EXHIBIT 10.1
CREDIT AGREEMENT
dated as of
May 11, 2007
among
UNITED STATES STEEL CORPORATION
THE LENDERS PARTY HERETO
THE LC ISSUING BANKS PARTY HERETO
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
____________________
X.X. XXXXXX SECURITIES INC.,
Sole Lead Arranger and Bookrunner
_____________________
BANK OF AMERICA, N.A. CITIZENS BANK OF PENNSYLVANIA
Syndication Agent Syndication Agent
______________________
PNC BANK, NATIONAL ASSOCIATION, THE BANK OF NOVA SCOTIA,
Documentation Agent Documentation Agent
XXXXXX XXXXXXX BANK,
Co-Documentation Agent
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
Section 1.01. Defined Terms 1
Section 1.02. Types of Borrowing 20
Section 1.03. Terms Generally 21
Section 1.04. Accounting Terms; Changes in GAAP 21
ARTICLE 2
The Credits
Section 2.01. Commitments to Lend 21
Section 2.02. Notice of Committed Borrowing 22
Section 2.03. Competitive Bid Borrowings. 22
Section 2.04. Notice to Lenders; Funding of Loans 26
Section 2.05. Maturity of Loans 27
Section 2.06. Interest Rates 27
Section 2.07. Method of Electing Interest Rates 29
Section 2.08. Fees 31
Section 2.09. Optional Termination or Reduction of Commitments 31
Section 2.10. Scheduled Termination of Commitments 31
Section 2.11. Optional Prepayments 31
Section 2.12. Reserved. 32
Section 2.13. Computation of Interest and Fees 32
Section 2.14. Reserved. 32
Section 2.15. Increased Commitments; Additional Lenders 32
Section 2.16. Letters of Credit 34
Section 2.17. Evidence of Debt. 38
Section 2.18. Change in Control 39
Section 2.19. Alternate Rate of Interest 40
Section 2.20. Increased Costs 40
Section 2.21. Break Funding Payments 42
Section 2.22. Taxes 42
Section 2.23. Payments Generally; Pro Rata Treatment; Sharing of Set-Offs 43
Section 2.24. Lender's Obligation to Mitigate; Replacement of Lenders 45
ARTICLE 3
Representations and Warranties
Section 3.01. Organization; Powers 47
Section 3.02. Authorization; Enforceability 47
Section 3.03. Governmental Approvals; No Conflicts 47
Section 3.04. Financial Statements; No Material Adverse Change 47
Section 3.05. Litigation and Environmental Matters 47
Section 3.06. Taxes 48
Section 3.07. Investment Company Status 48
Section 3.08. ERISA 48
Section 3.09. Disclosure 48
ARTICLE 4
Conditions
Section 4.01. Effective Date 49
Section 4.02. Conditions to Initial Utilization and Each Subsequent
Utilization 50
ARTICLE 5
Affirmative Covenants
Section 5.01. Financial Statements and Other Information 51
Section 5.02. Existence; Conduct of Business 53
Section 5.03. Maintenance of Properties 53
Section 5.04. Insurance 53
Section 5.05. Proper Records; Rights to Inspect 53
Section 5.06. Compliance with Laws 54
Section 5.07. Use of Proceeds and Letters of Credit 54
ARTICLE 6
Negative Covenants
Section 6.01. Liens 54
Section 6.02. Fundamental Changes 56
Section 6.03. Interest Coverage Ratio 56
Section 6.04. Leverage Ratio 56
ARTICLE 7
Events of Default
ARTICLE 8
The Agents
Section 8.01. Appointment and Authorization 59
Section 8.02. Administrative Agent and Affiliates 59
Section 8.03. Action by Administrative Agent 59
Section 8.04. Consultation with Experts 60
Section 8.05. Liability of Administrative Agent 60
Section 8.06. Credit Decision 60
Section 8.07. Successor Administrative Agent 60
Section 8.08. Agents' Fees 61
Section 8.09. Other Agents 61
ARTICLE 9
Miscellaneous
Section 9.01. Notices 61
Section 9.02. Waivers; Amendments 62
Section 9.03. Expenses; Indemnity; Damage Waiver 63
Section 9.04. Successors and Assigns 65
Section 9.05. Designated Lenders 68
Section 9.06. Survival 69
Section 9.07. Counterparts; Integration 70
Section 9.08. Severability 70
Section 9.09. Right of Setoff 70
Section 9.10. Governing Law; Jurisdiction; Consent to Service of Process 70
Section 9.11. WAIVER OF JURY TRIAL 71
Section 9.12. Headings 72
Section 9.13. Confidentiality 72
Section 9.14. USA PATRIOT Act Notice 72
SCHEDULES:
COMMITMENT SCHEDULE
PRICING SCHEDULE
Schedule 2.16 Existing Letters of Credit
Schedule 6.01 Existing Liens
EXHIBITS:
Exhibit A - Form of Assignment
Exhibit B - Form of Competitive Bid Quote Request
Exhibit C - Form of Invitation for Competitive Bid Quotes
Exhibit D - Form of Competitive Bid Quote
Exhibit E - Form of Opinion of General Counsel of the Borrower
Exhibit F - Certain Definitions from Regulation S-X (as in effect on the
date of this Amended Agreement)
Exhibit G - Form of Designation Agreement
CREDIT AGREEMENT dated as of May 11, 2007 among UNITED STATES STEEL
CORPORATION, the LENDERS party hereto, the LC ISSUING BANKS party hereto, and
JPMORGAN CHASE BANK, N.A., as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Absolute Rates pursuant to Section 2.03.
"Additional Lender" has the meaning set forth in Section 2.15.
"Adjusted LIBO Rate" has the meaning set forth in Section 2.06(b).
"Administrative Agent" means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent under the Loan Documents, and its successors in such
capacity.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls, or is
Controlled by or under common Control with such specified Person.
"Agent" means any of the Administrative Agent, the Documentation Agents,
the Co-Documentation Agent and the Syndication Agents, and "Agents" means any
two or more of the foregoing.
"Applicable Lending Office" means, with respect to any Lender, (i) in the
case of its Base Rate Loans, its Domestic Lending Office, (ii) in the case of
its Eurodollar Loans, its Eurodollar Lending Office and (iii) in the case of its
Competitive Bid Loans, its Competitive Bid Lending Office.
"Arranger" means X.X. Xxxxxx Securities Inc. in its capacity as sole lead
arranger of the credit facility provided under this Agreement.
"Assignment" means an assignment and assumption agreement entered into by a
Lender and an assignee (with the consent of any party whose consent is required
by Section 9.04), and accepted by the Administrative Agent, in the form of
Exhibit A or any other form approved by the Administrative Agent.
"Base Rate" means, for any day, a rate per annum equal to the higher of (i)
the Prime Rate for such day or (ii) the sum of 1/2 of 1% plus the Federal Funds
Rate for such day.
"Base Rate Loan" means a Committed Loan that bears interest at the Base
Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or the provisions of Section 2.19.
"Borrower" means United States Steel Corporation, a Delaware corporation,
and its successors.
"Borrower's Latest Form 10-Q" means the Borrower's quarterly report on Form
10-Q for the quarter ended March 31, 2007, as filed with the SEC pursuant to the
Exchange Act.
"Borrower's 2006 Form 10-K" means the Borrower's annual report on Form 10-
K for the year ended December 31, 2006, as filed with the SEC pursuant to the
Exchange Act.
"Borrowing" has the meaning set forth in Section 1.02.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan or
a Competitive Bid LIBOR Loan, the term "Business Day" shall also exclude any day
on which banks are not open for dealings in dollar deposits in the London
interbank market.
"Capital Lease Obligations" of any Person means obligations of such Person
to pay rent or other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination thereof, which
obligations are required under GAAP to be classified and accounted for as
capital leases on a balance sheet of such Person. The amount of such
obligations will be the capitalized amount thereof determined in accordance with
GAAP.
"Cash Collateral Account" means a deposit account maintained by the
Borrower with and pledged to the Administrative Agent and under the exclusive
control of the Administrative Agent.
"Change in Control" means the occurrence of any of the following:
(a) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that for the purposes
of this clause (a) such person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 35% of either the aggregate
ordinary voting power or the aggregate equity value represented by the
issued and outstanding Equity Interests in the Borrower;
(b) individuals who constituted the Board of Directors of the
Borrower at any given time (together with any new directors whose election
by such Board of Directors or whose nomination for election by the
shareholders of the Borrower as approved by a vote of 66-2/3% of the
directors of the Borrower then still in office who were either directors
at such time or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of the Board of
Directors then in office;
(c) the adoption of a plan relating to the liquidation or dissolution
of the Borrower; or
(d) the merger or consolidation of the Borrower with or into another
Person or the merger of another Person with or into the Borrower, or the
sale of all or substantially all the assets of the Borrower (determined on
a consolidated basis) to another Person, other than a merger or
consolidation transaction in which holders of Equity Interests
representing 100% of the ordinary voting power represented by the Equity
Interests in the Borrower immediately prior to such transaction (or other
securities into which such securities are converted as part of such merger
or consolidation transaction) own directly or indirectly at least a
majority of the ordinary voting power represented by the Equity Interests
in the surviving Person in such merger or consolidation transaction issued
and outstanding immediately after such transaction and in substantially
the same proportion as before the transaction.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
such date or (c) compliance by any Lender or the LC Issuing Bank (or, for
purposes of Section 2.20, by any lending office of such Lender or by such
Lender's or the LC Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after such date.
"Co-Documentation Agent" means Xxxxxx Xxxxxxx Bank in its capacity as co-
documentation agent in respect of this Agreement.
"Commitment" means (i) with respect to each Lender listed on the Commitment
Schedule, the amount set forth opposite such Lender's name on the Commitment
Schedule, (ii) with respect to each Additional Lender, the amount of the
Commitment assumed by it pursuant to Section 2.15 and (iii) with respect to any
substitute Lender or Assignee which becomes a Lender pursuant to Section 2.24 or
9.04, the amount of the transferor Lender's Commitment assigned to it pursuant
to Section 9.04, in each case as such amount may be changed from time to time
pursuant to Section 2.09 or 9.04; provided that, if the context so requires, the
term "Commitment" means the obligation of a Lender to extend credit up to such
amount to the Borrower hereunder.
"Commitment Schedule" means the Commitment Schedule attached hereto.
"Committed Loan" means a loan made by a Lender pursuant to Section 2.01;
provided that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term "Committed
Loan" shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"Competitive Bid Absolute Rate" has the meaning set forth in Section
2.03(d).
"Competitive Bid Absolute Rate Loan" means a loan to be made by a Lender
pursuant to an Absolute Rate Auction.
"Competitive Bid Lending Office" means, as to each Lender, its Domestic
Lending Office or such other office, branch or affiliate of such Lender as it
may hereafter designate as its Competitive Bid Lending Office by notice to the
Borrower and the Administrative Agent; provided that any Lender may from time to
time by notice to the Borrower and the Administrative Agent designate separate
Competitive Bid Lending Offices for its Competitive Bid LIBOR Loans, on the one
hand, and its Competitive Bid Absolute Rate Loans, on the other hand, in which
case all references herein to the Competitive Bid Lending Office of such Lender
shall be deemed to refer to either or both of such offices, as the context may
require.
"Competitive Bid LIBOR Loan" means a loan to be made by a Lender pursuant
to a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01).
"Competitive Bid Loan" means a Competitive Bid LIBOR Loan or a Competitive
Bid Absolute Rate Loan.
"Competitive Bid Margin" has the meaning set forth in Section 2.03(d).
"Competitive Bid Quote" means an offer by a Lender to make a Competitive
Bid Loan in accordance with Section 2.03.
"Consolidated Debt" means, at any date, the Debt of the Borrower and its
Subsidiaries at such date, determined on a consolidated basis in accordance with
GAAP.
"Consolidated EBITDA" means, for any period, net income (or net loss)
(before discontinued operations) plus the sum of (a) Consolidated Interest
Expense, (b) income tax expense, (c) depreciation expense, (d) amortization
expense, (e) any non-cash losses or expenses from any unusual, extraordinary or
otherwise non-recurring items and (f) aggregate foreign exchange losses, and
minus (x) the sum of the amounts for such period of any income tax benefits and
any income or gains from any unusual, extraordinary or otherwise non-recurring
items, and (y) aggregate foreign exchange gains; in each case determined on a
consolidated basis for the Borrower and its Subsidiaries in accordance with GAAP
and in the case of items (a) through (f) and items (x) through (y), to the
extent such amounts were included in the calculation of net income. For the
purpose of calculating Consolidated EBITDA for any period, if during such period
the Borrower or any Subsidiary shall have made an acquisition or a disposition
of an operating business, Consolidated EBITDA for such period shall be
calculated after giving pro forma effect thereto as if such acquisition or
disposition, as the case may be, occurred on the first day of such period.
"Consolidated Interest Expense" means, for any period, the amount by which:
(a) the sum of (i) the interest expense (including imputed interest
expense in respect of Capital Lease Obligations) of the Borrower and its
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP, and (ii) any interest accrued during such period, in
respect of Debt of the Borrower or any Subsidiary, that is required under
GAAP to be capitalized rather than included in consolidated interest
expense for such period, exceeds
(b) the interest income (not including foreign exchange gains and
losses) of the Borrower and its Subsidiaries for such period, determined on
a consolidated basis in accordance with GAAP.
"Consolidated Net Tangible Assets" means at any time, the aggregate amount
of assets (less applicable reserves and other properly deductible items) of the
Borrower and its consolidated Subsidiaries adjusted for inventories on the basis
of cost (before application of the "last-in first-out" method of determining
cost) or current market value, whichever is lower, and deducting therefrom (a)
all current liabilities of such corporation and its consolidated Subsidiaries
except for (i) notes and loans payable, (ii) current maturities of long-term
debt and (iii) current maturities of obligations under capital leases and (b)
all goodwill, trade names, patents, unamortized debt discount and expenses of
such corporation and its consolidated Subsidiaries (to the extent included in
said aggregate amount of assets) and other intangibles, all as set forth in the
most recent consolidated balance sheet of the Borrower and its consolidated
Subsidiaries delivered to the Administrative Agent, computed and consolidated in
accordance with GAAP.
"Control" means possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Exposure" means, with respect to any Lender at any time, (i) the
amount of its Commitment if in existence at such time or (ii) the sum of the
aggregate outstanding principal amount of its Loans and the amount of its LC
Exposure at such time if its Commitment is not then in existence.
"Credit Facilities" means this Agreement, together with both the One-Year
Term Loan Agreement dated as of a date on or about July 2, 2007, among the
Borrower, Administrative Agent and the other lenders party thereto, and the
Five-Year Term Loan Agreement dated as of a date on or about July 2, 2007,
among the Borrower, Administrative Agent and the other lenders party thereto,
in each case, as the same may be amended or modified from time to time.
"Debt" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or with respect
to deposits or advances of any kind (other than unspent cash deposits held
in escrow by or in favor of such Person, or in a segregated deposit
account controlled by such Person, in each case in the ordinary course of
business to secure the performance obligations of, or damages owing from,
one or more third parties),
(b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments,
(c) all obligations of such Person on which interest charges are
customarily paid (other than obligations where interest is levied only on
late or past due amounts),
(d) all obligations of such Person under conditional sale or other
title retention agreements relating to property acquired by such Person,
(e) all obligations of such Person in respect of the deferred
purchase price of property or services (excluding current accounts payable
incurred in the ordinary course of business),
(f) all Debt of others secured by (or for which the holder of such
Debt has an existing right, contingent or otherwise, to be secured by) any
Lien on property owned or acquired by such Person, whether or not the Debt
secured thereby has been assumed,
(g) all Guarantees by such Person of Debt of others,
(h) all Capital Lease Obligations of such Person,
(i) all unpaid obligations, contingent or otherwise, of such Person
as an account party in respect of letters of credit and letters of
guaranty (other than cash collateralized letters of credit to secure the
performance of workers' compensation, unemployment insurance, other social
security laws or regulations, bids, trade contracts, leases, environmental
and other statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case, obtained in
the ordinary course of business),
(j) all capital stock of such Person which is required to be redeemed
or is redeemable at the option of the holder if certain events or
conditions occur or exist or otherwise,
(k) the aggregate amount advanced by buyers or lenders with respect
to all Permitted Receivables Financings, net of repayments or recoveries
through liquidation of the assets transferred pursuant to such Permitted
Receivables Financing, and
(l) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances.
The Debt of any Person shall include the Debt of any other entity
(including any partnership in which such Person is a general partner) to the
extent that such Person is liable therefor as a result of such Person's
ownership interest in or other relationship with such entity, except (a) to the
extent that contractual provisions binding on the holder of such Debt provide
that such Person is not liable therefor, and (b) in the case of general
partnerships where the interest is held by a Subsidiary with no other
significant assets.
Notwithstanding the foregoing, the term "Debt" will exclude obligations
that are no longer outstanding under the applicable indenture or instruments
therefore.
Notwithstanding the foregoing, in connection with the purchase by the
Borrower or any Subsidiary of any business, the term "Debt" will exclude post-
closing payment adjustments to which the seller may become entitled to the
extent such payment is determined by a final closing; provided, however, that,
at the time of closing, the amount of any such payment is not determinable and,
to the extent such payment thereafter becomes fixed and determined, the amount
is paid when due.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Lender" means, with respect to any Designating Lender, an
Eligible Designee designated by it pursuant to Section 9.05(a) as a Designated
Lender for purposes of this Agreement.
"Designating Lender" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to Section 9.05(a).
"Documentation Agent" means each of PNC Bank, National Association and The
Bank of Nova Scotia in its capacity as documentation agent in respect of this
Agreement.
"Domestic Lending Office" means, as to each Lender, its office, branch or
affiliate 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, branch or affiliate as such Lender may hereafter
designate as its Domestic Lending Office by notice to the Borrower and the
Administrative Agent.
"dollars" or "$" refers to lawful money of the United States.
"Domestic Subsidiary" means each Subsidiary that is not a Foreign
Subsidiary.
"Effective Date" means the date on which each of the conditions specified
in Section 4.01 is satisfied (or waived in accordance with Section 9.02).
"Eligible Designee" means a special purpose corporation that (i) is
organized under the laws of the United States or any state thereof, (ii) is
engaged in making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and (iii) issues (or the parent of which issues)
commercial paper rated at least A-1 or the equivalent thereof by S&P or P-1 or
the equivalent thereof by Xxxxx'x.
"Environmental Laws" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, the preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or the
effects of the environment on health and safety.
"Equity Interests" means (i) shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person or (ii) any
warrants, options or other rights to acquire such shares or interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that, together with the Borrower or any Subsidiary, is treated as a single
employer under Section 414(b) or (c) of the Internal Revenue Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Internal Revenue Code,
is treated as a single employer under Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (except an
event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Internal Revenue Code or Section 302 of ERISA), whether or
not waived; (c) the filing pursuant to Section 412(d) of the Internal Revenue
Code or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the Borrower or
any ERISA Affiliate of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any ERISA Affiliate of any liability with
respect to withdrawal or partial withdrawal from any Plan or Multiemployer Plan;
or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of
any notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
"Eurodollar Lending Office" means, as to each Lender, 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 Lender as it may
hereafter designate as its Eurodollar Lending Office by notice to the Borrower
and the Administrative Agent.
"Eurodollar Loan" means a Committed Loan that bears interest at a
Eurodollar Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election.
"Eurodollar Margin" means the applicable rate per annum determined in
accordance with the Pricing Schedule.
"Eurodollar Rate" means a rate of interest determined pursuant to Section
2.06(b) on the basis of an Adjusted LIBO Rate.
"Events of Default" has the meaning specified in Article 7.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Excluded Taxes" means, with respect to any Lender Party or other recipient
of a payment made by or on account of any obligation of the Borrower hereunder:
(a) income or franchise taxes imposed on (or measured by) its net
income, receipts, capital or net worth by the United States (or any
jurisdiction within the United States, except to the extent that such
jurisdiction within the United States imposes such taxes solely in
connection with such Lender Party's enforcement of its rights or exercise
of its remedies under the Loan Documents), or by the jurisdiction under
the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable
lending office is located;
(b) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction described in clause (a); and
(c) in the case of a Foreign Lender, any withholding tax that (i) is
in effect and would apply to amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement or designates a
new lending office or (ii) is attributable to such Foreign Lender's
failure to comply with Section 2.22(e).
Notwithstanding the foregoing, a withholding tax will not be an "Excluded
Tax" to the extent that (A) it is imposed on amounts payable to a Foreign Lender
by reason of an assignment made to such Foreign Lender at the Borrower's request
pursuant to Section 2.19, (B) it is imposed on amounts payable to a Foreign
Lender by reason of any other assignment and does not exceed the amount for
which the assignor would have been indemnified pursuant to Section 2.22(a) or
(C) in the case of designation of a new lending office, it does not exceed the
amount for which such Foreign Lender would have been indemnified if it had not
designated a new lending office.
"Existing Credit Agreement" means the Amended and Restated Credit Agreement
dated as of October 22, 2004 among the Borrower and the various lenders and
agents party thereto, as amended.
"Existing Letters of Credit" means the letters of credit issued prior to
the Effective Date pursuant to the Existing Credit Agreement, as identified on
Schedule 2.16.
"Existing Receivables Purchase Agreement" means the Second Amended and
Restated Receivables Purchase Agreement dated as of September 27, 2006 among
U.S. Steel Receivables LLC, as seller, the Borrower, as initial servicer and in
its individual capacity, The Bank of Nova Scotia, as collateral agent, and the
various other Persons from time to time party thereto, and the related documents
entered into in connection therewith, all as in effect on the Effective Date.
"Facility Fee Rate" means the applicable rate per annum determined in
accordance with the Pricing Schedule.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, 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 Business Day next
succeeding such day, provided that (i) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (ii) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate quoted to JPMorgan
Chase Bank, N.A. on such day on such transactions as determined by the
Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System of the United States.
"Financial Officer" means the chief financial officer, treasurer, any
assistant treasurer, the controller or any assistant controller of the Borrower.
"Financing Transactions" means the execution, delivery and performance by
the Borrower of the Loan Documents, the borrowing of Loans, the use of the
proceeds thereof and the issuance of Letters of Credit hereunder.
"Fiscal Quarter" means a fiscal quarter of the Borrower.
"Fiscal Year" means a fiscal year of the Borrower.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction outside the United States.
"Foreign Subsidiary" means a Subsidiary (which may be a corporation,
limited liability company, partnership or other legal entity) organized under
the laws of a jurisdiction outside the United States, and conducting
substantially all its operations outside the United States.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States, applied on a basis consistent (except for
changes concurred in by the Borrower's independent public accountants) with the
most recent audited consolidated financial statements of the Borrower and its
consolidated Subsidiaries delivered to the Lenders.
"Governmental Authority" means the government of the United States, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Group of Loans" or "Group" means, at any time, a group of Loans consisting
of (i) all Committed Loans which are Base Rate Loans at such time and (ii) all
Eurodollar Loans having the same Interest Period at such time.
"Guarantee" by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Debt of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt, (b) to purchase or lease
property, securities or services for the purpose of assuring the owner of such
Debt, (c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Debt or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Debt; provided
that the term "Guarantee" shall not include endorsements for collection or
deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest rate, currency exchange rate or commodity price hedging arrangement.
"Indemnified Taxes" means all Taxes except Excluded Taxes.
"Industrial Revenue Bond Obligations" means an obligation to a state or
local government unit that secures the payment of bonds issued by a state or
local government unit or any Debt incurred to refinance, in whole or in part,
such obligations.
"Interest Coverage Ratio" means, the ratio of (a) Consolidated EBITDA to
(b) Consolidated Interest Expense for the period of the most recent four
consecutive Fiscal Quarters for which financial statements have been prepared,
taken as one accounting period.
"Interest Period" means: (1) with respect to each Eurodollar Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in the applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter, as the Borrower
may elect in such notice; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period which begins on the last 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 end on
the last Business Day of a calendar month; and
(c) no Interest Period may end after the Termination Date;
(2) with respect to each Competitive Bid LIBOR Loan, the period commencing
on the date of borrowing specified in the applicable Notice of Borrowing and
ending such whole number of months thereafter as the Borrower may elect in
accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period which begins on the last 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 end on
the last Business Day of a calendar month; and
(c) no Interest Period may end after the Termination Date; and
(3) with respect to each Competitive Bid Absolute Rate Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter (but not less than 7 days)
as the Borrower may elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Business Day shall be extended to the next succeeding Business Day;
and
(b) no Interest Period may end after the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Inventory" has the meaning set forth in Article 9 of the Uniform
Commercial Code as in effect from time to time in the State of New York.
"Investment Grade Rating" means a rating equal to or higher than Baa3 (or
the equivalent) by Moody's and BBB- (or the equivalent) by S&P.
"LC Disbursement" means a payment made by the LC Issuing Bank in respect of
a drawing under a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all Letters of Credit outstanding at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Revolving Lender at any
time will be its Percentage of the total LC Exposure at such time.
"LC Issuing Bank" means JPMorgan Chase Bank and any other Lender that may
agree in its sole discretion to issue letters of credit hereunder, in each case
in its capacity as an issuer of a Letter of Credit, and their respective
successors in such capacity as provided in Section 2.16(i). The LC Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit to be issued
by its Affiliates, in which case the term "LC Issuing Bank" shall include each
such Affiliate with respect to Letters of Credit issued by it.
"LC Reimbursement Obligations" means, at any time, all obligations of the
Borrower to reimburse the LC Issuing Bank for amounts paid by it in respect of
drawings under Letters of Credit, including any portion of such obligations to
which Lenders have become subrogated by making payments to the LC Issuing Bank
pursuant to Section 2.16(e).
"Lender Affiliate" means, with respect to any Lender, (i) an Affiliate of
such Lender or (ii) any entity (other than a natural person) that is engaged in
making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered
or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity
or an Affiliate of an entity that administers or manages such Lender.
"Lender Parties" means the Lenders, the LC Issuing Bank and the Agents.
"Lenders" means the Persons listed on the Commitment Schedule and any other
Person that shall have become a party hereto pursuant to an Assignment, other
than any such Person that ceases to be a party hereto pursuant to an Assignment.
Unless the context requires otherwise, the term "Lenders" includes the LC
Issuing Bank.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Leverage Ratio" means, at any date, the ratio of (a) Consolidated Debt at
such date to (b) Consolidated EBITDA for the period of the most recent four
consecutive Fiscal Quarters for which financial statements have been prepared,
taken as one accounting period.
"LIBOR Auction" means a solicitation of Competitive Bid Quotes setting
forth Competitive Bid Margins based on the London Interbank Offered Rate
pursuant to Section 2.03.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loan" means a Committed Loan or a Competitive Bid Loan and "Loans" means
Committed Loans or Competitive Bid Loans or any combination of the foregoing.
"Loan Documents" means this Agreement and any promissory note issued by the
Borrower pursuant to Section 2.17(d).
"London Interbank Offered Rate" has the meaning set forth in Section
2.06(b).
"Material Adverse Change" means any event, development or circumstance that
has had or would reasonably be expected to have a material adverse effect on (a)
the business, operations or financial condition of the Borrower and its
Subsidiaries taken as a whole or (b) the validity or enforceability of any of
the Loan Documents or the rights or remedies of the Administrative Agent and the
Lenders thereunder.
"Material Debt" means Debt (other than obligations in respect of the Loans
and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and its Subsidiaries in an
aggregate principal amount exceeding $100,000,000. For purposes of determining
Material Debt, the "principal amount" of the obligations of the Borrower or any
Subsidiary in respect of any Hedging Agreement at any time will be the maximum
aggregate amount (after giving effect to any enforceable netting agreements)
that the Borrower or such Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time in circumstances in which the Borrower or
such Subsidiary was the defaulting party.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Notice of Borrowing" means a Notice of Committed Borrowing (as defined in
Section 2.02) or a Notice of Competitive Bid Borrowing (as defined in Section
2.03(f)).
"Notice of Interest Rate Election" has the meaning set forth in Section
2.07.
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"Participants" has the meaning specified in Section 9.04(e).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Percentage" means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender's Commitment. If the Commitments have
terminated or expired, the Percentages will be determined based on the
Commitments most recently in effect, adjusted to give effect to any assignments.
"Permitted Liens" means:
(a) Liens imposed by law or regulation for taxes that are not yet due
or are being contested in good faith by appropriate proceedings;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, vendors' and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not overdue
by more than 30 days or are being contested in good faith by appropriate
proceedings;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations (including deposits made in the
ordinary course of business to cash collateralize letters of credit
described in the parenthetical in clause (i) of the definition of "Debt");
(d) Liens or deposits to secure the performance of bids, trade
contracts, leases, Hedging Agreements, statutory or regulatory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, and Liens imposed by statutory or common law
relating to banker's liens or rights of setoff or similar rights relating
to deposit accounts, in each case in the ordinary course of business;
(e) Liens arising in the ordinary course of business in favor of (i)
consignors of Inventory or (ii) issuers of documentary letters of credit;
(f) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (i) of Article 7; and
(g) easements, zoning restrictions, rights-of-way, licenses,
reservations, minor irregularities of title and similar encumbrances on
real property imposed by law or regulation or arising in the ordinary
course of business that do not secure any monetary obligation and do not
materially detract from the value of the affected property for its current
use or interfere with the ordinary conduct of business of the Borrower or
any Subsidiary;
provided that the term "Permitted Liens" shall not include any Lien that secures
Debt.
"Permitted Receivables Financing" means any receivables securitization
program or other type of accounts receivable financing transaction by the
Borrower or any of its Subsidiaries; provided that substantially all Debt
incurred in connection therewith (other than Debt of a Special Purpose Financing
Subsidiary) arises from a transfer of accounts receivable which is intended by
the parties thereto to be treated as a sale.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (except a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the
Internal Revenue Code or Section 302 of ERISA, and in respect of which the
Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) a "contributing sponsor" as defined
in Section 4001(a)(13) of ERISA.
"Prevailing Eastern Time" means "eastern standard time" as defined in 15
USC Section 263 as modified by 15 USC Section 260a.
"Pricing Schedule" means the Pricing Schedule attached hereto.
"Prime Rate" means, for any day, the rate of interest per annum then most
recently publicly announced by JPMorgan Chase Bank, N.A. as its prime rate in
effect at its principal office in New York City. Each change in the Prime Rate
will be effective for purposes hereof from and including the date such change is
publicly announced as being effective.
"Quarterly Payment Dates" means each March 31, June 30, September 30 and
December 31.
"Rating Agency" means each of S&P and Moody's.
"Register" has the meaning specified in Section 9.04(c).
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and its Affiliates.
"Required Lenders" means, at any time, Lenders having more than 50% of the
aggregate Credit Exposures at such time.
"Revolving Credit Period" means the period from and including the Effective
Date to but excluding the Termination Date.
"S&P" means Standard & Poor's.
"SEC" means the United States Securities and Exchange Commission.
"Senior Debt Rating" means a rating of the Borrower's senior long-term debt
that is not secured or supported by a guarantee, letter of credit or other form
of credit enhancement; provided that if a Senior Debt Rating by a Rating Agency
is required to be at or above a specified level and such Rating Agency shall
have changed its system of classifications after the date hereof, the
requirement will be met if the Senior Debt Rating by such Rating Agency is at or
above the new rating which most closely corresponds to the specified level under
the old rating system; and provided further that the Senior Debt Rating in
effect on any date is that in effect at the close of business on such date.
"Significant Subsidiary" of any Person means any subsidiary of such Person,
whether now or hereafter owned, formed or acquired that, at the time of
determination is a "significant subsidiary" of such Person, as such term is
defined on the date of this Agreement in Regulation S-X of the SEC (a copy of
which is attached as Exhibit F), except that "5 percent" will be substituted for
"10 percent" in each place where it appears in such definition of "significant
subsidiary".
"Special Purpose Financing Subsidiary" means a Subsidiary of the Borrower
that is a special-purpose company created and used solely for purposes of
effecting a Receivables Financing.
"Statutory Reserve Adjustment" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Federal Reserve Board to which the Administrative Agent is
subject with respect to eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Federal Reserve Board). Such
reserve percentages will include those imposed pursuant to such Regulation D.
Eurodollar Loans will be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve
Adjustment will be adjusted automatically on and as of the effective date of any
change in any applicable reserve percentage.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Syndication Agent" means each of Bank of America, N.A. and Citizens Bank
of Pennsylvania in its capacity as syndication agent in respect of this
Agreement.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Termination Date" means May 11, 2012.
"Total Outstanding Amount" means, at any date, the sum of the aggregate
outstanding principal amount of all Loans plus the aggregate LC Exposures of all
Lenders at such date.
"United States" means the United States of America.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.02. Types of Borrowing. The term "Borrowing" denotes (i) the
aggregation of Loans made or to be made to the Borrower pursuant to Article 2 on
the same day, all of which Loans are of the same type and, except in the case of
Base Rate Loans, have the same initial Interest Period or (ii) if the context so
requires, the borrowing of such Loans. Borrowings are classified for purposes
of this Agreement either (i) by reference to the pricing of Loans comprising
such Borrowing (e.g., a "Eurodollar Borrowing" is a Borrowing comprised of
Eurodollar Loans) or (ii) by reference to the provisions of Article 2 under
which participation therein is determined (i.e., a "Committed Borrowing" is a
Borrowing under Section 2.01 in which all Lenders participate in proportion to
their Commitments, while a "Competitive Bid Borrowing" is a Borrowing under
Section 2.03 in which one or more Lenders participate on the basis of their
bids).
Section 1.03. Terms Generally. The definitions of terms herein (including
those incorporated by reference to another document) apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun includes the corresponding masculine, feminine and neuter
forms. The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation". The word "will" shall be construed
to have the same meaning and effect as the word "shall". Unless the context
requires otherwise, (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the word
"property" shall be construed to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
Section 1.04. Accounting Terms; Changes in GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent in writing that the
Borrower wishes to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof with respect to any provision
hereof (or if the Administrative Agent notifies the Borrower that the Required
Lenders wish to make a similar request), regardless of whether such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be applied on the basis of GAAP as in effect and applied
immediately before such change shall have become effective until such notice
shall have been withdrawn or the applicable provision of this Agreement is
amended in accordance herewith.
ARTICLE 2
The Credits
Section 2.01. Commitments to Lend. Each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make loans to the Borrower
pursuant to this Section from time to time during the Revolving Credit Period;
provided that, immediately after each such loan is made: (i) the sum of the
aggregate outstanding principal amount of such Lender's Committed Loans plus the
aggregate amount of such Lender's LC Exposure shall not exceed its Commitment
and (ii) the Total Outstanding Amount shall not exceed the aggregate amount of
the Commitments. Each Borrowing under this Section shall be in an aggregate
principal amount of $5,000,000 or any larger multiple of $1,000,000 (except that
(x) any such Borrowing may be in the aggregate amount available within the
limitations in the foregoing proviso and (y) any Base Rate Borrowing pursuant to
Section 2.16(e) may be in the amount specified therein) and shall be made from
the several Lenders ratably in proportion to their respective Commitments.
Within the foregoing limits, the Borrower may borrow under this Section, repay,
or to the extent permitted by Section 2.11, prepay Loans and reborrow under this
Section 2.01.
Section 2.02. Notice of Committed Borrowing. The Borrower shall give the
Administrative Agent notice (a "Notice of Committed Borrowing") not later than
(x) Noon (Prevailing Eastern Time) on the date of each Base Rate Borrowing and
(y) 11:00 A.M. (Prevailing Eastern Time) on the third Business Day before each
Eurodollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Business Day,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to be Base Rate
Loans or Eurodollar Loans, and
(d) 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.
Section 2.03. Competitive Bid Borrowings.
(a) The Competitive Bid Option. In addition to Committed Borrowings pursuant
to Section 2.01, the Borrower may, as set forth in this Section, request the
Lenders to make offers to make Competitive Bid Loans to the Borrower from time
to time during the Revolving Credit Period. The Lenders may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section.
(b) Competitive Bid Quote Request. When the Borrower wishes to request
offers to make Competitive Bid Loans under this Section, it shall transmit to
the Administrative Agent a Competitive Bid Quote Request substantially in the
form of Exhibit B hereto so as to be received no later than 11:00 A.M.
(Prevailing Eastern Time) on (x) the fourth Business Day prior to the date of
Borrowing proposed therein, in the case of a LIBOR Auction or (y) the Business
Day next preceding the date of Borrowing proposed therein, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall
have notified to the Lenders not later than the date of the Competitive Bid
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Business Day,
(ii) the aggregate amount of such Borrowing, which shall be $5,000,000
or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period, and
(iv) whether the Competitive Bid Quotes requested are to set forth a
Competitive Bid Margin or a Competitive Bid Absolute Rate.
The Borrower may request offers to make Competitive Bid Loans for more than
one Interest Period in a single Competitive Bid Quote Request. No Competitive
Bid Quote Request shall be given within five Business Days (or such other number
of days as the Borrower and the Administrative Agent may agree) of any other
Competitive Bid Quote Request.
(c) Invitation for Competitive Bid Quotes. Promptly upon receipt of a
Competitive Bid Quote Request, the Administrative Agent shall send to the
Lenders an Invitation for Competitive Bid Quotes substantially in the form of
Exhibit C hereto, which shall constitute an invitation by the Borrower to each
Lender to submit Competitive Bid Quotes offering to make the Competitive Bid
Loans to which such Competitive Bid Quote Request relates in accordance with
this Section.
(d) Submission and Contents of Competitive Bid Quotes. (i) Each Lender may
submit a Competitive Bid Quote containing an offer or offers to make Competitive
Bid Loans in response to any Invitation for Competitive Bid Quotes. Each
Competitive Bid Quote must comply with the requirements of this subsection (d)
and must be submitted to the Administrative Agent at its offices specified in or
pursuant to Section 9.01 not later than (x) 2:00 P.M. (Prevailing Eastern Time)
on the fourth Business Day prior to the proposed date of Borrowing, in the case
of a LIBOR Auction or (y) 10:00 A.M. (Prevailing Eastern Time) on the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Lenders not later than the date
of the Competitive Bid Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective); provided that
Competitive Bid Quotes submitted by the Administrative Agent (or any affiliate
of the Administrative Agent) in the capacity of a Lender may be submitted, and
may only be submitted, if the Administrative Agent or such affiliate notifies
the Borrower of the terms of the offer or offers contained therein not later
than (x) one hour prior to the deadline for the other Lenders, in the case of a
LIBOR Auction or (y) 15 minutes prior to the deadline for the other Lenders, in
the case of an Absolute Rate Auction. Subject to Articles 3 and 7, any
Competitive Bid Quote so made shall be irrevocable except with the written
consent of the Administrative Agent given on the instructions of the Borrower.
(ii) Each Competitive Bid Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount (w) may be greater than
or less than the Commitment of the quoting Lender, (x) must be $5,000,000 or a
larger multiple of $1,000,000, (y) may not exceed the principal amount of
Competitive Bid Loans for which offers were requested and (z) may be subject to
an aggregate limitation as to the principal amount of Competitive Bid Loans for
which offers being made by such quoting Lender may be accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Competitive Bid Margin") offered
for each such Competitive Bid Loan, expressed as a percentage (specified to the
nearest 1/10,000th of 1%) to be added to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Competitive Bid
Absolute Rate") offered for each such Competitive Bid Loan, and
(E) the identity of the quoting Lender.
A Competitive Bid Quote may set forth up to five separate offers by the
quoting Lender with respect to each Interest Period specified in the related
Invitation for Competitive Bid Quotes.
(iii) Any Competitive Bid Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or
does not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth
in the applicable Invitation for Competitive Bid Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly notify the
Borrower of the terms (x) of any Competitive Bid Quote submitted by a Lender
that is in accordance with subsection (d) and (y) of any Competitive Bid Quote
that amends, modifies or is otherwise inconsistent with a previous Competitive
Bid Quote submitted by such Lender with respect to the same Competitive Bid
Quote Request. The Administrative Agent shall disregard any such subsequent
Competitive Bid Quote unless such subsequent Competitive Bid Quote is submitted
solely to correct a manifest error in such former Competitive Bid Quote. The
Administrative Agent's notice to the Borrower shall specify (A) the aggregate
principal amount of Competitive Bid Loans for which offers have been received
for each Interest Period specified in the related Competitive Bid Quote Request,
(B) the respective principal amounts and Competitive Bid Margins or Competitive
Bid Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Competitive Bid Loans for which
offers in any single Competitive Bid Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 11:00 A.M. (Prevailing
Eastern Time) on (x) the third Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) the proposed date of Borrowing,
in the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Borrower and the Administrative Agent shall have mutually agreed and
shall have notified to the Lenders not later than the date of the Competitive
Bid Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective), the Borrower shall notify the Administrative
Agent of its acceptance or non-acceptance of the offers so notified to it
pursuant to subsection (e). In the case of acceptance, such notice (a "Notice
of Competitive Bid Borrowing") shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The Borrower may accept any
Competitive Bid Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Competitive Bid Borrowing
may not exceed the applicable amount set forth in the related Competitive Bid
Quote Request,
(ii) the principal amount of each Competitive Bid Borrowing must be
$5,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of ascending
Competitive Bid Margins or Competitive Bid Absolute Rates, as the case may be,
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the requirements of
this Agreement; and
(v) immediately after such Competitive Bid Borrowing is made, the Total
Outstanding Amount shall not exceed the aggregate amount of the Commitments.
(g) Allocation by Administrative Agent. If offers are made by two or more
Lenders with the same Competitive Bid Margins or Competitive Bid Absolute Rates,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Lenders as
nearly as possible (in multiples of $1,000,000, as the Administrative Agent may
deem appropriate) in proportion to the aggregate principal amounts of such
offers. Determinations by the Administrative Agent of the amounts of
Competitive Bid Loans shall be conclusive in the absence of manifest error.
Section 2.04. Notice to Lenders; Funding of Loans. (a) Upon receipt of a
Notice of Borrowing, the Administrative Agent shall promptly notify each Lender
of the contents thereof and of such Lender's share (if any) of such Borrowing
and such Notice of Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 2:00 P.M. (Prevailing Eastern Time) on the date of each
Borrowing, each Lender participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the
Administrative Agent at its address referred to in Section 9.01. Unless the
Administrative Agent determines that any applicable condition specified in
Article 3 has not been satisfied, the Administrative Agent will make the funds
so received from the Lenders available to the Borrower at the Administrative
Agent's aforesaid address.
(c) If any Lender makes a new Loan hereunder on a day on which the Borrower
is to repay all or any part of an outstanding Loan from such Lender, such Lender
shall apply the proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount being borrowed and
the amount being repaid shall be made available by such Lender to the
Administrative Agent as provided in subsection (b), or remitted by the Borrower
to the Administrative Agent as provided in Section 2.13, as the case may be.
(d) Unless the Administrative Agent shall have received notice from a Lender
prior to the date of any Borrowing that such Lender will not make available to
the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the date of such Borrowing in accordance with
subsections (b) and (c) 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 Lender shall not have so
made such share available to the Administrative Agent, such Lender and the
Borrower severally agree 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 (i) in the case of the
Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the
interest rate applicable thereto pursuant to Section 2.07 or (ii) in the case of
such Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Loan included in such Borrowing for purposes of this
Agreement.
Section 2.05. Maturity of Loans. (a) Each Committed Loan shall mature, and
the principal amount thereof shall be due and payable (together with accrued
interest thereon), on the Termination Date.
(b) Each Competitive Bid Loan included in any Competitive Bid Borrowing shall
mature, and the principal amount thereof shall be due and payable (together with
accrued interest thereon), on the last day of the Interest Period applicable to
such Borrowing.
Section 2.06. 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 Base Rate
for such day. Such interest shall be payable quarterly in arrears on each
Quarterly Payment 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 Base Rate for such day.
(b) Each Eurodollar Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the Eurodollar Margin for such day plus the
Adjusted LIBO Rate applicable to such Interest Period. 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.
"Adjusted LIBO Rate" means, with respect to any Group of Eurodollar Loans
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the London Interbank Offered
Rate for such Interest Period multiplied by (b) the Statutory Reserve
Adjustment.
"London Interbank Offered Rate" applicable to any Interest Period means the
rate per annum equal to the British Bankers Association LIBOR Rate ("BBA LIBOR")
from Telerate Successor Page 3750, as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 A.M., London
time, two Business Days prior to the commencement of such Interest Period, as
the rate for dollar deposits with a maturity comparable to such Interest Period.
In the event that such rate is not available at such time for any reason, then
the "London Interbank Offered Rate" applicable to such Interest Period shall be
the rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 A.M., London time, two Business Days prior to the
commencement of such Interest Period.
(c) 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 higher of (i) the sum of the Eurodollar Margin
for such day plus the Adjusted LIBO Rate applicable to such Loan on the day
before such payment was due and (ii) the Eurodollar Margin for such day plus the
result obtained (rounded upward, if necessary, to the next higher 1/100 of 1%)
by multiplying (x) the rate per annum at which one day (or, if such amount due
remains unpaid more than three Business Days, then for such other period of time
not longer than six months as the Administrative Agent may select) deposits in
dollars in an amount approximately equal to such overdue payment are offered by
the principal London office of the Administrative Agent in the London interbank
market for the applicable period determined as heretofore provided by (y) the
Statutory Reserve Adjustment (or, if the circumstances described in Section 2.19
shall exist, at a rate per annum equal to the sum of 2% plus the Base Rate for
such day).
(d) Subject to Section 2.19, each Competitive Bid LIBOR 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 London Interbank
Offered Rate for such Interest Period (determined in accordance with Section
2.07(b) as if the related Competitive Bid LIBOR Borrowing were a Eurodollar
Borrowing) plus (or minus) the Competitive Bid Margin quoted by the Lender
making such Loan in accordance with Section 2.03. Each Competitive Bid Absolute
Rate Loan shall bear interest on the outstanding principal amount thereof, for
the Interest Period applicable thereto, at a rate per annum equal to the
Competitive Bid Absolute Rate quoted by the Lender making such Loan in
accordance with Section 2.03. 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. Any overdue
principal of or interest on any Competitive Bid 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 Base Rate for such day.
(e) 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 Lenders of each rate of interest so determined,
and its determination thereof shall be conclusive in the absence of manifest
error.
Section 2.07. Method of Electing Interest Rates. (a) The Loans included in
each Committed Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Committed Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject to Section 2.07(d)
and Section 2.19), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Eurodollar Loans as of any Business Day; and
(ii) if such Loans are Eurodollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans as of any Business Day or to continue
such Loans as Eurodollar Loans for an additional Interest Period, subject to
Section 2.21 if any such conversion is effective on any day other than the last
day of an Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of
Interest Rate Election") to the Administrative Agent not later than 11:00 A.M.
(Prevailing Eastern Time) on the third Business Day before the conversion or
continuation selected in such notice is to be effective. A Notice of Interest
Rate Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans; provided that (i) such portion
is allocated ratably among the Loans comprising such Group and (ii) the portion
to which such Notice applies, and the remaining portion to which it does not
apply, are each at least $5,000,000 (unless such portion is comprised of Base
Rate Loans). If no such notice is timely received before the end of an Interest
Period for any Group of Eurodollar Loans, the Borrower shall be deemed to have
elected that such Group of Loans be converted to Base Rate Loans at the end of
such Interest Period.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable clause of
Section 2.07(a);
(iii) if the Loans comprising such Group are to be converted, the new
type of Loans and, if the Loans resulting from such conversion are to be
Eurodollar Loans, the duration of the next succeeding Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as Eurodollar Loans for an
additional Interest Period, the duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Promptly after receiving a Notice of Interest Rate Election from the
Borrower pursuant to Section 2.07(a), the Administrative Agent shall notify each
Lender of the contents thereof and such notice shall not thereafter be revocable
by the Borrower.
(d) The Borrower shall not be entitled to elect to convert any Committed
Loans to, or continue any Committed Loans for an additional Interest Period as,
Eurodollar Loans if (i) the aggregate principal amount of any Group of
Eurodollar Loans created or continued as a result of such election would be less
than $5,000,000 or (ii) a Default shall have occurred and be continuing when the
Borrower delivers notice of such election to the Administrative Agent.
(e) If any Committed Loan is converted to a different type of Loan, the
Borrower shall pay, on the date of such conversion, the interest accrued to such
date on the principal amount being converted.
(f) A conversion or continuation pursuant to this Section 2.07 is not a
Borrowing.
Section 2.08. Fees. (a) Facility Fee. The Borrower shall pay to the
Administrative Agent for the account of the Lenders ratably in proportion to
their Credit Exposures a facility fee calculated for each day at the Facility
Fee Rate on the aggregate amount of the Credit Exposures on such day. Such
facility fee shall accrue for the account of each Lender from and including the
Effective Date to but excluding the Termination Date (or, if later, the date on
which the aggregate amount of the Credit Exposures is reduced to zero).
(b) Letter of Credit Fees. The Borrower shall pay (i) to the Administrative
Agent for the account of the Lenders ratably a letter of credit fee accruing
daily on the aggregate undrawn amount of all outstanding Letters of Credit at a
rate per annum equal to the Eurodollar Margin for such day and (ii) to each LC
Issuing Bank for its own account, a letter of credit fronting fee accruing daily
on the aggregate amount then available for drawing under all Letters of Credit
issued by such LC Issuing Bank at such rate as may be mutually agreed between
the Borrower and such LC Issuing Bank from time to time.
(c) Payments. Accrued fees under this Section shall be payable quarterly in
arrears on each Quarterly Payment Date, commencing on the first such date to
occur after the date hereof, and upon the date of termination of the Commitments
in their entirety (or, if later, the date on which the aggregate amount of the
Credit Exposures is reduced to zero).
Section 2.09. Optional Termination or Reduction of Commitments. (a) The
Borrower may, upon at least three Business Days' notice to the Administrative
Agent, (i) terminate the Commitments at any time, if no Loans or Letter of
Credit Liabilities are outstanding at such time or (ii) ratably reduce from time
to time by an aggregate amount of $5,000,000 or any larger multiple of
$1,000,000, the aggregate amount of the Commitments in excess of the Total
Outstanding Amount.
(b) Promptly after receiving a notice of termination or reduction pursuant to
this Section, the Administrative Agent shall notify each Lender of the contents
thereof and of such Lender's ratable share of any such reduction, and such
notice shall not thereafter be revocable by the Borrower.
Section 2.10. Scheduled Termination of Commitments. Unless previously
terminated, the Commitments shall terminate on the Termination Date.
Section 2.11. Optional Prepayments. (a) Subject in the case of any Group
of Eurodollar Loans to Section 2.21, the Borrower may, upon at least one
Business Day's notice to the Administrative Agent, prepay any Group of Base
Rate Loans (or any Competitive Bid Borrowing bearing interest at the Base Rate
pursuant to Section 2.19) or upon at least three Business Days' notice to the
Administrative Agent, prepay any Group of Eurodollar Loans, in each case in
whole at any time, or from time to time in part in amounts aggregating
$5,000,000 or any larger multiple of $1,000,000, by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
Each such optional prepayment shall be applied to prepay ratably the Loans of
the several Lenders included in such Group.
(b) Except with the consent of the Lender making such Loan, the Borrower may
not prepay all or any portion of the principal amount of any Competitive Bid
Loan (other than a Competitive Bid Loan that bears interest at the Base Rate)
prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Lender of the contents thereof
and of such Lender's ratable share (if any) of such prepayment and such notice
shall not thereafter be revocable by the Borrower.
Section 2.12. Reserved.
Section 2.13. 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 2.14. Reserved.
Section 2.15. Increased Commitments; Additional Lenders. (a) From time to
time subsequent to the Effective Date, the Borrower may, upon at least 30 days'
notice to the Administrative Agent (which shall promptly provide a copy of such
notice to the Lenders), propose to increase the aggregate amount of the
Commitments by an amount not to exceed $200,000,000 (the amount of any such
increase, the "Increased Commitments"). Each Lender party to this Agreement at
such time shall have the right (but no obligation), for a period of 15 days
following receipt of such notice, to elect by notice to the Borrower and the
Administrative Agent to increase its Commitment by a principal amount which
bears the same ratio to the Increased Commitments as its then Commitment bears
to the aggregate Commitments then existing. The failure of a Lender to respond
to the Borrower's request for an increase shall be deemed a rejection of the
Borrower's request by such Lender.
(b) If any Lender party to this Agreement shall not elect to increase its
Commitment pursuant to subsection (a) of this Section, the Borrower may, within
10 days of the Lender's response (or deemed response), designate one or more of
the existing Lenders or other financial institutions acceptable to the
Administrative Agent and the Borrower (which consent of the Administrative Agent
shall not be unreasonably withheld or delayed) which at the time agree to (i) in
the case of any such Person that is an existing Lender, increase its Commitment
and (ii) in the case of any other such Person (an "Additional Lender"), become a
party to this Agreement. The sum of the increases in the Commitments of the
existing Lenders pursuant to this subsection (b) plus the Commitments of the
Additional Lenders shall not in the aggregate exceed the unsubscribed amount of
the Increased Commitments.
(c) Any increase in the Commitments pursuant to this Section 2.15 shall be
subject to satisfaction of the following conditions:
(i) immediately before and after giving effect to such increase, all
representations and warranties contained in Article 3 shall be true;
(ii) immediately before and after giving effect to such increase, no
Default shall have occurred and be continuing; and
(iii) after giving effect to such increase, the aggregate amount of all
increases in Commitments made pursuant to this Section 2.15 shall not exceed
$200,000,000.
(d) An increase in the aggregate amount of the Commitments pursuant to this
Section 2.15 shall become effective upon the receipt by the Administrative Agent
of an agreement in form and substance reasonably satisfactory to the
Administrative Agent signed by the Borrower, by each Additional Lender and by
each other Lender whose Commitment is to be increased, setting forth the new
Commitments of such Lenders and setting forth the agreement of each Additional
Lender to become a party to this Agreement and to be bound by all the terms and
provisions hereof, together with such evidence of appropriate corporate
authorization on the part of the Borrower with respect to the Increased
Commitments and such opinions of counsel for the Borrower with respect to the
Increased Commitments as the Administrative Agent may reasonably request.
(e) Upon any increase in the aggregate amount of the Commitments pursuant to
this Section 2.15 that is not pro rata among all Lenders, (x) within five
Business Days, in the case of any Group of Base Rate Loans then outstanding, and
at the end of the then current Interest Period with respect thereto, in the case
of any Group of Eurodollar Loans then outstanding, the Borrower shall prepay
such Group in its entirety and, to the extent the Borrower elects to do so and
subject to the conditions specified in Article 4, the Borrower shall reborrow
Committed Loans from the Lenders in proportion to their respective Commitments
after giving effect to such increase, until such time as all outstanding
Committed Loans are held by the Lenders in such proportion and (y) effective
upon such increase, the amount of the participations held by each Lender in each
Letter of Credit then outstanding shall be adjusted such that, after giving
effect to such adjustments, the Lenders shall hold participations in each such
Letter of Credit in the proportion its respective Commitment bears to the
aggregate Commitments after giving effect to such increase.
Section 2.16. Letters of Credit. (a) General.
On the Effective Date, the LC Issuing Bank shall be deemed, without further
action by any party hereto, to have sold to each of the Lenders, and each of the
Lenders shall be deemed, without further action by any party hereto, to have
purchased from the LC Issuing Bank, a participation (on the terms specified in
this Section) in each Existing Letter of Credit equal to such Lender's
Percentage thereof. Concurrently with such sale, the participations sold to the
Existing Lenders pursuant to the terms of the Existing Credit Agreement shall be
automatically cancelled without further action by any of the parties hereto.
Each Lender acknowledges and agrees that its obligation to acquire
participations in Existing Letters of Credit pursuant to this subsection is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each payment by a Lender to acquire
such participations shall be made without any offset, abatement, withholding or
reduction whatsoever. Subject to the terms and conditions set forth herein, the
Borrower may request the issuance of Letters of Credit for its own account, in a
form reasonably acceptable to the Administrative Agent and the LC Issuing Bank,
from time to time during the Revolving Credit Period. If the terms and
conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the LC
Issuing Bank relating to any Letter of Credit are not consistent with the terms
and conditions of this Agreement, the terms and conditions of this Agreement
shall control.
(b) Notice of Issuance, Amendment, Renewal or Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by the LC Issuing Bank) to the LC Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the requested date of issuance, amendment, renewal or extension
(which shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with Section 2.16(c)), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the LC Issuing Bank, the Borrower also shall submit
a letter of credit application on the LC Issuing Bank's standard form (with such
changes as are agreed by such LC Issuing Bank and the Borrower) in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension, (i) the LC Exposure will not exceed $300,000,000 and (ii) the Total
Outstanding Amount will not exceed the aggregate amount of the Commitments then
in effect.
(c) Expiration Date. Each Letter of Credit shall expire at or before the
close of business on the earlier of (i) the date that is one year after such
Letter of Credit is issued (or, in the case of any renewal or extension thereof,
one year after such renewal or extension) and (ii) the date that is five
Business Days before the Termination Date; provided that a Letter of Credit may
have an expiry date later than that otherwise permitted by this clause (ii) so
long as all LC Exposures with respect to such Letter of Credit are cash
collateralized not later than the fifth Business Day prior to the Termination
Date in the manner specified in subsection (j).
(d) Participations. Effective upon the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the LC Issuing Bank or the Lenders, the LC Issuing
Bank grants to each Lender, and each Lender acquires from the LC Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Percentage of the
aggregate amount available to be drawn thereunder. Pursuant to such
participations, each Lender agrees to pay to the Administrative Agent, for the
account of the LC Issuing Bank, such Lender's Percentage of (i) each LC
Disbursement made by the LC Issuing Bank and not reimbursed by the Borrower on
the date due as provided in Section 2.16(e) and (ii) any reimbursement payment
required to be refunded to the Borrower for any reason. Each Lender's
obligation to acquire participations and make payments pursuant to this
subsection is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or any reduction
or termination of the Commitments, and each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the LC Issuing Bank makes any LC Disbursement under a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying an
amount equal to such LC Disbursement to the Administrative Agent not later than
2:00 P.M. (Prevailing Eastern Time) on the day that such LC Disbursement is
made, if the Borrower receives notice of such LC Disbursement before 10:00 A.M.,
Prevailing Eastern Time, on such day, or, if such notice has not been received
by the Borrower before such time on such day, then not later than Noon
(Prevailing Eastern Time) on (i) the Business Day that the Borrower receives
such notice, if such notice is received before 10:00 A.M. (Prevailing Eastern
Time) on the day of receipt, or (ii) the next Business Day, if such notice is
not received before such time on the day of receipt; provided that, if such LC
Disbursement is at least $500,000, the Borrower may, subject to the conditions
to borrowing set forth herein, request that such payment be made with the
proceeds of a Base Rate Borrowing in an equivalent amount and, to the extent so
financed, the Borrower's obligation to make such payment shall be discharged and
replaced by the resulting Base Rate Borrowing. If the Borrower fails to make
such payment when due, the Administrative Agent shall notify each Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender's Percentage thereof. Promptly after it receives such
notice, each Lender shall pay to the Administrative Agent its Percentage of the
payment then due from the Borrower, in the same manner as is provided in Section
2.04 with respect to Loans made by such Lender (and Section 2.04(d) shall apply,
mutatis mutandis, to such payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the LC Issuing Bank the amounts so
received by it from the Lenders. If a Lender makes a payment pursuant to this
subsection to reimburse the LC Issuing Bank for any LC Disbursement (other than
by funding Base Rate Loans as heretofore contemplated), (i) such payment will
not constitute a Loan and will not relieve the Borrower of its obligation to
reimburse such LC Disbursement and (ii) such Lender will be subrogated to its
pro rata share of the LC Issuing Bank's claim against the Borrower for such
reimbursement. Promptly after the Administrative Agent receives any payment
from the Borrower pursuant to this subsection, the Administrative Agent will
distribute such payment to the LC Issuing Bank or, if Lenders have made payments
pursuant to this subsection to reimburse the LC Issuing Bank, then to such
Lenders and the LC Issuing Bank as their interests may appear.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in Section 2.16(e) shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective of
(i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the LC Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of
such Letter of Credit, or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. None
of the Administrative Agent, the Lenders, the LC Issuing Bank and their
respective Related Parties shall have any liability or responsibility by reason
of or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
LC Issuing Bank; provided that the foregoing shall not excuse the LC Issuing
Bank from liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the LC Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. In the absence of gross negligence or
willful misconduct on the part of the LC Issuing Bank (as finally determined by
a court of competent jurisdiction), the LC Issuing Bank shall be deemed to have
exercised care in each such determination. Without limiting the generality of
the foregoing, the parties agree that, with respect to documents presented which
appear on their face to be in substantial compliance with the terms of a Letter
of Credit, the LC Issuing Bank may, in its sole discretion, either (A) accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or (B)
refuse to accept and make payment upon such documents if such documents do not
strictly comply with the terms of such Letter of Credit.
(g) Disbursement Procedures. The LC Issuing Bank shall, promptly after its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The LC Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of
such demand for payment and whether the LC Issuing Bank has made or will make an
LC Disbursement pursuant thereto; provided that any failure to give or delay in
giving such notice will not relieve the Borrower of its obligation to reimburse
the LC Issuing Bank and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest. Unless the Borrower reimburses an LC Disbursement in
full on the day it is made, the unpaid amount thereof shall bear interest, for
each day from and including the day on which such LC Disbursement is made to but
excluding the day on which the Borrower reimburses such LC Disbursement, at the
rate per annum then applicable to Base Rate Loans; provided that, if the
Borrower fails to reimburse such LC Disbursement when due pursuant to Section
2.16(e), then such amount shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 2% plus the Base Rate for
such day. Interest accrued pursuant to this subsection shall be for the account
of the LC Issuing Bank, except that a pro rata share of interest accrued on and
after the day that any Lender reimburses the LC Issuing Bank for a portion of
such LC Disbursement pursuant to Section 2.16(e) shall be for the account of
such Lender.
(i) Replacement of LC Issuing Bank. The LC Issuing Bank may be replaced at
any time by written agreement among the Borrower, the Administrative Agent, the
replaced LC Issuing Bank and the successor LC Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement. At the time any such
replacement becomes effective, the Borrower shall pay all unpaid fees accrued
for the account of the replaced LC Issuing Bank pursuant to Section 2.08(b). On
and after the effective date of any such replacement, (i) the successor LC
Issuing Bank will have all the rights and obligations of the LC Issuing Bank
under this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term "LC Issuing Bank" will be deemed to refer
to such successor or to any previous LC Issuing Bank, or to such successor and
all previous LC Issuing Banks, as the context shall require. After an LC
Issuing Bank is replaced, it will remain a party hereto and will continue to
have all the rights and obligations of an LC Issuing Bank under this Agreement
with respect to Letters of Credit issued by it before such replacement, but will
not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If an Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposures representing more than 50% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
subsection, the Borrower shall deposit in a Cash Collateral Account an amount in
cash equal to 102% of the total LC Exposure as of such date plus any accrued and
unpaid interest thereon; provided that the obligation to deposit such cash
collateral will become effective immediately, and such deposit will become
immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower described in
clause (h) or (i) of Article 7. Any amount so deposited (including any earnings
thereon) will be withdrawn from the Borrower's Cash Collateral Account by the
Administrative Agent and applied to pay LC Reimbursement Obligations as they
become due; provided that if at any time all Events of Default have been cured
or waived, such amount, to the extent not theretofore so applied, will be
returned to the Borrower upon its request.
Section 2.17. Evidence of Debt.
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time.
(b) The Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder, the type thereof and each Interest
Period (if any) applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to subsections (b)
and (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that any failure by any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not affect the Borrower's obligation to repay the Loans in
accordance with the terms of this Agreement.
(d) Any Lender may request that Loans made by it be evidenced by one or more
promissory notes. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note(s) payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by such promissory note(s) and interest thereon shall at all times (including
after assignment pursuant to Section 9.04) be represented by one or more
promissory notes in such form payable to the order of the payee named therein
(or, if such promissory note is a registered note, to such payee and its
registered assigns).
Section 2.18. Change in Control. (a) If a Change in Control of
the Borrower shall occur, the Borrower will, within one Business Day
after the occurrence thereof, give the Administrative Agent notice thereof,
and the Administrative Agent shall promptly notify each Lender thereof. Such
notice shall describe in reasonable detail the facts and circumstances giving
rise thereto and the date of such Change in Control and each Lender may, by
notice to the Borrower and the Administrative Agent (a "Termination Notice")
given not later than ten days after the date of such Change in Control,
terminate its Commitment, which shall be terminated, and declare any Loans held
by it (together with accrued interest thereon) and any other amounts payable
hereunder for its account to be, and such Loans and such amounts shall become,
due and payable, in each case on the day following delivery of such Termination
Notice (or if such day is not a Business Day, the next succeeding Business Day),
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
(b) If the Commitment of any Lender is terminated pursuant to this Section
at a time when any Letter of Credit is outstanding, then (i) such Lender shall
remain responsible to the LC Issuing Bank with respect to such Letter of Credit
to the same extent as if its Commitment had not terminated and (ii) the Borrower
shall pay to such Lender an amount in immediately available funds (which funds
shall be held as collateral pursuant to arrangements satisfactory to such
Lender) equal to such Lender's Percentage of the aggregate amount available for
drawing under all Letters of Credit outstanding at such time.
Section 2.19. Alternate Rate of Interest. If before the beginning of any
Interest Period for a Eurodollar Borrowing or a Competitive Bid LIBOR Borrowing:
(i) deposits in dollars in the applicable amounts are not being
offered by the Administrative Agent in the London interbank market for such
Interest Period; or
(ii) in the case of a Eurodollar Borrowing, Lenders having 50% or more
of the aggregate principal amount of the Loans to be included in such Borrowing
advise the Administrative Agent that the Adjusted LIBO Rate for such Interest
Period will not adequately and fairly reflect the cost to such Lenders of making
or maintaining such Loans for such Interest Period;
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Lenders, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Lenders to make Eurodollar Loans, or to continue to convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) each
outstanding Eurodollar Loan shall be converted into a Base Rate Loan on the last
day of the then current Interest Period applicable thereto. Unless the Borrower
notifies the Administrative Agent at least two Business Days before the date of
any affected Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, (i) if such affected Borrowing is a
Eurodollar Borrowing, such Borrowing shall instead be made as a Base Rate
Borrowing and (ii) if such affected Borrowing is a Competitive Bid LIBOR
Borrowing, the Competitive Bid LIBOR Loans comprising such Borrowing shall bear
interest for each day from and including the first day to but excluding the last
day of the Interest Period applicable thereto at the Base Rate for such day.
Section 2.20. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender (except any such reserve requirement reflected in
the Adjusted LIBO Rate) or the LC Issuing Bank; or
(ii) impose on any Lender or the LC Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans made by
such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make Eurodollar Loans) or to increase the cost to such Lender or
the LC Issuing Bank of participating in, issuing or maintaining any Letter of
Credit or to reduce any amount received or receivable by such Lender or the LC
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower shall pay to such Lender or the LC Issuing Bank, as the case may be,
such additional amount or amounts as will compensate it for such additional cost
incurred or reduction suffered.
(b) If any Lender or the LC Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the LC Issuing Bank's capital or on the capital of
such Lender's or the LC Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the LC Issuing Bank, to
a level below that which such Lender or the LC Issuing Bank or such Lender's or
the LC Issuing Bank's holding company could have achieved but for such Change in
Law (taking into consideration such Lender's or the LC Issuing Bank's policies
and the policies of such Lender's or the LC Issuing Bank's holding company with
respect to capital adequacy), then from time to time following receipt of the
certificate referred to in subsection (c) of this Section, the Borrower shall
pay to such Lender or the LC Issuing Bank, as the case may be, such additional
amount or amounts as will compensate it or its holding company for any such
reduction suffered.
(c) A certificate of a Lender or the LC Issuing Bank setting forth the amount
or amounts necessary to compensate it or its holding company, as the case may
be, as specified in subsection (a) or (b) of this Section shall be delivered to
the Borrower and shall be conclusive absent manifest error. Each such
certificate shall contain a representation and warranty on the part of the
Lender to the effect that such Lender has complied with its obligations pursuant
to Section 2.24 hereof in an effort to eliminate or reduce such amount. The
Borrower shall pay such Lender or the LC Issuing Bank, as the case may be, the
amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Failure or delay by any Lender or the LC Issuing Bank to demand
compensation pursuant to this Section will not constitute a waiver of its right
to demand such compensation; provided that the Borrower will not be required to
compensate a Lender or the LC Issuing Bank pursuant to this Section for any
increased cost or reduction incurred more than 180 days before it notifies the
Borrower of the Change in Law giving rise to such increased cost or reduction
and of its intention to claim compensation therefor. However, if the Change in
Law giving rise to such increased cost or reduction is retroactive, then the
180-day period heretofore referred to will be extended to include the period of
retroactive effect thereof.
Section 2.21. Break Funding Payments. If (a) any principal of any
Eurodollar Loan is repaid on a day other than the last day of an Interest
Period applicable thereto (including as a result of an Event of Default or
a Change in Control), (b) any Eurodollar Loan is converted on a day other
than the last day of an Interest Period applicable thereto, (c) the Borrower
fails to borrow, convert, continue or prepay any Committed Loan on the date
specified in any notice delivered pursuant hereto, or (d) any Eurodollar
Loan is assigned on a day other than the last day of an Interest Period
applicable thereto as a result of a request by the Borrower pursuant to Section
2.24, then the Borrower shall compensate each Lender for its loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost and expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest that would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable to
such Loan, for the period from the date of such event to the end of the then
current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have begun on the date of
such failure), over (ii) the amount of interest that would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the beginning of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
Section 2.22. Taxes. (a) All payments by the Borrower under the Loan
Documents shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that, if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable will be increased as necessary so that, after
all required deductions (including deductions applicable to additional
sums payable under this Section) are made, each relevant Lender Party receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify each Lender Party, within 10 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by such Lender Party with respect to any payment by or obligation of
the Borrower under the Loan Documents (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of any such payment delivered to the
Borrower by a Lender Party on its own behalf, or by the Administrative Agent on
behalf of a Lender Party, shall be conclusive absent manifest error. If the
Borrower has indemnified any Lender Party pursuant to this Section 2.22(c), such
Lender Party shall take such steps as the Borrower shall reasonably request (at
the Borrower's expense) to assist the Borrower in recovering the Indemnified
Taxes or Other Taxes and any penalties or interest attributable thereto;
provided that no Lender Party shall be required to take any action pursuant to
this Section 2.22(c) unless, in the judgment of such Lender Party, such action
(i) would not subject such Lender Party to any unreimbursed cost or expense and
(ii) would not otherwise be disadvantageous to such Lender Party.
(d) As soon as practicable after the Borrower pays any Indemnified Taxes or
Other Taxes to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the laws of the United States, or any treaty to which the
United States is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate. If any such Foreign Lender becomes subject to any Tax because it
fails to comply with this subsection as and when prescribed by applicable law,
the Borrower shall take such steps (at such Foreign Lender's expense) as such
Foreign Lender shall reasonably request to assist such Foreign Lender to recover
such Tax.
Section 2.23. Payments Generally; Pro Rata Treatment; Sharing of Set-Offs.
(a) The Borrower shall make each payment required to be made by it under the
Loan Documents (whether of principal, interest or fees, or reimbursement of
LC Disbursements, or amounts payable under Section 2.20, 2.21 or 2.22(c)
or otherwise) before the time expressly required under the relevant
Loan Document for such payment (or, if no such time is expressly required,
before 2:00 P.M. (Prevailing Eastern Time)), on the date when due, in
immediately available funds, without set-off or counterclaim. Any amount
received after such time on any day may, in the discretion of the Administrative
Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to
the Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
except payments to be made directly to the LC Issuing Bank as expressly provided
herein and except that payments pursuant to Sections 2.20, 2.21, 2.22 and 9.03
shall be made directly to the Persons entitled thereto and payments pursuant to
other Loan Documents shall be made to the Persons specified therein. The
Administrative Agent shall distribute any such payment received by it for the
account of any other Person to the appropriate recipient promptly after receipt
thereof. Whenever any payment of principal of, or interest on, Base Rate Loans
or Competitive Bid Absolute Rate Loans or of fees shall be due on a day that is
not a Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day. Whenever any payment of principal of, or interest on,
Eurodollar Loans or Competitive Bid LIBOR Loans shall be due on a day which is
not a Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day unless such Business Day falls in another calendar
month, in which case the date for payment thereof shall be the next preceding
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.
All payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, to pay interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, to pay principal and unreimbursed LC
Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any
of its Loans or any of its participations in LC Disbursements resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its
Loans and participations in LC Disbursements and accrued interest thereon than
the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans and participations in LC Disbursements of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and participations in LC
Disbursements; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this subsection
shall not apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this subsection shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless, before the date on which any payment is due to the Administrative
Agent for the account of one or more Lender Parties hereunder, the
Administrative Agent receives from the Borrower notice that the Borrower will
not make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance on
such assumption, distribute to each relevant Lender Party the amount due to it.
In such event, if the Borrower has not in fact made such payment, each Lender
Party severally agrees to repay to the Administrative Agent forthwith on demand
the amount so distributed to such Lender Party with interest thereon, for each
day from and including the day such amount is distributed to it to but excluding
the day it repays the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender fails to make any payment required to be made by it to the
Administrative Agent or the LC Issuing Bank pursuant to this Agreement, the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such obligations until all such
unsatisfied obligations are fully paid.
Section 2.24. Lender's Obligation to Mitigate; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.20, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.22, then such
Lender shall use all commercially reasonable efforts to mitigate or eliminate
the amount of such compensation or additional amount, including by designating
a different lending office for funding or booking its Loans hereunder or by
assigning its rights and obligations hereunder to another of its offices,
branches or affiliates; provided that no Lender shall be required to take
any action pursuant to this Section 2.24(a) unless, in the judgment of such
Lender, such designation or assignment or other action (i) would eliminate or
reduce amounts payable pursuant to Section 2.20 or 2.22, as the case may be, in
the future, (ii) would not subject such Lender to any unreimbursed cost or
expense and (iii) would not otherwise be disadvantageous to such Lender. The
Borrower shall pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.20, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.22,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all
its interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent (and, if a Commitment is being
assigned, the LC Issuing Bank), which consents shall not unreasonably be
withheld or delayed, (ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and participations in LC
Disbursements, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.20 or payments required to be made
pursuant to Section 2.22, such assignment will result in a material reduction in
such compensation or payments. A Lender shall not be required to make any such
assignment if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
cease to apply.
ARTICLE 3
Representations and Warranties
The Borrower represents and warrants to the Lender Parties that:
Section 3.01. Organization; Powers. The Borrower and each of its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted, except in the case of
Subsidiaries to an extent that, in the aggregate, would not reasonably be
expected to result in a Material Adverse Change.
Section 3.02. Authorization; Enforceability. The Financing Transactions
to be entered into by the Borrower are within its corporate powers and have been
duly authorized by all necessary corporate action. This Agreement has been duly
executed and delivered by the Borrower and constitutes, and each other Loan
Document to which the Borrower is to be a party, when executed and delivered by
the Borrower, will constitute, a legal, valid and binding obligation of the
Borrower, in each case enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
Section 3.03. Governmental Approvals; No Conflicts. The Financing
Transactions (a) do not require any consent or approval of, registration or
filing with, or other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower or any of its
properties, or give rise to a right thereunder to require the Borrower to
make any payment, and (d) will not result in the creation or imposition of
any Lien on any property of the Borrower.
Section 3.04. Financial Statements; No Material Adverse Change. (a)
The Borrower has heretofore furnished to the Lenders the Borrower's 2006
Form 10-K containing the audited consolidated balance sheet of the Borrower
and its Subsidiaries as of December 31, 2006 and the related consolidated
statements of income and cash flows for the Fiscal Year then ended, reported
on by PricewaterhouseCoopers LLP, independent public accountants. Such
financial statements present fairly, in all material respects, the consolidated
financial position of the Borrower and its Subsidiaries as of such date and its
consolidated results of operations and cash flows for such period in accordance
with GAAP.
(b) Except as set forth in the Borrower's 2006 Form 10-K or the Borrower's
Latest Form 10-Q there has been no Material Adverse Change since December 31,
2006.
Section 3.05. Litigation and Environmental Matters. (a) Except as
set forth in the Borrower's 2006 Form 10-K or the Borrower's Latest Form 10-Q,
as filed with the SEC pursuant to the Exchange Act, there is no action,
suit, arbitration proceeding or other proceeding, inquiry or investigation,
at law or in equity, before or by any arbitrator or Governmental Authority
pending against the Borrower or any of its Subsidiaries or of which the
Borrower has otherwise received official notice or which, to the knowledge
of the Borrower, is threatened against the Borrower or any of its Subsidiaries
(i) as to which there is a reasonable possibility of an unfavorable decision,
ruling or finding which would reasonably be expected to result in a Material
Adverse Change or (ii) that involves any of the Loan Documents or the Financing
Transactions.
(b) Except as set forth in the Borrower's 2006 Form 10-K or the Borrower's
Latest Form 10-Q, the Borrower does not presently anticipate that remediation
costs and penalties associated with any Environmental Law, to the extent not
previously provided for, will result in a Material Adverse Change.
Section 3.06. Taxes. Each of the Borrower and its Subsidiaries has filed
or caused to be filed all material tax returns that are required to be filed by
it and has paid all taxes shown to be due and payable on said returns or on any
material assessments made against it or any of its property and all other
material taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any (i) the amount or validity of which
are being contested in good faith by appropriate proceedings and with respect to
which reserves in conformity with GAAP have been provided on the books of the
Borrower and its Subsidiaries or (ii) the failure to pay which would not
reasonably be expected to result in a Material Adverse Change).
Section 3.07. Investment Company Status. The Borrower is not an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
Section 3.08. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other ERISA Events for
which liability is reasonably expected to occur, would reasonably be expected to
result in a Material Adverse Change.
Section 3.09. Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it is
subject, and all other matters known to it, that, individually or in the
aggregate, would reasonably be expected to result in a Material Adverse Change.
All of the reports, financial statements, certificates and other written
information (other than projected financial information) that have been made
available by or on behalf of the Borrower to the Arranger, any Agent or any
Lender in connection with the negotiation of this Agreement or any other Loan
Document or delivered hereunder or thereunder, are complete and correct in all
material respects and do not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
contained therein not materially misleading in light of the circumstances under
which such statements are made; provided that, with respect to projected
financial information, the Borrower represents only that such information was
prepared in good faith based on assumptions believed to be reasonable at the
time.
ARTICLE 4
Conditions
Section 4.01. Effective Date. This Agreement shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
counterparts hereof signed by the Borrower and each of the Lenders listed on the
signature pages hereof (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Administrative Agent
in form satisfactory to it of confirmation from such party that it has executed
a counterpart hereof).
(b) The Administrative Agent shall have received the favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of the General Counsel or an Assistant General Counsel of the
Borrower, (i) which opinion is substantially in the form of Exhibit E and (ii)
covering such other matters relating to the Borrower, the Loan Documents or
the Financing Transactions as the Required Lenders shall reasonably request.
The Borrower requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Borrower, the
authorization for and validity of the Financing Transactions and any other
material legal matters relating to the Borrower, the Loan Documents or the
Financing Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the
Effective Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set forth in
clause (b), (c) and (d) of Section 4.02.
(e) The Borrower shall have paid all fees and other amounts due and payable
to the Lender Parties on or before the Effective Date, including, to the extent
invoiced, all out-of-pocket expenses (including fees, charges and disbursements
of counsel) required to be reimbursed or paid by the Borrower under the Loan
Documents.
(f) The Administrative Agent shall have received evidence satisfactory to it
of the payment of all principal of and interest on any loans outstanding under,
and of all other amounts payable under, the Existing Credit Agreement.
provided that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied not later than
July 2, 2007. The Administrative Agent shall promptly notify the Borrower and
the Lenders of the Effective Date, and such notice shall be conclusive and
binding on all parties hereto.
Section 4.02. Conditions to Initial Utilization and Each Subsequent
Utilization. The obligation of each Lender to make a Loan on the occasion of
any Borrowing (including the initial Borrowing) and the obligation of the LC
Issuing Bank to issue, amend, renew or extend any Letter of Credit (including
the initial Letter of Credit), are each subject to receipt of the Borrower's
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The Effective Date shall have occurred.
(b) Immediately before and after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.
(c) The representations and warranties of the Borrower set forth in the Loan
Documents shall be true on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable.
(d) Immediately after such Borrowing is made, or such Letter of Credit is
issued, amended, renewed or extended, as applicable, the Total Outstanding
Amount will not exceed the aggregate amount of the Commitments.
Each Borrowing and each issuance, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in clauses (b), (c)
and (d) of this Section.
ARTICLE 5
Affirmative Covenants
Until all the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or been cancelled and all LC
Disbursements have been reimbursed, the Borrower covenants and agrees with the
Lenders that:
Section 5.01. Financial Statements and Other Information. (a) The
Borrower will furnish to the Administrative Agent (for delivery to each Lender):
(i) as soon as available and in any event within 90 days after the end
of each Fiscal Year, its audited consolidated balance sheet as of the end of
such Fiscal Year and the related statements of income and cash flows for such
Fiscal Year, setting forth in each case in comparative form the figures for the
previous Fiscal Year, all reported on by PricewaterhouseCoopers LLC or another
"registered public accounting firm" as defined in Section 2 of the Xxxxxxxx-
Xxxxx Act of 2002 (without a "going concern" or like qualification or exception
and without any qualification or exception as to the scope of such audit except
as permitted by the Exchange Act and the regulations promulgated thereunder) as
presenting fairly in all material respects the financial position, results of
operations and cash flows of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP;
(ii) as soon as available and in any event within 45 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year, its consolidated
balance sheet as of the end of such Fiscal Quarter and the related statements of
income and cash flows for such Fiscal Quarter and for the then elapsed portion
of such Fiscal Year, setting forth in each case in comparative form the figures
for the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous Fiscal Year, all certified by a Financial
Officer as (x) reflecting all adjustments (which adjustments are normal and
recurring unless otherwise disclosed) necessary for a fair presentation of the
results for the period covered and (y) having been prepared in accordance with
the applicable rules of the SEC;
(iii) concurrently with each delivery of financial statements under
clause (i) or (ii), a certificate of a Financial Officer (x) certifying as to
whether a Default has occurred and is continuing and, if a Default has occurred
and is continuing, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (y) setting forth reasonably detailed
calculations demonstrating compliance with Section 6.03 and Section 6.04 and (z)
identifying any change(s) in GAAP or in the application thereof that have become
effective since the date of, and have had an effect on, the Borrower's most
recent audited financial statements referred to in Section 3.04 or delivered
pursuant to this Section (and, if any such change has become effective,
specifying the effect of such change on the financial statements accompanying
such certificate);
(iv) promptly after the same become publicly available, copies of all
periodic and other material reports and proxy statements filed by the Borrower
or any Subsidiary with the SEC, or any Governmental Authority succeeding to any
or all of the functions of the SEC;
(v) written notice of any change in the Borrower's Senior Debt Ratings
by either Xxxxx'x or S&P; and
(vi) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower and its Subsidiaries, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably request.
Information required to be delivered pursuant to Section 5.01(a)(i),
Section 5.01(a)(ii) or Section 5.01(a)(iv) shall be deemed to have been
delivered on the date on which the Borrower provides notice to the
Administrative Agent that such information has been posted on the Borrower's
website on the Internet at the website address listed on the signature pages
hereof, at xxx.xxx/xxxxx/xxxxxxxx.xxx or at another website identified in such
notice and accessible by the Lenders without charge; provided that (i) such
notice may be included in a certificate delivered pursuant to Section
5.01(a)(iii) and (ii) the Borrower shall deliver paper copies of the information
referred to in Section 5.01(a)(i), Section 5.01(a)(ii) and Section 5.01(a)(iv)
to the Administrative Agent for any Lender which requests such delivery.
(b) The Borrower will furnish to the Administrative Agent and each Lender
prompt written notice of the following:
(i) the occurrence of any Default;
(ii) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting the
Borrower or any Subsidiary that, if adversely determined, would reasonably be
expected to result in a Material Adverse Change;
(iii) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, would reasonably be expected to result in
a Material Adverse Change; and
(iv) any other development that results in, or would reasonably be
expected to result in, a Material Adverse Change.
Each notice delivered under this subsection shall be accompanied by a
statement of a Financial Officer or other executive officer of the Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
Section 5.02. Existence; Conduct of Business. The Borrower will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges, franchises, patents, copyrights,
trademarks and trade names material to the conduct of its business; provided
that the foregoing shall not prohibit (i) any merger, consolidation, liquidation
or dissolution involving the Borrower which is expressly permitted under Section
6.02 or (ii) any other transaction which would not reasonably be expected to
result in a Material Adverse Change.
Section 5.03. Maintenance of Properties. The Borrower will, and will
cause each of its Subsidiaries to, maintain all property material to the conduct
of its business in good working order and condition, ordinary wear and tear
excepted.
Section 5.04. Insurance. The Borrower will, and will cause each Subsidiary
to, maintain (either in the name of the Borrower or in the Subsidiary's own
name) with financially sound and responsible insurance companies, insurance on
all their respective properties in at least such amounts and against at least
such risks (and with such risk retention) as are usually insured against at the
relevant time in the same general area by companies of established repute
engaged in the same or a similar business; and will furnish to the Lenders, upon
request from the Administrative Agent, information presented in reasonable
detail as to the insurance so carried.
Section 5.05. Proper Records; Rights to Inspect. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which complete and correct entries are made of all transactions relating to
its business and activities. The Borrower will, and will cause each of its
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, at reasonable times and upon reasonable prior notice, to
visit and inspect its properties, to examine and make extracts from its books
and records, and to discuss its affairs, finances and condition with its
officers and independent accountants, all at such reasonable times and as often
as reasonably requested. Any representatives of the Administrative Agent or any
Lender shall comply with the Borrower's rules regarding safety and security
while visiting the Borrower's facilities.
Section 5.06. Compliance with Laws. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority (including all Environmental Laws and
ERISA and the respective rules and regulations thereunder) applicable to it or
its property, other than such laws, rules or regulations (a) the validity or
applicability of which the Borrower or any Subsidiary is contesting in good
faith by appropriate proceedings or (b) the failure to comply with which would
not reasonably be expected to result in a Material Adverse Change.
Section 5.07. Use of Proceeds and Letters of Credit. The proceeds of the
Loans will be used for the general corporate purposes (including working capital
needs) of the Borrower. No part of the proceeds of any Loan will be used,
directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Federal Reserve Board, including Regulations T, U and X.
Letters of Credit will be requested and used only to finance the general
corporate purposes (including working capital needs) of the Borrower, and will
not be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Federal Reserve Board, including
regulations T, U and X.
ARTICLE 6
Negative Covenants
Until all the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or been cancelled and all LC
Disbursements have been reimbursed, the Borrower covenants and agrees with the
Lenders that:
Section 6.01. Liens. (a) The Borrower will not, and will not permit any
of its Subsidiaries to, create or permit to exist any Lien on any property now
owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:
(i) Permitted Liens;
(ii) any Lien on any property of the Borrower or any Subsidiary existing
on the date hereof and (in the case of any such Lien that (x) secures Debt or
(y) arises outside the ordinary course of business) listed in Schedule 6.01;
provided that (A) such Lien shall not apply to any other property of the
Borrower or any Subsidiary and (B) such Lien shall secure only those obligations
which it secures on the date hereof and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
(iii) any Lien existing on any property or asset before the acquisition
thereof by the Borrower or any Subsidiary or existing on any property or asset
of any Person that first becomes a Subsidiary after the date hereof before the
time such Person becomes a Subsidiary; provided that (A) such Lien is not
initially created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary, as the case may be, (B) such Lien will not
apply to any other property or asset of the Borrower or any Subsidiary and (C)
such Lien will secure only those obligations which it secures on the date of
such acquisition or the date such Person first becomes a Subsidiary, as the case
may be, and extensions, renewals and replacements thereof that do not increase
the outstanding (or committed) principal amount thereof;
(iv) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Subsidiary; provided that (A) such Liens and the Debt
secured thereby are incurred before or within 180 days after such acquisition
or the completion of such construction or improvement, (B) the Debt secured
thereby does not exceed 100% of the cost of acquiring, constructing or
improving such fixed or capital assets and (C) such Liens will not apply to any
other property of the Borrower or any Subsidiary;
(v) Liens to secure a Debt owing to the Borrower or a Subsidiary;
(vi) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by a Lien permitted by any of clauses (iii),
(iv) or (v) of this Section; provided that such Debt is not increased (except
by the amount of fees, expenses and premiums required to be paid in connection
with such refinancing, extension, renewal or refunding) and is not secured by
any additional assets;
(vii) Liens securing Debt arising out of, and sales of accounts
receivable as part of, a Permitted Receivables Financing;
(viii) Liens securing industrial revenue or pollution control bonds
issued for the benefit of the Borrower;
(ix) Liens on assets of Foreign Subsidiaries securing obligations of
Foreign Subsidiaries; and
(x) Liens not otherwise permitted by the foregoing clauses of this
Section 6.01 on assets other than Inventory of the Borrower or a Domestic
Subsidiary; provided that neither the aggregate book value of the assets
subject to such Liens nor the aggregate principal amount of Debt and other
obligations secured thereby shall exceed 10% of Consolidated Net Tangible
Assets (in each case determined at the time of incurrence).
(b) The Borrower will not and will not permit any of its Domestic
Subsidiaries to, directly or indirectly, enter into or permit to exist any
agreement or other arrangement that prohibits, restricts or imposes any
condition on the ability of the Borrower or any of its Domestic Subsidiaries
to create or permit to exist any Lien on any of its Inventory; provided tha
the foregoing shall not apply (i) to restrictions and conditions contained in
the Credit Facilities, (ii) to restrictions or conditions in any document
granting Liens permitted by sub-clauses (i) (solely with reference to clause
(e) of the definition of Permitted Liens), (ii), (iii) and (so long as the
same are no more restrictive than those applicable to the Debt being
refinanced, extended, renewed or refunded) (vi) of clause (a) of this
Section 6.01, (iii) to restrictions and conditions contained
in other instruments in connection with Debt, so long as the terms thereof
permit the creation of such a Lien if such Debt is equally and ratably secured
thereby, and (iv) to customary restrictions or conditions related to particular
assets contained in other agreements entered into in the ordinary course
provided that such agreements are not entered into in connection with the
incurrence of Debt.
Section 6.02. Fundamental Changes. The Borrower will not (i) consolidate
or merge with or into any other Person or (ii) sell, lease or otherwise
transfer, directly or indirectly, all or substantially all of the assets of the
Borrower and its Subsidiaries, taken as a whole, to any other Person; provided
that the Borrower may permit any corporation to be merged into the Borrower or
may consolidate with or merge into or sell or otherwise (except by lease)
dispose of its assets as an entirety or substantially as an entirety to any
solvent corporation organized in the United States of America which expressly
assumes in writing reasonably satisfactory to the Administration Agent the due
and punctual payment of the principal of and interest on the Loans and the due
and punctual performance of the obligations of the Borrower hereunder and under
the Notes, if (x) after giving effect to such consolidation, merger or other
disposition, no Default shall have occurred and be continuing and (y) any such
disposition shall not release the corporation that originally executed this
Agreement as the borrower from its liability as obligor hereunder or under the
Notes.
Section 6.03. Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio to be less than 2.00:1.00 at the last day of any Fiscal
Quarter.
Section 6.04. Leverage Ratio. The Borrower will not permit the Leverage
Ratio at any time to be more than 3.25:1.00.
ARTICLE 7
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any LC
Reimbursement Obligation when the same shall become due, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay when due any interest on any Loan or any
fee or other amount (except an amount referred to in clause (a)) payable under
any Loan Document, and such failure shall continue unremedied for a period of
five Business Days;
(c) any representation, warranty or certification made or deemed made by or
on behalf of the Borrower in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with any Loan Document or any amendment or modification thereof or
waiver thereunder, shall prove to have been incorrect when made or deemed made
and, if the circumstances giving rise to such false or misleading representation
or warranty are susceptible to being cured in all material respects, such false
or misleading representation or warranty shall not be cured in all material
respects for five days after the earlier to occur of (i) the date on which an
officer of the Borrower shall obtain knowledge thereof, or (ii) the date on
which written notice thereof shall have been given to the Borrower by the
Administrative Agent;
(d) the Borrower shall fail to observe or perform any covenant or agreement
contained in Section 5.01(b), Section 5.07 or in Article 6.
(e) the Borrower shall fail to observe or perform any provision of any Loan
Document (other than those failures covered by clauses (a), (b) and (d) of this
Article 7) and such failure shall continue for thirty days after the earlier of
notice of such failure to the Borrower from the Administrative Agent or
knowledge of such failure by an officer of the Borrower;
(f) the Borrower or any of its Subsidiaries shall fail to make a payment or
payments (whether of principal or interest and regardless of amount) in respect
of any Material Debt when the same shall become due or within any applicable
grace period;
(g) any event or condition occurs that (i) results in acceleration of the
maturity of any Material Debt or (ii) enables or permits the holder or holders
of Material Debt or any trustee or agent on its or their behalf to cause any
Material Debt to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, before its scheduled maturity but in the case
of any event described in this clause (ii), only after the lapse of a cure
period, equal to the greater of five Business Days or the cure period specified
in the instrument governing such Material Debt;
(h) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in
respect of the Borrower or any of its Significant Subsidiaries or its debts, or
of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its Significant
Subsidiaries or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any of its Significant Subsidiaries shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i), (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for any the Borrower or any of its Significant Subsidiaries or
for a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Borrower or any of its Significant Subsidiaries shall become unable,
admit in writing its inability or fail generally to pay its debts as they become
due;
(k) one or more judgments for the payment of money in an aggregate amount
exceeding $100,000,000 shall be rendered against the Borrower or any of its
Significant Subsidiaries and shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to attach or levy upon any
asset of the Borrower or any of its Significant Subsidiaries to enforce any such
judgment; or
(l) an ERISA Event shall have occurred that, in the opinion of the Required
Lenders, when taken together with all other ERISA Events that have occurred,
would reasonably be expected to result in a Material Adverse Change;
then, and in every such event (except an event with respect to the Borrower
described in clause (h) or (i) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are waived by the Borrower; and in the case of any event
with respect to the Borrower described in clause (h) or (i) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are waived by the Borrower.
ARTICLE 8
The Agents
Section 8.01. Appointment and Authorization. Each Lender irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the Notes as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with all such powers as are reasonably incidental thereto.
Section 8.02. Administrative Agent and Affiliates. JPMorgan Chase Bank,
N.A. shall have the same rights and powers under this Agreement as any other
Lender and may exercise or refrain from exercising the same as though it were
not the Administrative Agent, and JPMorgan Chase Bank, 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 8.03. 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 7.
Section 8.04. 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 8.05. Liability of Administrative Agent. Neither the
Administrative Agent nor any of its affiliates nor any of their respective
directors, officers, agents, or employees shall be liable for any action taken
or not taken by it in connection herewith (i) with the consent or at the request
of the Required Lenders or such other number of Lenders as may be expressly
required hereunder or (ii) in the absence of its own gross negligence or willful
misconduct. Neither the Administrative Agent nor any of its affiliates nor any
of their respective 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 or issuance of a Letter of Credit 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 4, except receipt of items
required to be delivered to the Administrative Agent; or (iv) the validity,
effectiveness or genuineness of this Agreement, the Notes or any other
instrument or writing furnished in 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 Lender wire,
telex, facsimile, electronic transmission or similar writing) believed by it
to be genuine or to be signed by the proper party or parties.
Section 8.06. Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
Section 8.07. Successor Administrative Agent. The Administrative Agent
may resign at any time by giving notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint
a successor Administrative Agent. If no successor Administrative Agent shall
have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent gives notice
of resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be a commercial
Lender 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
$50,000,000. 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 8.08. Agents' Fees. The Borrower shall pay to each Agent for its
own account fees in the amounts and at the times previously agreed upon between
the Borrower and such Agent.
Section 8.09. Other Agents. Nothing in this Agreement shall impose any
duty or liability whatsoever on any Agent (other than the Administrative Agent)
in its capacity as an Agent.
ARTICLE 9
Miscellaneous
Section 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to the Borrower, to it at 000 Xxxxx Xxxxxx, Xxxx 0000,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention of Treasurer (Facsimile No.
(000) 000-0000);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A.
Loan and Agency Services Group, 0000 Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx
00000, Attention of Xxxxxx Xxxxxxx (Facsimile No. (000) 000-0000); with a
copy to both JPMorgan Chase Bank, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of Xxxxx Xxxxxx (Facsimile No. (000) 000-0000)
and JPMorgan Chase Bank, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Xxxxxx Xxxxx (Facsimile No. (000) 000-0000);
(iii) if to JPMorgan Chase Bank, N.A. as LC Issuing Bank, to it at
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxxx Xxxxx
(Facsimile No. (000) 000-0000); with a copy to JPMorgan Chase Bank,
000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx
Xxxxxx (Facsimile No. (000) 000-0000);
(iv) if to any other Lender, to it at its address (or facsimile
number) set forth in its Administrative Questionnaire.
(b) The Administrative Agent or the Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the Administrative
Agent and the Borrower. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement will be
deemed to have been given on the date of receipt.
Section 9.02. Waivers; Amendments. (a) No failure or delay by
any Lender Party in exercising any right or power hereunder or under any
other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude
any other or further exercise thereof or the exercise of any other right
or power. The rights and remedies of the Lender Parties under the Loan
Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of any Loan
Document or consent to any departure by the Borrower therefrom shall in
any event be effective unless the same shall be permitted by subsection (b)
of this Section, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. Without limiting
the generality of the foregoing, neither the making of a Loan nor the
issuance, amendment, renewal or extension of a Letter of Credit shall be
construed as a waiver of any Default, regardless of whether any Lender Party
had notice or knowledge of such Default at the time.
(b) No Loan Document or provision thereof may be waived, amended or modified
except by an agreement or agreements in writing entered into by the Borrower and
the Required Lenders; provided that no such agreement shall:
(i) increase the Commitment of any Lender without its written consent;
(ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fee payable hereunder,
without the written consent of each Lender Party affected thereby;
(iii) postpone the maturity of any Loan, or the required date of
reimbursement of any LC Disbursement, or any date for the payment of any
interest or fee payable hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender Party affected thereby;
(iv) change Section 2.23 in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each
Lender;
(v) change any provision of this Section or the percentage set forth
in the definition of "Required Lenders" or any other provision of any Loan
Document specifying the number or percentage of Lenders required to take any
action thereunder, without the written consent of each Lender; or
(vi) unless signed by a Designated Lender or its Designating Lender,
subject such Designated Lender to any additional obligation or affect its rights
hereunder (unless the rights of all the Lenders are similarly affected); and
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of any Agent or the LC Issuing Bank without its prior
written consent; and provided further that neither (x) a reduction or
termination of Commitments pursuant to Section 2.09 or 2.18, nor (y) an increase
in Commitments pursuant to Section 2.15, constitutes an amendment, waiver or
modification for purposes of this Section 9.02.
(c) Notwithstanding the foregoing, if the Required Lenders enter into or
consent to any waiver, amendment or modification pursuant to subsection (b) of
this Section, no consent of any other Lender will be required if, when such
waiver, amendment or modification becomes effective, (i) the Commitment of each
Lender not consenting thereto terminates and (ii) all amounts owing to it or
accrued for its account hereunder are paid in full.
Section 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable and documented out-of-pocket expenses incurred
by the Arranger, the Administrative Agent and their respective Affiliates,
including the reasonable fees, charges and disbursements of Xxxxx Xxxx
& Xxxxxxxx, special counsel for the Administrative Agent, in connection
with the syndication of the credit facilities provided for herein, the
preparation and administration of the Loan Documents and any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable and documented out-of-pocket expenses incurred by the LC Issuing Bank
in connection with the issuance, amendment, renewal or extension of any Letter
of Credit or any demand for payment thereunder and (iii) all out-of-pocket
expenses incurred by any Lender Party, including the fees, charges and
disbursements of any counsel for any Lender Party, in connection with the
enforcement or protection of its rights in connection with the Loan Documents
(including its rights under this Section), the Letters of Credit or the Loans,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of the Letters of Credit or the Loans.
(b) The Borrower shall indemnify each of the Lender Parties and their
respective Related Parties (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any other agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Financing
Transactions or any other transactions contemplated hereby, (ii) any Loan or
Letter of Credit or the use of the proceeds therefrom (including any refusal by
the LC Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not comply with the
terms of such Letter of Credit), or (iii) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that (i) such indemnity shall not be
available to any Indemnitee to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from such
Indemnitee's gross negligence or willful misconduct; (ii) such indemnity shall
not be available to any Indemnitee for losses, claims, damages, liabilities or
related expenses arising out of a proceeding in which such Indemnitee and the
Borrower are adverse parties to the extent that the Borrower prevails on the
merits, as determined by a court of competent jurisdiction (it being understood
that nothing in this Agreement shall preclude a claim or suit by the Borrower
against any Indemnitee for such Indemnitee's failure to perform any of its
obligations to the Borrower under the Loan Documents); (iii) the Borrower shall
not, in connection with any such proceeding or related proceedings in the same
jurisdiction and in the absence of conflicts of interest, be liable for the fees
and expenses of more than one law firm at any one time for the Indemnitees
(which law firm shall be selected (x) by mutual agreement of the Administrative
Agent and the Borrower or (y) if no such agreement has been reached following
the Administrative Agent's good faith consultation with the Borrower with
respect thereto, by the Administrative Agent in its sole discretion); (iv) each
Indemnitee shall give the Borrower (x) prompt notice of any such action brought
against such Indemnitee in connection with a claim for which it is entitled to
indemnity under this Section and (y) an opportunity to consult from time to time
with such Indemnitee regarding defensive measures and potential settlement; and
(v) the Borrower shall not be obligated to pay the amount of any settlement
entered into without its written consent (which consent shall not be
unreasonably withheld or delayed).
(c) To the extent that the Borrower fails to pay any amount required to be
paid by it to the Administrative Agent or the LC Issuing Bank under subsection
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the LC Issuing Bank, as the case may be, such Lender's
pro rata share (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided that
the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the
Administrative Agent or the LC Issuing Bank in its capacity as such. For
purposes hereof, a Lender's "pro rata share" shall be determined based on its
share of the sum of the total Credit Exposures.
(d) To the extent permitted by applicable law, the Borrower shall not assert,
and each hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Financing Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.
(e) All amounts due under this Section shall be payable within five Business
Days after written demand therefor.
Section 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding on and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the LC Issuing Bank that issues any Letter of Credit), except
that (i) the Borrower may not assign or otherwise transfer any of its rights
or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by the Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section. Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (except the parties hereto, their respective successors
and assigns permitted hereby (including any Affiliate of the LC Issuing Bank
that issues any Letter of Credit), Participants (to the extent provided in
paragraph (c) of this Section) and, to the extent expressly provided herein, the
Related Parties of the Lender Parties) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of any
Commitment it has at the time and any Loans at the time owing to it); provided
that:
(i) except in the case of an assignment to a Lender or a Lender
Affiliate, the Borrower must give its prior written consent to such assignment
(which consent shall not be unreasonably withheld or delayed);
(ii) the Administrative Agent must give its prior written consent
(which consent shall not be unreasonably withheld or delayed);
(iii) the LC Issuing Bank must give its prior written consent to such
assignment (which consent shall not be unreasonably withheld or delayed);
(iv) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement; provided that such assignment may, but need not, include rights
of the transferor Lender in respect of outstanding Competitive Bid Loans;
(v) unless each of the Borrower and the Administrative Agent otherwise
consent, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date on which the relevant
Assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000; provided that this clause (v) shall not apply to an assignment to
a Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment or Loans;
(vi) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment, together with a processing and recordation
fee of $3,500; and
(vii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent a completed Administrative Questionnaire;
and provided further that any consent of the Borrower otherwise required under
this subsection shall not be required if an Event of Default has occurred and is
continuing. Subject to acceptance and recording thereof pursuant to subsection
(d) of this Section, from and after the effective date specified in each
Assignment the assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment, be released from its
obligations under this Agreement (and, in the case of an Assignment covering all
of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.20, 2.21, 2.22 and 9.03). Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply with
this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
subsection (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in New York City a copy of each
Assignment delivered to it and a register for the recordation of the names and
addresses of the Lenders, their respective Commitments and the principal amounts
of the Loans and LC Disbursements owing to each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive (absent manifest error), and the parties hereto may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by any party hereto at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment executed by an assigning
Lender and an assignee, the assignee's completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), any processing and
recordation fee referred to in, and payable pursuant to, subsection (b) of this
Section and any written consent to such assignment required by subsection (b) of
this Section, the Administrative Agent shall accept such Assignment and record
the information contained therein in the Register. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this subsection.
(e) Any Lender may, without the consent of the Borrower or any other Lender
Party, sell participations to one or more banks or other entities
("Participants") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower and the other Lender Parties shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce the Loan Documents and to approve any amendment, modification or
waiver of any provision of the Loan Documents; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in clause
(i), (ii) or (iii), of the first proviso to Section 9.02(b) that affects such
Participant. Subject to subsection (f) of this Section, each Participant shall
be entitled to the benefits of Sections 2.20, 2.21 and 2.22 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 9.09 as though it
were a Lender, provided that such Participant agrees to be subject to Section
2.23(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment under
Section 2.20 or 2.22 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower's prior
written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.22 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.22(e) as
though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
Section 9.05. Designated Lenders. (a) Subject to the provisions of
this Section 9.05(a), any Lender may from time to time elect to designate
an Eligible Designee to provide all or a portion of the Loans to be made by
such Lender pursuant to this Agreement; provided that such designation shall
not be effective unless the Borrower and the Administrative Agent consent
thereto. When a Lender and its Eligible Designee shall have signed an agreement
substantially in the form of Exhibit G hereto (a "Designation Agreement") and
the Borrower and the Administrative Agent shall have signed their respective
consents thereto, such Eligible Designee shall become a Designated Lender for
purposes of this Agreement. The Designating Lender shall thereafter have the
right to permit such Designated Lender to provide all or a portion of the loans
to be made by such Designating Lender pursuant to Section 2.01 and the making of
such Loans or portions thereof shall satisfy the obligation of the Designating
Lender to the same extent, and as if, such Loans or portion thereof were made by
the Designating Lender. As to any Loans or portion thereof made by it, each
Designated Lender shall have all the rights that a Lender making such Loans or
portion thereof would have had under this Agreement and otherwise; provided that
(x) its voting rights under this Agreement shall be exercised solely by its
Designating Lender and (y) its Designating Lender shall remain solely
responsible to the other parties hereto for the performance of its obligations
under this Agreement, including its obligations in respect of the Loans or
portion thereof made by it. No additional promissory note shall be required to
evidence Loans or portions thereof made by a Designated Lender; and the
Designating Lender shall be deemed to hold any promissory note issued pursuant
to Section 2.17(d) as agent for its Designated Lender to the extent of the Loans
or portion thereof funded by such Designated Lender. Each Designating Lender
shall act as administrative agent for its Designated Lender and give and receive
notices and other communications on its behalf. Any payments for the account of
any Designated Lender shall be paid to its Designating Lender as administrative
agent for such Designated Lender and neither the Borrower nor the Administrative
Agent shall be responsible for any Designating Lender's application of such
payments. In addition, any Designated Lender may (i) with notice to, but
without the prior written consent of, the Borrower or the Administrative Agent,
assign all or portions of its interest in any Loans to its Designating Lender or
to any financial institutions consented to by the Borrower and the
Administrative Agent providing liquidity and/or credit facilities to or for the
account of such Designated Lender to support the funding of Loans or portions
thereof made by such Designated Lender and (ii) disclose on a confidential basis
any non-public information relating to its Loans or portions thereof to any
rating agency, commercial paper dealer or provider of any guarantee, surety,
credit or liquidity enhancement to such Designated Lender.
(b) Each party to this Agreement agrees that it will not institute against,
or join any other Person in instituting against, any Designated Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceeding under any federal or state bankruptcy or similar law, for one
year and a day after all outstanding senior indebtedness of such Designated
Lender is paid in full. The Designating Lender for each Designated Lender
agrees to indemnify, save, and hold harmless each other party hereto for any
loss, cost, damage and expense arising out of its inability to institute any
such proceeding against such Designated Lender. This Section 9.05(b) shall
survive the termination of this Agreement.
Section 9.06. Survival. All covenants, agreements, representations and
warranties made by the Borrower in the Loan Documents and in certificates or
other instruments delivered in connection with or pursuant to the Loan Documents
shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of the Loan Documents and the making of
any Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that any
Lender Party may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as any principal of or accrued
interest on any Loan or any fee or other amount payable hereunder is outstanding
and unpaid or any Letter of Credit is outstanding or any Commitment has not
expired or terminated. The provisions of Sections 2.20, 2.21, 2.22 and 9.03 and
Article 8 shall survive and remain in full force and effect regardless of the
consummation of the Financing Transactions, the repayment of the Loans, the
expiration or termination of the Letters of Credit and the Commitments or the
termination of this Agreement or any provision hereof.
Section 9.07. Counterparts; Integration. This Agreement may be executed
in counterparts (and by different parties hereto on different counterparts),
each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement, the other Loan Documents
and any separate letter agreements with respect to fees payable to any Agent
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof.
Section 9.08. Severability. If any provision of any Loan Document is
invalid, illegal or unenforceable in any jurisdiction then, to the fullest
extent permitted by law, (i) such provision shall, as to such jurisdiction, be
ineffective to the extent (but only to the extent) of such invalidity,
illegality or unenforceability, (ii) the other provisions of the Loan Documents
shall remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Lender Parties in order to carry out the
intentions of the parties thereto as nearly as may be possible and (iii) the
invalidity, illegality or unenforceability of any such provision in any
jurisdiction shall not affect the validity, legality or enforceability of such
provision in any other jurisdiction.
Section 9.09. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of the Borrower against
any obligations of the Borrower now or hereafter existing hereunder and held by
such Lender, irrespective of whether or not such Lender shall have made any
demand hereunder and although such obligations may be unmatured. The rights of
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender may have.
Section 9.10. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the
law of the State of New York.
(b) Each party to this Agreement irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any relevant appellate
court, in any action or proceeding arising out of or relating to any Loan
Document, or for recognition or enforcement of any judgment, and each party
hereto irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State
court or, to the extent permitted by law, in such Federal court. Each party
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in any Loan Document shall affect
any right that any party may otherwise have to bring any action or proceeding
relating to any Loan Document against another party or its properties in the
courts of any jurisdiction.
(c) Each party irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to any Loan Document in any court referred to in subsection (b) of this
Section. Each party hereto irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of any such
suit, action or proceeding in any such court.
(d) Each party hereto irrevocably consents to service of process in the
manner provided for notices in Section 9.01. Nothing in any Loan Document will
affect the right of any party hereto to serve process in any other manner
permitted by law.
Section 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO ANY LOAN DOCUMENT OR ANY TRANSACTION CONTEMPLATED THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.12. Headings. Article and Section headings and the Table of
Contents herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section 9.13. Confidentiality. Each Lender Party agrees to maintain
(in accordance with its standard credit policy) the confidentiality of the
Information (as hereinafter defined), 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 remedy hereunder or any suit, action or
proceeding relating to any Loan Document or the enforcement of any right
thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any actual or prospective assignee of or
Participant in any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) with the consent
of the Borrower or (h) to the extent such Information either (i) becomes
publicly available other than as a result of a breach of this Section or (j)
becomes available to any Lender Party on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section, "Information" means
all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to any Lender Party
on a nonconfidential basis before disclosure by the Borrower; provided that, in
the case of information received from the Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential.
Section 9.14. USA PATRIOT Act Notice. Each Lender (whether a party hereto
on the date hereof or hereafter) and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. No. 107-56 (signed
into law October 26, 2001)), 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 or
the Administrative Agent, as applicable, to identify the Borrower in accordance
with the USA PATRIOT Act and to provide notice of these requirements, and this
notice shall satisfy such notice requirements of the USA PATRIOT Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year set
forth in the first paragraph of this Agreement.
UNITED STATES STEEL CORPORATION
By: /s/ X. X. Xxxxxxxx
------------------
Name: X.X. Xxxxxxxx
Title: Vice President & Treasurer
Website Address: xxx.xxxxxxx.xxx
JPMORGAN CHASE BANK, N.A. as
Administrative Agent, LC Issuing
Bank and Lender
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
CITIZENS BANK OF PENNSYLVANIA
By: /s/ Xxxxxx X. Xxxxxx III
------------------------
Name: Xxxxxx X. Xxxxxx III
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. XxXxxxxx
---------------------
Name: Xxxxx X. XxXxxxxx
Title: Managing Director
THE BANK OF NOVA SCOTIA
By: /s/ M. D. Xxxxx
---------------
Name: M. D. Xxxxx
Title: Agent Operations
XXXXXX XXXXXXX BANK
By: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
ABN-AMRO BANK, N.V.
By: /s/ Xxxx X. Xxxxxxxxx
---------------------
Name: Xxxx X. Xxxxxxxxx
Title: Managing Director
By: /s/ Ece Xxxxxxx
---------------
Name: Ece Xxxxxxx
Title: Director
BARCLAYS BANK PLC
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director
XXXXXX BROTHERS COMMERCIAL BANK
By: /s/ Xxxxx XxXxxx
----------------
Name: Xxxxx XxXxxx
Title: Authorized Signatory
UBS LOAN FINANCE LLC
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Associate Director
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: Associate Director
COMMERZBANK AG, NEW YORK and
GRAND CAYMAN BRANCHES
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
By: /s/ X. Xxxxxx
-------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Vice President
MIZUHO CORPORATE BANK, LTD.
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President &
Team Leader
NATIONAL CITY BANK
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
BANK OF TOKYO-MITSUBISHI
UFJ TRUST COMPANY
By: /s/ X. Xxxxxx
-------------
Name: X. Xxxxxx
Title: Vice President
CITIBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
CREDIT SUISSE, CAYMAN
ISLANDS BRANCH
By: /s/ Xxxxxxxxx Xxxxxxx
---------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxx
--------------------
Name: Xxxxxxxx Xxxxxxx
Title: Associate
FIFTH THIRD BANK
By: /s/ Xxx Xxxxxxxx
----------------
Name: Xxx Xxxxxxxx
Title: Vice President
FORTIS CAPITAL CORP.
By: /s/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Director
ING BANK N.V., DUBLIN BRANCH
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxx
---------------
Name: Xxxx Xxxxxx
Title: Vice President
MELLON BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx Xx.
--------------------------
Name: Xxxxxx X. Xxxxxxxx Xx.
Title: First Vice President
NATIXIS
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Director
By: /s/ Xxxxxxx Lauras
------------------
Name: Xxxxxxx Lauras
Title: Managing Director
SUMITOMO MITSUI BANKING CORP.,
NEW YORK
By: /s/ Xxxxx X. Xxxx
-----------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx Xxxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
US BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX XXXXX CREDIT
PARTNERS L.P.
By: /s/ Xxxx Xxxxxx
---------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
PRICING SCHEDULE
Each of "Facility Fee Rate" and "Eurodollar Margin" means, for any date,
the rate set forth below in the row opposite such term and under the column
corresponding to the "Pricing Level" at such date:
Level I Level II Level III Level IV Level V
------- -------- --------- -------- -------
Facility Fee Rate 0.08% 0.10% 0.125% 0.15% 0.20%
Eurodollar Margin 0.27% 0.40% 0.50% 0.725% 1.05%
For purposes of this Schedule, the following terms have the following
meanings, subject to the concluding paragraph of this Schedule with respect to
split ratings:
"Level I Pricing" applies at any date, if at such date, the Borrower's
long-term debt is rated BBB+ by S&P or Baa1 by Xxxxx'x.
"Level II Pricing" applies at any date if, at such date, the Borrower's
long-term debt is rated BBB by S&P or Baa2 by Xxxxx'x.
"Level III Pricing" applies at any date if, at such date, the Borrower's
long-term debt is rated BBB- by S&P or Baa3 by Xxxxx'x.
"Level IV Pricing" applies at any date if, at such date, the Borrower's
long-term debt is rated BB+ by S&P or Ba1 by Xxxxx'x.
"Level V Pricing" applies at any date if, at such date, no other Pricing
Level applies.
"Pricing Level" refers to the determination of which of Xxxxx X, Xxxxx XX,
Xxxxx XXX, Xxxxx XX or Level V applies at any date.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Borrower
without third-party enhancement, and any rating assigned to any other debt
security of the Borrower shall be disregarded. The rating in effect at any date
is that in effect at the close of business of such date.
If the Borrower is split-rated, then for purposes of determining the
applicable Pricing Level, (a) if the ratings differential is one notch, then
both ratings will be deemed to be at the higher level of S&P and Xxxxx'x and (b)
if the ratings differential is two notches or more, then both will be deemed to
be at a level one notch higher than the lower of S&P and Xxxxx'x.
