EXECUTION COPY
364-DAY CREDIT AGREEMENT
dated as of
November 28, 2001
between
CAMBREX CORPORATION
The SUBSIDIARY GUARANTORS Party Hereto
The LENDERS Party Hereto
and
JPMORGAN CHASE BANK,
as Administrative Agent
$161,250,000
X.X. XXXXXX SECURITIES INC.,
as Advisor, Lead Arranger and Bookrunner
BANK OF AMERICA, N.A., THE BANK OF NEW YORK
and FLEET NATIONAL BANK,
as Co-Syndication Agents
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS .................................................................. 1
SECTION 1.01. Defined Terms ..................................................... 1
SECTION 1.02. Classification of Loans and Borrowings ............................ 22
SECTION 1.03. Terms Generally ................................................... 22
SECTION 1.04. Accounting Terms; GAAP ............................................ 23
SECTION 1.05. Currencies; Currency Equivalents; Provisions Relating to
European Monetary Union ......................................... 23
ARTICLE II THE CREDITS ................................................................. 24
SECTION 2.01. The Commitments ................................................... 24
SECTION 2.02. Loans and Borrowings .............................................. 24
SECTION 2.03. Requests for Syndicated Borrowings ................................ 25
SECTION 2.04. Swingline Loans ................................................... 26
SECTION 2.05. Letters of Credit ................................................. 27
SECTION 2.06. Funding of Borrowings ............................................. 32
SECTION 2.07. Interest Elections ................................................ 32
SECTION 2.08. Termination and Reduction of the Commitments ...................... 34
SECTION 2.09. Extension of Commitment Termination Date .......................... 35
SECTION 2.10. Repayment of Loans; Evidence of Debt .............................. 36
SECTION 2.11. Prepayment of Loans ............................................... 38
SECTION 2.12. Fees .............................................................. 39
SECTION 2.13. Interest .......................................................... 40
SECTION 2.14. Alternate Rate of Interest ........................................ 41
SECTION 2.15. Increased Costs ................................................... 41
SECTION 2.16. Break Funding Payments ............................................ 43
SECTION 2.17. Taxes. ............................................................ 43
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs ....... 44
SECTION 2.19. Mitigation Obligations; Replacement of Lenders .................... 47
ARTICLE III GUARANTEE .................................................................. 48
SECTION 3.01. The Guarantee ..................................................... 48
SECTION 3.02. Obligations Unconditional ......................................... 48
SECTION 3.03. Reinstatement ..................................................... 49
SECTION 3.04. Subrogation ....................................................... 49
SECTION 3.05. Remedies .......................................................... 49
SECTION 3.06. Instrument for the Payment of Money ............................... 50
SECTION 3.07. Continuing Guarantee .............................................. 50
SECTION 3.08. Rights of Contribution ............................................ 50
SECTION 3.09. General Limitation on Guarantee Obligations ....................... 51
-i-
ARTICLE IV REPRESENTATIONS AND WARRANTIES .............................................. 51
SECTION 4.01. Organization; Powers .............................................. 51
SECTION 4.02. Authorization; Enforceability ..................................... 51
SECTION 4.03. Governmental Approvals; No Conflicts .............................. 52
SECTION 4.04. Financial Condition; No Material Adverse Change ................... 52
SECTION 4.05. Properties ........................................................ 52
SECTION 4.06. Litigation and Environmental Matters .............................. 53
SECTION 4.07. Compliance with Laws and Agreements ............................... 53
SECTION 4.08. Investment and Holding Company Status ............................. 53
SECTION 4.09. Taxes ............................................................. 53
SECTION 4.10. ERISA ............................................................. 54
SECTION 4.11. Disclosure ........................................................ 54
SECTION 4.12. Use of Credit ..................................................... 54
SECTION 4.13. Subsidiaries ...................................................... 54
SECTION 4.14. Labor Matters ..................................................... 55
ARTICLE V CONDITIONS ................................................................... 55
SECTION 5.01. Effective Date .................................................... 55
SECTION 5.02. Each Credit Event ................................................. 57
ARTICLE VI AFFIRMATIVE COVENANTS ....................................................... 57
SECTION 6.01. Financial Statements and Other Information ........................ 58
SECTION 6.02. Notices of Material Events ........................................ 59
SECTION 6.03. Existence; Conduct of Business .................................... 60
SECTION 6.04. Payment of Obligations ............................................ 60
SECTION 6.05. Maintenance of Properties; Insurance .............................. 60
SECTION 6.06. Books and Records; Inspection Rights .............................. 60
SECTION 6.07. Compliance with Laws .............................................. 61
SECTION 6.08. Use of Proceeds and Letters of Credit ............................. 61
SECTION 6.09. Certain Obligations Respecting Subsidiaries; Further Assurances ... 61
ARTICLE VII NEGATIVE COVENANTS ......................................................... 63
SECTION 7.01. Indebtedness ...................................................... 63
SECTION 7.02. Liens ............................................................. 64
SECTION 7.03. Mergers, Consolidations, etc.; Changes in Lines of Business ....... 65
SECTION 7.04. Disposition of Assets ............................................. 66
SECTION 7.05. Investments and Acquisitions ...................................... 66
SECTION 7.06. Restricted Payments ............................................... 68
SECTION 7.07. Transactions with Affiliates ...................................... 68
SECTION 7.08. Restrictive Agreements ............................................ 68
SECTION 7.09. Certain Financial Covenants ....................................... 69
-ii-
SECTION 7.10. Sale and Leaseback Transactions ................................... 69
SECTION 7.11. Modifications of Certain Documents ................................ 69
ARTICLE VIII EVENTS OF DEFAULT ......................................................... 70
ARTICLE IX THE ADMINISTRATIVE AGENT .................................................... 72
ARTICLE X MISCELLANEOUS ................................................................ 75
SECTION 10.01. Notices .......................................................... 75
SECTION 10.02. Waivers; Amendments .............................................. 76
SECTION 10.03. Expenses; Indemnity; Damage Waiver ............................... 77
SECTION 10.04. Successors and Assigns ........................................... 78
SECTION 10.05. Survival ......................................................... 82
SECTION 10.06. Counterparts; Integration; Effectiveness ......................... 82
SECTION 10.07. Severability ..................................................... 82
SECTION 10.08. Right of Setoff .................................................. 82
SECTION 10.09. Governing Law; Jurisdiction; Etc ................................. 83
SECTION 10.10. WAIVER OF JURY TRIAL ............................................. 83
SECTION 10.11. Judgment Currency ................................................ 84
SECTION 10.12. Headings ......................................................... 84
SECTION 10.13. Treatment of Certain Information; Confidentiality ................ 84
SCHEDULE 1.01 - Commitments
SCHEDULE 2.05(l) - Existing Letters of Credit
SCHEDULE 4.06(a) - Litigation
SCHEDULE 4.13 - Subsidiaries
SCHEDULE 7.01 - Indebtedness
SCHEDULE 7.02 - Liens
SCHEDULE 7.05 - Investments
SCHEDULE 7.08 - Restrictive Agreements
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Pledge Agreement
EXHIBIT C - Form of Intercreditor and Collateral Agency Agreement
EXHIBIT D - Form of Guarantee Assumption Agreement
EXHIBIT E-1 - Form of Opinion of General Counsel of the Obligors
EXHIBIT E-2 - Form of Opinion of Special New York Counsel to the Obligors
EXHIBIT F - Form of Opinion of Special New York Counsel to JPMorgan
EXHIBIT G - Environmental Certificate
-iii-
364-DAY CREDIT AGREEMENT dated as of November 28, 2001,
between CAMBREX CORPORATION, the SUBSIDIARY GUARANTORS party hereto, the LENDERS
party hereto, and JPMORGAN CHASE BANK, as Administrative Agent.
The Borrower (as hereinafter defined) has requested that the
Lenders (as so defined) extend credit to it, under the guarantee of the
Subsidiary Guarantors (as so defined), in an aggregate principal or face amount
not exceeding $161,250,000, for the purposes specified herein. The Lenders are
prepared to extend such credit upon the terms and conditions hereof, and,
accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are denominated
in Dollars and bearing interest at a rate determined by reference to the
Alternate Base Rate.
"Acquired Entity" means any business, assets or Person subject
to an Acquisition.
"Acquisition" means any transaction, or any series of related
transactions, consummated after the date hereof, by which the Borrower and/or
any of its Subsidiaries (a) acquires any going business or all or substantially
all of the assets of any corporation, limited liability company, partnership,
joint venture or other entity or any division of any corporation, limited
liability company, partnership, joint venture or other entity or the right to
use or manage or otherwise exploit any such business or assets, whether through
purchase or lease of assets, merger or otherwise or (b) directly or indirectly
acquires ownership or Control of at least a majority (in number of votes) of
Capital Stock which has ordinary voting power for the election of directors or
other managers of any corporation, limited liability company, partnership, joint
venture or other entity.
"Adjusted LIBO Rate" means, for the Interest Period for any
Eurocurrency Borrowing, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate for such Interest Period.
"Administrative Agent" means JPMorgan, in its capacity as
administrative agent for the Lenders hereunder.
364-Day Credit Agreement
-2-
"Administrative Agent's Account" means, for each currency, an
account in respect of such currency designated by the Administrative Agent in a
notice to the Borrower and the Lenders.
"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 is under common Control with the Person specified.
"Agreed Foreign Currency" means, at any time, any of Pounds
Sterling, euro, Japanese Yen and, with the agreement of each Lender, any other
Foreign Currency, so long as, in respect of any such specified currency or other
Foreign Currency, at such time (a) such currency is dealt with in the London
interbank deposit market, (b) such currency is freely transferable and
convertible into Dollars in the London foreign exchange market and (c) no
central bank or other governmental authorization in the country of issue of such
currency (including, in the case of the euro, any authorization by the European
Central Bank) is required to permit use of such currency by any Lender for
making any Loan hereunder and/or to permit the Borrower to borrow and repay the
principal thereof and to pay the interest thereon, unless such authorization has
been obtained and is in full force and effect.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate for such day plus 0.50%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may
be.
"Applicable 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 Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any ABR
Loan (including any Swingline Loan that bears interest based upon the Alternate
Base Rate) or Eurocurrency Loan, or with respect to the facility fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "ABR Spread", "Eurocurrency Spread" or "Facility Fee Rate",
respectively, based upon the Leverage Ratio as of the most recent determination
date; provided that until the delivery of the financial statements for the
fiscal quarter ending December 31, 2001 the "Applicable Rate" shall be the
applicable rate per annum set forth below in Category 2:
364-Day Credit Agreement
-3-
ABR Eurodollar Facility
Leverage Ratio Spread Spread Fee Rate
-------------- ------ ------ --------
Category 1 <1.75x 0 0.60% 0.15%
Category 2 (Greater than or Equal to)1.75x 0 0.825% 0.175%
<2.50x
Category 3 (Greater than or Equal to)2.50x 0 1.05% 0.20%
<3.00x
Category 4 (Greater than or Equal to)3.00x 0 1.25% 0.25%
For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of
the end of each fiscal quarter of the Borrower's fiscal year based upon the
Borrower's consolidated financial statements delivered pursuant to Section
6.01(a) or (b) and (ii) each change in the Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the period commencing on
and including the date three Business Days after delivery to the Administrative
Agent of such consolidated financial statements (and the related compliance
certificate required under Section 6.01(c)) indicating such change and ending on
the date immediately preceding the effective date of the next such change;
provided that (A) the Leverage Ratio shall be deemed to be in Category 4 at any
time that an Event of Default has occurred and is continuing and (B) if the
Borrower fails to deliver the consolidated financial statements required to be
delivered by it pursuant to Section 6.01(a) or (b) (and/or the related
compliance certificate required to be delivered by it pursuant to Section
6.01(c)), any adjustment in the Applicable Rate shall be delayed until the
delivery thereof and shall be retroactively applied for the period from the
expiration of the time for delivery thereof until the date of such delivery.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Commitment Termination Date
and the date of termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Cambrex Corporation, a Delaware corporation.
364-Day Credit Agreement
-4-
"Borrowing" means (a) all Syndicated ABR Loans made, converted
or continued on the same date, (b) all Eurocurrency Loans denominated in the
same currency that have the same Interest Period or (c) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a
Syndicated Borrowing in accordance with Section 2.03.
"Business Day" means any day (a) that is not a Saturday,
Sunday or (other than with respect to determining any Interest Period) other day
on which commercial banks in New York City are authorized or required by law to
remain closed, (b) if such day relates to a borrowing of, a payment or
prepayment of principal of or interest on, a continuation or conversion of or
into, or the Interest Period for, a Eurocurrency Borrowing, or to a notice by
the Borrower with respect to any such borrowing, payment, prepayment,
continuation, conversion, or Interest Period, that is also a day on which
dealings in deposits denominated in the currency of such Borrowing are carried
out in the London interbank market and (c) (i) if such day relates to a
borrowing or continuation of, a payment or prepayment of principal of or
interest on, or the Interest Period for, any Eurocurrency Borrowing denominated
in any Foreign Currency (other than euros), or to a notice by the Borrower with
respect to any such borrowing, continuation, payment, prepayment or Interest
Period, that is also a day on which commercial banks and the London foreign
exchange market settle payments in the Principal Financial Center for such
Foreign Currency or (ii) if such day relates to a borrowing or continuation of,
a payment or prepayment of principal of or interest on, or the Interest Period
for, any Eurocurrency Borrowing denominated in euros, or to a notice by the
Borrower with respect to any such borrowing, continuation, payment, prepayment
or Interest Period, that is also a TARGET Day.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants, rights or options to purchase any of
the foregoing.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934, as amended, and the
rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof), of shares representing more than 35% of the aggregate ordinary
voting power represented by the issued and outstanding common stock of the
Borrower or (b) occupation of a majority of the seats (other than vacant seats)
on the board of directors of the Borrower by Persons who were neither (i)
nominated by the board of directors of the Borrower nor (ii) appointed by
directors so nominated.
364-Day Credit Agreement
-5-
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date hereof, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date hereof or (c) compliance by any Lender or the Issuing Lender (or,
for purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's or the Issuing Lender'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 the date hereof.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
Syndicated Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral Agent" means JPMorgan, in its capacity as
Collateral Agent under the Intercreditor and Collateral Agency Agreement.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Syndicated Loans and to acquire participations
in Letters of Credit and Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The initial
amount of each Lender's Commitment is set forth on Schedule 1.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is $161,250,000.
"Commitment Termination Date" means November 27, 2002, subject
to extension as provided in Section 2.09.
"Consolidated EBITDA" means, for any period, the sum, for the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) Consolidated Net
Income for such period plus (b) without duplication and to the extent deducted
in determining such Consolidated Net Income, the sum of (i) Consolidated
Interest Expense for such period, (ii) income tax expense for such period, (iii)
all amounts attributable to depreciation and amortization for such period, (iv)
all extraordinary losses, (v) any non-cash provisions for reserves for, or
losses from, discontinued operations or book losses in connection with Permitted
Dispositions in an aggregate amount not exceeding (for all periods) the greater
of (A) $35,000,000 or (B) 10% of Consolidated Net Worth (determined as at the
end of such period), (vi) all amounts attributable to the impairment of goodwill
or other intangibles or the write-down of in-process research and development or
any non-cash loss associated with the sale or write-down of assets not in the
ordinary course of business not exceeding $15,000,000 (for any period of four
consecutive fiscal quarters of the Borrower) and (vii) all non-cash losses
associated with foreign currency translations (including as a result of marking
to market any investment or any hedging arrangement relating thereto) and minus
(c) without duplication and
364-Day Credit Agreement
-6-
to the extent included in determining such Consolidated Net Income, (i) all
non-cash gains associated with the sale or write-down of assets not in the
ordinary course of business, (ii) all extraordinary gains for such period and
(iii) all non-cash gains associated with foreign currency translations
(including as a result of marking to market any investment or any hedging
arrangement relating thereto); provided that, without duplication, if during any
period for which Consolidated EBITDA is being determined, the Borrower or any of
its Subsidiaries shall have made any Disposition (in one or a series of related
transactions) in excess of $25,000,000 in fair market value or any Acquisition,
Consolidated EBITDA shall be determined for purposes of this Agreement by
excluding the Consolidated EBITDA of the Disposed Entity (to the extent not
already reflected in the relevant financial statements of the Borrower) or
including the Consolidated EBITDA of the Acquired Entity, as applicable, for
such period as if such Disposition or Acquisition had been made or consummated
on the first day of such period.
"Consolidated Funded Indebtedness" means, as of any date, all
interest-bearing Indebtedness (including Capital Lease Obligations and
Subordinated Indebtedness) of the Borrower and its Subsidiaries classified as
indebtedness in accordance with GAAP on the Borrower's consolidated balance
sheet minus, solely for the purpose of determining the Applicable Rate (but not
for any other purpose hereunder), an amount equal to (a) the aggregate amount of
Dollar-denominated deposits (or the dollar equivalent for any non-Dollar
deposits) held in accounts owned by and under the control of the Borrower,
Cambrex Bahamas, Inc., Cambrex Limited, Cambrex (Jersey) Ltd., Cambrex OCB
Limited, Cambrex Holdings Limited, Cambrex C.I. Limited, Cambrex Netherlands BV,
CBM Denmark I/S, Cambrex AB, Cambrex BV, Nordic Synthesis International AB or
any other company established for similar purposes after the Effective Date for
a period of at least 30 consecutive days ending on such date minus (b) an amount
equal to the United States federal income tax liability (which shall in no event
be calculated based on an effective rate of less than 20%) which would be
imposed upon such amount in Dollars in the event such amount was transferred to
the United States, as reasonably estimated by the Borrower and consented to by
the Administrative Agent; provided that clause (a) above (and the calculation of
Consolidated Funded Indebtedness as of such date) shall exclude any such deposit
referred to therein that is withdrawn within 30 days after such date from the
account in which it was held unless such deposit shall be used for the repayment
of Indebtedness of the Borrower or any Subsidiary or for the payment of all or
part of the purchase price of an Acquisition.
"Consolidated Interest Expense" means, for any period, the
sum, for the Borrower and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) all interest
in respect of Indebtedness (including the interest component of any payments in
respect of Capital Lease Obligations) accrued or capitalized during such period
(whether or not actually paid during such period) plus (b) the net amount
payable (or minus the net amount receivable) under Hedging Agreements relating
to interest during such period (whether or not actually paid or received during
such period).
"Consolidated Net Income" means, for any period, the net
income or loss of the Borrower and its Subsidiaries (determined on a
consolidated basis in accordance with GAAP) for such period; provided that there
shall be excluded the income (or deficit) of any Person (other
364-Day Credit Agreement
-7-
than a Subsidiary of the Borrower or any other Person Controlled by the
Borrower) in which the Borrower or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is actually received by the
Borrower or such Subsidiary in the form of dividends or similar distributions.
"Consolidated Net Worth" means, as of any date, all amounts
that would, in accordance with GAAP, be included on a consolidated balance sheet
of the Borrower under stockholders' equity at such date.
"Consolidated Senior Indebtedness" means, as of any date,
Consolidated Funded Indebtedness as of such date (other than Subordinated
Indebtedness).
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"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.
"Disposed Entity" means any business, assets or Person subject
to a Disposition.
"Disposition" means any sale, lease, license, transfer,
assignment or other disposition of all or a material portion of the business,
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, of the Borrower or any of its Subsidiaries, whether in one or a
series of transactions.
"Dollar Equivalent" means, with respect to any Borrowing
denominated in any Foreign Currency, the amount of Dollars that would be
required to purchase the amount of the Foreign Currency of such Borrowing on the
date two Business Days prior to the date of such Borrowing (or, in the case of
any determination made under Section 2.11(b) or redenomination under the last
sentence of Section 2.18(a), on the date of determination or redenomination
therein referred to), based upon the spot selling rate at which the Person
serving as Administrative Agent offers to sell such Foreign Currency for Dollars
in the London foreign exchange market at approximately 11:00 a.m., London time,
for delivery two Business Days later.
"Dollars" or "$" refers to lawful money of the United States
of America.
"Domestic Subsidiary" means a Subsidiary (other than a
Receivables Subsidiary) that is not a Foreign Subsidiary.
"Effective Date" means the date on which the conditions
specified in Section 5.01 are satisfied (or waived in accordance with Section
10.02).
364-Day Credit Agreement
-8-
"Environmental Certificate" means an appropriately completed
environmental certificate in the form of Exhibit G, certified as true and
correct as of the date thereof by an executive officer of the Borrower
acceptable to the Administrative Agent.
"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, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any shareholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or securities convertible into, any
additional shares of Capital Stock of any class, or partnership or other
ownership interests of any type in, such Person.
"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, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the 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 (other than 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 Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the 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 of its ERISA
Affiliates 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 of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the
364-Day Credit Agreement
-9-
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.
"Eurocurrency", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans constituting such
Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate.
"euro" means the single currency of Participating Member
States of the European Union, which shall be an Agreed Foreign Currency and a
Foreign Currency under this Agreement.
"Event of Default" has the meaning assigned to such term in
Article VIII.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, the Issuing Lender or any other recipient of any payment to
be 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 by the United
States of America, 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 of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.19(b)), 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),
other than any withholding tax imposed on any payment by the Borrower to the
extent that such Foreign Lender (or its assignor, as the case may be) was
entitled as a result of a Change in Law, at the time of designation of a new
lending office (or assignment, as the case may be), to receive additional
amounts from the Borrower with respect to any withholding tax pursuant to
Section 2.17(a), or (ii) is attributable to such Foreign Lender's failure or
inability (other than as a result of a Change in Law) to comply with Section
2.17(e).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
treasurer or vice president-finance of the Borrower.
364-Day Credit Agreement
-10-
"Foreign Currency" means at any time any currency other than
Dollars.
"Foreign Currency Equivalent" means, with respect to any
amount in Dollars, the amount of any Foreign Currency that could be purchased
with such amount of Dollars using the reciprocal of the foreign exchange rate(s)
specified in the definition of the term "Dollar Equivalent", as determined by
the Administrative Agent.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized
under the laws of a jurisdiction other than the United States of America, a
State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, or of any other nation, or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
or applicant in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business.
"Guarantee Assumption Agreement" means a Guarantee Assumption
Agreement substantially in the form of Exhibit D by an entity that, pursuant to
Section 6.09, is required to become a "Subsidiary Guarantor" hereunder in favor
of the Administrative Agent and for the benefit of the Lenders.
364-Day Credit Agreement
-11-
"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 or currency exchange rate or commodity price hedging
arrangement.
"Immaterial Subsidiary" means any Subsidiary that has less
than $500,000 of assets and revenues, determined (in the case of assets) as of
the end of and (in the case of revenues) for the most recently completed fiscal
quarter for which consolidated financial statements of the Borrower are
available.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) 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), (e) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person
of Indebtedness of others of the type included within this definition (other
than this clause (f)), (g) all Capital Lease Obligations of such Person, (h) all
obligations, contingent or otherwise, of such Person as an account party or
applicant in respect of letters of credit, letters of guaranty and similar
instruments, (i) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances and (j) the liquidation value of any mandatorily
redeemable preferred Capital Stock of such Person or any of its Subsidiaries
held by any Person (other than such Person or any of its Subsidiaries) that is
redeemable in whole or in part at any time prior to March 31, 2007, but only if
such liquidation value exceeds $10,000,000; provided that the amount of
Indebtedness under clauses (e) and (f) above shall be the lesser of (i) the
amount of such Indebtedness of such other Person and (ii)(x) in the case of
clause (e), the fair market value of the property subject to such Lien and (y)
in the case of clause (f), the actual obligation of such other Person. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Intercreditor and Collateral Agency Agreement" means the
Intercreditor and Collateral Agency Agreement substantially in the form of
Exhibit C between the Borrower, the
364-Day Credit Agreement
-12-
Administrative Agent, the administrative agent under the Other Credit Agreement
and the Collateral Agent.
"Interest Coverage Ratio" means, as at any date, the ratio of
(a) Consolidated EBITDA for the period of four fiscal quarters ending on or most
recently ended prior to such date to (b) Consolidated Interest Expense for such
period.
"Interest Election Request" means a request by the Borrower to
convert or continue a Syndicated Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any
Syndicated ABR Loan, each Quarterly Date, (b) with respect to any Eurocurrency
Loan, the last day of each Interest Period therefor and, in the case of any
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at three-month intervals after the first
day of such Interest Period and (c) with respect to any Swingline Loan, the day
that such Loan is required to be repaid.
"Interest Period" means, for any Eurocurrency Loan or
Borrowing, the period commencing on the date of such Loan or Borrowing and
ending on the numerically corresponding day in the calendar month that is one,
two, three or six months thereafter or, with respect to such portion of any
Eurocurrency Loan or Borrowing denominated in a Foreign Currency that is
scheduled to be repaid on the Commitment Termination Date, a period of less than
one month's duration commencing on the date of such Loan or Borrowing and ending
on the Commitment Termination Date, as specified in the applicable Borrowing
Request or Interest Election Request; provided that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day, and (ii) any Interest
Period (other than an Interest Period pertaining to a Eurocurrency Borrowing
denominated in a Foreign Currency that ends on the Commitment Termination Date
that is permitted to be of less than one month's duration as provided in this
definition) that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a Loan
initially shall be the date on which such Loan is made and thereafter shall be
the effective date of the most recent conversion or continuation of such Loan,
and the date of a Syndicated Borrowing comprising Loans that have been converted
or continued shall be the effective date of the most recent conversion or
continuation of such Loans.
"Investment" means, for any Person: (a) the acquisition
(whether for cash, property, services or securities or otherwise) of Capital
Stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including any "short sale" or any sale of any securities at a time
when such securities are not owned by the Person entering into such sale); (b)
the making of any deposit with, or advance, loan or other extension of credit
to, any other Person (including the
364-Day Credit Agreement
-13-
purchase of property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such Person), but
excluding any such advance, loan or extension of credit having a term not
exceeding 180 days arising in connection with the sale of inventory or supplies
by such Person in the ordinary course of business; (c) the entering into of any
Guarantee of, or other contingent obligation with respect to, Indebtedness or
any other liability of any other Person and (without duplication) any amount
committed to be advanced, lent or extended to such Person; or (d) the entering
into of any Hedging Agreement.
"Issuing Lender" means JPMorgan, in its capacity as the issuer
of Letters of Credit hereunder, and its successors in such capacity as provided
in Section 2.05(j).
"JPMorgan" means JPMorgan Chase Bank.
"LC Disbursement" means a payment made by the Issuing Lender
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit 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 Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lender Affiliate" means, with respect to any Lender, (i) an
Affiliate of such Lender or (ii) any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by such Lender or an Affiliate of
such Lender.
"Lenders" means the Persons listed on Schedule 1.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant
to this Agreement.
"Letter of Credit Documents" means, with respect to any Letter
of Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
"Leverage Ratio" means, as at any date, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for
the period of four fiscal quarters ending on or most recently ended prior to
such date.
364-Day Credit Agreement
-14-
"LIBO Rate" means, for the Interest Period for any
Eurocurrency Borrowing denominated in any currency, the rate appearing on the
Screen at approximately 11:00 a.m., London time, on the Quotation Date prior to
the commencement of such Interest Period, as LIBOR for deposits denominated in
such currency with a maturity comparable to such Interest Period. In the event
that such rate is not available on the Screen at such time for any reason, then
the LIBO Rate for such Interest Period shall be the rate at which deposits in
such currency in the amount of $5,000,000 (or the Foreign Currency Equivalent)
and for a maturity comparable to such Interest Period are offered by the
principal London office of the Person serving as Administrative Agent in
immediately available funds to leading banks in the London interbank market at
approximately 11:00 a.m., London time, on the Quotation Date prior to the
commencement of such Interest Period.
"LIBOR" means, for any currency, the rate at which deposits
denominated in such currency are offered to leading banks in the London
interbank market.
"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 and (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.
"Loan Documents" means, collectively, this Agreement, the
Letter of Credit Documents and the Security Documents.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Local Time" means (a) with respect to any Loan denominated in
or any payment to be made in any currency (other than euro), the local time in
the Principal Financial Center for the currency in which such Loan is
denominated or such payment is to be made and (b) with respect to any Loan
denominated in or any payment to be made in euro, the local time in London,
England.
"Margin Stock" means "margin stock" within the meaning of
Regulations T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations or condition, financial or otherwise, of
the Borrower and its Subsidiaries taken as a whole, (b) the ability of any
Obligor to perform any of its obligations under this Agreement or any of the
other Loan Documents to which it is a party or (c) the rights of or benefits
available to the Lenders under this Agreement or any of the other Loan
Documents.
"Material Indebtedness" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the
364-Day Credit Agreement
-15-
Borrower and its Subsidiaries in an aggregate principal amount exceeding 3% of
the Consolidated Net Worth. For purposes of determining Material Indebtedness,
the "principal amount" of the obligations of the Borrower or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Borrower or such
Subsidiary, as the case may be, would be required to pay if such Hedging
Agreement were terminated at such time.
"Money Market Rate" means such rate of interest per annum (if
any) as the Swingline Lender may quote from time to time on any single
commercial borrowing for a period of up to 90 days.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"National Currency" means the currency, other than the euro,
of a Participating Member State.
"Obligor" means the Borrower or any Subsidiary Guarantor.
"Other Credit Agreement" means the Five-Year Credit Agreement
dated as of the date hereof between the Borrower, the subsidiary guarantors
party thereto from time to time, the lenders party thereto from time to time and
JPMorgan, as Administrative Agent.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
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.
"Participating Member State" means any member state of the
European Community that adopts or has adopted the euro as its lawful currency in
accordance with the legislation of the European Union relating to the European
Monetary Union.
"Permitted Disposition" means the Disposition of all or any
part of the Specialty and Fine Chemicals or Animal Health/Agriculture businesses
of the Borrower and its Subsidiaries.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes, assessments and
governmental charges or levies that are not yet due or are being
contested in compliance with Section 6.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlords' and other like Liens imposed by law, arising in
the ordinary course of business and securing obligations that are not
overdue by more than 45 days or are being contested in compliance with
Section 6.04;
364-Day Credit Agreement
-16-
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) Liens to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VIII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Borrower or any
Subsidiary;
(g) any interest or title of a lessor under any lease entered
into by the Borrower or any Subsidiary in the ordinary course of its
business and covering only the assets so leased;
(h) licenses, sublicenses, leases and subleases granted to
third parties in the ordinary course that do not materially interfere
with the ordinary conduct of business by the Borrower or any
Subsidiary;
(i) Liens arising from the filing of precautionary UCC
financing statements regarding operating leases;
(j) Liens arising out of the consignment or similar
arrangement for the sale of goods entered into in the ordinary course
of business;
(k) set-off, charge-back and other statutory or common law
rights of depository and collection banks and other regulated financial
institutions with respect to money or instruments of the Borrower or
its Subsidiaries on deposit with or in the possession of such
institutions; and
(l) Liens arising under any indenture governing Indebtedness
solely in favor of the trustee named therein for its own benefit (and
not for the benefit of the holders of any such Indebtedness);
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
364-Day Credit Agreement
-17-
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America) or
any member state of the European Union and rated at least investment
grade, in each case maturing within one year from the date of
acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and rated, at such date of
acquisition, A-2 or better by Standard & Poor's Ratings Services or P-2
or better by Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $250,000,000; and
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) of this
definition and entered into with a financial institution satisfying the
criteria described in clause (c) of this definition.
"Permitted Securitization" means any transaction or series of
transactions that may be entered into by the Borrower or any of its Subsidiaries
pursuant to which the Borrower or such Subsidiary, as the case may be, may sell,
convey or otherwise transfer to (a) a Receivables Subsidiary (in the case of a
transfer by the Borrower or any of its Subsidiaries) intended to be a true sale
transaction and (b) any other Person (in the case of a transfer by a Receivables
Subsidiary), and any Receivables Subsidiary may transfer, or grant a security
interest in, any receivables (whether now existing or arising in the future) of
the Borrower or any of its Subsidiaries and any assets related thereto,
including all collateral securing such receivables, all contracts and all
guarantees or other obligations in respect of such receivables and the proceeds
of such receivables; provided that (i) the aggregate outstanding principal
amount of Indebtedness of the Receivables Subsidiaries incurred in connection
with such transactions shall not exceed $25,000,000 at any time outstanding,
(ii) there shall be no recourse under such securitization to the Borrower or any
of its other Subsidiaries other than pursuant to Standard Securitization
Undertakings and (iii) the Administrative Agent shall be reasonably satisfied
that the terms of such securitization are in compliance with the terms of this
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
364-Day Credit Agreement
-18-
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the 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) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" means a Pledge Agreement substantially in
the form of Exhibit B between the Borrower and the Collateral Agent (or such
other pledge or similar agreement between the Borrower or a Domestic Subsidiary,
as applicable, and the Collateral Agent (or a sub-agent of the Collateral Agent)
providing for the pledge of certain Capital Stock of a Foreign Subsidiary and
entered into pursuant to Section 6.09(b), in form and substance satisfactory to
the Administrative Agent).
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMorgan as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Principal Financial Center" means, in the case of any
currency, the principal financial center where such currency is cleared and
settled, as determined by the Administrative Agent.
"Priority Indebtedness" means, without duplication, (a) all
Indebtedness of the Borrower and its Subsidiaries secured by a Lien on property
owned by the Borrower or any of its Subsidiaries (other than any such
Indebtedness permitted under clauses (e), (f) and (i) of Section 7.01); (b) all
Indebtedness of any Subsidiary that is not an Obligor (other than Indebtedness
permitted under clause (h) of Section 7.01, unless the relevant standby letter
of credit supports Indebtedness); or (c) all rental payments or other scheduled
amounts required to be paid (valued at their present value, discounted at an
applicable market rate, as of the later of the date such transaction is entered
into or the end of the most recently completed fiscal year of the Borrower) by
the Borrower or any Subsidiary in connection with any sale-and-leaseback
transaction or Synthetic Lease referred to in Section 7.10.
"Purchase Price" means, with respect to any Acquisition, an
amount equal to the sum of (a) the aggregate consideration, whether cash,
property or securities (including, without limitation, any Indebtedness incurred
pursuant to Section 7.01), paid or delivered by the Borrower and its
Subsidiaries (but excluding any fees or expenses payable) in connection with
such Acquisition plus (b) the aggregate amount of liabilities of the Acquired
Entity (net of current assets of the Acquired Entity) that would be reflected on
a balance sheet (if such were to be prepared) of the Borrower and its
Subsidiaries after giving effect to such Acquisition.
"Quarterly Dates" means the last Business Day of February,
May, August and November in each year, the first of which shall be the first
such day after the date hereof.
364-Day Credit Agreement
-19-
"Quotation Date" means, for any Eurocurrency Interest Period,
(a) for Dollars or any Agreed Foreign Currency other than Pounds Sterling, the
date two Business Days prior to the commencement of such Eurocurrency Interest
Period and (b) for Pounds Sterling, the first day of such Eurocurrency Interest
Period, provided that if market practice differs in the relevant interbank
market for any currency, the "Quotation Date" for such currency shall be
determined by the Administrative Agent in accordance with market practice in the
relevant interbank market (and if quotations would normally be given by leading
banks in the relevant interbank market on more than one date, the "Quotation
Date" shall be the last of such days).
"Receivables Subsidiary" means a wholly owned Subsidiary of
the Borrower which engages in no activities other than in connection with the
financing of receivables and which is designated by the Board of Directors of
the Borrower as a Receivables Subsidiary, (a) no portion of the Indebtedness or
any other obligations (contingent or otherwise) of which (i) is guaranteed by
the Borrower or any other Subsidiary (excluding guarantees of obligations, other
than the principal of, and interest on, Indebtedness, under Standard
Securitization Undertakings), (ii) is recourse to or obligates the Borrower or
any other Subsidiary in any way other than pursuant to Standard Securitization
Undertakings or (iii) subjects any property or asset of the Borrower or any
other Subsidiary, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than the receivables and related rights sold into
the applicable Permitted Securitization and other than pursuant to Standard
Securitization Undertakings and (b) to which neither the Borrower nor any other
Subsidiary has any obligation to maintain or preserve such entity's financial
condition or cause such entity to achieve certain levels of operating results.
Any such designation by the Board of Directors of the Borrower shall be
evidenced to the Administrative Agent by filing with the Administrative Agent a
certified copy of the resolution of such Board of Directors giving effect to
such designation and an officers' certificate of the Borrower certifying that
such designation complied with the foregoing conditions.
"Register" has the meaning set forth in Section 10.04.
"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 such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing more than 50% of
the sum of the total Revolving Credit Exposures and unused Commitments at such
time.
"Requirement of Law" means, as to any Person, the Certificate
of Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
364-Day Credit Agreement
-20-
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of Capital Stock of the Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of Capital Stock of
the Borrower or any Subsidiary or any option, warrant or other right to acquire
any such shares of Capital Stock of the Borrower or any Subsidiary.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of the outstanding principal amount of such Lender's
Syndicated Loans and its LC Exposure and Swingline Exposure at such time.
"Screen" means, for any currency, the relevant display page
for LIBOR for such currency (as determined by the Administrative Agent) on the
Telerate Service; provided that, if the Administrative Agent determines that
there is no such relevant display page for LIBOR for such currency, "Screen"
means the relevant display page for LIBOR for such currency (as determined by
the Administrative Agent) on the Reuters Monitor Money Rates Service.
"Security Documents" means, collectively, the Pledge
Agreements, the Intercreditor and Collateral Agency Agreement and all Uniform
Commercial Code financing statements and/or other filings, registrations or the
like required by the Pledge Agreements to be made with respect to the security
interests in personal property created pursuant to any Pledge Agreement.
"Senior Leverage Ratio" means, as at any date, the ratio of
(a) Consolidated Senior Indebtedness as of such date to (b) Consolidated EBITDA
for the period of four fiscal quarters ending on or most recently ended prior to
such date.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Borrower or any
Subsidiary that are reasonably customary in the non-recourse securitization of
receivables transactions.
"Statutory Reserve Rate" means, for the Interest Period for
any Eurocurrency Borrowing, 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 arithmetic mean, taken over each day in such Interest Period, of the
aggregate of the maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal established by the
Board to which the Person serving as Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurocurrency Loans shall 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 Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
364-Day Credit Agreement
-21-
"Subordinated Indebtedness" means, as of any date, any
Indebtedness for borrowed money of the Borrower (and any subordinated Guarantee
thereof by any Subsidiary that is an Obligor) which is expressly subordinate and
junior in right and priority of payment to the Loans and other Indebtedness of
the Borrower (or such Subsidiary, as the case may be) to the Lenders in manner
and by agreement reasonably satisfactory in form and substance to the Required
Lenders.
"Subsidiary" means, with respect to any Person (the "parent")
at any date, (a) any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date and
(b) any other corporation, limited liability company, partnership, association
or other entity of which Capital Stock having ordinary voting power (other than
Capital Stock having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, limited liability company, association or other entity are, as
of such date, owned or Controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified,
"Subsidiary" means a Subsidiary of the Borrower.
"Subsidiary Guarantor" means each of the Subsidiaries of the
Borrower identified under the caption "SUBSIDIARY GUARANTORS" on the signature
pages hereto and each Subsidiary of the Borrower that becomes a "Subsidiary
Guarantor" after the date hereof pursuant to Section 6.09.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
"Swingline Lender" means JPMorgan, in its capacity as lender
of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Syndicated", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are made
pursuant to Section 2.01.
"Synthetic Lease" means a lease of property or assets by the
Borrower or any Subsidiary with any Person (other than the Borrower or any
Subsidiary) designed to permit the lessee (a) to claim depreciation and
amortization on such property or assets under U.S. tax law and (b) to treat such
lease as an operating lease or not to reflect the leased property or assets on
the lessee's balance sheet under GAAP.
364-Day Credit Agreement
-22-
"TARGET Day" means any day on which the Trans-European
Automated Real-time Gross Settlement Express Transfer payment system (or any
successor settlement system as determined by the Administrative Agent) is open
for the settlement of payments in euro.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means the execution, delivery and performance
by each Obligor of this Agreement and the other Loan Documents to which such
Obligor is intended to be a party, the borrowing of Loans, the use of the
proceeds thereof and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
constituting such Borrowing, is determined by reference to the Adjusted LIBO
Rate, the Alternate Base Rate or (in the case of Swingline Loans only) a Money
Market Rate.
"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. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Syndicated Loan"), by Type (e.g., an "ABR Loan") or by Class and Type
(e.g., a "Syndicated ABR Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Syndicated Borrowing"), by Type (e.g., an "ABR Borrowing")
or by Class and Type (e.g., a "Syndicated ABR Borrowing"). Loans and Borrowings
may also be identified by currency.
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
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 words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
364-Day Credit Agreement
-23-
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP consistently applied, as in effect from
time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the Administrative
Agent notifies the Borrower that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith. To enable the ready and consistent determination of compliance with
the covenants set forth in Article VII, the Borrower will not change the last
day of its fiscal year from December 31, or the last days of the first three
fiscal quarters in each of its fiscal years from March 31, June 30 and September
30, respectively.
SECTION 1.05. Currencies; Currency Equivalents; Provisions
Relating to European Monetary Union. (a) At any time, any reference in the
definition of the term "Agreed Foreign Currency" or in any other provision of
this Agreement to the currency of any particular nation means the lawful
currency of such nation at such time whether or not the name of such currency is
the same as it was on the date hereof. Except as provided in Section 2.11(b) and
the last sentence of Section 2.18(a), for purposes of determining (i) whether
the amount of any Borrowing, together with all other Borrowings then outstanding
or to be borrowed at the same time as such Borrowing, would exceed the aggregate
amount of the Commitments, (ii) the aggregate unutilized amount of the
Commitments and (iii) the aggregate outstanding principal amount of Borrowings,
the outstanding principal amount of any Borrowing that is denominated in any
Foreign Currency shall be deemed to be the Dollar Equivalent of the amount of
the Foreign Currency of such Borrowing determined as of the date of such
Borrowing (determined in accordance with the last sentence of the definition of
the term "Interest Period").
(b) Wherever in this Agreement in connection with a Borrowing
or Loan an amount, such as a required minimum or multiple amount, is expressed
in Dollars, but such Borrowing or Loan is denominated in a Foreign Currency,
such amount shall be the relevant Foreign Currency Equivalent of such Dollar
amount (rounded to the nearest 1,000 units of such Foreign Currency), as
determined by the Administrative Agent.
(c) Each obligation hereunder of any party hereto that is
denominated in the National Currency of a state that is not a Participating
Member State on the date hereof shall, effective from the date on which such
state becomes a Participating Member State, be redenominated in euro in
accordance with the legislation of the European Union applicable to the European
Monetary Union; provided that, if and to the extent that any such legislation
provides that any such obligation of any such party payable within such
Participating Member State by crediting an account of the creditor can be paid
by the debtor either in euros or such National Currency, such party shall be
entitled to pay or repay such amount either in euros or in such
364-Day Credit Agreement
-24-
National Currency. If the basis of accrual of interest or fees expressed in this
Agreement with respect to an Agreed Foreign Currency of any country that becomes
a Participating Member State after the date on which such currency becomes an
Agreed Foreign Currency shall be inconsistent with any convention or practice in
the interbank market for the basis of accrual of interest or fees in respect of
the euro, such convention or practice shall replace such expressed basis
effective as of and from the date on which such state becomes a Participating
Member State; provided that, with respect to any Borrowing denominated in such
currency that is outstanding immediately prior to such date, such replacement
shall take effect at the end of the Interest Period therefor. Without prejudice
to the respective liabilities of the Borrower to the Lenders and the Lenders to
the Borrower under or pursuant to this Agreement, each provision of this
Agreement shall be subject to such reasonable changes of construction as the
Administrative Agent may from time to time reasonably specify to be necessary or
appropriate to reflect the introduction or changeover to the euro in any country
that becomes a Participating Member State after the date hereof; provided that
the Administrative Agent shall provide the Borrower and the Lenders with prior
notice of the proposed change with an explanation of such change in sufficient
time to permit the Borrower and the Lenders an opportunity to respond to such
proposed change.
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments. Subject to the terms and
conditions set forth herein, each Lender agrees to make Syndicated Loans in
Dollars or in any Agreed Foreign Currency to the Borrower from time to time
during the Availability Period in an aggregate principal amount that will not
result in (a) such Lender's Revolving Credit Exposure exceeding such Lender's
Commitment or (b) the total Revolving Credit Exposures exceeding the total
Commitments. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Syndicated Loans.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Syndicated Loan shall be made
as part of a Borrowing consisting of Loans of the same currency and Type made by
the Lenders ratably in accordance with their respective Commitments. The failure
of any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.14, each Syndicated
Borrowing shall be constituted entirely of ABR Loans or of Eurocurrency Loans
denominated in a single currency as the Borrower may request in accordance
herewith. Each Swingline Loan shall be an ABR Loan or a Money Market Loan, as
applicable. Each ABR Loan (whether a Syndicated Loan or a
364-Day Credit Agreement
-25-
Swingline Loan) shall be denominated in Dollars. Each Lender at its option may
make any Eurocurrency Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. Each
Eurocurrency Borrowing shall be in an aggregate amount of $2,000,000 or a larger
multiple of $500,000. Each Syndicated ABR Borrowing shall be in an aggregate
amount equal to $250,000 or a larger multiple of $100,000; provided that a
Syndicated ABR Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments or that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(f). Each
Swingline Loan shall be in an amount equal to $100,000 or a larger multiple
thereof. Borrowings of more than one Class, currency and Type may be outstanding
at the same time; provided that there shall not at any time be more than a total
of twenty Eurocurrency Borrowings outstanding.
(d) Limitations on Interest Periods. Notwithstanding any other
provision of this Agreement, the Borrower shall not be entitled to request (or
to elect to convert to or continue as a Eurocurrency Borrowing) any Borrowing if
the Interest Period requested therefor would end after the Commitment
Termination Date.
SECTION 2.03. Requests for Syndicated Borrowings.
(a) Notice by the Borrower. To request a Syndicated Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone
(i) in the case of a Eurocurrency Borrowing denominated in Dollars, not later
than 12:00 noon, New York City time, three Business Days before the date of the
proposed Borrowing, (ii) in the case of a Eurocurrency Borrowing denominated in
a Foreign Currency, not later than 12:00 noon, London time, three Business Days
before the date of the proposed Borrowing or (iii) in the case of a Syndicated
ABR Borrowing, not later than 12:00 noon, New York City time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower.
(b) Content of Borrowing Requests. Each telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) the aggregate amount and currency of the requested
Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) in the case of a Syndicated Borrowing denominated in
Dollars, whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
364-Day Credit Agreement
-26-
(iv) in the case of a Eurocurrency Borrowing, the Interest
Period therefor, which shall be a period contemplated by the definition
of the term "Interest Period" and permitted under Section 2.02(d); and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
(c) Notice by the Administrative Agent to the Lenders.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
(d) Failure to Elect. If no election as to the currency of a
Syndicated Borrowing is specified, then the requested Syndicated Borrowing shall
be denominated in Dollars. If no election as to the Type of a Syndicated
Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing
unless an Agreed Foreign Currency has been specified, in which case the
requested Syndicated Borrowing shall be a Eurocurrency Borrowing denominated in
such Agreed Foreign Currency. If no Interest Period is specified with respect to
any requested Eurocurrency Borrowing, (i) if the currency specified for such
Borrowing is Dollars (or if no currency has been so specified), the requested
Borrowing shall be made instead as a Syndicated ABR Borrowing, and (ii) if the
currency specified for such Borrowing is an Agreed Foreign Currency, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration.
SECTION 2.04. Swingline Loans.
(a) Agreement to Make Swingline Loans. Subject to the terms
and conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Borrower from time to time during the Availability Period, in
Dollars, in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of outstanding Swingline Loans
exceeding $15,000,000 or (ii) the total Revolving Credit Exposures exceeding the
total Commitments; provided that the Swingline Lender shall not be required to
make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Swingline Loans. Each Swingline Loan
shall be an ABR Borrowing unless, prior to requesting a Swingline Loan, the
Borrower shall have requested a Money Market Rate Borrowing and the Swingline
Lender shall have quoted a Money Market Rate therefor which the Borrower shall
select in its notice delivered pursuant to paragraph (b) below, provided that
the Swingline Lender shall be required to provide interest rate quotes for a
Money Market Rate Borrowing only subject to the availability of Money Market
Rates by the Swingline Lender.
(b) Notice of Swingline Loans by the Borrower. To request a
Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, New
York City time, on the date of a proposed Swingline Loan. Each such notice shall
be irrevocable and shall specify the requested date (which shall be
364-Day Credit Agreement
-27-
a Business Day) and the amount and Type of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(f), by remittance to the Issuing Lender) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) Participations by Lenders in Swingline Loans. The
Swingline Lender may by written notice given to the Administrative Agent not
later than 10:00 a.m., New York City time, on any Business Day require the
Lenders to acquire participations on such Business Day in all or a portion of
the Swingline Loans outstanding. Such notice to the Administrative Agent shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above
in this paragraph, to pay to the Administrative Agent, for account of the
Swingline Lender, such Lender's Applicable Percentage of such Swingline Loan or
Loans. Each Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph 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 such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Lender shall
comply with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to
the payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any
default in the payment thereof.
SECTION 2.05. Letters of Credit.
(a) General. Subject to the terms and conditions set forth
herein, in addition to the Loans provided for in Section 2.01, the Borrower may
request the Issuing Lender to issue, at any time and from time to time during
the Availability Period, Letters of Credit denominated in Dollars for its own
account in such form as is acceptable to the Issuing Lender in its reasonable
364-Day Credit Agreement
-28-
determination. Letters of Credit issued hereunder shall constitute utilization
of the Commitments.
(b) Notice of Issuance, Amendment, Renewal or Extension. 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 Issuing Lender) to the Issuing Lender 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 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 paragraph (d) of this Section), 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 Issuing Lender, the Borrower also shall submit a
letter of credit application on the Issuing Lender's standard form in connection
with any request for a Letter of Credit. In the event of any inconsistency
between the terms and conditions of this Agreement and 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 Issuing Lender relating
to any Letter of Credit, the terms and conditions of this Agreement shall
control.
(c) Limitations on Amounts. 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 sum of (A) the aggregate LC Exposure of the Issuing
Lender (determined for these purposes without giving effect to the
participations therein of the Lenders pursuant to paragraph (e) of this Section)
and (B) the aggregate exposure of letters of credit issued under the Other
Credit Agreement (determined for these purposes without giving effect to
participations therein of the lenders thereunder) shall not exceed $100,000,000
and (ii) the total Revolving Credit Exposures shall not exceed the total
Commitments.
(d) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the date that is five Business Days prior to
the Commitment Termination Date.
(e) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) by the Issuing
Lender, and without any further action on the part of the Issuing Lender or the
Lenders, the Issuing Lender hereby grants to each Lender, and each Lender hereby
acquires from the Issuing Lender, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments.
364-Day Credit Agreement
-29-
In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for account of the Issuing Lender, such Lender's Applicable Percentage of
each LC Disbursement made by the Issuing Lender promptly upon the request of the
Issuing Lender at any time from the time of such LC Disbursement until such LC
Disbursement is reimbursed by the Borrower or at any time after any
reimbursement payment is required to be refunded to the Borrower for any reason.
Such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each such payment shall be made in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Issuing Lender the
amounts so received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to the next
following paragraph, the Administrative Agent shall distribute such payment to
the Issuing Lender or, to the extent that the Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Lender, then to such Lenders
and the Issuing Lender as their interests may appear. Any payment made by a
Lender pursuant to this paragraph to reimburse the Issuing Lender for any LC
Disbursement shall not constitute a Loan and shall not relieve the Borrower of
its obligation to reimburse such LC Disbursement.
(f) Reimbursement. If the Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse the
Issuing Lender in respect of such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on (i) the Business Day that the Borrower
receives notice of such LC Disbursement, if such notice is received prior to
10:00 a.m., New York City time, or (ii) the Business Day immediately following
the day that the Borrower receives such notice, if such notice is not received
prior to such time, provided that, if such LC Disbursement is not less than
$250,000, the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 or 2.04 that such payment be
financed with a Syndicated ABR Borrowing or a Swingline Loan in an equivalent
amount and, to the extent so financed, the Borrower's obligation to make such
payment shall be discharged and replaced by the resulting Syndicated ABR
Borrowing or Swingline Loan.
If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC Disbursement,
the payment then due from the Borrower in respect thereof and such Lender's
Applicable Percentage thereof.
(g) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (f) of this Section 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 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 Issuing Lender under a Letter of Credit
against presentation of a draft or other document that does not comply strictly
with the terms of such Letter of Credit, and (iv) any other event or
364-Day Credit Agreement
-30-
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 the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing
Lender, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit by the Issuing Lender 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 Issuing Lender;
provided that the foregoing shall not be construed to excuse the Issuing Lender
from liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Lender's gross negligence or willful misconduct
when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that:
(i) the Issuing Lender may accept documents that appear on
their face to be in substantial compliance with the terms of a Letter
of Credit without responsibility for further investigation, regardless
of any notice or information to the contrary, and may make payment upon
presentation of documents that appear on their face to be in
substantial compliance with the terms of such Letter of Credit;
(ii) the Issuing Lender shall have the right, in its sole
discretion, to decline to accept such documents and to make such
payment if such documents are not in strict compliance with the terms
of such Letter of Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by the Issuing Lender when determining whether drafts and
other documents presented under a Letter of Credit comply with the
terms thereof (and the parties hereto hereby waive, to the extent
permitted by applicable law, any standard of care inconsistent with the
foregoing).
(h) Disbursement Procedures. The Issuing Lender shall, within
a reasonable time following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit. The
Issuing Lender shall promptly after such examination notify the Administrative
Agent and the Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether the Issuing Lender has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such notice
shall not relieve the Borrower of its obligation to reimburse the Issuing Lender
and the Lenders with respect to any such LC Disbursement.
364-Day Credit Agreement
-31-
(i) Interim Interest. If the Issuing Lender shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to Syndicated ABR Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (f) of this Section, then Section 2.13(c) shall apply.
Interest accrued pursuant to this paragraph shall be for account of the Issuing
Lender, except that interest accrued on and after the date of payment by any
Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Lender
shall be for account of such Lender to the extent of such payment.
(j) Replacement of the Issuing Lender. The Issuing Lender may
be replaced at any time by written agreement between the Borrower, the
Administrative Agent, the replaced Issuing Lender and the successor Issuing
Lender. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Lender. At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for account of the
replaced Issuing Lender pursuant to Section 2.12(b). From and after the
effective date of any such replacement, (i) the successor Issuing Lender shall
have all the rights and obligations of the replaced Issuing Lender under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term "Issuing Lender" shall be deemed to refer to such
successor or to any previous Issuing Lender, or to such successor and all
previous Issuing Lenders, as the context shall require. After the replacement of
an Issuing Lender hereunder, the replaced Issuing Lender shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing
Lender under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters of
Credit.
(k) Cash Collateralization. If either (i) an Event of Default
shall occur and be continuing and 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 Exposure representing more than 50% of the
total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, or (ii) the Borrower shall be required to provide cover for LC
Exposure pursuant to Section 2.11, the Borrower shall immediately deposit into
an account established and maintained on the books and records of the
Administrative Agent, which account may be a "securities account" (within the
meaning of Section 8-501 of the Uniform Commercial Code as in effect in the
State of New York), in the name of the Administrative Agent and for the benefit
of the Lenders, an amount in cash equal to, in the case of an Event of Default,
the LC Exposure as of such date plus any accrued and unpaid interest thereon
and, in the case of cover pursuant to Section 2.11, the amount required under
Section 2.11; provided that the obligation to deposit such cash collateral shall
become effective immediately, and such deposit shall 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 VIII. Such deposit shall be held by the Collateral Agent as collateral
for the LC Exposure under this Agreement and thereafter for the payment of the
"Secured Obligations" under and as defined in the Pledge Agreements, and for
these purposes the Borrower hereby grants a security interest to the Collateral
Agent for the benefit of the Lenders in such collateral
364-Day Credit Agreement
-32-
account and in any financial assets (as defined in the Uniform Commercial Code)
or other property held therein.
(l) Letters of Credit Under the Existing Credit Agreement. To
the extent that, pursuant to Section 2.4 of the Credit Agreement referred to in
Section 5.01(g), The Chase Manhattan Bank, as the "Issuing Bank" thereunder, has
issued "Letters of Credit" thereunder and as defined therein, on the Effective
Date, subject to the satisfaction of the conditions to effectiveness of the
obligations of the Lenders hereunder set forth in Article V, each of such
"Letters of Credit" thereunder listed in Schedule 2.05(l) shall automatically,
and without any action on the part of any Person, become Letters of Credit
hereunder.
SECTION 2.06. Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 3:00 p.m., Local Time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders; provided that Swingline Loans shall be made as provided in
Section 2.04. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower designated by the Borrower in the applicable Borrowing
Request; provided that Syndicated ABR Borrowings made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(f) shall be
remitted by the Administrative Agent to the Issuing Lender.
(b) Presumption by the Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to 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 on such date in accordance with
paragraph (a) of this Section and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (i) in the case of such Lender, the Federal Funds
Effective Rate or (ii) in the case of the Borrower, the interest rate applicable
to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections.
(a) Elections by the Borrower for Syndicated Borrowings. The
Loans constituting each Syndicated Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurocurrency
Borrowing, shall have the Interest Period specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a Borrowing of a
different Type or to continue such Borrowing as a Borrowing of
364-Day Credit Agreement
-33-
the same Type and, in the case of a Eurocurrency Borrowing, may elect the
Interest Period therefor, all as provided in this Section; provided that (i) a
Syndicated Borrowing denominated in one currency may not be continued as, or
converted to, a Syndicated Borrowing in a different currency, (ii) no
Eurocurrency Borrowing denominated in a Foreign Currency may be continued if,
after giving effect thereto, the aggregate Revolving Credit Exposures would
exceed the aggregate Commitments, and (iii) a Eurocurrency Borrowing denominated
in a Foreign Currency may not be converted to a Borrowing of a different Type.
The Borrower may elect different options with respect to different portions of
the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans constituting such Borrowing, and the
Loans constituting each such portion shall be considered a separate Borrowing.
This Section shall not apply to Swingline Borrowings, which may not be converted
or continued.
(b) Notice of Elections. To make an election pursuant to this
Section, the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Syndicated Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a format approved by the Administrative
Agent and signed by the Borrower.
(c) Content of Interest Election Requests. Each telephonic and
written Interest Election Request shall specify the following information in
compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) of this paragraph shall be specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether, in the case of a Borrowing denominated in
Dollars, the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing,
the Interest Period therefor after giving effect to such election,
which shall be a period contemplated by the definition of the term
"Interest Period" and permitted under Section 2.02(d).
(d) Notice by the Administrative Agent to the Lenders.
Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender's
portion of each resulting Borrowing.
364-Day Credit Agreement
-34-
(e) Failure to Elect; Events of Default. If the Borrower fails to
deliver a timely and complete Interest Election Request with respect to a
Eurocurrency Borrowing prior to the end of the Interest Period therefor, then,
unless such Borrowing is repaid as provided herein, (i) if such Borrowing is
denominated in Dollars, at the end of such Interest Period such Borrowing shall
be converted to a Syndicated ABR Borrowing, and (ii) if such Borrowing is
denominated in a Foreign Currency, the Borrower shall be deemed to have selected
an Interest Period of one month's duration. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (A) no outstanding
Syndicated Borrowing denominated in Dollars may be converted to or continued as
a Eurocurrency Borrowing, (B) unless repaid, each Eurocurrency Borrowing
denominated in Dollars shall be converted to a Syndicated ABR Borrowing at the
end of the Interest Period therefor and (C) no outstanding Eurocurrency
Borrowing denominated in a Foreign Currency may have an Interest Period of more
than one month's duration.
SECTION 2.08. Termination and Reduction of the Commitments.
(a) Scheduled Termination. Unless previously terminated, the
Commitments shall terminate on the Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at any
time terminate, or from time to time reduce, the Commitments; provided that (i)
each reduction of the Commitments shall be in an amount that is $2,000,000 or a
larger multiple of $1,000,000 and (ii) the Borrower shall not terminate or
reduce the Commitments if, after giving effect to any concurrent prepayment of
the Syndicated Loans in accordance with Section 2.11, the total Revolving Credit
Exposures would exceed the total Commitments.
(c) Notice of Voluntary Termination or Reduction. The Borrower
shall notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
by the Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied.
(d) Effect of Termination or Reduction. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.
364-Day Credit Agreement
-35-
SECTION 2.09. Extension of Commitment Termination Date.
(a) Request for Extension. The Borrower may, by notice to the
Administrative Agent, which shall promptly notify the Lenders, not less than 45
days and not more than 60 days prior to the Commitment Termination Date then in
effect hereunder (the "Existing Commitment Termination Date"), request that the
Lenders extend the Commitment Termination Date for an additional 364 days from
the Consent Date (as defined below). Each Lender, acting in its sole discretion,
shall, by notice to the Borrower and the Administrative Agent given on or before
the date that is 30 days prior to the Existing Commitment Termination Date or,
if such date is not a Business Day, the Business Day next succeeding such date
(such date or Business Day, as the case may be, the "Consent Date"), advise the
Borrower whether or not such Lender agrees to such extension; provided that each
Lender that determines not to extend the Commitment Termination Date (a
"Non-extending Lender") shall notify the Administrative Agent (which shall
notify the Lenders) of such fact promptly after such determination (but in any
event no later than the Consent Date) and any Lender that does not advise the
Borrower on or before the Consent Date shall be deemed to be a Non-extending
Lender; provided further that any such consent given before the Consent Date
shall be revocable until the opening of business of the Administrative Agent on
the Consent Date and any such consent given after, or not revoked before, the
opening of business of the Administrative Agent on the Consent Date shall be
irrevocable. The election of any Lender to agree to such extension shall not
obligate any other Lender to so agree.
(b) Replacement of Non-extending Lenders. The Borrower shall have
the right on or before the Existing Commitment Termination Date to replace each
Non-extending Lender with, and otherwise add to this Agreement, one or more
other lenders (which may include any Lender, each prior to the Existing
Commitment Termination Date an "Additional Commitment Lender") with the approval
of the Administrative Agent (which approval shall not be unreasonably withheld),
each of which Additional Commitment Lenders shall have entered into an agreement
in form and substance satisfactory to the Borrower and the Administrative Agent
pursuant to which such Additional Commitment Lender shall, effective as of the
Existing Commitment Termination Date, undertake a Commitment (and, if any such
Additional Commitment Lender is already a Lender, its Commitment shall be in
addition to such Lender's Commitment hereunder on such date).
(c) Effectiveness of Extension. If (and only if) the total of the
Commitments of the Lenders that have agreed so to extend the Commitment
Termination Date shall be more than 50% of the aggregate amount of the
Commitments in effect immediately prior to the Consent Date, then, effective as
of the Existing Commitment Termination Date, the Existing Commitment Termination
Date shall be extended to the date falling 364 days after the Consent Date
(except that, if such date is not a Business Day, such Commitment Termination
Date as so extended shall be the next preceding Business Day) and each
Additional Commitment Lender (if it is not already a Lender) shall thereupon
become a "Lender" for all purposes of this Agreement.
364-Day Credit Agreement
-36-
Notwithstanding the foregoing, the extension of the Existing
Commitment Termination Date shall not be effective with respect to any Lender
unless:
(i) no Default shall have occurred and be continuing on each of
the date of the notice requesting such extension, on the Consent Date
and on the Existing Commitment Termination Date;
(ii) each of the representations and warranties made by the
Borrower in Article IV, and by each Obligor in each of the other Loan
Documents to which it is a party, shall be true and complete on and as
of each of the date of the notice requesting such extension, the Consent
Date and the Existing Commitment Termination Date with the same force
and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date);
(iii) not later than three Business Days before the Existing
Commitment Termination Date, the Administrative Agent shall have
received from (x) each Subsidiary Guarantor a confirmation, in form and
substance satisfactory to the Administrative Agent, that such Subsidiary
Guarantor's guarantee hereunder shall continue hereunder notwithstanding
such extension and (y) the Borrower and each Domestic Subsidiary party
to a Pledge Agreement a confirmation, in form and substance satisfactory
to the Administrative Agent, that such Person's obligations under such
Pledge Agreement shall continue thereunder notwithstanding such
extension; and
(iv) each Non-extending Lender shall have been paid in full by
the Borrower all amounts owing to such Lender hereunder on or before the
Existing Commitment Termination Date, and shall have been released from
any obligations hereunder in respect of Letters of Credit issued by it
or in which it shall have acquired a participation pursuant to Section
2.05(e).
Even if the Existing Commitment Termination Date is extended as aforesaid, the
Commitment of each Non-extending Lender shall terminate on the Existing
Commitment Termination Date.
SECTION 2.10. Repayment of Loans; Evidence of Debt.
(a) Repayment. The Borrower hereby unconditionally promises to
pay the Loans as follows:
(i) to the Administrative Agent for account of the Lenders the
outstanding principal amount of the Syndicated Loans on the Commitment
Termination Date, and
(ii) to the Swingline Lender the then unpaid principal amount of
each Swingline Loan on the earlier of the Commitment Termination Date
and the first date after such Swingline Loan is made that is the 15th or
last day of a calendar month and is at least two Business Days after
such Swingline Loan is made; provided that on each date that a
364-Day Credit Agreement
-37-
Syndicated Borrowing is made, the Borrower shall repay all Swingline
Loans then outstanding.
(b) Manner of Payment. Prior to any repayment or prepayment of
any Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings
to be paid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 12:00 noon, New York City time, three
Business Days before the scheduled date of such repayment; provided that each
repayment of Borrowings shall be applied to repay any outstanding ABR Borrowings
before any other Borrowings. If the Borrower fails to make a timely selection of
the Borrowing or Borrowings to be repaid or prepaid, such payment shall be
applied, first, to pay any outstanding ABR Borrowings and, second, to other
Borrowings in the order of the remaining duration of their respective Interest
Periods (the Borrowing with the shortest remaining Interest Period to be repaid
first). Each payment of a Syndicated Borrowing shall be applied ratably to the
Loans included in such Borrowing.
(c) Maintenance of Records by Lenders. Each Lender shall maintain
in accordance with its usual practice records evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender, including
the amounts and currency of principal and interest payable and paid to such
Lender from time to time hereunder.
(d) Maintenance of Records by the Administrative Agent. The
Administrative Agent shall maintain records in which it shall record (i) the
amount and currency of each Loan made hereunder, the Class and Type thereof and
each Interest Period therefor, (ii) the amount and currency 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 and currency of any sum received by the
Administrative Agent hereunder for account of the Lenders and each Lender's
share thereof.
(e) Effect of Entries. The entries made in the records maintained
pursuant to paragraph (c) or (d) of this Section shall be prima facie evidence
of the existence and amounts of the obligations recorded therein; provided that
the failure of any Lender or the Administrative Agent to maintain such records
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement.
(f) Promissory Notes. Any Lender may request that Loans made by
it be evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to such Lender (or,
if requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 10.04) be represented by one or more promissory
notes in such form payable to the payee named therein (or, if such promissory
note is a registered note, to such payee and its registered assigns).
364-Day Credit Agreement
-38-
SECTION 2.11. Prepayment of Loans.
(a) Optional Prepayments. The Borrower shall have the right at
any time and from time to time to prepay any Borrowing in whole or in part,
subject to the requirements of this Section.
(b) Mandatory Prepayments.
(i) Determination of Amount Outstanding. On each Quarterly Date,
promptly upon the receipt by the Administrative Agent of a Currency
Valuation Notice (as defined below) and, during any period in which
Syndicated Loans in Foreign Currencies are outstanding, on each day that
a Eurocurrency Borrowing, or portion thereof, is continued as a
Eurocurrency Borrowing or any Syndicated ABR Borrowing is converted into
a Eurocurrency Borrowing (but not more than once in any rolling
seven-day period), the Administrative Agent shall determine the
aggregate Revolving Credit Exposure. For the purpose of this
determination, the outstanding principal amount of any Loan that is
denominated in any Foreign Currency shall be deemed to be the Dollar
Equivalent of the amount in the Foreign Currency of such Loan,
determined as of such Quarterly Date or, in the case of a Currency
Valuation Notice received by the Administrative Agent prior to 12:00
noon, New York City time, on a Business Day, on such Business Day or, in
the case of a Currency Valuation Notice otherwise received, on the first
Business Day after such Currency Valuation Notice is received. Upon
making such determination, the Administrative Agent shall promptly
notify the Lenders and the Borrower thereof.
(ii) Prepayment. If on the date of such determination the
aggregate Revolving Credit Exposure exceeds the aggregate amount of the
Commitments as then in effect, the Borrower shall, if requested by the
Required Lenders (through the Administrative Agent), prepay the
Syndicated Loans and Swingline Loans (and/or provide cover for LC
Exposure as specified in Section 2.05(k)) in such amounts as shall be
necessary so that after giving effect thereto the aggregate Revolving
Credit Exposure does not exceed the Commitments.
For purposes hereof, "Currency Valuation Notice" means a notice given by the
Required Lenders to the Administrative Agent stating that such notice is a
"Currency Valuation Notice" and requesting that the Administrative Agent
determine the aggregate Revolving Credit Exposure. The Administrative Agent
shall not be required to make more than one valuation determination pursuant to
Currency Valuation Notices within any rolling three month period. Any prepayment
pursuant to this paragraph shall be applied, first, to Swingline Loans
outstanding, second, to Syndicated Loans outstanding and third, as cover for LC
Exposure.
(c) Notices, Etc. The Borrower shall notify the Administrative
Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender)
by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Eurocurrency Borrowing, not later than 12:00 noon, New York
City time (or, in the case of a Borrowing denominated in a Foreign Currency,
12:00 noon, London time), three Business Days before the
364-Day Credit Agreement
-39-
date of prepayment, (ii) in the case of prepayment of a Syndicated ABR
Borrowing, not later than 12:00 noon, New York City time, on the date of
prepayment or (iii) in the case of prepayment of a Swingline Loan, not later
than 12:00 noon, New York City time, on the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date, the principal amount
of each Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the amount of such
prepayment; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of the Commitments as contemplated by
Section 2.08, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.08. Promptly following
receipt of any such notice relating to a Syndicated Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of a Borrowing of the same Type as provided in Section
2.02, except as necessary to apply fully the required amount of a mandatory
prepayment. Each prepayment of a Syndicated Borrowing shall be applied ratably
to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied
by accrued interest to the extent required by Section 2.13 and shall be made in
the manner specified in Section 2.10(b).
SECTION 2.12. Fees.
(a) Facility Fee. The Borrower agrees to pay to the
Administrative Agent for account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the date
hereof to but excluding the earlier of the date such Commitment terminates and
the Commitment Termination Date. Accrued facility fees shall be payable on each
Quarterly Date and on the earlier of the date the Commitments terminate and the
Commitment Termination Date, commencing on the first such date to occur after
the date hereof. All facility fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(b) Letter of Credit Fees. The Borrower agrees to pay (i) to the
Administrative Agent for account of each Lender a participation fee with respect
to its participations in Letters of Credit, which shall accrue at a rate per
annum equal to the Applicable Rate applicable to interest on Eurocurrency Loans
on the average daily amount of such Lender's LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from
and including the Effective Date to but excluding the later of the date on which
such Lender's Commitment terminates and the date on which such Lender ceases to
have any LC Exposure, and (ii) to the Issuing Lender a fronting fee, which shall
accrue at the rate of 0.125% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Commitments and the date
on which there ceases to be any LC Exposure, as well as the Issuing Lender's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including each Quarterly Date shall be
payable on the third Business Day following such
364-Day Credit Agreement
-40-
Quarterly Date, commencing on the first such date to occur after the Effective
Date; provided that all such fees shall be payable on the date on which the
Commitments terminate and any such fees accruing after the date on which the
Commitments terminate shall be payable on demand. Any other fees payable to the
Issuing Lender pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) Administrative Agent Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid on
the dates due, in Dollars and immediately available funds, to the Administrative
Agent (or to the Issuing Lender, in the case of fees payable to it) for
distribution, in the case of facility fees and participation fees, to the
Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances.
SECTION 2.13. Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing (other
than any Swingline Loan) shall bear interest at a rate per annum equal to the
Alternate Base Rate plus the Applicable Rate. The Swingline Loans shall bear
interest at a rate per annum equal to (i) the Alternate Base Rate plus the
Applicable Rate or (ii) the Money Market Rate, as applicable.
(b) Eurocurrency Loans. The Loans constituting each Eurocurrency
Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBO
Rate for the Interest Period for such Borrowing plus the Applicable Rate.
(c) Default Interest. Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration, by mandatory prepayment or otherwise, such overdue amount shall
bear interest, after as well as before judgment, at a rate per annum equal to
(i) in the case of overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided above or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of
this Section.
(d) Payment of Interest. Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and, in the case
of Syndicated Loans, upon termination of the Commitments; provided that (i)
interest accrued pursuant to paragraph (c) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other than
a prepayment of a Syndicated ABR Loan prior to the Commitment Termination Date),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurocurrency
364-Day Credit Agreement
-41-
Borrowing denominated in Dollars prior to the end of the Interest Period
therefor, accrued interest on such Borrowing shall be payable on the effective
date of such conversion.
(e) Computation. All interest hereunder shall be computed on the
basis of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of the Interest Period for any Eurocurrency Borrowing (the currency
of such Borrowing herein called the "Affected Currency"):
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for the
Affected Currency for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate for the Affected Currency for such Interest
Period will not adequately and fairly reflect the cost to such Lenders
of making or maintaining their respective Loans included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Syndicated Borrowing to, or
the continuation of any Syndicated Borrowing as, a Eurocurrency Borrowing
denominated in the Affected Currency shall be ineffective and (A) if the
Affected Currency is Dollars, such Syndicated Borrowing (unless prepaid) shall
be continued as, or converted to, a Syndicated ABR Borrowing and (B) if the
Affected Currency is a Foreign Currency, such Syndicated Borrowing shall be
prepaid, (ii) if the Affected Currency is Dollars and any Borrowing Request
requests a Eurocurrency Borrowing denominated in Dollars, such Borrowing shall
be made as a Syndicated ABR Borrowing and (iii) if the Affected Currency is a
Foreign Currency, any Borrowing Request that requests a Eurocurrency Borrowing
denominated in the Affected Currency shall be ineffective.
SECTION 2.15. Increased Costs.
(a) Increased Costs Generally. 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
account of, or credit extended by, any
364-Day Credit Agreement
-42-
Lender (except any such reserve requirement reflected in the Adjusted
LIBO Rate) or the Issuing Lender; or
(ii) impose on any Lender or the Issuing Lender or the London
interbank market any other condition affecting this Agreement or
Eurocurrency 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 Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Lender of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Lender hereunder (whether of principal, interest or otherwise), by an
amount which such Lender or the Issuing Lender, as the case may be, deems in its
sole discretion to be material, then, subject to the delivery of a certificate
contemplated by paragraph (c) below, the Borrower will pay to such Lender or the
Issuing Lender, as the case may be, in Dollars, such additional amount or
amounts as will compensate such Lender or the Issuing Lender, as the case may
be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the Issuing Lender
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 Issuing
Lender's capital or on the capital of such Lender's or the Issuing Lender'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 Issuing Lender, to a level below that which such Lender
or the Issuing Lender or such Lender's or the Issuing Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Lender's policies and the policies of such Lender's or
the Issuing Lender's holding company with respect to capital adequacy), then,
subject to the delivery of a certificate contemplated by paragraph (c) below,
from time to time the Borrower will pay to such Lender or the Issuing Lender, as
the case may be, in Dollars, such additional amount or amounts as will
compensate such Lender or the Issuing Lender or such Lender's or the Issuing
Lender's holding company for any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender or the
Issuing Lender setting forth in reasonable detail the amount or amounts, in
Dollars, necessary to compensate such Lender or the Issuing Lender or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Lender, as the
case may be, the amount shown as due on any such certificate within 20 days
after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender
or the Issuing Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Lender's right to demand
such compensation; provided that the Borrower shall not be required to
compensate a Lender or the Issuing Lender pursuant to this Section for any
increased costs or reductions incurred more than 120 days prior to the date that
such Lender
364-Day Credit Agreement
-43-
or the Issuing Lender, as the case may be, notifies the Borrower of the Change
in Law giving rise to such increased costs or reductions and of such Lender's or
the Issuing Lender's intention to claim compensation therefor; provided further
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 120-day period referred to above shall be extended to
include the period of retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan other than on the last day of
an Interest Period therefor (including as a result of an Event of Default), (b)
the conversion of any Eurocurrency Loan other than on the last day of an
Interest Period therefor, (c) the failure to borrow, convert, continue or prepay
any Syndicated Loan on the date specified in any notice delivered pursuant
hereto (regardless of whether such notice is permitted to be revocable under
Section 2.11(c) and is revoked in accordance herewith) (other than as a result
of Section 2.14), or (d) the assignment as a result of a request by the Borrower
pursuant to Section 2.19(b) of any Eurocurrency Loan other than on the last day
of an Interest Period therefor, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurocurrency Loan, the loss to any Lender attributable
to any such event shall be deemed to include an amount determined by such Lender
to be equal to the excess, if any, of (i) the amount of interest that such
Lender would pay for a deposit equal to the principal amount of such Loan
denominated in the currency of such Loan for the period from the date of such
payment, conversion, failure or assignment to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, convert
or continue, the duration of the Interest Period that would have resulted from
such borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate for such currency for such Interest
Period, over (ii) the amount of interest that such Lender would earn on such
principal amount for such period if such Lender were to invest such principal
amount for such period at the interest rate that would be bid by such Lender (or
an affiliate of such Lender) for deposits denominated in such currency from
other banks in the eurocurrency market at the commencement of such period. A
certificate of any Lender setting forth in reasonable detail the basis for and
calculation of 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 20 days after receipt thereof.
SECTION 2.17. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account
of any obligation of the Borrower hereunder or under any other Loan Document
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
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, each Lender or the Issuing Lender (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made,
364-Day Credit Agreement
-44-
(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) Payment of Other Taxes by the Borrower. In addition, the
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify
the Administrative Agent, each Lender and the Issuing Lender, within 20 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the Issuing Lender, as the case may be, 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 setting forth in reasonable detail the amount of such payment or
liability delivered to the Borrower by a Lender or the Issuing Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Lender, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by the Borrower 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) Foreign Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is located, or any treaty to which such jurisdiction 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 or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) Payments by the Obligors. Each Obligor shall make each
payment required to be made by it hereunder (whether of principal, interest,
fees or reimbursement of LC Disbursements, or under Section 2.15, 2.16 or 2.17,
or otherwise) or under any other Loan Document (except to the extent otherwise
provided therein) prior to 12:00 noon, Local Time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date 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 the Administrative Agent's Account,
except as otherwise expressly provided in the relevant Loan Document and except
payments to be made directly to the Issuing Lender or the Swingline Lender as
expressly provided herein and payments pursuant to Sections 2.15, 2.16, 2.17 and
364-Day Credit Agreement
-45-
10.03, which shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All amounts owing under this
Agreement (including facility fees, payments required under Section 2.15, and
payments required under Section 2.16 relating to any Loan denominated in
Dollars, but not including principal of, and interest on, any Loan denominated
in any Foreign Currency or payments relating to any such Loan required under
Section 2.16, which are payable in such Foreign Currency) or under any other
Loan Document (except to the extent otherwise provided therein) are payable in
Dollars. Notwithstanding the foregoing, if the Borrower shall fail to pay any
principal of any Loan when due (whether at stated maturity, by acceleration, by
mandatory prepayment or otherwise), the unpaid portion of such Loan shall, if
such Loan is not denominated in Dollars, automatically be redenominated in
Dollars on the due date thereof (or, if such due date is a day other than the
last day of the Interest Period therefor, on the last day of such Interest
Period) in an amount equal to the Dollar Equivalent thereof on the date of such
redenomination and such principal shall be payable on demand; and if the
Borrower shall fail to pay any interest on any Loan that is not denominated in
Dollars, such interest shall automatically be redenominated in Dollars on the
due date therefor (or, if such due date is a day other than the last day of the
Interest Period therefor, on the last day of such Interest Period) in an amount
equal to the Dollar Equivalent thereof on the date of such redenomination and
such interest shall be payable on demand.
(b) Application of Insufficient Payments. 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) Pro Rata Treatment. Except to the extent otherwise provided
herein: (i) each Syndicated Borrowing shall be made from the Lenders, each
payment of facility fee under Section 2.12 shall be made for account of the
Lenders, and each termination or reduction of the amount of the Commitments
under Section 2.08 shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments; (ii)
each Syndicated Borrowing shall be allocated pro rata among the Lenders
according to the amounts of their respective Commitments (in the case of the
making of Syndicated Loans) or their respective Loans that are to be included in
such Borrowing (in the case of conversions and continuations of Loans); (iii)
each payment or prepayment of principal of Syndicated Loans by the Borrower
shall be made for account of the Lenders pro rata in accordance with the
respective unpaid principal amounts of the Syndicated Loans held by them; and
(iv) each payment of interest on Syndicated Loans by the Borrower shall be made
for account of the Lenders pro rata in accordance with the amounts of interest
on such Loans then due and payable to the respective Lenders.
364-Day Credit Agreement
-46-
(d) Sharing of Payments by Lenders. 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 Syndicated Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its
Syndicated Loans and participations in LC Disbursements and Swingline Loans and
accrued interest thereon then due 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 Syndicated Loans and participations in
LC Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Syndicated Loans and participations in LC Disbursements and
Swingline Loans; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by any Obligor 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 paragraph shall apply).
Each Obligor 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 such
Obligor rights of set-off and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of such Obligor in the amount of
such participation.
(e) Presumptions of Payment. Unless the Administrative Agent
shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for account of the Lenders or the
Issuing Lender hereunder 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 upon such assumption,
distribute to the Lenders or the Issuing Lender, as the case may be, the amount
due. In such event, if the Borrower has not in fact made such payment, then each
of the Lenders or the Issuing Lender, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or the Issuing Lender with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the Federal Funds Effective
Rate.
(f) Certain Deductions by the Administrative Agent. If any Lender
shall fail to make any payment required to be made by it pursuant to Section
2.04(c), 2.05(e), 2.06(b) or 2.18(e), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for account of such Lender to
satisfy such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
364-Day Credit Agreement
-47-
(g) Payments in Foreign Currencies by the Administrative Agent
Generally. With respect to the payment of any amount denominated in euros or in
a National Currency, the Administrative Agent shall not be liable to the
Borrower or any of the Lenders in any way whatsoever for any delay, or the
consequences of any delay, in the crediting to any account of any amount
required by this Agreement to be paid by the Administrative Agent if the
Administrative Agent shall have taken all relevant steps to achieve, on the date
required by this Agreement, the payment of such amount in immediately available,
freely transferable, cleared funds (in euros or in such National Currency, as
the case may be) to the account of any Lender in the Principal Financial Center
in the Participating Member State which the Borrower or such Lender, as the case
may be, shall have specified for such purpose. For the purposes of this
paragraph, "all relevant steps" means all such steps as may be prescribed from
time to time by the regulations or operating procedures of such clearing or
settlement system as the Administrative Agent may from time to time determine
for the purpose of clearing or settling payments in euros or such National
Currency.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.15, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for account of
any Lender pursuant to Section 2.17, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.15 or 2.17, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay, within 20
days after written demand therefor, all reasonable costs and expenses incurred
by any Lender in connection with any such designation or assignment; provided
that such Lender shall use reasonable efforts to notify the Borrower in advance
before incurring such cost or expense which such Lender deems to be material.
(b) Replacement of Lenders. If any Lender requests compensation
under Section 2.15, or if the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for account of any Lender pursuant
to Section 2.17, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 10.04), 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 Issuing Lender and the
Swingline Lender), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such
364-Day Credit Agreement
-48-
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments required
to be made pursuant to Section 2.17, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee. The Subsidiary Guarantors hereby
jointly and severally guarantee to each Lender and the Administrative Agent and
their respective successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the principal of
and interest on the Loans made by the Lenders to the Borrower and all other
amounts from time to time owing to the Lenders or the Administrative Agent by
the Borrower under this Agreement and by any Obligor under any of the other Loan
Documents, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "Guaranteed Obligations"). The
Subsidiary Guarantors hereby further jointly and severally agree that if the
Borrower shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Guaranteed Obligations, the Subsidiary
Guarantors will promptly pay the same, without any demand or notice whatsoever,
and that in the case of any extension of time of payment or renewal of any of
the Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with
the terms of such extension or renewal.
SECTION 3.02. Obligations Unconditional. The obligations of the
Subsidiary Guarantors under Section 3.01 are absolute and unconditional, joint
and several, irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of the Borrower under this Agreement or any
other agreement or instrument referred to herein, or any substitution, release
or exchange of any other guarantee of or security for any of the Guaranteed
Obligations, and, also to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section that the obligations of the Subsidiary
Guarantors hereunder shall be absolute and unconditional, joint and several,
under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by applicable law,
the occurrence of any one or more of the following shall not alter or impair the
liability of the Subsidiary Guarantors hereunder, which shall remain absolute
and unconditional as described above:
(i) at any time or from time to time, without notice to the
Subsidiary Guarantors, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
364-Day Credit Agreement
-49-
(ii) any of the acts mentioned in any of the provisions of this
Agreement or any other agreement or instrument referred to herein shall
be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Agreement or any other agreement or instrument referred to herein shall
be waived or any other guarantee of any of the Guaranteed Obligations or
any security therefor shall be released or exchanged in whole or in part
or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of,
the Administrative Agent or any Lender or Lenders as security for any of
the Guaranteed Obligations shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed
against the Borrower under this Agreement or any other agreement or instrument
referred to herein, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
SECTION 3.03. Reinstatement. The obligations of the Subsidiary
Guarantors under this Article shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the Borrower in
respect of the Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the Subsidiary
Guarantors jointly and severally agree that they will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including reasonable fees of counsel) incurred by the Administrative
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
SECTION 3.04. Subrogation. The Subsidiary Guarantors hereby
jointly and severally agree that until the payment and satisfaction in full of
all Guaranteed Obligations and the expiration and termination of the Commitments
of the Lenders under this Agreement they shall not exercise any right or remedy
arising by reason of any performance by them of their guarantee in Section 3.01,
whether by subrogation or otherwise, against the Borrower or any other guarantor
of any of the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.
SECTION 3.05. Remedies. The Subsidiary Guarantors jointly and
severally agree that, as between the Subsidiary Guarantors and the Lenders, the
obligations of the Borrower under this Agreement may be declared to be forthwith
due and payable as provided in Article VIII (and shall be deemed to have become
automatically due and payable in the
364-Day Credit Agreement
-50-
circumstances provided in Article VIII) for purposes of Section 3.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Borrower and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Borrower) shall forthwith
become due and payable by the Subsidiary Guarantors for purposes of Section
3.01.
SECTION 3.06. Instrument for the Payment of Money. Each
Subsidiary Guarantor hereby acknowledges that the guarantee in this Article
constitutes an instrument for the payment of money, and consents and agrees that
any Lender or the Administrative Agent, at its sole option, in the event of a
dispute by such Subsidiary Guarantor in the payment of any moneys due hereunder,
shall have the right to bring motion-action under New York CPLR Section 3213.
SECTION 3.07. Continuing Guarantee. The guarantee in this Article
is a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
SECTION 3.08. Rights of Contribution. The Subsidiary Guarantors
hereby agree, as between themselves, that if any Subsidiary Guarantor shall
become an Excess Funding Guarantor (as defined below) by reason of the payment
by such Subsidiary Guarantor of any Guaranteed Obligations, each other
Subsidiary Guarantor shall, on demand of such Excess Funding Guarantor (but
subject to the next sentence), pay to such Excess Funding Guarantor an amount
equal to such Subsidiary Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations. The payment obligation of a
Subsidiary Guarantor to any Excess Funding Guarantor under this Section shall be
subordinate and subject in right of payment to the prior payment in full of the
obligations of such Subsidiary Guarantor under the other provisions of this
Article and such Excess Funding Guarantor shall not exercise any right or remedy
with respect to such excess until payment and satisfaction in full of all of
such obligations.
For purposes of this Section, (i) "Excess Funding Guarantor"
means, in respect of any Guaranteed Obligations, a Subsidiary Guarantor that has
paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations,
(ii) "Excess Payment" means, in respect of any Guaranteed Obligations, the
amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share of
such Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Subsidiary
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the
aggregate present fair saleable value of all properties of such Subsidiary
Guarantor (excluding any shares of stock of any other Subsidiary Guarantor)
exceeds the amount of all the debts and liabilities of such Subsidiary Guarantor
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of such Subsidiary Guarantor hereunder and any
obligations of any other Subsidiary Guarantor that have been guaranteed by such
Subsidiary Guarantor) to (y) the amount by which the aggregate fair saleable
value of all properties of all of the Subsidiary Guarantors exceeds the amount
of all the debts and liabilities (including contingent, subordinated, unmatured
and unliquidated liabilities, but excluding the obligations of
364-Day Credit Agreement
-51-
the Borrower and the Subsidiary Guarantors hereunder and under the other Loan
Documents) of all of the Subsidiary Guarantors, determined (A) with respect to
any Subsidiary Guarantor that is a party hereto on the Effective Date, as of the
Effective Date, and (B) with respect to any other Subsidiary Guarantor, as of
the date such Subsidiary Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 3.09. General Limitation on Guarantee Obligations. In any
action or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 3.01 would otherwise, taking into account the provisions of Section
3.08, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 3.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Administrative Agent or any
other Person, be automatically limited and reduced to the highest amount that is
valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 4.01. Organization; Powers. Each of the Borrower and its
Subsidiaries (other than any Immaterial Subsidiary) (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to carry on its business
as now conducted and (c) is qualified to do business in, and is in good standing
in, every jurisdiction where such qualification is required, except, in the case
of clause (b) or (c) above, where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.02. Authorization; Enforceability. The Transactions are
within each Obligor's corporate powers and have been duly authorized by all
necessary corporate and, if required, by all necessary shareholder action. This
Agreement has been duly executed and delivered by each Obligor and constitutes,
and each of the other Loan Documents to which it is a party when executed and
delivered by such Obligor will constitute, a legal, valid and binding obligation
of such Obligor, enforceable against each Obligor in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
364-Day Credit Agreement
-52-
SECTION 4.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except for (i)
such as have been obtained or made and are in full force and effect and (ii)
filings and recordings in respect of the Liens created pursuant to the Security
Documents, (b) will not violate any Requirement of Law applicable to the
Borrower or any of its Subsidiaries (other than any Immaterial Subsidiaries),
(c) will not violate or result in a default under any indenture, agreement or
other instrument binding upon the Borrower or any of its Subsidiaries or assets,
or give rise to a right thereunder to require any payment to be made by any such
Person, and (d) except for the Liens created pursuant to the Security Documents,
will not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.
SECTION 4.04. Financial Condition; No Material Adverse Change.
(a) Financial Condition. The Borrower has heretofore furnished to
the Lenders its consolidated balance sheet and statements of income,
stockholders' equity and cash flows (i) as of and for the fiscal year ended
December 31, 2000, reported on by PricewaterhouseCoopers LLP, independent public
accountants, and (ii) as of and for the fiscal quarter and the portion of the
fiscal year ended September 30, 2001, certified by the chief financial officer
of the Borrower. Such financial statements present fairly, in all material
respects, the financial condition and results of operations and cash flows of
the Borrower and its Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) of the first
sentence of this paragraph.
(b) No Material Adverse Change. Since December 31, 2000, there
has been no material adverse change in the business, assets, operations or
condition, financial or otherwise, of the Borrower and its Subsidiaries, taken
as a whole.
SECTION 4.05. Properties.
(a) Property Generally. Each of the Borrower and its Subsidiaries
(other than any Immaterial Subsidiary) has good title to, or valid leasehold
interests in, all its real and personal property material to its business,
subject only to Liens permitted by Section 7.02 and except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) Intellectual Property. Each of the Borrower and its
Subsidiaries (other than any Immaterial Subsidiary) owns, or is licensed to use,
all trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
364-Day Credit Agreement
-53-
SECTION 4.06. Litigation and Environmental Matters.
(a) Actions, Suits and Proceedings. There are no actions, suits
or proceedings by or before any arbitrator or Governmental Authority now pending
against or, to the knowledge of the Borrower, threatened against or affecting
the Borrower or any of its Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than the actions, suits and proceedings disclosed
in Schedule 4.06(a)) or (ii) that involve this Agreement, any other Loan
Document or the Transactions.
(b) Environmental Matters. Each of the Borrower and its
Subsidiaries has obtained all environmental, health and safety permits, licenses
and other authorizations required under all Environmental Laws to carry on its
business as now being or as proposed to be conducted, except to the extent
failure to have any such permit, license or authorization, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect. Each of such permits, licenses and authorizations is in full force and
effect and each of the Borrower and its Subsidiaries is in compliance with the
terms and conditions thereof, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable Environmental
Law or in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved thereunder,
except to the extent failure to comply therewith, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(c) Disclosed Matters. Since the date hereof, there has been no
change in the status of the actions, suits and proceedings disclosed in Schedule
4.06(a) that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 4.07. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 4.08. Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 4.09. Taxes. Each of the Borrower and its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such Person has set aside on its
364-Day Credit Agreement
-54-
books adequate reserves in accordance with GAAP or (b) to the extent that the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 4.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $20,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $20,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 4.11. Disclosure. The Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to which
it or any of its Subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished in writing by or on behalf of the
Obligors to the Administrative Agent or the Lenders in connection with the
negotiation of this Agreement and the other Loan Documents or delivered
hereunder or thereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
SECTION 4.12. Use of Credit. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin Stock.
SECTION 4.13. Subsidiaries. Set forth in Schedule 4.13 is a
complete and correct list of all of the Subsidiaries of the Borrower as of the
date hereof, together with, for each Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in Schedule 4.13, (x) each of the
Borrower and its Subsidiaries owns, free and clear of Liens (other than Liens
created pursuant to the Security Documents and Permitted Encumbrances), and has
the unencumbered right to vote, all outstanding ownership interests in each
Subsidiary shown to be held by it in Schedule 4.13, (y) all of the issued and
outstanding Capital Stock of each Subsidiary organized as a corporation is
validly issued, fully
364-Day Credit Agreement
-55-
paid and nonassessable and (z) there are no outstanding Equity Rights with
respect to each such Subsidiary.
SECTION 4.14. Labor Matters. There are no strikes or other labor
disputes against the Borrower or any of its Subsidiaries pending or, to the
knowledge of the Borrower, threatened, other than any thereof that (individually
or in the aggregate) could not reasonably be expected to result in a Material
Adverse Effect. Hours worked by and payment made to employees of the Borrower
and its Subsidiaries have not been in violation of the Fair Labor Standards Act
or any other applicable law, regulation or order of any Governmental Authority
dealing with such matters that (individually or in the aggregate) could
reasonably be expected to result in a Material Adverse Effect. All payments due
from the Borrower or any of its Subsidiaries on account of employee health and
welfare insurance that (individually or in the aggregate) could reasonably be
expected to result in a Material Adverse Effect if not paid have been paid or
accrued as a liability on the books of the Borrower or the relevant Subsidiary.
ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date. The obligations of the Lenders to
make Loans and of the Issuing Lender to issue Letters of Credit hereunder shall
not become effective until the date on which the Administrative Agent shall have
received each of the following documents, each of which shall be satisfactory to
the Administrative Agent (and to the extent specified below, to each Lender) in
form and substance (or such condition shall have been waived in accordance with
Section 10.02):
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Obligors. An opinion, addressed to
the Administrative Agent and the Lenders and dated the Effective Date,
of (i) Xxxxx Xxxxxx, Esq., General Counsel of the Borrower,
substantially in the form of Exhibit E-1, (ii) Debevoise & Xxxxxxxx,
special New York counsel to the Obligors, substantially in the form of
Exhibit E-2 and (iii) Xxxxx X. Xxxxx, Lobosky and Company, Bahamas
counsel to the Borrower, in form and substance satisfactory to the
Administrative Agent and, in each case, covering such other matters
relating to the Borrower, the other Obligors, this Agreement or the
Transactions as the Required Lenders shall reasonably request (and the
Borrower hereby instructs such counsel to deliver such opinion to the
Lenders and the Administrative Agent).
364-Day Credit Agreement
-56-
(c) Opinion of Special New York Counsel to JPMorgan. An opinion,
dated the Effective Date, of Milbank, Tweed, Xxxxxx & XxXxxx LLP,
special New York counsel to JPMorgan, substantially in the form of
Exhibit F (and JPMorgan hereby instructs such counsel to deliver such
opinion to the Lenders).
(d) Corporate Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to
the organization, existence and good standing of each Obligor, the
authorization of the Transactions and any other legal matters relating
to the Obligors, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(e) Officer's Certificate. 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 the lettered clauses of the first sentence of Section 5.02.
(f) Pledge Agreement; Intercreditor and Collateral Agency
Agreement. A Pledge Agreement, duly executed and delivered by the
Borrower and the Collateral Agent, and the certificates identified in
Annex 1 thereto, in each case accompanied by undated stock powers
executed in blank. In addition, the Borrower shall have taken such other
action (including delivering to the Collateral Agent, for filing,
appropriately completed and duly executed copies of Uniform Commercial
Code financing statements) as the Collateral Agent shall have requested
in order to perfect the security interests created pursuant to such
Pledge Agreement; and the Intercreditor and Collateral Agency Agreement,
duly executed and delivered by the Borrower, the Administrative Agent,
the administrative agent under the Other Credit Agreement and the
Collateral Agent.
(g) Repayment of Existing Indebtedness. Evidence that the
principal of and interest on, and all other amounts owing in respect of,
the Credit Agreement dated as of September 16, 1997 among the Borrower,
the banks party thereto, and JPMorgan, as administrative agent, as in
effect on the date hereof (including any contingent or other amounts
payable in respect of letters of credit other than such letters of
credit that are being continued hereunder pursuant to Section 2.05(l)),
shall have been (or shall be simultaneously) paid in full, that any
commitments to extend credit thereunder shall have been canceled or
terminated and that all guarantees in respect of, and all Liens
securing, any amounts thereunder shall have been released (or
arrangements for such release satisfactory to the Administrative Agent
shall have been made).
(h) Environmental Certificate. An Environmental Certificate dated
September 25, 2001.
(i) Other Documents. Such other documents as the Administrative
Agent or any Lender or special New York counsel to JPMorgan may
reasonably request.
364-Day Credit Agreement
-57-
The obligation of each Lender to make its initial extension of
credit hereunder is also subject to the payment by the Borrower of such fees as
the Borrower shall have agreed to pay to any Lender or the Administrative Agent
in connection herewith, including the reasonable fees and expenses of Milbank,
Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to JPMorgan, in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the other Loan Documents and the extensions of credit hereunder (to the extent
that statements for such fees and expenses have been delivered to the Borrower).
The Administrative Agent shall notify the Borrower and the
Lenders of the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Lender to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02) on or prior to 3:00 p.m., New York City time, on
November 30, 2001 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 5.02. Each Credit Event. The obligation of each Lender to
make any Loan, and of the Issuing Lender to issue, amend, renew or extend any
Letter of Credit, is additionally subject to the satisfaction of the following
conditions:
(a) each of the representations and warranties made by the
Borrower in this Agreement, and by each Obligor in each of the other
Loan Documents to which it is a party (including, without limitation,
any Environmental Certificate), shall be true and complete on and as of
the date of such Loan or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, with the same force
and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date); and
(b) at the time of and immediately after giving effect to such
Loan or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
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 the preceding
sentence.
ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all other amounts owing hereunder
shall have been paid in full and all
364-Day Credit Agreement
-58-
Letters of Credit shall have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Lenders
that:
SECTION 6.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 120 days after the end of each fiscal year of the
Borrower, the audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows of the Borrower and
its Subsidiaries as of the end of and for such fiscal year, setting
forth in each case in comparative form the figures for (or, in the case
of the balance sheet, as of the end of) the previous fiscal year, all
reported on by PricewaterhouseCoopers LLP or other independent public
accountants of recognized national standing (without a "going concern"
or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the
Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, the consolidated
balance sheet and related statements of operations, stockholders' equity
and cash flows of the Borrower and its Subsidiaries as of the end of and
for such fiscal quarter and the then elapsed portion of such fiscal
year, setting forth in each case in comparative form the figures for
(or, in the case of the balance sheet, as of the end of) the
corresponding period or periods of the previous fiscal year, all
certified by a Financial Officer of the Borrower as presenting fairly in
all material respects the financial condition and results of operations
of the Borrower and its Subsidiaries on a consolidated basis or of each
of the Borrowers and its Subsidiaries, as the case may be, in accordance
with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) of this Section, a certificate of a Financial Officer
(i) certifying as to whether a Default has occurred and, if a Default
has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 7.01, 7.02,
7.05, 7.09 and 7.10, (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial
statements referred to in Section 4.04 and, if any such change has
occurred, specifying the effect of such change on the financial
statements accompanying such certificate and (iv) setting forth the name
of any Subsidiary formed or acquired during the three-month period
ending on the last day of the relevant fiscal quarter or fiscal year and
its jurisdiction of organization;
(d) concurrently with any delivery of financial statements under
clause (a) of this Section, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such
364-Day Credit Agreement
-59-
financial statements of any Default (which certificate may be limited to
the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
filed by the Borrower or any of its Subsidiaries with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national securities
exchange, or distributed by the Borrower to its shareholders generally;
(f) (i) as soon as available and within 60 days after the end of
the second fiscal quarter of each fiscal year of the Borrower, a summary
indicating updates on all environmental activities, remediation efforts
and investigations by governmental entities regarding environmental
matters and such other information regarding environmental matters as
any Lender or the Administrative Agent may reasonably request and (ii)
within 60 days after the end of each fiscal year of the Borrower, a
newly executed Environmental Certificate; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any of its Subsidiaries, or compliance with
the terms of this Agreement and the other Loan Documents, as the
Administrative Agent or any Lender (through the Administrative Agent)
may reasonably request.
SECTION 6.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or
affecting the Borrower or any of its Affiliates that, if adversely
determined, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding
$20,000,000;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in
an aggregate amount exceeding $20,000,000;
(d) the assertion of any environmental matter by any Person
against, or with respect to the activities of, the Borrower or any of
its Subsidiaries and any violation of or non-compliance with any
Environmental Laws or any permits, licenses or authorizations, other
than any environmental matter or alleged violation that could not
(either individually or in the aggregate) result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding
$20,000,000; and
364-Day Credit Agreement
-60-
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 6.03. 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 and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
7.03.
SECTION 6.04. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay its obligations, including tax
liabilities, before the same shall become delinquent or in default, except where
(a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on
its books adequate reserves with respect thereto in accordance with GAAP and (c)
the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 6.05. Maintenance of Properties; Insurance. The Borrower
will, and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION 6.06. Books and Records; Inspection Rights. The Borrower
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries in accordance with GAAP and
all Requirements of Law are made of all dealings and transactions in relation to
its business and activities. The Borrower will, and will cause each of its
Subsidiaries to (i) not more than once per any fiscal quarter for any Lender or
the Administrative Agent (unless any Event of Default shall have occurred and be
continuing), permit any representatives designated by the Administrative Agent
or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and (if doing so shall be reasonably related to this
Agreement) 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 and (ii) not more
than once per any fiscal quarter (unless any Event of Default shall have
occurred and be continuing), permit the Administrative Agent or any
representatives designated by the Administrative Agent to conduct a
comprehensive field audit of its books, records, properties and assets.
364-Day Credit Agreement
-61-
SECTION 6.07. 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, without limitation,
Environmental Laws) applicable to it or its property, except where the failure
to do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 6.08. Use of Proceeds and Letters of Credit. The proceeds
of the Loans will be used only for general corporate purposes of the Borrower
and its Subsidiaries. No part of the proceeds of any Loan and no Letters of
Credit will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the regulations of the Board, including, without
limitation, Regulations T, U and X. Letters of Credit will be issued only for
general corporate purposes of the Borrower and its Subsidiaries.
SECTION 6.09. Certain Obligations Respecting Subsidiaries;
Further Assurances.
(a) Domestic Subsidiary Guarantors. The Borrower will take such
action, and will cause each of its Subsidiaries to take such action, from time
to time as shall be necessary to ensure that all Domestic Subsidiaries of the
Borrower are "Subsidiary Guarantors" hereunder. Without limiting the generality
of the foregoing, in the event that the Borrower or any of its Subsidiaries
shall form or acquire any new Domestic Subsidiary after the Effective Date, the
Borrower and its Subsidiaries will cause such new Domestic Subsidiary, promptly
but in no event later than 45 days following the formation or acquisition of
such new Domestic Subsidiary (or, in the case of any Immaterial Subsidiary which
is a Domestic Subsidiary, within 60 days following the end of the fiscal quarter
in which such Domestic Subsidiary is formed or acquired), to
(i) become a "Subsidiary Guarantor" hereunder, pursuant to a
Guarantee Assumption Agreement, and
(ii) deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is consistent with
those delivered by each Obligor pursuant to Section 5.01 on the
Effective Date or as the Administrative Agent shall have requested.
(b) Foreign Subsidiaries. The Borrower will take such action, and
will cause each of its Domestic Subsidiaries to take such action, from time to
time as shall be necessary to ensure that, promptly but in no event later than
45 days following the formation or acquisition of any Foreign Subsidiary that is
owned directly by the Borrower or any Domestic Subsidiary (or, in the case of
any Immaterial Subsidiary which is a Foreign Subsidiary, within 60 days
following the end of the fiscal quarter in which such Foreign Subsidiary is
formed or acquired), not less than (i) 66% of the voting Capital Stock of such
Foreign Subsidiary and (ii) so long as the pledge thereof could not have any
adverse tax consequences for the Borrower, 100% of all other Capital Stock of
such Foreign Subsidiary shall be pledged in favor of the Collateral Agent (or a
sub-agent thereof) for the benefit of the Lenders, and the Borrower or such
Domestic Subsidiary, as
364-Day Credit Agreement
-62-
the case may be, shall deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is consistent with those
delivered by each Obligor pursuant to Section 5.01 on the Effective Date or as
the Administrative Agent shall have requested.
(c) Further Assurances. The Borrower will, and will cause each of
its Subsidiaries to, take such action from time to time as shall reasonably be
requested by the Administrative Agent to effectuate the purposes and objectives
of this Agreement.
(d) Certain Existing Foreign Subsidiaries.
(i) Notwithstanding anything herein to the contrary, the Borrower
shall not be required to pledge any Capital Stock of Cambrex Hong Kong
Limited or CBM Canco Corp.; provided that each such Foreign Subsidiary
shall (A) be liquidated and dissolved not later than the date six months
after the Effective Date and (B) remain an Immaterial Subsidiary at all
times prior to the completion of such liquidation and dissolution (and
in the event that the liquidation and dissolution of either such Foreign
Subsidiary is not completed on or prior to such date or the Borrower
delivers consolidated financial statements prior to the completion of
such liquidation and dissolution indicating that either such Foreign
Subsidiary is no longer an Immaterial Subsidiary, the Borrower shall be
required to pledge not less than (i) 66% of the voting Capital Stock of
such Foreign Subsidiary and (ii) so long as the pledge thereof could not
have any adverse tax consequences for the Borrower, 100% of all other
Capital Stock of such Foreign Subsidiary in favor of the Collateral
Agent (or a sub-agent thereof) for the benefit of the Lenders not later
than (in the case of failure to comply with clause (A) above) such date
or (in the case of failure to comply with clause (B) above) 45 days
following the date of delivery of the consolidated financial statements
indicating that such Foreign Subsidiary is no longer an Immaterial
Subsidiary (unless such Foreign Subsidiary shall have already been
liquidated and dissolved), and the Borrower shall deliver such proof of
corporate action, incumbency of officers, opinions of counsel and other
documents as is consistent with those delivered by each Obligor pursuant
to Section 5.01 on the Effective Date or as the Administrative Agent
shall have requested).
(ii) The Borrower will take such action, and will cause its
Domestic Subsidiaries to take such action, as shall be necessary to
ensure that, promptly but in no event later than 60 days after the
Effective Date, not less than (i) 66% of the voting Capital Stock of
Lumitech UK and (ii) so long as the pledge thereof could not have any
adverse tax consequences for the Borrower, 100% of all other Capital
Stock of Lumitech UK shall be pledged in favor of the Collateral Agent
(or a sub-agent thereof) for the benefit of the Lenders, and the
Borrower or such Domestic Subsidiary, as the case may be, shall deliver
such proof of corporate action, incumbency of officers, opinions of
counsel and other documents as is consistent with those delivered by
each Obligor pursuant to Section 5.01 on the Effective Date or as the
Administrative Agent shall have requested.
364-Day Credit Agreement
-63-
ARTICLE VII
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all other amounts owing hereunder
have been paid in full and all Letters of Credit have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 7.01. Indebtedness. The Borrower will not, nor will it
permit any of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness created hereunder and under the other Loan
Documents;
(b) Indebtedness existing on the date hereof and listed in
Schedule 7.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof;
(c) Indebtedness of (i) the Borrower owing to any Subsidiary or
(ii) any Subsidiary owing to the Borrower or another Subsidiary;
(d) Guarantees by the Borrower of Indebtedness of any Subsidiary
or by any Subsidiary of Indebtedness of the Borrower or any other
Subsidiary;
(e) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or secured
by a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof; provided that (i)
such Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement and
(ii) the aggregate principal amount of Indebtedness permitted by this
clause (e) shall not exceed $100,000,000 at any time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary after
the date hereof and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof; provided that such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary;
(g) unsecured Subordinated Indebtedness;
364-Day Credit Agreement
-64-
(h) Indebtedness of (i) the Borrower or any Subsidiary as an
account party or applicant in respect of trade letters of credit and
(ii) any Foreign Subsidiary as an account party or applicant in respect
of euro-denominated standby letters of credit in an aggregate face
amount not exceeding $20,000,000 at any time outstanding;
(i) Indebtedness of the Borrower and its Subsidiaries arising in
respect of Permitted Securitizations;
(j) Priority Indebtedness of the Borrower and its Subsidiaries,
provided that the aggregate principal amount of Indebtedness permitted
by this clause (j) shall not exceed at any time 12-1/2% of the
consolidated assets of the Borrower and its Subsidiaries (as shown on
the consolidated balance sheet of the Borrower for the most recently
ended fiscal quarter); and
(k) unsecured Indebtedness of the Borrower or any other Obligor
if, upon the incurrence thereof, the Leverage Ratio and the Senior
Leverage Ratio (in each case determined as of last day of the most
recently ended fiscal quarter after giving pro forma effect to the
incurrence of such Indebtedness and the application of the proceeds
thereof) would not be greater than 3.50:1.0 and 3.25:1.0, respectively.
SECTION 7.02. Liens. The Borrower will not, nor will it permit
any of its Subsidiaries to, create, incur, assume or permit to exist any Lien on
any property or asset 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:
(a) Liens created hereunder or under any of the other Loan
Documents;
(b) Permitted Encumbrances;
(c) Liens existing on the date hereof and listed in Schedule
7.02, and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount secured thereby, provided that
(i) no such Lien shall extend to any other property or asset of the
Borrower or any of its Subsidiaries and (ii) any such Lien shall secure
only those obligations which it secures on the date hereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may
be, (ii) such Lien shall not apply to any other property or assets of
the Borrower or any Subsidiary and (iii) such Lien shall secure only
those obligations which it secures on the date of such acquisition or
the date such Person becomes a Subsidiary, as the case may be, and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
364-Day Credit Agreement
-65-
(e) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (i) such
security interests secure Indebtedness permitted by clause (e) of
Section 7.01, (ii) such security interests and the Indebtedness secured
thereby are incurred prior to or within 90 days after such acquisition
or the completion of such construction or improvement, (iii) the
Indebtedness secured thereby does not exceed 100% of the cost of
acquiring, constructing or improving such fixed or capital assets and
(iv) such security interests shall not apply to any other property or
assets of the Borrower or any Subsidiary;
(f) Liens arising in connection with Permitted Securitizations;
and
(g) Liens securing Priority Indebtedness permitted under Section
7.01(j).
SECTION 7.03. Mergers, Consolidations, etc.; Changes in Lines of
Business.
(a) The Borrower will not, nor will it permit any of its
Subsidiaries to, merge or consolidate or amalgamate with any other Person, or
liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution)
or take any other action having a similar effect, except:
(i) any Subsidiary may merge into the Borrower in a transaction
in which the Borrower is the surviving corporation;
(ii) any Subsidiary may merge into another Subsidiary;
(iii) any Subsidiary may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and not materially disadvantageous to the
Lenders; and
(iv) the Borrower may merge with any Person (other than a
Subsidiary) in a transaction in which the Borrower is the surviving
corporation; provided that (A) prior to the consummation of any such
merger, the Borrower has provided the Administrative Agent (I) with pro
forma financial statements demonstrating compliance by the Borrower with
Sections 7.01, 7.02, 7.09 and 7.10 and (II) a certificate of the chief
financial officer of the Borrower certifying compliance by the Borrower
with said Sections and Section 7.05, in each case after giving effect to
such merger, and the requirements of this Section and (B) both
immediately prior to such merger and after giving effect thereto, no
Default shall have occurred and be continuing;
(b) The Borrower will not, nor will it permit any of its
Subsidiaries to, make or suffer any substantial change in the nature of its
biological, biopharmaceutical, biotechnological, laboratory supply products,
chemical processing and refining, pharmaceutical and nutraceutical businesses,
or research and development businesses related thereto, or engage in any
business other than biological, biopharmaceutical, biotechnological, laboratory
supply products, chemical processing and refining, pharmaceutical and
nutraceutical businesses, or research and development businesses related
thereto, or any business related, incidental, supplemental or
364-Day Credit Agreement
-66-
ancillary thereto, except as a result of any Acquisition permitted under Section
7.05(b) or any Disposition permitted under Section 7.04.
SECTION 7.04. Disposition of Assets. The Borrower will not, nor
will it permit any of its Subsidiaries to, make any Disposition, except:
(a) sales of inventory in the ordinary course of business upon
customary credit terms;
(b) any Disposition of scrap or obsolete property, materials or
equipment;
(c) any Disposition of property of any Subsidiary to the Borrower
or any other Subsidiary;
(d) any Permitted Disposition; and
(e) Dispositions of property having an aggregate book value
(disregarding any write-downs of such book value other than ordinary
depreciation and amortization) of less than $15,000,000 for any fiscal
year, provided that, both immediately before such transaction and after
giving effect thereto, no Default shall have occurred and be continuing.
SECTION 7.05. Investments and Acquisitions. (a) The Borrower will
not, nor will it permit any of its Subsidiaries to, make any Investments,
except:
(i) extensions of trade credit made in the ordinary course of
business on customary credit terms and commission, travel and similar
advances (having a tenor not exceeding 365 days) made to its officers
and employees in the ordinary course of business;
(ii) Investments outstanding on the date hereof and listed in
Schedule 7.05;
(iii) operating deposit account with banks;
(iv) Investments in cash and Permitted Investments;
(v) Investments by the Borrower and its Subsidiaries (other than
any Receivables Subsidiary) in the Borrower and its Subsidiaries or in
respect of Indebtedness or other obligations of the Borrower or any
Subsidiary (including, without limitation, Subsidiaries formed or
organized after the date hereof);
(vi) Investments consisting of Indebtedness permitted under
Section 7.01(c) or (d) or Indebtedness related to Letters of Credit;
364-Day Credit Agreement
-67-
(vii) Hedging Agreements entered into in the ordinary course of
business to hedge or mitigate risks to which the Borrower or any of its
Subsidiaries is exposed in the conduct of its business or the management
of its liabilities;
(viii) Investments in Capital Stock of the Borrower which is held
by the Borrower as treasury stock and is restored to unissued status or
is eliminated from authorized shares, or options in respect thereof;
(ix) Investments constituting capital expenditures;
(x) Investments consisting of security deposits with utilities
and other like Persons, and Investments in respect of Guarantees of, or
contingent obligations with respect to, indemnification and contribution
agreements, "take or pay" or similar agreements, surety and appeal
bonds, performance bonds and other obligations of a like nature and
contracts for the purchase or use of equipment, inventory and supplies
required by the Borrower and its Subsidiaries, in each case made in the
ordinary course of business or in connection with other transactions
permitted hereunder;
(xi) accommodation guarantees for the benefit of trade creditors
of the Borrower or any of its Subsidiaries in the ordinary course of
business;
(xii) Guarantees of collectibility in respect of accounts
receivable or notes receivable up to face value;
(xiii) Investments in connection with any Acquisition (subject to
compliance with the requirements of Section 7.05(b)) or any Disposition
(subject to compliance with the requirements of Section 7.04);
(xiv) Indebtedness of any Person which is the purchaser in
connection with any Disposition permitted hereunder that is issued to
the Borrower or any Subsidiary as consideration in whole or in part in
respect of the purchase price thereof; and
(xv) Investments in Capital Stock (including any debt securities
convertible into Capital Stock) of any Person that is not, and as a
result of such Investment does not become, a Subsidiary in an aggregate
amount not exceeding $80,000,000 (or the equivalent thereof in any other
currency), provided that (i) such Person is engaged in a line of
business related to the biological, biopharmaceutical, biotechnological,
laboratory supply products, chemical processing and refining,
pharmaceutical and nutraceutical businesses, or research and development
businesses related thereto, or any other business related, incidental,
supplemental or ancillary thereto, (ii) not less than three Business
Days prior to the making of any such Investment, the Borrower has
furnished to the Administrative Agent a reasonably detailed written
description of such Investment and (iii) any such Investment in any
Person which is the purchaser in connection with any Permitted
Disposition (or the parent company of such Person) that is made at the
time of such Disposition shall not be subject to the dollar limit set
forth above in this clause (xv).
364-Day Credit Agreement
-68-
(b) The Borrower will not, nor will it permit any of its
Subsidiaries to, make any Acquisition with respect to which the Purchase Price
paid by the Borrower and its Subsidiaries exceeds $25,000,000 (or the equivalent
thereof in any other currency), except for any such Acquisition if (i) such
Acquisition, if the Acquired Entity is a publicly held corporation, shall have
been approved by the board of directors of such Acquired Entity, (ii) after
giving effect to any such Acquisition of Capital Stock, the Acquired Entity
becomes a direct or indirect Subsidiary of the Borrower; (iii) the Acquired
Entity is engaged in a line of business (x) related to the biological,
biopharmaceutical, biotechnological, laboratory supply products, chemical
processing and refining, pharmaceutical and nutraceutical businesses, or
research and development businesses related thereto, or any other business
related, incidental, supplemental or ancillary thereto, or (y) otherwise
acceptable to the Required Lenders; (iv) both immediately prior to such
Acquisition and after giving effect thereto, no Default shall have occurred and
be continuing; and (iii) not less than three Business Days prior to the
consummation of such Acquisition, the Borrower has furnished to the
Administrative Agent (x) a reasonably detailed written description of such
Acquisition (including, without limitation, the business or assets being
acquired, the Purchase Price thereof and the method and structure of payment
thereof), (y) pro forma financial statements demonstrating compliance with
Sections 7.01, 7.02, 7.09 and 7.10 after giving effect to such Acquisition and
(z) a certificate of the chief financial officer of the Borrower certifying
compliance with Section 7.05, after giving effect to such Acquisition, and the
requirements of this paragraph (b).
SECTION 7.06. Restricted Payments. The Borrower will not, nor
will it permit any of its Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment; provided that (a) the
Borrower may declare and pay dividends with respect to its Capital Stock payable
solely in additional shares of its Capital Stock and (b) the Borrower may make,
pay, declare or authorize any Restricted Payment if, both immediately before and
after giving effect to such Restricted Payment, no Default shall have occurred
and be continuing. Nothing herein shall be deemed to prohibit the making of any
Restricted Payment by any Subsidiary to the Borrower or to any of its
shareholders.
SECTION 7.07. Transactions with Affiliates. The Borrower will
not, nor will it permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) transactions in the ordinary course of business at
prices and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, (b) transactions between or among the Borrower and its Subsidiaries not
involving any other Affiliate and (c) any Restricted Payment permitted by
Section 7.06.
SECTION 7.08. Restrictive Agreements. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, enter into,
incur or permit to exist any agreement or other consensual arrangement that
prohibits, restricts or imposes any condition upon the ability of any Subsidiary
to pay dividends or other distributions with respect to any shares of its
Capital Stock or to make or repay loans or advances to the Borrower or any other
364-Day Credit Agreement
-69-
Subsidiary or to guarantee Indebtedness of the Borrower or any other Subsidiary;
provided that the foregoing shall not apply to (a) restrictions and conditions
imposed by law (including any Requirement of Law) or by this Agreement, (b)
restrictions and conditions existing on the date hereof and identified in
Schedule 7.08 (and any extension or renewal of, or any amendment or modification
to, any such restriction or condition that does not expand in any material
respect the scope thereof) and (c) customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary pending such sale,
provided that such restrictions and conditions apply only to the Subsidiary that
is to be sold and such sale is permitted hereunder.
SECTION 7.09. Certain Financial Covenants.
(a) Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio to be less than 3.00 to 1.0 at any time.
(b) Consolidated Net Worth. The Borrower will not permit
Consolidated Net Worth at any time to be less than the sum of (i) $300,000,000
plus (ii) an amount equal to 50% of Consolidated Net Income (without reduction
for a net loss) for each fiscal quarter of the Borrower ending on or after
December 31, 2001.
(c) Leverage Ratio. The Borrower will not permit the Leverage
Ratio to be greater than 3.50:1.0 at any time.
(d) Senior Leverage Ratio. The Borrower will not permit the
Senior Leverage Ratio to be greater than 3.25:1.0 at any time.
SECTION 7.10. Sale and Leaseback Transactions. The Borrower will
not, nor will it permit any of its Subsidiaries to, become or remain liable in
any way, whether directly or by assignment or as a guarantor or other contingent
obligor, for the obligations of the lessee or user under any lease or contract
for the use of any real or personal property if such property was owned by the
Borrower or any of its Subsidiaries for more than 90 days prior to the date such
Person became liable for such obligation and has been or is to be sold or
transferred to any other Person and was, is or will be used by the Borrower or
any such Subsidiary for substantially the same purpose as such property was used
by the Borrower or such Subsidiary prior to such sale or transfer or to enter
into any Synthetic Lease, except to the extent any such transaction is permitted
under Section 7.01(j).
SECTION 7.11. Modifications of Certain Documents. The Borrower
will not, nor will it permit any of its Subsidiaries to, consent to any
modification, supplement or waiver of any of the provisions of the charter,
by-laws or other organizational documents of the Borrower or any of its
Subsidiaries or any agreement, instrument or other document evidencing or
relating to any Subordinated Indebtedness that could reasonably be expected to
be materially adverse to the interests of the Lenders.
364-Day Credit Agreement
-70-
ARTICLE VIII
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 reimbursement obligation in respect of any LC Disbursement when and
as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or under any other
Loan Document, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of five or more
Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of any Obligor in or in connection with this Agreement or any
other Loan Document or any amendment or modification hereof or thereof,
or in any report, certificate (including, without limitation, any
Environmental Certificate), financial statement or other document
furnished pursuant to or in connection with this Agreement or any other
Loan Document or any amendment or modification hereof or thereof, shall
prove to have been incorrect in any material respect when made or deemed
made or furnished;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 6.02(a), 6.03 (with respect
to the Borrower's existence), 6.08 (other than the second sentence
thereof) or in Article VII; or any Subsidiary Guarantor shall default in
the performance of any of its obligations contained herein; or the
Borrower shall fail to observe or perform any covenant, condition or
agreement contained in Section 6.09 and such failure shall continue
unremedied for a period of 15 or more days;
(e) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article) or any other Loan
Document and such failure shall continue unremedied for a period of 30
or more days after written notice thereof from the Administrative Agent
(given at the request of any Lender) to the Borrower;
(f) the Borrower or any of its Subsidiaries (other than any
Immaterial Subsidiary) shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable
(after taking into account any applicable grace period);
364-Day Credit Agreement
-71-
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (after taking into account any applicable grace
period) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(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
Subsidiaries (other than any Immaterial Subsidiary) or its debts, or of
all or 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 such Subsidiary or for all or a substantial part of its
assets, and, in any such case, such proceeding or petition shall
continue undismissed for a period of 60 or more days or an order or
decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any of its Subsidiaries (other than any
Immaterial Subsidiary) shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the
Borrower or any such Subsidiary or for all or 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 Subsidiaries (other than any
Immaterial Subsidiary) 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 in excess of $20,000,000 shall be rendered against the
Borrower or any of its Subsidiaries or any combination thereof and the
same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to attach or levy upon any
assets of the Borrower or any of its Subsidiaries to enforce any such
judgment;
(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, could
364-Day Credit Agreement
-72-
reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $20,000,000;
(m) a Change in Control shall occur; or
(n) the Liens created by the Security Documents shall at any time
not constitute a valid and perfected Lien on the collateral intended to
be covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of the
Collateral Agent and for the benefit of the Lenders, free and clear of
all other Liens (other than Permitted Encumbrances) or, except for
expiration in accordance with its terms, any of the Security Documents
shall for whatever reason be terminated or cease to be in full force and
effect, or the enforceability of any Loan Document shall be contested by
any Obligor party thereto;
then, and in every such event (other than an event with respect to any Obligor
described in clause (h) or (i) of this Article), 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 Obligors accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by each Obligor; and in case of any
event with respect to any Obligor described in clause (h) or (i) of this
Article, 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 Obligors accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Obligor.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Lender hereby irrevocably
appoints the Administrative Agent as its agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as
364-Day Credit Agreement
-73-
though it were not the Administrative Agent, and such Person and its Affiliates
may accept deposits from, lend money to and generally engage in any kind of
business with the Borrower or any Subsidiary or other Affiliate thereof as if it
were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders, and (c) except as expressly set
forth herein and in the other Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it (or directed by the Administrative Agent
to be taken by the Collateral Agent) with the consent or at the request of the
Required Lenders (or, to the extent required by this Agreement, all of the
Lenders) or in the absence of its own gross negligence or willful misconduct.
The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent by
the Borrower or a Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any other Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein or therein, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article V or elsewhere herein or therein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for an Obligor), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory
364-Day Credit Agreement
-74-
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of the Administrative Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as
Administrative Agent.
The Administrative Agent may resign at any time by notifying the
Lenders, the Issuing Lender and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no successor 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 its resignation, then the
retiring Administrative Agent's resignation shall nonetheless become effective
and (1) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and (2) the Required Lenders shall perform the duties
of the Administrative Agent (and all payments and communications provided to be
made by, to or through the Administrative Agent shall instead be made by or to
each Lender directly) until such time as the Required Lenders appoint a
successor agent as provided for above in this paragraph. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.03 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative 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 the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
Except as otherwise provided in Section 10.02(b) with respect to
this Agreement, the Administrative Agent may, with the prior consent of the
Required Lenders (but not otherwise), consent to any modification, supplement or
waiver under any of the Loan Documents, provided that, without the prior consent
of each Lender, the Administrative Agent shall not, and shall not consent to any
modification, supplement or waiver of any of the Security Documents to, except
as provided herein or in the Security Documents, release all or substantially
all of the collateral or otherwise terminate all or substantially all of the
Liens under any Security Document providing for collateral security, except that
no such consent shall be required, and the Administrative Agent is hereby
authorized, to (or to consent to, as the case may
364-Day Credit Agreement
-75-
be) release any Lien covering property that is the subject of either a
disposition of property permitted hereunder or a disposition to which the
Required Lenders have consented.
Notwithstanding anything herein to the contrary, the Advisor,
Lead Arranger and Bookrunner and the Co-Syndication Agents named on the cover
page of this Agreement shall not have any duties or liabilities under this
Agreement or the other Loan Documents, except in their respective capacity (if
any) as a Lender.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower or any Subsidiary Guarantor, to it at Xxx
Xxxxxxxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention of Xxxx
Xxxxxxxxx, Vice President and Treasurer (Telecopy No. (000) 000-0000);
Telephone No. (000) 000-0000);
(b) if to the Administrative Agent, to JPMorgan Xxxxx Xxxx, 0
Xxxxx Xxxxxxxxx Plaza, 8th Floor, New York, New York 10081, Attention of
Loan and Agency Services Group, Xx. Xxxxxx Xxxxx (Telecopy No. (212)
000-0000; Telephone No. (000) 000-0000) and, if such notice or other
communication relates to borrowings of, or payments or prepayments of,
or the duration of Interest Periods for, Loans denominated in a Foreign
Currency, also to JPMorgan London Agency, Attention: Mr. Xxxxx Xxxxxx
(Telecopy No. 000-00000-000-0000; Telephone No. 000-00000-000-0000);
(c) if to the Issuing Lender, to it at 000 Xxxxx 00 Xxxx,
Xxxxxxxxx, Xxx Xxxxxx, 00000, Attention of Xxxxx Xxxxxxxxx (Telecopy No.
(000) 000-0000; Telephone No. (000) 000-0000);
(d) if to the Swingline Lender, to it at JPMorgan Xxxxx Xxxx, 0
Xxxxx Xxxxxxxxx Plaza, 8th Floor, New York, New York 10081, Attention of
Xx. Xxxxxx Xxxxx (Telecopy No. (000) 000-0000; Telephone No. (212)
552-0985); and
(e) if to a Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Lender, by notice to the Borrower and the Administrative
Agent). All notices and
364-Day Credit Agreement
-76-
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay
by the Administrative Agent, the Issuing Lender, any Lender or any Obligor in
exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Lender, the Lenders or any Obligor hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Obligor
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (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, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Lender may have had notice or knowledge of such Default at the time.
(b) Amendments. Neither this Agreement nor any provision hereof
may be waived, amended or modified except pursuant to an agreement or agreements
in writing entered into by the Borrower and the Required Lenders or by the
Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall
(i) increase the Commitment of any Lender without the written
consent of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement
or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any
fees 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 affected thereby,
(iv) change Section 2.08(d) or Section 2.18(c) without the
consent of each Lender affected thereby,
(v) change any of the provisions of this Section or the
percentage in the definition of the term "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required
to waive, amend or modify any rights hereunder or make
364-Day Credit Agreement
-77-
any determination or grant any consent hereunder, without the written
consent of each Lender, or
(vi) release all or substantially all of the Guarantors from
their guarantee obligations under Article III without the written
consent of each Lender;
provided further that (x) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Issuing Lender or
the Swingline Lender hereunder without the prior written consent of the
Administrative Agent, the Issuing Lender or the Swingline Lender, as the case
may be, and (y) any modification or supplement of Article III shall require the
consent of each Subsidiary Guarantor.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Lender in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder, (iii) all out-of-pocket expenses incurred by the
Administrative Agent, the Issuing Lender or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the
Issuing Lender or any Lender, in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including in connection with any workout,
restructuring or negotiations in respect thereof and (iv) all reasonable costs,
expenses, taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest
contemplated by any Security Document or any other document referred to therein.
(b) Indemnification by the Borrower. The Borrower shall indemnify
the Administrative Agent, the Issuing Lender and each Lender, and each Related
Party of any of the foregoing Persons (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 any 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 this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the 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 Issuing Lender to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit) or
364-Day Credit Agreement
-78-
(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 such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower
fails to pay any amount required to be paid by it to the Administrative Agent,
the Issuing Lender or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the
Issuing Lender or the Swingline Lender, as the case may be, such Lender's
Applicable Percentage (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, the Issuing Lender or the Swingline Lender in
its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted
by applicable law, no Obligor shall assert, and each Obligor 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 Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Obligor may
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 any Obligor without such consent shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Lender and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Assignments by Lenders. 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 its Commitment and the Loans at the time owing to
it); provided that
364-Day Credit Agreement
-79-
(i) except in the case of an assignment to a Lender or a Lender
Affiliate, each of the Borrower and the Administrative Agent (and, in
the case of an assignment of all or a portion of a Commitment or any
Lender's obligations in respect of its LC Exposure or Swingline
Exposure, the Issuing Lender and the Swingline Lender) must give their
prior written consent to such assignment (which consent, in each case,
shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or a Lender
Affiliate or an assignment of the entire remaining amount of the
assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000
unless each of the Borrower and the Administrative Agent otherwise
consent,
(iii) 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,
(iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire;
provided further that any consent of the Borrower otherwise required under this
paragraph shall not be required if an Event of Default under clause (a), (b),
(h) or (i) of Article VIII has occurred and is continuing. Upon acceptance and
recording pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 10.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph 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 paragraph (e) of this Section. The Borrower shall
not be liable for any costs or expenses of any Lender in effecting any
assignment under this Section.
Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose vehicle (an "SPV")
of such Granting Lender, identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to
364-Day Credit Agreement
-80-
Section 2.01, provided that (i) nothing herein shall constitute a commitment by
any SPV to make any Loan, (ii) if an SPV elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof and (iii) the
Borrower may bring any proceeding against either the Granting Lender or the SPV
in order to enforce any rights of the Borrower under any of the Loan Documents.
The making of a Loan by an SPV hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by the
Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for
any payment under this Agreement for which a Lender would otherwise be liable,
for so long as, and to the extent, the related Granting Lender makes such
payment. In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPV, it will not institute
against, or join any other Person in instituting against, such SPV any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or similar proceedings under the laws of the United States or any State thereof
arising out of any claim against such SPV under this Agreement. In addition,
notwithstanding anything to the contrary contained in this Section, any SPV may
with notice to, but without the prior written consent of, the Borrower or the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to its Granting Lender or to any
financial institutions (consented to by the Borrower and the Administrative
Agent, which consent, in each case, shall not be unreasonably withheld)
providing liquidity and/or credit support (if any) with respect to commercial
paper issued by such SPV to fund such Loans and such SPV may disclose, on a
confidential basis, confidential information with respect to the Borrower and
its Subsidiaries to any rating agency, commercial paper dealer or provider of a
surety, guarantee or credit liquidity enhancement to such SPV. This paragraph
may not be amended without the consent of any SPV at the time holding Loans
under this Agreement.
(c) Maintenance of Register by the Administrative Agent. 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 and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount 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, and the Borrower, the Administrative Agent, the Issuing Lender and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Lender and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Effectiveness of Assignments. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Acceptance and record the information
364-Day Credit Agreement
-81-
contained therein in the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(e) Participations. Any Lender may, without the consent of the
Borrower, the Administrative Agent, the Issuing Lender or the Swingline Lender,
sell participations to one or more banks or other entities (a "Participant") in
all or a portion of such Lender's rights and obligations under this Agreement
and the other Loan Documents (including all or a portion of its Commitment and
the Loans owing to it); provided that (i) such Lender's obligations under this
Agreement and the other Loan Documents 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, the Administrative Agent, the
Issuing Lender and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. 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 this Agreement and the other Loan
Documents and to approve any amendment, modification or waiver of any provision
of this Agreement or any other Loan Document; 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 the
first proviso to Section 10.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. The Borrower shall not be liable for any costs or
expenses of any Lender in effecting any participation under this Section.
(f) Limitations on Rights of Participants. A Participant shall
not be entitled to receive any greater payment under Section 2.15 or 2.17 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.17 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.17(e) as though it were a
Lender.
(g) Certain Pledges. 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 such pledge or assignment 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 assignee for such Lender as a party hereto.
(h) No Assignments to the Obligors or Affiliates. Anything in
this Section to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan or LC Exposure held by it hereunder to the
Borrower or any of its Affiliates or Subsidiaries without the prior consent of
each Lender.
364-Day Credit Agreement
-82-
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement 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 the Administrative Agent, the Issuing Lender or any Lender 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 the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.15, 2.16, 2.17, 3.03, 10.03,
10.11 and 10.13 and Article IX shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, 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 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract between and among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 5.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page to this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of any Obligor against any of and all the
obligations of any Obligor now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement 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) which such Lender may have.
364-Day Credit Agreement
-83-
Each Lender agrees to notify the Borrower and the Administrative Agent as
promptly as practicable after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
SECTION 10.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Obligor hereby
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 appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Issuing Lender or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement against any Obligor or
its properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each Obligor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Service of Process. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 10.01. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (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
364-Day Credit Agreement
-84-
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 10.11. Judgment Currency. This is an international
loan transaction in which the specification of Dollars or any Foreign Currency,
as the case may be (the "Specified Currency"), and payment in New York City or
the country of the Specified Currency, as the case may be (the "Specified
Place"), is of the essence, and the Specified Currency shall be the currency of
account in all events relating to Loans denominated in the Specified Currency.
The payment obligations of each Obligor under this Agreement shall not be
discharged or satisfied by an amount paid in another currency or in another
place, whether pursuant to a judgment or otherwise, to the extent that the
amount so paid on conversion to the Specified Currency and transfer to the
Specified Place under normal banking procedures does not yield the amount of the
Specified Currency at the Specified Place due hereunder. If for the purpose of
obtaining judgment in any court it is necessary to convert a sum due hereunder
in the Specified Currency into another currency (the "Second Currency"), the
rate of exchange that shall be applied shall be the rate at which in accordance
with normal banking procedures the Administrative Agent could purchase the
Specified Currency with the Second Currency on the Business Day next preceding
the day on which such judgment is rendered. The obligation of each Obligor in
respect of any such sum due from it to the Administrative Agent or any Lender
hereunder or under any other Loan Document (in this Section called an "Entitled
Person") shall, notwithstanding the rate of exchange actually applied in
rendering such judgment, be discharged only to the extent that on the Business
Day following receipt by such Entitled Person of any sum adjudged to be due
hereunder in the Second Currency such Entitled Person may in accordance with
normal banking procedures purchase and transfer to the Specified Place the
Specified Currency with the amount of the Second Currency so adjudged to be due;
and each Obligor hereby, as a separate obligation and notwithstanding any such
judgment, agrees to indemnify such Entitled Person against, and to pay such
Entitled Person on demand, in the Specified Currency, the amount (if any) by
which the sum originally due to such Entitled Person in the Specified Currency
hereunder exceeds the amount of the Specified Currency so purchased and
transferred.
SECTION 10.12. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.13. Treatment of Certain Information;
Confidentiality.
(a) Treatment of Certain Information. The Borrower
acknowledges that from time to time the Administrative Agent or any Lender, in
connection with the performance of its duties or the exercise of its rights
relating to this Agreement, may employ the services of one or more subsidiaries
or affiliates of the Administrative Agent or such Lender, as the case may be,
and the Borrower hereby authorizes each Lender to share any information
delivered to such Lender by the Borrower and its Subsidiaries pursuant to this
Agreement, or in connection with the decision of such Lender to enter into this
Agreement, to any such subsidiary or affiliate, it being understood that any
such subsidiary or affiliate receiving such information shall be bound
364-Day Credit Agreement
-85-
by the provisions of paragraph (b) of this Section as if it were a Lender
hereunder. Such authorization shall survive 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.
(b) Confidentiality. Each of the Administrative Agent, the
Issuing Lender and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (i) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors reasonably necessary in connection
with this Agreement (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and will be provided to such Person upon the understanding that such
Information will be kept confidential), (ii) to the extent requested by any
regulatory authority, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to any other party
to this Agreement, (v) in connection with the exercise of any remedies hereunder
or under any other Loan Document or any suit, action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder, (vi) subject to an agreement in writing containing provisions
substantially the same as those of this paragraph and for the benefit of the
Borrower, to (a) any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement or
(b) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (vii) with
the consent of the Borrower or (viii) to the extent such Information (A) becomes
publicly available other than as a result of a breach of this paragraph or (B)
becomes available to the Administrative Agent, the Issuing Lender or any Lender
on a nonconfidential basis from a source other than an Obligor not known by such
Person to be in breach of a confidentiality agreement; provided that each Lender
shall, unless prohibited by any Requirement of Law, use reasonable efforts to
notify the Borrower of any request or requirement for disclosure of Information
under clause (ii) or (iii) above prior to such disclosure. For the purposes of
this paragraph, "Information" means all information received from or on behalf
of any Obligor relating to the Borrower or any of its Subsidiaries or any of
their respective businesses, other than any such information that is available
to the Administrative Agent, the Issuing Lender or any Lender on a
nonconfidential basis prior to disclosure by or on behalf of an Obligor. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
364-Day Credit Agreement
-86-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
CAMBREX CORPORATION
By_________________________
Name:
Title:
364-Day Credit Agreement
-87-
SUBSIDIARY GUARANTORS
CAMBREX CHEMICALS, INC.
By_________________________
Name:
Title:
CO-PHARMA
By_________________________
Name:
Title:
CBM INTELLECTUAL PROPERTIES,
INC.
By_________________________
Name:
Title:
364-Day Credit Agreement
-88-
CASCHEM INTERNATIONAL
By_________________________
Name:
Title:
BIOWHITTAKER MOLECULAR
APPLICATIONS, INC.
By_________________________
Name:
Title:
BIOWHITTAKER, INC.
By_________________________
Name:
Title:
364-Day Credit Agreement
-89-
XXXXXXXX CHEMICALS, INC.
By_________________________
Name:
Title:
COSAN CHEMICAL CORP.
By_________________________
Name:
Title:
NEPERA, INC.
By_________________________
Name:
Title:
364-Day Credit Agreement
-90-
XXXXXXXX CHEMICAL CO.
By_________________________
Name:
Title:
CASCHEM, INC.
By_________________________
Name:
Title:
ZEELAND CHEMICALS, INC.
By_________________________
Name:
Title:
364-Day Credit Agreement
-91-
CAMBREX BIO SCIENCE, INC.
By_________________________
Name:
Title:
CBM TECHNOLOGIES, INC.
By_________________________
Name:
Title:
NORDIC SYNTHESIS, INC.
By_________________________
Name:
Title:
364-Day Credit Agreement
-92-
ETD TECHNOLOGIES, INC.
By_________________________
Name:
Title:
CAMBREX ABSORPTION SYSTEMS,
INC.
By_________________________
Name:
Title:
CHIRAGENE, INC.
By_________________________
Name:
Title:
NEPERA FOREIGN SALES
CORPORATION
By_________________________
Name:
Title:
364-Day Credit Agreement
-93-
NEPCAM, INC.
By_________________________
Name:
Title:
BIOWHITTAKER USVI INC. FSC
By_________________________
Name:
Title:
BIOWHITTAKER TECHNOLOGIES,
INC.
By_________________________
Name:
Title:
BIOWHITTAKER HOLDINGS
By_________________________
Name:
Title:
364-Day Credit Agreement
-00-
XXXXXXX
XXXXXXXX CHASE BANK,
individually, as Swingline
Lender and as
Administrative Agent
By_________________________
Name:
Title:
364-Day Credit Agreement
-00-
XXXX XX XXXXXXX, N.A.
By_________________________
Name:
Title:
364-Day Credit Agreement
-00-
XXX XXXX XX XXX XXXX
By_________________________
Name:
Title:
364-Day Credit Agreement
-97-
FLEET NATIONAL BANK
By_________________________
Name:
Title:
364-Day Credit Agreement
-98-
ABN AMRO BANK N.V.
By_________________________
Name:
Title:
364-Day Credit Agreement
-99-
ALLIED IRISH BANK P.L.C.
By_________________________
Name:
Title:
364-Day Credit Agreement
-100-
THE BANK OF NOVA SCOTIA
By_________________________
Name:
Title:
364-Day Credit Agreement
-101-
BANK ONE, N.A.
By_________________________
Name:
Title:
364-Day Credit Agreement
-102-
CIBC INC.
By_________________________
Name:
Title:
364-Day Credit Agreement
-103-
CREDIT LYONNAIS, NEW YORK
BRANCH
By_________________________
Name:
Title:
364-Day Credit Agreement
-104-
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A.,
"RABOBANK INTERNATIONAL",
NEW YORK BRANCH
By_________________________
Name:
Title:
By_________________________
Name:
Title:
364-Day Credit Agreement
-105-
PB CAPITAL CORPORATION
By_________________________
Name:
Title:
364-Day Credit Agreement
-106-
PNC BANK, NATIONAL
ASSOCIATION
By_________________________
Name:
Title:
364-Day Credit Agreement
-107-
SVENSKA HANDELSBANKEN,
NEW YORK BRANCH
By_________________________
Name:
Title:
364-Day Credit Agreement
-108-
SANPAOLO IMI S.P.A.
By_________________________
Name:
Title:
364-Day Credit Agreement
-109-
BEAR XXXXXXX CORPORATE
LENDING INC.
By_________________________
Name:
Title:
364-Day Credit Agreement
SCHEDULE 1.01
Commitments
Name of Lender Commitment ($)
-------------- --------------
JPMORGAN CHASE BANK 18,750,000
BANK OF AMERICA, N.A. 15,000,000
THE BANK OF NEW YORK 15,000,000
FLEET NATIONAL BANK 15,000,000
ABN AMRO BANK N.V. 9,375,000
ALLIED IRISH BANK P.L.C. 9,375,000
THE BANK OF NOVA SCOTIA 9,375,000
BANK ONE, N.A. 9,375,000
CIBC INC. 9,375,000
CREDIT LYONNAIS, NEW YORK BRANCH 9,375,000
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH 9,375,000
PB CAPITAL CORPORATION 7,500,000
PNC BANK, NATIONAL ASSOCIATION 7,500,000
SVENSKA HANDELSBANKEN, NEW YORK BRANCH 7,500,000
SANPAOLO IMI S.P.A. 5,625,000
BEAR XXXXXXX CORPORATE LENDING INC. 3,750,000
Schedule 1.01 to 364-Day Credit Agreement
SCHEDULE 2.05(1)
Existing Letters of Credit
None.
Schedule 2.05(1) to 364-Day Credit Agreement
SCHEDULE 4.06(a)
Litigation
1. Litigation disclosed in the Environmental Certificate, dated September
25, 2001
2. Litigation disclosed in the annual report of the Borrower on Form 10-K
for the fiscal year ended December 31, 2000
Schedule 4.06(a) to 364-Day Credit Agreement
SCHEDULE 4.13
Subsidiaries
NATURE OF
PERSON HOLDING OWNERSHIP PERCENTAGE OF
NAME OF SUBSIDIARY JURISDICTION OWNERSHIP INTERESTS INTERESTS OWNERSHIP
------------------ ------------ ------------------- --------- ---------
Cambrex Corporation Delaware
Cambrex Chemicals, Inc. Delaware Cambrex Direct 100%
Co-Pharma Delaware Cambrex Direct 100%
CBM Intellectual Properties, Inc. Nevada Cambrex Direct 100%
CasChem International New Jersey Cambrex Direct 100%
BioWhittaker Molecular
Applications, Inc. Delaware Cambrex Direct 100%
BioWhittaker, Inc. Delaware Cambrex Direct 100%
Xxxxxxxx Chemicals, Inc. Iowa Cambrex Direct 100%
Cosan Chemical Corp. Delaware Cambrex Direct 100%
Nepera, Inc. New York Cambrex Direct 100%
Xxxxxxxx Chemical Co. Delaware Cambrex Direct 100%
CasChem, Inc. Delaware Cambrex Direct 100%
Zeeland Chemicals, Inc. Michigan Cambrex Direct 100%
Cambrex Bio Science, Inc. Delaware Cambrex Direct 100%
CBM Technologies, Inc. Nevada Cambrex Direct 100%
Cambrex Hong Kong Limited Hong Kong Cambrex Direct 99% / 1% -Xxx
Xxxxxxxx
Nordic Synthesis, Inc. Delaware Cambrex Direct 100%
Cambrex Bahamas, Inc. Bahamas Cambrex Direct 100%
ETD Technologies, Inc. Minnesota Cambrex Direct 100%
Cambrex Absorption Systems, Inc. Delaware Cambrex Direct 100%
Chiragene, Inc. Delaware BioWhittaker Direct 100%
Nepera Foreign Sales Corporation US Virgin Islands Nepera Direct 100%
Nepcam, Inc. New York Nepera Direct 100%
Schedule 4.13 to 364-Day Credit Agreement
-2-
NATURE OF
PERSON HOLDING OWNERSHIP PERCENTAGE OF
NAME OF SUBSIDIARY JURISDICTION OWNERSHIP INTERESTS INTERESTS OWNERSHIP
------------------ ------------ ------------------- --------- ---------
CBM Canco Corp. Nova Scotia, Canada CasChem Direct 100%
Cambrex Limited U.K. Bahamas Direct 100%
BioWhittaker Molecular
Applications, APS Denmark Bahamas Direct 100%
Cambrex OCB Limited Mauritius Bahamas/Jersey Direct/ 80% / 20%
Indirect
Cambrex Chemicals Private Limited India OCB Direct 100%
Cambrex (Jersey) Limited Channel Islands, U.K. Bahamas Direct 100%
Cambrex (C.I.) Limited Channel Islands, U.K. Jersey Direct 100%
CBM Denmark I/S Denmark Partnership - CI & Direct CI-99% / Jersey-1%
Jersey
BioWhittaker U.K. Limited U.K. Cambrex Limited Direct 100%
Seal Sands Chemicals, Limited U.K. Cambrex Limited Direct 100%
Cambrex (UK & Erie) Limited U.K. Cambrex Limited Direct 100%
CasChem Limited U.K. Cambrex Limited Direct 100%
Cosan Limitd U.K. Cambrex Limited Direct 100%
Dutyfocus Limited U.K. Cambrex Limited Direct 100%
Nepera Limited U.K. Cambrex Limited Direct 100%
Cambrex Holdings Limited U.K. Bahamas Indirect 100%
BioWhittaker USVI Inc. FSC US Virgin Islands BioWhittaker Direct 100%
Cambrex Netherlands B.V. The Netherlands Cambrex Holdings Direct 100%
BioWhittaker Technologies, Inc. Delaware BioWhittaker Direct 100%
Cambrex A.B. Sweden Cambrex Limited Indirect 100%
Cambrex GmbH Germany Cambrex Limited Indirect 100%
Schedule 4.13 to 364-Day Credit Agreement
-3-
NATURE OF
PERSON HOLDING OWNERSHIP PERCENTAGE OF
NAME OF SUBSIDIARY JURISDICTION OWNERSHIP INTERESTS INTERESTS OWNERSHIP
------------------ ------------ ------------------- --------- ---------
Cambrex B.V. The Netherlands Cambrex Limited Indirect 100%
Proformaco S.r.l. Italy Netherlands & B.V. Direct/ Netherlands - 95% /
Indirect B.V. - 5%
Cambrex Italia S.r.l. Italy Netherlands & B.V. Direct/ Netherlands - 95% /
Indirect B.V. - 5%
BioWhittaker Europe SPRL Belgium Netherlands & B.V. Direct/ Netherlands - 99% /
Indirect B.V. - 1%
Cambrex France SARL France Netherlands & B.V. Direct/ Netherlands - 99% /
Indirect B.V. - 1%
BioWhittaker Italia S.r.l. Italy Netherlands & B.V. Direct/ Netherlands - 95% /
Indirect B.V. - 5%
BioWhittaker Holdings Delaware BioWhittaker Direct 100%
Nordic Synthesis International AB Sweden Cambrex AB Direct 100%
Xxxxx BPC Belgium Profarmaco/BV Direct Profarmaco-94.89% /
B.V. 5.11%
Irotec Laboratories Limited Ireland Profarmaco/BV Direct Profarmaco-95% /
B.V. 5%
BioWhittaker France SARL France Cambrex France/BV Direct/ Cambrex France-99% /
Indirect B.V.-5%
Lumitech UK U.K. BioWhittaker Direct 100%
Lumitech Limited U.K. LumiTech Direct 100%
Nordic Synthesis AB Sweden Nordic International Direct 100%
Nord Explosives Karlskoga AB Sweden Nordic International Direct 100%
Tugtar Ireland Irotec Direct Irotec-99% /
Shankore-1%
Shankore Ireland Irotec Direct Irotec-49% / Irotec
Sales-1% / Tutgar -
25%
Russinsky Limited Ireland Irotec Direct Irotec-80% /
Shankore-20%
Irotec Laboratories Sales Limited Ireland Irotec Direct 100%
Lauteral Limited Ireland Irotec Direct 100%
Schedule 4.13 to 364-Day Credit Agreement
SCHEDULE 7.01
Indebtedness
ENTITY TYPE AMOUNT
------ ---- ------
Profarmaco - Banca Popolare di Sondrio Export Financing $ 427,000
Profarmaco - Banca Nazionale del Lavoro Export Financing $ 357,000
Profarmaco - Istituto S. Paolo di Torino Export Financing $ 2,783,000
------------
TOTAL SHORT-TERM DEBT $ 3,566,000
Seal Sands - Zeneca Note Payable $ 165,000
Irotec - Allied Irish Bank Overdraft Facility $ 56,205
Irotec - Allied Irish Bank Lease Notes Payable $ 2,856,682
Seal Sands Equipment Leases $ 108,144
Seal Sands Capital Lease - BioPlant Lease $ 4,758,903
LumiTech Limited 6L Freeze Dryer Lease $ 21,437
BioWhittaker Europe Vehicle Leases $ 7,968
Nordic Synthesis AB Capital Lease -Office $ 85,000
Nordic Synthesis AB Vehicle Leases $ 18,000
Cambrex Chemicals Private Limited Capital Lease - Building $ 20,000
------------
$ 7,932,339
DEBENTURES
Irotec Laboratories Limited $ 73,067
------------
$ 73,067
GUARANTEES
Irotec Laboratories Limited VAT Guarantee $ 60,701
------------
$ 60,701
TOTAL INTERNATIONAL $11,797,106
============
OVERDRAFT FACILITY
First Union National Bank Overdraft Facility $ 500,000
------------
$ 500,000
LEASES
Various Capital Leases $ 293,000
Cambrex Bio Science Capital Lease - Building $11,401,000
BioWhittaker Capital Lease - Building $ 73,008
BioWhittaker Vehicle Leases $ 248,922
BioWhittaker Office Equipment $ 68,000
Co-Pharma Capital Lease - Building $ 526,660
Co-Pharma Capital Lease - Building $ 3,840,000
Co-Pharma Capital Lease - Building $ 4,480,000
Cambrex Corporation Vehicle Leases $ 8,845
Cambrex Corporation Office Equipment $ 73,000
Nepera, Inc. Manufacturing $ 121,000
Nepera, Inc. Office $ 54,000
Nepera, Inc. Vehicle Leases $ 200
Schedule 7.01 to 364-Day Credit Agreement
-2-
ENTITY TYPE AMOUNT
------ ---- -----------
Xxxxxxxx Chemicals, Inc. Vehicles, Forklifts, Office Equipment, etc. $ 191,000
CasChem, Inc Office Equipment, etc. $ 278,000
Chiragene, Inc. Capital Lease - Building $ 657,000
Chiragene, Inc. Office Equipment $ 40,000
Zeeland Chemicals Office Equipment $ 52,000
-----------
TOTAL DOMESTIC LEASES $22,405,635
SURETY BONDS
COMPANY OBLIGEE AMOUNT
------- ------- ------
CasChem, Inc. U.S. Customs Service $ 600
BioWhittaker, Inc. Missouri Dept. of Revenue $ 5,040
Xxxxxxxx Chemicals, Inc. U.S. Customs Service $ 50,000
Zeeland Chemicals, Inc. U.S. Customs Service $ 50,000
Zeeland Chemicals, Inc. Bureau of Alcohol $ 4,000
-----------
TOTAL SURETY BONDS $ 109,640
LOCAL GOVERNMENT BONDS
Humphrey Chemicals, Inc. Town of North Haven, Connecticut $ 20,000
Xxxxxxxx Chemicals, Inc. Town of North Haven, Connecticut $ 2,500
-----------
TOTAL LOCAL GOVERNMENT BONDS $ 22,500
TOTAL U.S. DOMESTIC 23,037,775
===========
TOTAL OTHER INDEBTEDNESS $34,834,881
===========
Schedule 7.01 to 364-Day Credit Agreement
SCHEDULE 7.02
Liens
ENTITY AMOUNT COMMENTS
------ ------ --------
1. Xxxxx BPC $ 1,858,826 Security Interest for Line of Credit
2. Liens created by Capital Leases
referred to in Schedule 7.01
Schedule 7.02 to 364-Day Credit Agreement
SCHEDULE 7.05
Investments*
ENTITY AMOUNT
Osiris Therapeutics, Inc. 5,005,000
Synthon Chiragenics, Inc. 3,089,168
PRC Ticinum Lab S.r.l. 23,495
XxxXxxxx.Xxx, Inc. 35,000
---------
TOTAL 8,152,663
---------
*Representing 50% or less of outstanding equity ownership
Schedule 7.05 to 364-Day Credit Agreement
SCHEDULE 7.08
Restrictive Agreements
None.
Schedule 7.08 to 364-Day Credit Agreement
