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency (a “regulatory
requirement”), has or would have the effect of reducing the rate of
return on capital of such Bank (or its Parent) as a consequence of such Bank’s
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such regulatory requirement (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after
demand by such Bank (with a copy to the Administrative Agent), the Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
Bank (or its Parent) for the portion of any such reduction which is reasonably
allocable to this Agreement; provided that no such
amount shall be payable with respect to any period commencing less than
30 days after the date such Bank first notifies the Borrower of its
intention to demand compensation under this Section 8.03(b).
(c) Each
Bank will promptly notify the Borrower and the Administrative Agent of any event
of which it has knowledge, occurring after the date hereof, which will entitle
such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, result in any economic or regulatory disadvantage to such
Bank. A certificate of any Bank claiming compensation under this
Section and setting forth the additional amount or amounts to be paid to it
hereunder, accompanied by a computation in reasonable detail of such amount or
amounts, shall be conclusive if prepared in good faith and on a reasonable
basis. In determining such amount, such Bank may use any reasonable
averaging and attribution methods; provided that such
methods shall not be inconsistent with the methods used by such Bank in
calculating the reduction in return allocable to other similar loans or
commitments to other borrowers.
Section
8.04 Base Rate
Loans Substituted for Affected Eurodollar Loans. If
(a) the obligation of any Bank to make Eurodollar Loans has been suspended
pursuant to Section 8.02 or (b) any Bank has demanded compensation
under Section 8.03(a) and the Borrower shall, by at least five Eurodollar
Business Days’ prior notice to such Bank through the Administrative Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(i) all
Loans which would otherwise be made by such Bank as Eurodollar Loans shall be
made instead as Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Eurodollar Loans of the other Banks),
and
37
(ii) after
each of its Eurodollar Loans has been repaid, all payments of principal which
would otherwise be applied to repay such Eurodollar Loans shall be applied to
repay its Base Rate Loans instead.
Section
8.05 Substitution of
Bank. If (a) the obligation of any Bank to make
Eurodollar Loans has been suspended pursuant to Section 8.02, (b) any
Bank has demanded compensation under Section 8.03 or (c) any Bank becomes a
Defaulting Bank, then, if no Default has occurred and is continuing, the
Borrower shall have the right, with or without the assistance of the
Administrative Agent, to (i) seek a substitute bank or banks satisfactory to the
Borrower (which may be one or more of the Banks) to purchase the Loans or assume
the Commitment of such Bank (without recourse to or warranty by such Bank) or
(ii) notwithstanding Sections 2.09 and 2.11, remove such Bank by prepaying the
Loans from such Bank (with or without prepaying other Loans) and terminating the
Commitment of such Bank (with or without terminating the other
Commitments).
ARTICLE
IX
Section
9.01 Notices. All
notices, requests and other communications to any party hereunder shall be in
writing (including bank wire, facsimile transmission, electronic mail or similar
writing) and shall be given to such party: (a) in the case of
the Borrower or the Administrative Agent, at its address or facsimile number set
forth on the signature pages hereof; (b) in the case of any Bank, at its
address or facsimile number set forth in its Administrative Questionnaire; or
(c) in the case of any party, such other address or facsimile number as
such party may hereafter specify for the purpose by notice to the Administrative
Agent and the Borrower.
Each such
notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with
first-class postage prepaid, addressed as aforesaid or (iii) if given by
any other means, when delivered at the address specified in this Section; provided that notices
to the Administrative Agent under Article II or Article VIII shall not be
effective until received.
Section
9.02 No
Waivers. No failure or delay by the Administrative Agent or
any Bank in exercising any right, power or privilege hereunder shall operate as
a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by
law.
Section
9.03 Expenses;
Documentary Taxes; Indemnification. (a) The Borrower
shall pay (i) all reasonably incurred and properly documented out-of-pocket
expenses of the Administrative Agent, including fees and disbursements of
special counsel for the Administrative Agent, in connection with the preparation
of this Agreement, any waiver or consent hereunder requested by the Borrower or
any amendment hereof requested by the Borrower or any Default or alleged Default
hereunder and (ii) if an Event of Default occurs, all
38
reasonably
incurred and properly documented out-of-pocket expenses incurred by the
Administrative Agent or any Bank, including fees and disbursements of counsel,
in connection with such Event of Default and collection and other enforcement
proceedings resulting therefrom. The Borrower shall indemnify each
Bank against any transfer taxes, documentary taxes, assessments or charges made
by any governmental authority by reason of the execution and delivery of this
Agreement.
(b) The
Borrower agrees to indemnify the Administrative Agent, each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an “Indemnitee”) and hold
each Indemnitee harmless from and against any and all liabilities, losses,
damages, costs and reasonably incurred and properly documented out-of-pocket
expenses of any kind, including, without limitation, the fees and disbursements
of counsel, which may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) relating to or arising out of
this Agreement or any actual or proposed use of proceeds of Loans hereunder;
provided that
no Indemnitee shall have the right to be indemnified hereunder for its own gross
negligence or willful misconduct; and provided further the
Borrower shall not be liable for any settlement, compromise or consent to the
entry of any order adjudicating or otherwise disposing of any loss, claim,
damage or liability effected without its consent, which shall not be
unreasonably withheld.
(c) Promptly
after receipt by an Indemnitee of written notice of any loss, claim, damage or
liability in respect of which indemnity may be sought by it hereunder, such
Indemnitee will, if a claim for indemnity is to be made by it against the
Borrower under Section 9.03(b), notify the Borrower
thereof. Thereafter, such Indemnitee and the Borrower shall consult,
to the extent appropriate, with a view to minimizing the cost to the Borrower of
its obligations hereunder. In case any such Indemnitee receives
written notice of any loss, claim, damage or liability in respect of which
indemnity may be sought by it hereunder and it notifies the Borrower thereof,
the Borrower will be entitled to participate in the defense thereof, and to the
extent that it may elect by notice delivered to such Indemnitee promptly after
receiving the aforesaid notice from such Indemnitee, to assume the defense
thereof, with counsel reasonably satisfactory at all times to such Indemnitee;
provided that
(i) if the parties against whom any loss, claim, damage or liability arises
include both such Indemnitee and the Borrower and such Indemnitee shall have
reasonably concluded that there may be legal defenses available to it or other
Indemnitees which are different from or additional to those available to the
Borrower and may conflict therewith, such Indemnitee or Indemnitees shall have
the right to select separate counsel to assume such legal defense and otherwise
to participate in the defense of such loss, claim, damage or liability on behalf
of such Indemnitee or Indemnitees and (ii) if any loss, claim, damage or
liability arises out of actions brought by or for the benefit of the Borrower,
such Indemnitee or Indemnitees shall have the right to select their counsel and
to assume and direct the defense thereof and the Borrower shall not be entitled
to participate therein or assume the defense thereof. Upon receipt of
notice from the Borrower to such Indemnitee of its election so to assume the
defense of such loss, claim, damage or liability and approval by such Indemnitee
of counsel, the Borrower shall not be liable to such Indemnitee under
Section 9.03(b) for any legal expenses subsequently incurred by such
Indemnitee in connection with the defense thereof unless (A) such
Indemnitee shall have employed counsel in connection with the assumption of
legal defenses in accordance with the proviso to the immediately preceding
sentence, (B) the
39
Borrower
shall not have employed and continued to employ counsel reasonably satisfactory
to such Indemnitee to represent such Indemnitee or (C) the Borrower shall
have approved the employment of counsel for such Indemnitee at the expense of
the Borrower.
Section
9.04 Sharing of
Payments. Each Bank agrees that if it shall, by exercising any
right of setoff or counterclaim or otherwise, receive payment of a proportion of
the aggregate amount of principal and interest due with respect to any Loan held
by it which is greater than the proportion received by any other Bank in respect
of the aggregate amount of principal and interest due with respect to any Loan
held by such other Bank, the Bank receiving such proportionately greater payment
shall purchase such participations in the Loans held by the other Banks, and
such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Loans held by the Banks
shall be shared by the Banks pro rata; provided that nothing in this Section
9.04 shall be construed to prohibit any payment made pursuant to
Section 8.05; provided,
further that nothing in this
Section shall impair the right of any Bank to exercise any right of setoff or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its indebtedness under this
Agreement; provided, further that nothing in this Section
9.04 shall be construed as granting any right of setoff to any
Bank.
Section
9.05 Amendments
and Waivers. Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the Borrower and the Required Banks (and, if the rights or duties of the
Administrative Agent are affected thereby, by the Administrative Agent); provided that no such amendment or
waiver shall, unless signed by all the Banks, (a) increase or decrease the
Commitment of any Bank (except for a ratable decrease in the Commitments of all
Banks or a decrease in the Commitment of any Bank pursuant to Section 8.05) or
subject any Bank to any additional obligation, (b) reduce the principal of
or rate of interest on any Loan or any fees hereunder, (c) postpone the
date fixed for any payment of interest on any Loan or any fees hereunder, (d)
extend the Commitment Termination Date or the Maturity Date or (e) change
the percentage of the Commitments or of the aggregate unpaid principal amount of
the Loans, or the number of Banks, which shall be required for the Banks or any
of them to take any action under this Section or any other provision of this
Agreement.
Section
9.06 Successors
and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, except that the
Borrower may not assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any
Bank may at any time grant to one or more banks or other institutions (each a
“Participant”)
participating interests in any or all of its Loans or, upon prior notice to the
Borrower, in its Commitment. In the event of any such grant by a Bank
of a participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Bank shall remain responsible for
the performance of its obligations hereunder, such Bank’s obligations under this
Agreement (including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, such Bank shall remain the holder of its
Loans for all purposes of this Agreement, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Bank
in connection with such Bank’s rights and obligations
40
under
this Agreement. Any agreement pursuant to which any Bank may grant
such a participating interest shall provide that such Bank shall retain the sole
right and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement unless otherwise agreed to by the
Borrower in its sole discretion. The Borrower agrees that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Article VIII with respect to its participating
interest, it being understood that nothing contained in this Agreement shall be
interpreted to grant to any Participant any rights with respect to or against
the Borrower. An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (b).
(c) Any
Bank may at any time assign to one or more Eligible Assignees (each an “Assignee”) all, or a
proportionate part (equivalent to a Commitment or outstanding Loans of not less
than $5,000,000 and in increments of $1,000,000 if in excess thereof) of all, of
its rights and obligations under this Agreement, and such Assignee shall assume
such rights and obligations, pursuant to an Assignment and Assumption Agreement
executed by such Assignee and such transferor Bank, with (and subject to) the
subscribed consent of the Borrower (which shall not be required if a Default
under Section 6.01(a), (f) or (g) has occurred and is continuing) and the
Administrative Agent (which consents may not be unreasonably withheld or
delayed). Upon execution and delivery of such an Assignment and
Assumption Agreement and payment by such Assignee to such transferor Bank of an
amount equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment or outstanding Loans
as set forth in such Assignment and Assumption Agreement, and the transferor
Bank shall be released from its obligations hereunder to a corresponding extent,
and no further consent or action by any party shall be
required. In connection with any such assignment, the
transferor Bank shall pay to the Administrative Agent an administrative fee for
processing such assignment in the amount of $3,500. If the Assignee
is not incorporated under the laws of the United States of America or a state
thereof, it shall, prior to the execution of such assignment, deliver to the
Borrower and the Administrative Agent the applicable certification in accordance
with Section 2.16.
(d) Any
Bank may at any time assign all or any portion of its rights under this
Agreement and any promissory note issued to it pursuant to Section 2.05 (i) upon
prior notice to the Borrower, to any wholly owned affiliate or (ii) to a Federal
Reserve Bank. No such assignment shall release the transferor Bank
from its obligations hereunder.
(e) No
Assignee, Participant or other transferee of any Bank’s rights shall be entitled
to receive any greater payment under Section 2.14, 2.16 or 8.03 than such Bank
would have been entitled to receive with respect to the rights transferred,
unless such transfer is made with the Borrower’s prior written consent or by
reason of the provisions of Section 8.02 or 8.03 requiring such Bank to
designate a different Applicable Lending Office under certain
circumstances.
(f) Notwithstanding
anything to the contrary contained herein, any Bank (a “Granting Lender”) may
grant to a special purpose funding vehicle (an “SPC”) the option to
fund
41
all or
any part of any Loan that such Granting Lender would otherwise be obligated to
fund pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPC to fund any Loan, and
(ii) if an SPC elects not to exercise such option or otherwise fails to fund all
or any part of such Loan, the Granting Lender shall be obligated to fund such
Loan pursuant to the terms hereof. The funding of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were funded by such Granting
Lender. Each party hereto hereby agrees that no SPC shall be liable
for any indemnity or payment under this Agreement for which a Lender would
otherwise be liable for so long as, and to the extent, the Granting Lender
provides such indemnity or makes such payment. Notwithstanding
anything to the contrary contained in this Agreement, any SPC may disclose on a
confidential basis any non-public information relating to its funding of Loans
to any rating agency, commercial paper dealer or provider of any surety or
guarantee to such SPC. This Section 9.06(f) may not be amended
without the prior written consent of each Granting Lender, all or any part whose
Loan is being funded by an SPC at the time of such amendment.
(g) The
Participant or Assignee, if it shall not already be a Bank, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level information
(which may contain material non-public information about the Borrower, its
related parties or their respective securities) will be made available and who
may receive such information in accordance with the assignee’s compliance
procedures and applicable laws, including federal and state securities
laws.
(h) The
Borrower hereby designates the Administrative Agent, and the Administrative
Agent agrees, to serve as the Borrower’s agent, solely for purposes of this
Section 9.06(h), to maintain a register at one of its offices in New York, New
York (the “Register”) on which
it will record the Commitments from time to time of each of the Banks, the Loans
made by each of the Banks and each repayment in respect of the principal amount
of the Loans of each Bank. Failure to make any such recordation, or
any error in such recordation shall not affect the Borrower’s obligations in
respect of such Loans. With respect to any Bank, the transfer of the
Commitments of such Bank and the rights to the principal of, and interest on,
any Loan made pursuant to such Commitments shall not be effective until such
transfer is recorded on the Register maintained by the Administrative Agent with
respect to ownership of such Commitments and Loans. Prior to such
recordation all amounts owing to the transferor with respect to such Commitments
and Loans shall remain owing to the transferor. The registration of
an assignment or transfer of all or part of any Commitments and Loans shall be
recorded by the Administrative Agent on the Register only upon the acceptance by
the Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to this Section 9.06(h). Coincident
with the delivery of such Assignment and Assumption Agreement to the
Administrative Agent for acceptance and registration of assignment or transfer
of all or part of a Loan, or as soon thereafter as practicable, the assigning or
transferor Bank shall surrender any note evidencing such Loan, and thereupon one
or more new notes in the same aggregate principal amount shall be issued to the
assigning or transferor Bank and/or the new Bank. The Borrower agrees
to indemnify the Administrative Agent from and against any and all losses,
claims, damages and liabilities of whatsoever nature which may be imposed on,
asserted against or incurred by the Administrative Agent in performing its
duties under this Section 9.06(h).
42
Section
9.07 No
Collateral. Each of the Banks represents to the Administrative
Agent and each of the other Banks that it in good faith is not relying upon any
“margin stock” (as defined in
Regulation U) as collateral in the extension or maintenance of the credit
provided for in this Agreement.
Section
9.08 GOVERNING
LAW; JURISDICTION;
Venue. (a) THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
(b) ANY
LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO THIS AGREEMENT, OR THE TRANSACTIONS RELATED THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, MAY BE BROUGHT IN XXX
XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN NEW YORK CITY OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH BANK CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS.
(c) The
Borrower hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any New York State or Federal court located in the
Borough of Manhattan. 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
9.09 Counterparts;
Integration. This Agreement may be signed in any number of
counterparts, each of which shall constitute an original, with the same effect
as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof.
Section
9.10 WAIVER OF
JURY TRIAL. EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT AND
THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section
9.11 [Intentionally
Omitted.]
Section
9.12 Headings. Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
43
Section
9.13 Confidentiality. The
Administrative Agent and each of the Banks agree to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates’ directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority,
(c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially
the same as those of this Section, to (i) any Assignee of or Participant
in, or any prospective Assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the consent of the Borrower or
(h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent or any Bank on a non-confidential basis
from a source other than the Borrower. For the purposes of this
Section, “Information” means all
information received from the Borrower relating to the Borrower or its business,
other than any such information that is available to the Administrative Agent or
any Bank on a nonconfidential basis prior to disclosure by the
Borrower. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as a reasonably prudent
individual in the position of such Person would accord to its own confidential
information.
Each Bank
acknowledges that Information as defined in this Section 9.13 furnished to it
pursuant to this Agreement may include material non-public information
concerning the Borrower and its related parties or their respective securities,
and confirms that it has developed compliance procedures regarding the use of
material non-public information and that it will handle such material non-public
information in accordance with those procedures and applicable law, including
federal and state securities laws.
All
Information, including requests for waivers and amendments, furnished by the
Borrower or the Administrative Agent pursuant to, or in the course of
administering, this Agreement will be syndicate-level information, which may
contain material non-public information about the Borrower and its related
parties or their respective securities. Accordingly, each Bank
represents to the Borrower and the Administrative Agent that it has identified
in its Administrative Questionnaire a credit contact who may receive information
that may contain material non-public information in accordance with its
compliance procedures and applicable law, including federal and state securities
laws.
Section
9.14 USA Patriot
Act. Each Bank hereby notifies the Borrower that pursuant to
the requirements of the Patriot Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender to
identify the Borrower in accordance with the Patriot Act.
44
[Signature
pages to follow.]
THE
DOW CHEMICAL COMPANY
|
||||
|
By:
|
/s/
Xxxxxxxx
Xxxx
|
||
Name:
|
Xxxxxxxx
Xxxx
|
|||
Title:
|
Corporate
Vice President and Treasurer
|
|||
Address
for Notices and Principal Place of Business:
|
||||
The
Dow Chemical Company
0000
Xxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Treasurer
Fax:
(000) 000-0000
|
||||
Taxpayer
Identification Number:
|
CITIBANK,
N.A., INDIVIDUALLY AND
AS
ADMINISTRATIVE AGENT
|
||||
|
By: | /s/ Xxxxx Xxx | ||
Name: | Xxxxx Xxx | |||
Title: | Vice President | |||
Citibank,
N.A.
|
||||
c/o
Citigroup Global Loans
|
||||
0000
Xxxxx Xxxx
|
||||
OPS 3 | ||||
New Castle, DE 19720 | ||||
Attention: Xxxxx Xxxxx | ||||
Tel:
x000-000-0000
|
||||
Fax:
x000-000-0000
|
||||
email: xxxxx.xxxxx@xxxx.xxx |
XXXXXX
XXXXXXX SENIOR FUNDING, INC., INDIVIDUALLY AND AS CO-SYNDICATION
AGENT
|
||||
|
By: | /s/ Xxxxx Xxxx | ||
Name: | Xxxxx Xxxx | |||
Title: | Vice President | |||
XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
AS
CO-SYNDICATION AGENT
|
||||
|
By: | /s/ Xxx Xxxxxxx | ||
Name: | Xxx Xxxxxxx | |||
Title: | Vice President | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Name of Institution: Xxxxxxx Xxxxx Capital Corporation | ||||
|
By: | /s/ Xxx Xxxxxxx | ||
Name: | Xxx Xxxxxxx | |||
Title: | Vice President | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Name of Institution: Bank of America, N.A. | ||||
|
By: | /s/ Xxxxxx Hlentzas | ||
Name: | Xxxxxx Hlentzas | |||
Title: | Vice President | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Name of Institution: | ||||
The Bank of Tokyo-Mitsubishi UFJ, Ltd. | ||||
|
By: | /s/ Xxxxxx Xxxxxxxxxxxx | ||
Name: | Xxxxxx Xxxxxxxxxxxx | |||
Title: | Authorized Signatory | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Name of Institution: Barclays Bank PLC | ||||
|
By: | /s/ Xxxxxxxx X. Xxxx | ||
Name: | Xxxxxxxx X. Xxxx | |||
Title: | Director | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Deutsche Bank AG New York branch: | ||||
|
By: | /s/ Xxxxxx Xxxxxxxxxx | ||
Name: | Xxxxxx Xxxxxxxxxx | |||
Title: | Director | |||
|
By: | /s/ Xxxxxx Xxxxx | ||
Name: | Xxxxxx Xxxxx | |||
Title: | Vice President | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
HSBC Bank USA, National Association | ||||
|
By: | /s/ Xxxxx X. Xxxxxxx | ||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Managing Director | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Name of Institution: Mizuho Corporate Bank, Ltd. | ||||
|
By: | /s/ Xxxxxx Xxxxxxxxx | ||
Name: | Xxxxxx Xxxxxxxxx | |||
Title: | Authorized Signatory | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
THE ROYAL BANK OF SCOTLAND PLC | ||||
|
By: | /s/ L. Xxxxx Xxxxxx | ||
Name: | L. Xxxxx Xxxxxx | |||
Title: | SVP | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Name
of Institution: Banco Bilbao
Vizcaya
Argentaria –
New York Branch
|
||||
|
By: | /s/ Xxxxxxx Xxxx | ||
Name: | Xxxxxxx Xxxx | |||
Title: | Managing Director | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Name
of Institution:
|
||||
XXXXXX XXXXXXX BANK | ||||
|
By: | /s/ Xxxxx Xxxx | ||
Name: | Xxxxx Xxxx | |||
Title: | Authorized Signatory | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Banco
Santander SA., New York Branch
|
||||
|
By: | /s/ Xxxx Xxxxxxxx | ||
Name: | Xxxx Xxxxxxxx | |||
Title: | Santander Global Banking & Markets | |||
Banco Santander, S.A., New York Branch |
|
By: | /s/ Xxxxx Xxxxx | ||
Name: | Xxxxx Xxxxx | |||
Title: | Vice President | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
BAYERISCHE
LANDESBANK,
New York Branch
|
||||
|
By: | /s/ Xxxxxxx XxXxxxx | ||
Xxxxxxx
XxXxxxx
|
||||
Vice
President
|
|
By: | /s/ Xxxxxxx xxx Xxxxxxx | ||
Xxxxxxx xxx
Xxxxxxx
|
||||
Senior Vice
President
|
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Name of Institution: Intesa Sanpaolo S.p.A. | ||||
|
By: | /s/ Xxxxxx Xxxxxxx | ||
Name: | Xxxxxx Xxxxxxx | |||
Title: | SVP | |||
|
By: | /s/ Francesco Di Mario | ||
Name: | Francesco Di Mario | |||
Title: | FVP, Credit Manager | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Standard Chartered Bank: | ||||
|
By: | /s/ Xxxx Xx Xxxxxx | ||
Name: | Xxxx Xx Xxxxxx | |||
Title: | Director | |||
|
By: | /s/ Xxxxxx X. Xxxxxxxxxx | ||
Name: | XXXXXX X. XXXXXXXXXX | |||
Title: | AVP/CREDIT DOCUMENTATIOND | |||
CREDIT RISK CONTROL | ||||
STANDARD CHARTERED BANK N.Y. |
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Name of Institution: Sumitomo Mitsui Banking | ||||
Corporation | ||||
|
By: | /s/ Xxxxxxxxx Xxxxxxxxx | ||
Name: | Xxxxxxxxx Xxxxxxxxx | |||
Title: | General Manager | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Name of Institution: | ||||
THE BANK OF NOVA SCOTIA | ||||
|
By: | /s/ Xxxxx Xxxxx | ||
Name: | Xxxxx Xxxxx | |||
Title: | Director and Head of Energy Execution | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Name of Institution: | ||||
THE BANK OF NEW YORK MELLON | ||||
|
By: | /s/ Xxxxxxx X. Xxxxxxxx | ||
Name: | Xxxxxxx X. Xxxxxxxx | |||
Title: | Vice President | |||
SIGNATURE
PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 8, 2008, AMONG THE DOW
CHEMICAL COMPANY, THE BANKS PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT
|
||||
Commonwealth Bank of Australia | ||||
|
By: | /s/ Xxx Xxxxxx | ||
Name: | Xxx Xxxxxx | |||
Title: | Risk Executive | |||
EXHIBIT
A
NOTE
New York,
New York
[________________]
For value
received, THE DOW CHEMICAL COMPANY, a Delaware corporation (the “Borrower”), promises
to pay
to
(the “Bank”),
for the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the dates provided for in the Credit
Agreement. The Borrower promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal
and interest shall be made in the currencies and to the accounts of Citibank,
N.A., as provided for in the Credit Agreement in immediately available
funds.
All Loans
made by the Bank, the respective type and maturity thereof, all repayments of
the principal thereof, each conversion of all or a portion thereof to another
type, each continuation of all or a portion thereof as the same type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto shall be recorded by the Bank and, if the Bank so elects in connection
with any transfer or enforcement hereof, appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding may be
endorsed by the Bank on the schedule attached hereto, or on a continuation of
such schedule attached to and made a part hereof; provided that the
failure of the Bank to make any such recordation or endorsement shall not affect
the obligations of the Borrower hereunder or under the Credit
Agreement.
This note
is one of the Notes referred to in the Term Loan Agreement dated as of September
8, 2008 among the Borrower, the Banks listed on Schedule 2.01 thereto, and
Citibank, N.A., as Administrative Agent (as the same may be amended from time to
time, the “Credit
Agreement”). Terms defined in the Credit Agreement are used
herein with the same meanings.
2
Reference
is made to the Credit Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
THE DOW CHEMICAL COMPANY, | ||||
|
by
|
|||
Name:
|
||||
Title:
|
||||
Schedule A to Note
LOANS,
CONVERSIONS AND PREPAYMENTS OF BASE RATE LOANS
Date
|
Dollar
Amount of Base Rate Loans
|
Amount
Converted to Base Rate Loans
|
Amount
of Principal of Base Rate Loans Prepaid
|
Amount
of Base Rate Loans Converted to Eurodollar Loans
|
Unpaid
Principal Balance of Base Rate Loans
|
Notation
Made By
|
Schedule B to Note
LOANS,
CONTINUATIONS, CONVERSIONS AND PREPAYMENTS OF EURODOLLAR LOANS
Date
|
Dollar
Amount of Eurodollar Loans
|
Amount
Converted to Eurodollar Loans
|
Interest
Period and Eurodollar Rate with Respect Thereto
|
Dollar
Amount of Principal of Eurodollar Loans Prepaid
|
Amount
of Eurodollar Loans Converted to Base Rate Loans
|
Unpaid
Principal Dollar Balance of Eurodollar Loans
|
Notation
Made By
|
EXHIBIT B-1
OPINION
OF ASSISTANT GENERAL COUNSEL,
CORPORATE
AND FINANCIAL LAW,
OF THE
BORROWER
,
2008
To the
Banks and the Administrative Agent
Referred
to Below
In care
of Citibank, N.A.,
as
Administrative Agent
Dear
Sirs:
I have
acted as counsel for The Dow Chemical Company, a Delaware corporation (the
“Borrower”),
and I have caused to be examined the Term Loan Agreement, dated as of September
8, 2008 (the “Credit
Agreement”) among the Borrower, the banks listed on Schedule 2.01
thereto, and Citibank, N.A. as Administrative Agent. Terms defined in
the Credit Agreement are used herein as therein defined.
I have
caused to be examined originals or copies, certified or otherwise identified to
my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have caused to be conducted such other
investigations of fact and law as I have deemed necessary or advisable for
purposes of this opinion.
Upon the
basis of the foregoing, I am of the opinion that:
1. The
Borrower is a corporation duly incorporated, validly existing and in good
standing under the laws of Delaware.
2. The
execution, delivery and performance by the Borrower of the Credit Agreement is
within the Borrower’s corporate powers, has been duly authorized by all
necessary corporate action, requires no action by or in respect of, or filing
with, any governmental body, agency or official and does not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the Restated Certificate of Incorporation or Bylaws of the Borrower or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or result in the creation or imposition of any lien on any asset of
the Borrower or on any material assets of its Subsidiaries.
3. The
Credit Agreement has been duly executed and delivered on behalf of the
Borrower.
4. Except
as disclosed in the Borrower’s 2007 Form 10-K, there is no action, suit or
proceeding pending against, or to the best of my knowledge threatened against or
affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official, in which there is a
reasonable possibility of an adverse decision which could
2
materially
adversely affect the business, consolidated financial position or consolidated
results of operations of the Borrower and its Consolidated Subsidiaries,
considered as a whole.
5. There
is no action, suit or proceeding pending against, or to the best of my knowledge
threatened against or affecting, the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or official, which in
any manner draws into question the validity of the Credit
Agreement.
6. Each
of the Borrower’s Domestic Subsidiaries (if any) is a corporation validly
existing and in good standing under the laws of its jurisdiction of
incorporation.
I am
qualified to practice law in the State of Michigan and do not purport to be an
expert on, or to express any opinion herein concerning, the law of any
jurisdiction other than the law of the State of Michigan, the General
Corporation Law of the State of Delaware and the federal law of the United
States of America.
The
opinions expressed in this letter are based on laws in effect on the date
hereof, and I assume no obligation to revise or supplement this opinion should
such laws be changed by legislative action, judicial decision or
otherwise. This opinion is rendered solely to you in connection with
the above matter. This opinion may not be relied upon by you for any
other purpose or relied upon by any other person (other than your permitted
successors and assigns) without my prior written consent.
Very
truly yours,
Xxxxxxx
X. Xxxxx
Assistant
General Counsel, Corporate and
Financial
Law
EXHIBIT
B-2
OPINION
OF
SHEARMAN
& STERLING LLP,
SPECIAL
COUNSEL FOR THE BORROWER
,
2008
To the
Persons listed in Schedule A
THE DOW CHEMICAL
COMPANY
Ladies
and Gentlemen:
We have
acted as counsel to The Dow Chemical Company, a Delaware corporation (the “Company”) in
connection with the preparation, execution and delivery of the Credit Agreement
dated as of September 8, 2008 (the “Agreement”), among
the Company and each of you. This opinion is furnished to you
pursuant to Section 3.01(c)(ii) of the Agreement.
In that
connection, we have reviewed originals or copies of the following
documents:
(A) the
Agreement; and
(B) the Notes
executed by the Company and delivered on the date hereof.
The
documents described in the foregoing clauses (A) through (B) are collectively
referred to herein as the “Opinion
Documents”.
We have
also reviewed originals or copies of such other records of the Company,
certificates of public officials and of officers of the Company and agreements
and other documents as we have deemed necessary as a basis for the opinion
expressed below.
In our
review of the Opinion Documents and other documents, we have
assumed:
(i) The
genuineness of all signatures.
(ii) The
authenticity of the originals of the documents submitted to us.
(iii) The
conformity to authentic originals of any documents submitted to us as
copies.
(iv) As to
matters of fact, the truthfulness of the representations made in the Agreement
and in certificates of public officials and officers of the
Company.
(v) That each
of the Opinion Documents is the legal, valid and binding obligation of each
party thereto, other than the Company, enforceable against each such party in
accordance with its terms.
(vi) That:
2
(1) The
Company is an entity duly organized and validly existing under the laws of the
jurisdiction of its organization;
(2) The
Company has full power to execute, deliver and perform and has duly executed and
delivered the Opinion Documents to which it is a party;
(3) The
execution, delivery and performance by the Company of the Opinion Documents to
which it is a party have been duly authorized by all necessary action (corporate
or otherwise) and do not:
(a) contravene
its certificate or articles of incorporation, by-laws or other organizational
documents;
(b) except
with respect to Generally Applicable Law, violate any law, rule or regulation
applicable to it; or
(c) result
in any conflict with or breach of any agreement or document binding on it of
which any addressee hereof has knowledge, has received notice or has reason to
know.
(4) Except
with respect to Generally Applicable Law, no authorization, approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body or (to the extent the same is required under any agreement or
document binding on it of which an addressee hereof has knowledge, has received
notice or has reason to know) any other third party is required for the due
execution, delivery or performance by the Company of any Opinion Document to
which it is a party or, if any such authorization, approval, action, notice or
filing is required, it has been duly obtained, taken, given or made and is in
full force and effect.
We have
not independently established the validity of the foregoing
assumptions.
“Generally Applicable
Law” means the federal law of the United States of America, and the law
of the State of New York (including the rules or regulations promulgated
thereunder or pursuant thereto), that a New York lawyer exercising customary
professional diligence would reasonably be expected to recognize as being
applicable to the Company, the Opinion Documents or the transactions governed by
the Opinion Documents. Without limiting the generality of the
foregoing definition of Generally Applicable Law, the term “Generally Applicable
Law” does not include any law, rule or regulation that is applicable to the
Company, the Opinion Documents or such transactions solely because such law,
rule or regulation is part of a regulatory regime applicable to any party to any
of the Opinion Documents or any of its affiliates due to the specific assets or
business of such party or such affiliate.
Based
upon the foregoing and upon such other investigation as we have deemed necessary
and subject to the qualifications set forth below, we are of the opinion that
each Opinion Document is the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
Our
opinion expressed above is subject to the following qualifications:
3
(A) Our
opinion is subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally
(including without limitation all laws relating to fraudulent
transfers).
(B) Our
opinion is subject to the effect of general principles of equity, including
without limitation concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at
law).
(C) We
express no opinion with respect to the enforceability of indemnification
provisions, or of release or exculpation provisions, contained in the Opinion
Documents to the extent that enforcement thereof is contrary to public policy
regarding the indemnification against or release or exculpation of criminal
violations, intentional harm or violations of securities laws.
(D) We
express no opinion with respect to Section 9.08 of the Agreement to the extent
that such Section (i) contains a waiver of any objection based on inappropriate
venue or forum non
conveniens in any federal court of the United States, or (ii) implies
that a federal court of the United States has subject matter
jurisdiction.
(E) Our
opinion is limited to Generally Applicable Law, and we do not express any
opinion herein concerning any other law.
A copy of
this opinion letter may be delivered by any of you to any person that becomes a
Bank in accordance with the provisions of the Agreement. Any such
person may rely on the opinion expressed above as if this opinion letter were
addressed and delivered to such person on the date hereof.
This
opinion letter is rendered to you in connection with the transactions
contemplated by the Opinion Documents. This opinion letter may not be
relied upon by you or a future Bank for any other purpose without our prior
written consent.
This
opinion letter speaks only as of the date hereof. We expressly
disclaim any responsibility to advise you of any development or circumstance of
any kind, including any change of law or fact, that may occur after the date of
this opinion letter that might affect the opinion expressed herein.
Very
truly yours,
RMB/ CTP/
NEK
DLB
SCHEDULE
A
Name
|
Capacity
|
Citibank,
N.A.
|
Administrative
Agent and Bank
|
Xxxxxxx
Xxxxx Capital Corporation
|
Co-Syndication
Agent and Bank
|
Bank
of America, N.A.
|
Co-Syndication
Agent and Bank
|
Barclays
Bank PLC
|
Bank
|
Deutsche
Bank AG, Cayman Islands Branch
|
Bank
|
HSBC
Bank USA, N.A.
|
Bank
|
Mizuho
Corporate Bank, Ltd.
|
Bank
|
Royal
Bank of Scotland, plc
|
Bank
|
The
Bank of Tokyo-Mitsubishi UFJ, Ltd.
|
Bank
|
Xxxxxx
Xxxxxxx Bank
|
Bank
|
Xxxxxx
Xxxxxxx Senior Funding, Inc.
|
Bank
|
Banco
Bilbao Vizcaya Argentaria, S.A.
|
Bank
|
Banco
Santander S.A., New York Branch
|
Bank
|
Bayerische
Landesbank, New York Branch
|
Bank
|
Intesa
Sanpaolo S.p.A.
|
Bank
|
Standard
Chartered Bank
|
Bank
|
Sumitomo
Mitsui Banking Corporation
|
Bank
|
The
Bank of Nova Scotia
|
Bank
|
The
Bank of New York Mellon
|
Bank
|
Commonwealth
Bank of Australia
|
Bank
|
EXHIBIT C
OPINION
OF WHITE & CASE LLP,
SPECIAL
COUNSEL FOR THE ADMINISTRATIVE AGENT
,
2008
To:
|
The
Banks (as defined below), in their individual capacity,
and
Citibank, N.A., as Administrative Agent for and on
behalf
of the Banks (the “Administrative
Agent”, and
together
with the Banks, the “Addressees”)
|
Ladies
and Gentlemen:
We have
acted as special New York counsel to the Administrative Agent in connection with
that certain Term Loan Agreement, dated as of September 8, 2008, among the
Borrower, the lenders party thereto (the “Banks”), and the
Administrative Agent (the “Credit
Agreement”). Unless otherwise defined herein, capitalized
terms used herein, but not defined herein, shall have the meanings set forth in
the Credit Agreement.
In
connection with this opinion, we have examined executed originals or copies
certified to our satisfaction of the Credit Agreement and such other agreements,
documents and certificates and such other documents and papers as we have deemed
necessary or appropriate as a basis for such opinion. We have assumed
the genuineness of all signatures, the authority of persons signing the Credit
Agreement on behalf of the parties thereto, the authenticity of all documents
submitted to us as originals and the conformity to original documents of all
documents submitted to us as copies. As to questions of fact relevant
to this opinion, we have relied upon the representations and warranties made by
the Borrower in the Credit Agreement.
We have also assumed that, for purposes
of the opinions expressed herein, (i) each party to the Credit Agreement is duly
formed, validly existing and in good standing under the laws of its jurisdiction
of organization and has full power to execute, deliver and perform its
obligations under the Credit Agreement, (ii) the execution, delivery of and
performance of its obligations under the Credit Agreement by each party thereto
and the consummation of the transactions contemplated thereby, (x) has been duly
authorized and approved by all necessary corporate, partnership and/or other
action on the part of such party and (y) does not contravene any provision of
any law, statute, rule or regulation applicable to such party, including,
without limitation, the laws of the jurisdiction in which such party is
organized or any order, writ, injunction or decree of any court applicable to
such party, (iii) each party to the Credit Agreement has duly executed and
delivered the Credit Agreement, (iv) the execution, delivery of and performance
of its obligations under the Credit Agreement by each party thereto will not
conflict with or result in any breach of any agreements to which such party is a
party or otherwise subject, and will not violate any provision of the
organizational or other charter documents of such party, (v) all orders,
consents, approvals, licenses, authorizations, validations, filings, recordings
and registrations with, or exemptions by, all governmental or public bodies or
2
authorities
have been obtained and remain in full force and effect for the (x) execution,
delivery of and performance of the Credit Agreement by each party thereto and
(y) legality, validity, binding effect and enforceability against each party to
the Credit Agreement, and (vi) the Credit Agreement constitutes the valid and
binding obligation of each party thereto (other than the Borrower), enforceable
against such party in accordance with its terms.
Based
upon the foregoing, and subject to the limitations, qualifications, exceptions
and assumptions set forth herein, we are of the opinion that the Credit
Agreement constitutes the valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws affecting creditors’ rights generally or by general equitable principles
(regardless of whether considered in a proceeding in equity or at
law).
The
opinion contained herein is subject to the following additional limitations,
qualifications, exceptions and assumptions:
(a) We
express no opinion as to the enforceability of any assignment, exculpation,
indemnification or contribution provisions in the Credit Agreement to the extent
the rights to assignment, exculpation, indemnification or contribution provided
for therein (x) are violative of any law, rule or regulation (including, without
limitation, any securities law, rule or regulation) or public policy relating
thereto or (y) are related to indemnification or contribution in connection with
willful, reckless or criminal acts or gross negligence of the indemnified or
exculpated person or the person receiving contribution.
(b) We
express no opinion as to the applicability to the Credit Agreement or the
transactions contemplated thereby of Section 548 of the Bankruptcy Code (11
U.S.C. Section 548) or Article 10 of the New York Debtor and Creditor Law
relating to fraudulent transfers and obligations.
(c) We wish
to point out that the law of the State of New York generally imposes an
obligation of good faith and reasonableness in the performance and enforcement
of contracts.
(d) (i) No
opinion is being expressed with respect to subject matter jurisdiction of any
United States Federal Court or the enforceability of any provisions whereby a
party submits to such jurisdiction and (ii) we call to your attention that
federal and state courts located in New York could decline to hear a case on
grounds of forum non conveniens or any
other doctrine limiting the availability of the courts in New York as a forum
for the resolution of disputes not having sufficient nexus to New York and we
express no opinion as to any waiver of rights to assert the applicability of
forum non conveniens doctrine
or any such other doctrine.
(e) No
opinion is being expressed as to the effectiveness of (x) any waiver
(whether or not stated as such) under the Credit Agreement of, or any consent
thereunder relating to, unknown future rights or the rights of any party thereto
existing, or duties owing to it, as a matter of law, to the extent that such
rights cannot be waived
3
under
applicable law and (z) any other waivers or variations of rights of a
debtor to the extent any such waiver or variation is not effective under
applicable law.
(f) We
express no opinion as to the enforceability of requirements in the Credit
Agreement that the provisions thereof may only be waived or amended in
writing.
(g) We
express no opinion as to any provisions of the Credit Agreement appointing any
of you as attorney-in-fact for any party or providing that any determination by
any of you will be conclusive or binding on any party.
(h) We
express no opinion as to (1) state securities laws or regulations; (2) state
antitrust or unfair competition laws or regulations; (3) state environmental
laws or regulations; (4) state tax laws or regulations; (5) state public utility
laws or regulations; (6) pension or employee benefit laws or regulations; (7)
state health and safety laws or regulations; (8) state labor laws or
regulations; (9) state laws, regulations or policies relating to national or
local emergencies; (10) statutes, ordinances, administrative decisions, rules or
regulations of counties, towns, municipalities or special political subdivisions
(whether created or enabled through legislative action at the federal, state or
regional level); (11) state usury laws; (12) ERISA; or (13) judicial decisions
to the extent that they deal with any of the foregoing.
The
opinion expressed above is limited to the law of the State of New
York. This opinion does not cover the law of any other
jurisdiction. We express no opinion as to, and assume no
responsibility for, the effect of any fact or circumstance occurring subsequent
to the date of this letter, including, without limitation, legislative and other
changes in the law or changes in circumstances affecting the
Borrower. Further, we assume no responsibility to advise you of any
such facts or circumstances of which we become aware, regardless of whether or
not they affect the opinion herein.
This
opinion may be relied upon only by the Addressees and solely in connection with
the transactions contemplated by the Credit Agreement and may not be used or
relied upon or published or communicated to any other person or entity for any
purpose whatsoever without our prior written consent in each instance; provided that copies
of this opinion may be furnished by you to, but may not be relied on by, (x)
your accountants and bank auditors and examiners, in each case in connection
with their audit and review activities and (y) any other person to the extent
required by any court of competent jurisdiction or any competent judicial,
governmental, supervisory or regulatory body.
Very
truly yours,
DK:JM
EXHIBIT D
[FORM
OF]
ASSIGNMENT
AND ASSUMPTION
This
Assignment and Assumption (the “Assignment and
Assumption”) is dated as of the Effective Date set forth below and is
entered into by and between [Insert name of Assignor] (the “Assignor”) and
[Insert name of Assignee] (the “Assignee”). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Credit Agreement identified below (as amended, the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and
made a part of this Assignment and Assumption as if set forth herein in
full.
For an
agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor’s rights
and obligations in its capacity as a Bank under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below (including any letters of credit, guarantees, Base
Rate Loans and Eurodollar Loans included in such facilities) and (ii) to
the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of the Assignor (in its capacity as a Bank)
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to
clause (i) above (the rights and obligations sold and assigned pursuant to
clauses (i) and (ii) above being referred to herein collectively as the
“Assigned
Interest”). Such sale and assignment is without recourse to
the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.
1. | Assignor: | |||
2. | Assignee: |
|
3.
|
Borrower: The
Dow Chemical Company
|
|
4.
|
Administrative
Agent: Citibank, N.A., as Administrative Agent under the Credit
Agreement.
|
|
5.
|
Credit
Agreement: The Term Loan Agreement dated as of September 8,
2008, among The Dow Chemical Company, the Banks named therein and
Citibank, N.A., as Administrative Agent for the
Banks.
|
2
|
6.
|
Assigned
Interest:
|
Aggregate
Amount of
Commitment/Loans for all Banks |
Amount
of
Commitment/Loans Assigned |
Percentage
Assigned of Commitment/ Loans1 |
$
|
$
|
%
|
$
|
$
|
%
|
$
|
$
|
%
|
Effective
Date:
,
_____.
The
Assignee agrees to deliver to the Administrative Agent a completed
Administrative Questionnaire in which the Assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain material
non-public information about the Borrower and its related parties or their
respective securities) will be made available and who may receive such
information in accordance with the Assignee’s compliance procedures and
applicable laws, including federal and state securities laws.
The terms
set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR],
by
Title:
ASSIGNEE
[NAME OF ASSIGNEE],
by
Title:
|
[Consented
to and]2
Accepted:
CITIBANK, N.A., as Administrative Agent, | |||
by:
|
|||
Title: | |||
[Consented
to:]3
THE DOW CHEMICAL COMPANY, | |||
by:
|
|||
Title: | |||
2 Consents
to be included to the extent required by Section 9.06(c) of the Credit
Agreement.
Annex
1
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1. Representations and
Warranties.
1.1. Assignor. The
Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is
free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to
(i) any statements, warranties or representations made in or in connection
with the Credit Agreement, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement,
(iii) the financial condition of the Borrower, any of its Subsidiaries or
Affiliates or any other Person obligated in respect of the Credit Agreement or
(iv) the performance or observance by the Borrower, any of its Subsidiaries
or Affiliates or any other Person of any of their respective obligations under
the Credit Agreement.
1.2. Assignee. The
Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby
and to become a Bank under the Credit Agreement, (ii) it satisfies the
requirements, if any, specified in the Credit Agreement that are required to be
satisfied by it in order to acquire the Assigned Interest and become a Bank,
(iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Bank thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Bank thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies
of the most recent financial statements delivered pursuant to Section 4.04 or
5.01(a) thereof, as applicable, and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Assumption and to purchase the Assigned Interest on the
basis of which it has made such analysis and decision independently and without
reliance on the Administrative Agent or any other Bank, and (v) if it is a
Bank not incorporated under the laws of the United States of America or a state
thereof, attached to this Assignment and Assumption is any documentation
required to be delivered by it pursuant to the terms of the Credit Agreement,
duly completed and executed by the Assignee; and (b) agrees that
(i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement, and
(ii) it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement are required to be performed by it as
a Bank.
2. Payments. From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.
2
3. General
Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page
of this Assignment and Assumption by telecopy shall be effective as delivery of
a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and
construed in accordance with, the law of the State of New York.
EXHIBIT E
[FORM
OF]
OFFICER’S
CERTIFICATE
THE
DOW CHEMICAL COMPANY
I, the
undersigned Corporate Vice President and Treasurer of The Dow Chemical Company,
a corporation organized under the laws of the State of Delaware (the “Borrower”), do hereby
certify, solely in my capacity as Corporate Vice President and Treasurer of the
Borrower and not in my individual capacity, on behalf of the Borrower,
that:
1. This
Certificate is furnished pursuant to the Term Loan Agreement, dated as of
September 8, 2008, among the Borrower, the Banks party thereto, Citibank, N.A.,
as Administrative Agent, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
(“ML”) and
Xxxxxx Xxxxxxx Senior Funding, Inc. (“MSSF”), as
Co-Syndication Agents, and Citigroup Global Markets Inc., ML and MSSF, as Joint
Lead Arrangers and Joint Bookrunners (the “Credit
Agreement”). Unless otherwise defined herein, capitalized
terms used in this Certificate shall have the meanings set forth in the Credit
Agreement.
2. The
persons named in Annex
1 are duly elected and duly qualified officers of the Borrower, holding
the respective offices or titles in Annex 1 set forth
opposite their names, and the signatures on Annex 1 set forth
opposite their names are facsimiles of their genuine signatures.
3. Attached
hereto as Annex
2 is a certified copy of the Restated Certificate of Incorporation of the
Borrower as filed with the Secretary of State of the State of Delaware, on the
date indicated thereon, together with all amendments thereto adopted
through the date hereof.
4. Attached
hereto as Annex
3 is a true and correct copy of the Bylaws of the Borrower, which were
duly adopted and are in full force and effect on the date hereof, together with
all amendments thereto adopted through the date hereof.
5. Attached
hereto as Annex
4 is a true and correct copy of resolutions that were duly adopted
on July 9, 2008 by the Board of Directors of the Borrower and said resolutions
have not been rescinded, amended or modified. Except as attached
hereto as Annex
4, no resolutions have been adopted by the Board of Directors of the
Borrower that deal with the execution, delivery or performance of the
Credit Agreement.
6. The
persons named in Annex
5 were all of the directors of the Borrower on the date the resolutions
referred to in paragraph 5 above were adopted, and remain such directors on the
date hereof.
7. Attached
hereto as Annex
6 is a true and correct copy of a good standing certificate from the
Secretary of State of the State of Delaware.
8. On
the date hereof, there is no pending proceeding for the dissolution or
liquidation of the Borrower or, to the knowledge of the undersigned, threatening
its existence.
2
9. On
the date hereof, the representations and warranties of the Borrower
contained in the Credit Agreement are true and correct in all material
respects.
10. On
the date hereof, no Default has occurred and is continuing.
[Signature page
follows]
3
THE DOW CHEMICAL COMPANY | ||||
|
By:
|
|||
Name:
|
Xxxxxxxx Xxxx | |||
Title:
|
Corporate Vice President and Treasurer | |||
4
I, W.
Xxxxxxx XxXxxxx, the undersigned Assistant Secretary of the Borrower, do hereby
certify, solely in my capacity as an officer of the Borrower and not in my
individual capacity, on behalf of the Borrower, that Xxxxxxxx Xxxx is the duly
elected and qualified Corporate Vice President and Treasurer of the Borrower and
the signature above is his genuine signature.
THE DOW CHEMICAL COMPANY | ||||
|
By:
|
|||
Name:
|
W. Xxxxxxx XxXxxxx | |||
Title:
|
Assistant Secretary | |||
ANNEX 1
Officers
Name
|
Office
|
Signature
|
Xxxxxx
X. Xxxxxxx
|
Chairman,
President, Chief Executive Officer and Director
|
|
Xxxxxxxx
X. Xxxxxxx
|
Executive
Vice President, Chief Financial Officer and Director
|
|
Xxxxxxx
X. Xxxxx
|
Assistant
General Counsel, Corporate and Financial Law
|
|
Xxxxxxxx
Xxxx
|
Corporate
Vice President and Treasurer
|
|
Xxxxxxx
X. Xxxxx
|
Executive
Vice President, Secretary and General Counsel
|
|
ANNEX 2
Restated Certificate of
Incorporation
See
attached.
ANNEX 3
Bylaws
See
attached.
ANNEX 4
See
attached.
ANNEX 5
Xxxxxx
X. Xxxxxxx
|
Chairman,
President, Chief Executive Officer and Director
|
Xxxxxxxx
X. Xxxxxxx
|
Executive
Vice President, Chief Financial Officer and Director
|
Xxxxxx
X. Xxxxxxxx
|
Director
|
Xxxxxxxxxx
X. Xxxxxx
|
Director
|
Xxxxx
X. Xxxx
|
Director
|
Xxxxxx
X. Xxxxxxx
|
Director
|
Xxxx
X. Xxxxxx
|
Director
|
Xxxxx
X. Xxxxxxx
|
Director
|
Xxxxxxx
Xxxxxxx Franklin
|
Director
|
Xxxx
X. Xxxx
|
Director
|
Xxxx
X. Xxxx
|
Director
|
Xxxx
X. Xxxxx
|
Director
|
ANNEX 6
See
attached.
SCHEDULE
2.01
Term
Loan Commitments
Legal
Name of Lending Institutions
|
Commitment
|
Citibank,
N.A.
|
$1,350,000,000.00
|
Xxxxxxx
Xxxxx Capital Corporation
|
$1,350,000,000.00
|
Bank
of America, N.A.
|
$950,000,000.00
|
Barclays
Bank PLC
|
$950,000,000.00
|
Deutsche
Bank AG, Cayman Islands Branch
|
$950,000,000.00
|
HSBC
Bank USA, N.A.
|
$950,000,000.00
|
Mizuho
Corporate Bank, Ltd.
|
$950,000,000.00
|
Royal
Bank of Scotland, plc
|
$950,000,000.00
|
The
Bank of Tokyo-Mitsubishi UFJ, Ltd.
|
$950,000,000.00
|
Xxxxxx
Xxxxxxx Bank
|
$720,000,000.00
|
Xxxxxx
Xxxxxxx Senior Funding, Inc.
|
$630,000,000.00
|
Banco
Bilbao Vizcaya Argentaria, S.A.
|
$300,000,000.00
|
Banco
Santander S.A., New York Branch
|
$300,000,000.00
|
Bayerische
Landesbank, New York Branch
|
$300,000,000.00
|
Intesa
Sanpaolo S.p.A.
|
$300,000,000.00
|
Standard
Chartered Bank
|
$300,000,000.00
|
Sumitomo
Mitsui Banking Corporation
|
$300,000,000.00
|
The
Bank of Nova Scotia
|
$300,000,000.00
|
The
Bank of New York Mellon
|
$100,000,000.00
|
Commonwealth
Bank of Australia
|
$100,000,000.00
|
Total
|
$13,000,000,000
|
SCHEDULE 2.04
ACCOUNT
Citibank,
N.A.
0000
Xxxxx Xxxx
Xxx
Xxxxxx, XX 00000
ABA
number: 000000000
Account
number: 00000000
Attn: Xxxxx
Xxxxx