Exhibit 10
EXECUTION COPY
================================================================================
Three-year Credit Agreement
Dated as of August 12, 2004
Among
HARSCO CORPORATION,
THE LENDERS NAMED HEREIN
and
JPMORGAN CHASE BANK,
as Administrative Agent
----------------------------
X.X. XXXXXX SECURITIES INC.,
as Lead Arranger and Sole Bookrunner
SUNTRUST BANK, BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
CITIBANK, N.A., THE ROYAL BANK OF SCOTLAND, ING CAPITAL LLC,
BANCO BILBAO VIZCAYA ARGENTARIA S.A. and LLOYDS BANK PLC
as Co-Syndication Agents
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.01. Defined Terms .................................................. 1
SECTION 1.02. Terms Generally ................................................17
SECTION 1.03. Redenomination of Certain Alternative Currencies ...............18
ARTICLE II
The Credits
SECTION 2.01. Commitments ....................................................18
SECTION 2.02. Loans ..........................................................19
SECTION 2.03. Competitive Bid Procedure.......................................21
SECTION 2.04. Standby Borrowing Procedure.....................................23
SECTION 2.05. Refinancings ...................................................24
SECTION 2.06. Fees ...........................................................25
SECTION 2.07. Repayment of Loans .............................................25
SECTION 2.08. Interest on Loans ..............................................26
SECTION 2.09. Default Interest ...............................................26
SECTION 2.10. Alternate Rate of Interest......................................27
SECTION 2.11. Termination and Reduction of Commitments........................27
SECTION 2.12. Prepayment .....................................................28
SECTION 2.13. Reserve Requirements; Change in Circumstances...................28
SECTION 2.14. Change in Legality .............................................30
SECTION 2.15. Indemnity ......................................................31
SECTION 2.16. Pro Rata Treatment .............................................31
SECTION 2.17. Sharing of Setoffs .............................................32
SECTION 2.18. Payments .......................................................32
SECTION 2.19. Taxes ..........................................................33
SECTION 2.20. Assignment of Commitments Under Certain Circumstances...........36
SECTION 2.21. Borrowings by Approved Borrowers................................36
SECTION 2.22. Increase in Commitments ........................................37
ARTICLE III
Representations and Warranties
SECTION 3.01. Corporate Existence ............................................38
-i-
SECTION 3.02. Financial Condition ............................................38
SECTION 3.03. Litigation .....................................................38
SECTION 3.04. No Breach ......................................................38
SECTION 3.05. Action .........................................................39
SECTION 3.06. Approvals ......................................................39
SECTION 3.07. Use of Credit ..................................................39
SECTION 3.08. ERISA ..........................................................39
SECTION 3.09. Taxes ..........................................................39
SECTION 3.10. Investment Company Act .........................................40
SECTION 3.11. Public Utility Holding Company Act..............................40
SECTION 3.12. Material Agreements and Liens...................................40
SECTION 3.13. Environmental Matters ..........................................40
SECTION 3.14. Subsidiaries, etc ..............................................40
SECTION 3.15. True and Complete Disclosure....................................41
SECTION 3.16. Corporate Existence of Approved Borrower........................41
SECTION 3.17. No Breach ......................................................41
SECTION 3.18. Action .........................................................41
SECTION 3.19. Approvals ......................................................42
SECTION 3.20. Taxes on Payments of Approved Borrowers.........................42
ARTICLE IV
Conditions of Effectiveness and Lending
SECTION 4.01. Effective Date .................................................42
SECTION 4.02. First Borrowing by Each Approved Borrower.......................44
SECTION 4.03. All Borrowings .................................................45
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties............................46
SECTION 5.02. Insurance ......................................................46
SECTION 5.03. Obligations and Taxes ..........................................46
SECTION 5.04. Financial Statements, Reports, etc..............................47
SECTION 5.05. Litigation and Other Notices....................................48
SECTION 5.06. ERISA ..........................................................48
SECTION 5.07. Maintaining Records ............................................48
SECTION 5.08. Use of Proceeds ................................................49
-ii-
ARTICLE VI
Negative Covenants
SECTION 6.01. Liens ........................................49
SECTION 6.02. Sale and Lease-Back Transactions................................50
SECTION 6.03. Mergers, Sales of Assets, etc...................................50
SECTION 6.04. Lines of Business; Fiscal Year..................................51
SECTION 6.05. Transactions with Affiliates....................................51
SECTION 6.06. Total Debt to Total Capital Ratio...............................52
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Guarantee
SECTION 9.01. Guarantee ......................................................57
SECTION 9.02. Obligations Unconditional.......................................58
SECTION 9.03. Reinstatement ..................................................58
SECTION 9.04. Subrogation ....................................................59
SECTION 9.05. Remedies .......................................................59
SECTION 9.06. Continuing Guarantee ...........................................59
ARTICLE X
Miscellaneous
SECTION 10.01. Notices .......................................................59
SECTION 10.02. Survival of Agreement .........................................60
SECTION 10.03. Binding Effect ................................................60
SECTION 10.04. Successors and Assigns ........................................60
SECTION 10.05. Expenses; Indemnity ...........................................63
SECTION 10.06. Right of Setoff ...............................................64
SECTION 10.07. Applicable Law ................................................64
SECTION 10.08. Waivers; Amendment ............................................64
-iii-
SECTION 10.09. Interest Rate Limitation.......................................65
SECTION 10.10. Entire Agreement ..............................................65
SECTION 10.11. Waiver of Jury Trial ..........................................65
SECTION 10.12. Severability ..................................................66
SECTION 10.13. Judgment Currency .............................................66
SECTION 10.14. Counterparts ..................................................67
SECTION 10.15. Headings ......................................................67
SECTION 10.16. Jurisdiction; Consent to Service of Process....................67
SECTION 10.17. USA Patriot Act ...............................................67
Schedules and Exhibits
----------------------
Schedule 2.01 Lenders; Commitments
Schedule 2.21 Approved Borrowers
Schedule 3.12(a) Material Agreements
Schedule 3.12(b) Liens
Schedule 3.14 Subsidiaries
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid/Accept Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Form of Administrative Questionnaire
Exhibit C Form of Assignment and Acceptance
Exhibit D-1 Form of Opinion of General Counsel
Exhibit D-2 Form of Opinion Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
Exhibit E-1 Form of Designation Letter
Exhibit E-2 Form of Termination Letter
Exhibit F Form of Accession Agreement
-iv-
THREE-YEAR CREDIT AGREEMENT dated as of
August 12, 2004 (as amended, restated,
supplemented, extended, replaced or otherwise
modified from time to time, the "Agreement")
among HARSCO CORPORATION, a Delaware
corporation (the "Company"), the lenders
listed in Schedule 2.01 (the "Lenders"), and
JPMORGAN CHASE BANK, as administrative agent
for the Lenders (in such capacity, the
"Administrative Agent").
The Company has requested that the Lenders extend credit to the
Company in order to enable it to borrow Standby Loans (such term and all other
capitalized terms not otherwise defined have the meanings assigned to them in
Article I hereof) on a standby revolving credit basis from time to time during
the Availability Period in an aggregate principal amount at any time outstanding
not in excess of $350,000,000 (less the aggregate principal amount of all
outstanding Competitive Loans at such time). The Company has also requested the
Lenders to provide a procedure pursuant to which the Company may invite the
Lenders to bid on an uncommitted basis on short-term borrowings by the Company.
The proceeds of all such borrowings are to be used for general corporate
purposes, including commercial paper backup. The Lenders are willing to extend
such credit to the Company on the terms and subject to the conditions herein set
forth.
Accordingly, the Company, the Lenders and the Administrative Agent
agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Accession Agreement" shall mean an Accession Agreement
substantially in the form of Exhibit F among a Prospective Lender, the Company
and the Administrative Agent.
-1-
"Adjusted LIBO Rate" shall mean, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Fees" shall have the meaning assigned to such term
in Section 2.06(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B hereto.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
person specified.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by the Administrative Agent as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective on the date
such change is publicly announced as effective. "Federal Funds Effective Rate"
shall mean, for any day, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist.
"Alternative Currency" shall mean (a) Euros and Sterling and (b) any
other freely available currency which is freely transferable and freely
convertible into Dollars and in which dealings in deposits are carried on in the
London or other interbank market, which shall be requested by a Borrower in
respect of an Alternative Currency Borrowing and approved by each Lender making
an Alternative Currency Loan comprising a part of such Borrowing.
"Alternative Currency Borrowing" shall mean a Borrowing comprised of
Alternative Currency Loans. All Alternative Currency Borrowings shall be
Eurocurrency Borrowings.
-2-
"Alternative Currency Equivalent" shall mean, with respect to any
amount of Dollars on any date in relation to any specified Alternative Currency,
the amount of such specified Alternative Currency that may be purchased with
such amount of Dollars at the Spot Exchange Rate with respect to Dollars on such
date. The term "Alternative Currency Equivalent" may be preceded by a reference
to an Alternative Currency (e.g., "EUR Alternative Currency Equivalent"), in
which case the Alternative Currency so referenced shall be the "specified"
Alternative Currency.
"Alternative Currency Loan" shall mean any Loan denominated in an
Alternative Currency.
"Applicable Margin" shall mean on any date, (A) with respect to ABR
Loans, 0% and (B) with respect to Eurocurrency Loans, the applicable spreads set
forth below based upon the ratings applicable on such date to senior, unsecured,
non-credit enhanced, long-term indebtedness of the Company for borrowed money
("Index Debt"):
------------------------------------------------ --------------------
Eurocurrency
Loan Spread
------------------------------------------------ --------------------
Category 1 .180%
----------
A+ or higher by S & P;
A1 or higher by Xxxxx'x
------------------------------------------------ --------------------
Category 2
----------
A by S & P;
A2 by Xxxxx'x .220%
------------------------------------------------ --------------------
Category 3
----------
A- by S & P;
A3 by Xxxxx'x .310%
------------------------------------------------ --------------------
Category 4
----------
BBB+ by S & P;
Baa1 by Xxxxx'x .375%
------------------------------------------------ --------------------
Category 5
----------
BBB by S & P;
Baa2 by Xxxxx'x .475%
------------------------------------------------ --------------------
Category 6
----------
BBB- by S & P;
Baa3 by Xxxxx'x .575%
------------------------------------------------ --------------------
Category 7 .750%
----------
BB+ or lower by S & P;
Ba1 or lower by Xxxxx'x
------------------------------------------------ --------------------
-3-
For purposes of determining the Applicable Margin for Eurocurrency Loans, (a) if
either Xxxxx'x or S&P shall not have in effect a rating for Index Debt (other
than because such rating agency shall no longer be in the business of rating
corporate debt obligations), then such rating agency will be deemed to have
established a rating for Index Debt in Category 7; (b) if the ratings
established or deemed to have been established by Xxxxx'x and S&P shall fall
within different Categories, the Applicable Margin shall be determined by
reference to the higher (or numerically lower) Category unless one of the
ratings is two or more Categories lower (or numerically higher) than the other,
in which case the Applicable Margin shall be determined by reference to the
Category next above that of the lower of the two ratings; and (c) if any rating
established or deemed to have been established by Xxxxx'x or S&P shall be
changed (other than as a result of a change in the rating system of either
Xxxxx'x or S&P), such change shall be effective as of the date on which such
change is first announced by the rating agency making such change. Each change
in the Applicable Margin shall apply to all Eurocurrency Loans and ABR Loans
that are outstanding at any time during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of either Xxxxx'x or S&P
shall change, or if either such rating agency shall cease to be in the business
of rating corporate debt obligations, the Company and the Lenders shall
negotiate in good faith to amend the references to specific ratings in this
definition to reflect such changed rating system or the nonavailability of
ratings from such rating agency.
"Applicable Percentage" shall mean, with respect to any Lender at
any time, the percentage of the Total Commitment represented by such Lender's
Commitment at such time.
"Approved Borrower" shall mean any wholly owned Subsidiary of the
Company as to which a Designation Letter shall have been delivered to the
Administrative Agent in accordance with Section 2.21 hereof and as to which a
Termination Letter shall not have been delivered to the Administrative Agent.
"Assigned Dollar Value" shall mean, in respect of any Borrowing
denominated in an Alternative Currency, the Dollar Equivalent thereof determined
based upon the applicable Spot Exchange Rate as of the Denomination Date for
such Borrowing.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit C or such other form as shall be approved by the
Administrative Agent.
"Availability Period" shall mean the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
-4-
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrowers" shall mean the Company and each Approved Borrower.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders
whose Competitive Bids have been accepted pursuant to Section 2.03).
"Borrowing Minimum" shall mean (a) in the case of a Standby
Borrowing denominated in Dollars, $10,000,000 and (b) in the case of a Standby
Borrowing denominated in any Alternative Currency, the smallest amount of such
Alternative Currency that has a Dollar Equivalent in excess of $10,000,000.
"Borrowing Multiple" shall mean (a) in the case of a Borrowing
denominated in Dollars, $1,000,000 and (b) in the case of a Borrowing
denominated in any Alternative Currency, 1,000,000 units (or, in the case of
Sterling, 500,000 units) of such currency.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that (a) when used in
connection with a Eurocurrency Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in deposits in the applicable
currency in the London interbank market, (b) when used in connection with a Loan
denominated in Euro, the term "Business Day" shall also exclude any day on which
the TARGET payment system is not open for the settlement of payments in Euro.
"Capital Lease Obligations" of any person shall mean the obligations
of such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if (a) any
person or group (within the meaning of Rule 13d-5 of the Securities and Exchange
Commission as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing more than 20% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Company; or (b) a majority of the seats (other than vacant seats) on the
board of directors of the Company shall at any time have been occupied by
persons who were neither (i) nominated by the board of directors of the Company,
nor (ii) appointed by directors so nominated; or (c) any person or group shall
otherwise directly or indirectly Control the Company.
"Code" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
-5-
"Committed Credit Exposure" shall mean, with respect to any Lender
at any time, the sum of (a) the aggregate principal amount at such time of all
outstanding Standby Loans of such Lender denominated in Dollars, plus (b) the
Assigned Dollar Value at such time of the aggregate principal amount at such
time of all outstanding Standby Loans of such Lender that are Alternative
Currency Loans.
"Commitment" shall mean, with respect to each Lender, the commitment
of such Lender hereunder as set forth in Schedule 2.01 hereto, as such Lender's
Commitment may be permanently terminated, reduced or increased from time to time
pursuant to Section 2.11 or Section 2.22.
"Competitive Bid" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification
made by a Borrower pursuant to Section 2.03(d) in the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by
a Lender pursuant to Section 2.03(b), (i) in the case of a Eurocurrency Loan,
the Competitive Margin, and (ii) in the case of a Fixed Rate Loan, the fixed
rate of interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to
Section 2.03 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such Borrowing have been accepted by a Borrower under
the bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a loan from a Lender to a Borrower
pursuant to the bidding procedure described in Section 2.03. Each Competitive
Loan shall be a Eurocurrency Competitive Loan or a Fixed Rate Loan.
"Competitive Margin" shall mean, as to any Eurocurrency Competitive
Loan, the margin (expressed as a percentage rate per annum in the form of a
decimal to no more than four decimal places) to be added to or subtracted from
the LIBO Rate in order to determine the interest rate applicable to such Loan,
as specified in the Competitive Bid relating to such Loan.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
-6-
"Denomination Date" shall mean, in relation to any Alternative
Currency Borrowing, the date that is three Business Days before the date such
Borrowing is made.
"Designation Letter" shall have the meaning assigned to such term in
Section 2.21.
"Dollar Equivalent" shall mean, with respect to an amount of any
Alternative Currency on any date, the amount of Dollars that may be purchased
with such amount of such Alternative Currency at the Spot Exchange Rate with
respect to such Alternative Currency on such date.
"Dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiaries" shall mean any Subsidiary organized or
incorporated under the laws of one of the States of the United States of
America, the laws of the District of Columbia or the Federal laws of the United
States of America.
"Effective Date" shall mean the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
10.08).
"EMU Legislation" means the legislative measures of the European
Union for the introduction of, changeover to or operation of the Euro in one or
more member states.
"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 presence, management or release of Hazardous Materials or to
health and safety matters.
"Environmental Liability" means all liabilities, obligations,
damages, losses, claims, actions, suits, judgments, orders, fines, penalties,
fees, expenses and costs, (including administrative oversight costs, natural
resource damages and remediation costs), whether contingent or otherwise,
arising out of or relating to: (a) compliance or non-compliance with 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 of any Hazardous Materials or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which the Company is a member and
which is treated as a single employer under Section 414 of the Code.
-7-
"Euro" means the single currency of the European Union as
constituted by the treaty on European Union.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Competitive Borrowing" shall mean a Competitive
Borrowing comprised of Eurocurrency Competitive Loans.
"Eurocurrency Competitive Loan" shall mean any Competitive Loan
bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Eurocurrency Loan" shall mean any Eurocurrency Competitive Loan or
Eurocurrency Standby Loan.
"Eurocurrency Standby Borrowing" shall mean a Standby Borrowing
comprised of Eurocurrency Standby Loans.
"Eurocurrency Standby Loan" shall mean any Standby Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Facility Fee" shall have the meaning assigned to such term in
Section 2.06(a).
"Facility Fee Percentage" shall mean on any date, the applicable
percentage set forth below based upon the ratings applicable on such date to the
Company's Index Debt:
------------------------------------------------ --------------------
Facility
Fee
Percentage
------------------------------------------------ --------------------
Category 1 .070%
----------
A+ or higher by S & P;
A1 or higher by Xxxxx'x
------------------------------------------------ --------------------
Category 2
----------
A by S & P;
A2 by Xxxxx'x .080%
------------------------------------------------ --------------------
Category 3
----------
A- by S & P;
-8-
------------------------------------------------ --------------------
Facility
Fee
Percentage
------------------------------------------------ --------------------
A3 by Moody's .090%
------------------------------------------------ --------------------
Category 4
----------
BBB+ by S & P;
Baa1 by Moody's .125%
------------------------------------------------ --------------------
Category 5
----------
BBB by S & P;
Baa2 by Moody's .150%
------------------------------------------------ --------------------
Category 6
----------
BBB- by S & P;
Baa3 by Moody's .175%
------------------------------------------------ --------------------
Category 7 .250%
----------
BB+ or lower by S & P;
Ba1 or lower by Moody's
------------------------------------------------ --------------------
For purposes of the foregoing, (a) if either Moody's or S&P shall not have in
effect a rating for Index Debt (other than because such rating agency shall no
longer be in the business of rating corporate debt obligations), then such
rating agency will be deemed to have established a rating for Index Debt in
Category 7; (b) if the ratings established or deemed to have been established by
Moody's and S&P shall fall within different Categories, the Facility Fee
Percentage shall be determined by reference to the higher (or numerically lower)
Category unless one of the ratings is two or more categories lower (or
numerically higher) than the other, in which case the Facility Fee Percentage
shall be determined by reference to the Category next above that of the lower of
the two ratings; and (c) if any rating established or deemed to have been
established by Moody's or S&P shall be changed (other than as a result of a
change in the rating system of either Moody's or S&P), such change shall be
effective as of the date on which such change is first announced by the rating
agency making such change. Each change in the Facility Fee Percentage shall
apply during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change. If the rating system of either Moody's or S&P shall change, or if either
such rating agency shall cease to be in the business of rating corporate debt
obligations, the Company and the Lenders shall negotiate in good faith to amend
the references to specific ratings in this definition to reflect such changed
rating system or the non-availability of ratings from such rating agency.
"Fees" shall mean the Administrative Fees, the Facility Fee and the
Utilization Fee.
-9-
"Financial Officer" of any corporation shall mean the Chief
Financial Officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Five-Year Credit Agreement" shall mean the Five-Year Credit
Agreement dated as of September 29, 2000 (as amended, restated, supplemented,
extended, replaced or otherwise modified from time to time) among the Company,
the lenders thereunder and the Administrative Agent.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed
Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing interest
at a fixed percentage rate per annum (expressed in the form of a decimal to no
more than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"GAAP" shall mean United States generally accepted accounting
principles, applied on a basis consistent with the financial statements referred
to in Section 3.02.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person shall mean any obligation,
contingent or otherwise, of such person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness; provided, however, that
the term Guarantee shall not include endorsements for collection or deposit, in
either case in the ordinary course of business.
"Guarantor" shall mean the Company in its capacity as the guarantor
under Section 9.01.
"Hazardous Materials" shall mean (A) petroleum products and
byproducts, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, radon gas, chlorofluorocarbons and all other ozone-depleting
substances; or (B) any chemical, material, substance, waste, pollutant or
contaminant that is prohibited, limited or regulated by or pursuant to any
Environmental Law.
"Indebtedness" of any person shall mean, without duplication, (a)
all obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are
-10-
customarily paid, (d) all obligations of such person under conditional sale or
other title retention agreements relating to property or assets purchased by
such person, (e) all obligations of such person issued or assumed as the
deferred purchase price of property or services, (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such person, whether or not the obligations secured thereby have
been assumed, (g) all Guarantees by such person of Indebtedness of others, (h)
all Capital Lease Obligations of such person, (i) all obligations of such person
in respect of interest rate protection agreements, foreign currency exchange
agreements or other interest or exchange rate hedging arrangements and (j) all
obligations of such person as an account party in respect of letters of credit
and bankers' acceptances; provided, however, that Indebtedness shall not include
trade accounts payable in the ordinary course of business. The Indebtedness of
any person shall include the Indebtedness of any partnership in which such
person is a general partner.
"Index Debt" shall have the meaning given such term under Applicable
Margin.
"Interest Payment Date" shall mean, with respect to any Loan, the
last day of each Interest Period applicable thereto and, in the case of a
Eurocurrency Loan with an Interest Period of more than three months' duration or
a Fixed Rate Loan with an Interest Period of more than 90 days' duration, each
day that would have been an Interest Payment Date for such Loan had successive
Interest Periods of three months' duration or 90 days duration, as the case may
be, been applicable to such Loan and, in addition, the date of any refinancing
of such Loan with a Loan of a different Type.
"Interest Period" shall mean (a) as to any Eurocurrency Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day (or, if there is no numerically corresponding day,
on the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter,
as the applicable Borrower may elect, (b) as to any ABR Borrowing, the period
commencing on the date of such Borrowing and ending on the earlier of (i) the
next succeeding day which shall be the last day of any March, June, September or
December and (ii) the Maturity Date and (c) as to any Fixed Rate Borrowing, the
period commencing on the date of such Borrowing and ending on the date specified
in the Competitive Bids in which the offer to make the Fixed Rate Loans
comprising such Borrowing were extended, which shall not be earlier than seven
days after the date of such Borrowing or later than 360 days after the date of
such Borrowing; provided, however, that if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of Eurocurrency Loans only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing
for any Interest Period, (i) the interest rate per annum for deposits for a
maturity most nearly comparable to such Interest Period in the currency in which
such Borrowing is
-11-
denominated which appears on the Bloomberg's British Banker's Association rate
page as of 11:00 a.m., London time, on the Quotation Day for such Interest
Period or, if such a rate does not appear on the Bloomberg's British Banker's
Association rate page, (ii) an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the rate at which deposits in the
currency in which such Borrowing is denominated approximately equal in principal
amount to the Loan of the Administrative Agent, in its capacity as a Lender (or,
if the Administrative Agent is not a Lender in respect of such Borrowing, then
the Loan of the Lender in respect of such Borrowing with the greatest Loan
amount), included in such Eurocurrency Borrowing and for a maturity comparable
to such Interest Period are offered to the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, on Quotation Day for such
Interest Period.
"Lien" shall mean with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"Loan" shall mean any Competitive Loan or Standby Loan.
"Loan Documents" shall mean this Agreement and the Fee Letter dated
July 9, 2004, among the Administrative Agent, X.X. Xxxxxx Securities Inc. and
the Company.
"Margin Stock" shall have the meaning given such term under
Regulation U.
"Material Adverse Change" or "Material Adverse Effect" shall mean
(a) a materially adverse change in, or a materially adverse effect on, the
business, assets, operations, performance or condition, financial or otherwise,
of the Company and its Subsidiaries taken as a whole or (b) a material
impairment of the ability of the Company or any Approved Borrower to perform any
of its respective obligations under any Loan Document to which it is or becomes
a party.
"Maturity Date" shall mean August 12, 2007.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Company or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Code Section 414) is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an obligation to
make contributions.
"Net Income" shall mean, for any period for the Company and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), net income for such period.
-12-
"Net Worth" shall mean, as at any date, the sum for the Company and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) of the following:
(a) the amount of common stock; plus
(b) the amount of any preferred stock that does not have any
requirement for the Company to purchase, redeem, retire or otherwise
acquire the same; plus
(c) the amount of additional paid-in capital and retained earnings
(or, in the case of an additional paid-in capital or retained earnings
deficit, minus the amount of such deficit); plus
(d) cumulative translation adjustments (or, in the case of negative
adjustments, minus the amount of such adjustments); plus
(e) cumulative pension liability adjustments (or, in the case of
negative adjustments, minus the amount of such adjustments); minus
(f) the cost of treasury stock.
"Obligation Currency" shall have the meaning assigned to such term
in Section 10.13.
"Other Taxes" shall have the meaning assigned to such term in
Section 2.19(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code which is maintained for current or former employees, or any
beneficiary thereof, of the Company or any ERISA Affiliate.
"Quotation Day" means, with respect to any Eurocurrency Borrowing
and any Interest Period, the day on which it is market practice in the relevant
interbank market for prime banks to give quotations for deposits in the currency
of such Borrowing for delivery on the first day of such Interest Period. If such
quotations would normally be given by prime banks on more than one day, the
Quotation Day will be the last of such days.
"Register" shall have the meaning given such term in Section
10.04(d).
-13-
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"Required Lenders" shall mean, at any time, Lenders having
Commitments representing a majority of the Total Commitment or, for purposes of
acceleration pursuant to clause (ii) of Article VII, Lenders holding Loans
representing a majority of the aggregate principal amount of the Loans
outstanding. For purposes of determining the Required Lenders, any Loans
denominated in an Alternative Currency shall be translated into Dollars at the
Spot Exchange Rate in effect on the applicable Denomination Date.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"S&P" shall mean Standard & Poor's Ratings Services, a Division of
the XxXxxx-Xxxx Companies Inc.
"Spot Exchange Rate" shall mean, on any day, (a) with respect to any
Alternative Currency, the spot rate at which Dollars are offered on such day by
JPMorgan Chase Bank in London for such Alternative Currency at approximately
11:00 a.m. (London time), and (b) with respect to Dollars in relation to any
specified Alternative Currency, the spot rate at which such specified
Alternative Currency is offered on such day by JPMorgan Chase Bank in London for
Dollars at approximately 11:00 a.m. (London time). For purposes of determining
the Spot Exchange Rate in connection with an Alternative Currency Borrowing,
such Spot Exchange Rate shall be determined as of the Denomination Date for such
Borrowing with respect to transactions in the applicable Alternative Currency
that will settle on the date of such Borrowing.
"Standby Borrowing" shall mean a borrowing consisting of
simultaneous Standby Loans from each of the Lenders.
"Standby Borrowing Request" shall mean a request made pursuant to
Section 2.04 in the form of Exhibit A-5.
-14-
"Standby Loan" shall mean a revolving loan made by a Lender pursuant
to Section 2.04. Each Standby Loan shall be a Eurocurrency Standby Loan or an
ABR Loan.
"Statutory Reserve Rate" shall mean, with respect to any currency, a
fraction (expressed as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the aggregate of the maximum
reserve, liquid asset or similar percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal established by any
Governmental Authority of the United States or of the jurisdiction of such
currency or any jurisdiction in which Loans in such currency are made to which
banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans in such currency or by reference to
which interest rates applicable to Loans in such currency are determined. Such
reserve, liquid asset or similar percentages shall include those imposed
pursuant to Regulation D. Eurocurrency Loans shall be deemed 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
Regulation D or any other applicable law, rule or regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"Sterling" or "GBP" shall mean lawful money of the United Kingdom.
"subsidiary" shall mean, with respect to any person (herein referred
to as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, Controlled or held, or (b) which is, at the time any
determination is made, otherwise Controlled by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of the Company.
"Taxes" shall have the meaning assigned to such term in Section
2.19(a).
"364-Day Credit Agreement" shall mean the Amended and Restated
364-Day Credit Agreement dated as of September 29, 2000 (as amended and in
effect on the date hereof) among the Company, the lenders thereunder and the
Administrative Agent.
"Total Capital" shall mean, at any time, Net Worth plus Total Debt.
"Total Commitment" shall mean, at any time, the aggregate amount of
the Commitments, as in effect at such time.
"Total Debt" shall mean, at any time, the aggregate outstanding
principal amount of all Indebtedness of the Company and its Subsidiaries at such
time (other than Indebtedness described in clause (i) or (j) of the definition
of the term "Indebtedness") determined on a consolidated basis (without
duplication) in accordance with GAAP;
-15-
provided that the term "Total Debt" shall include any preferred stock that
provides for the mandatory purchase, retirement, redemption or other acquisition
of the same by the Company or any Subsidiary (other than preferred stock held by
the Company or any Subsidiary).
"Transferee" shall have the meaning assigned to such term in Section
2.19(a).
"Transactions" shall mean the execution, delivery and performance by
the Company of this Agreement, the execution and delivery by the Company and the
Approved Borrowers of each Designation Letter, the borrowing of Loans and the
use of the proceeds thereof.
"Type", when used in respect of any Loan or Borrowing, shall refer
to the rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined and the currency in which such Loan or
the Loans comprising such Borrowings are denominated. For purposes hereof,
"rate" shall include the LIBO Rate, the Alternate Base Rate and the Fixed Rate,
and "currency" shall include Dollars and any Alternative Currency permitted
hereunder.
"Utilization Fee" shall have the meaning assigned to such term in
Section 2.06(c).
"Utilization Fee Percentage" shall mean on any date, the applicable
percentage set forth below based upon the ratings applicable on such date to the
Company's Index Debt:
---------------------------------------- -------------------
Utilization
Fee
Percentage
---------------------------------------- -------------------
Category 1
A+ or higher by S & P; .125%
A1 or higher by Moody's
---------------------------------------- -------------------
Category 2
A by S & P; .125%
A2 by Moody's
---------------------------------------- -------------------
Category 3
A- by S & P; .125%
A3 by Moody's
---------------------------------------- -------------------
Category 4
BBB+ by S & P; .125%
Baa1 by Moody's
---------------------------------------- -------------------
-16-
---------------------------------------- -------------------
Utilization
Fee
Percentage
---------------------------------------- -------------------
Category 5
BBB by S & P; .250%
Baa2 by Moody's
---------------------------------------- -------------------
Category 6
BBB- by S & P; .250%
Baa3 by Moody's
---------------------------------------- -------------------
Category 7
BB+ or lower by S & P; .250%
Ba1 or lower by Moody's
---------------------------------------- -------------------
For purposes of the foregoing, (a) if either Moody's or S&P shall not have in
effect a rating for Index Debt (other than because such rating agency shall no
longer be in the business of rating corporate debt obligations), then such
rating agency will be deemed to have established a rating for Index Debt in
Category 7; (b) if the ratings established or deemed to have been established by
Moody's and S&P shall fall within different Categories, the Utilization Fee
Percentage shall be determined by reference to the higher (or numerically lower)
Category unless one of the ratings is two or more categories lower (or
numerically higher) than the other, in which case the Utilization Fee Percentage
shall be determined by reference to the Category next above that of the lower of
the two ratings; and (c) if any rating established or deemed to have been
established by Moody's or S&P shall be changed (other than as a result of a
change in the rating system of either Moody's or S&P), such change shall be
effective as of the date on which such change is first announced by the rating
agency making such change. Each change in the Utilization Fee Percentage shall
apply during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change. If the rating system of either Moody's or S&P shall change, or if either
such rating agency shall cease to be in the business of rating corporate debt
obligations, the Company and the Lenders shall negotiate in good faith to amend
the references to specific ratings in this definition to reflect such changed
rating system or the non-availability of ratings from such rating agency.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles,
-17-
Sections, Exhibits and Schedules shall be deemed references to Articles and
Sections of, and Exhibits and Schedules to, this Agreement unless the context
shall otherwise require. Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in accordance with
GAAP, as in effect from time to time; provided, however, that if the Company
notifies the Administrative Agent that the Company wishes to amend any covenant
in Article VI or any related definition to eliminate the effect of any change in
GAAP occurring after the date of this Agreement on the operation of such
covenant (or if the Administrative Agent notifies the Company that the Required
Lenders wish to amend Article VI or any related definition for such purpose),
then the Company's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Company and the Required Lenders.
SECTION 1.03. Redenomination of Certain Alternative Currencies. (a)
Each obligation of any party to this Agreement to make a payment denominated in
the national currency unit of any member state of the European Union that adopts
the Euro as its lawful currency after the date hereof shall be redenominated
into Euro at the time of such adoption (in accordance with the EMU Legislation).
If, in relation to the currency of any such member state, the basis of accrual
of interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London Interbank Market for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided that if
any Borrowing in the currency of such member state is outstanding immediately
prior to such date, such replacement shall take effect, with respect to such
Borrowing, at the end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent in consultation
with the Company may from time to time specify to be appropriate to reflect the
adoption of the Euro by any member state of the European Union and any relevant
market conventions or practices relating to the Euro.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each
Lender agrees, severally and not jointly, to make Standby Loans to the Borrowers
from time to time during the Availability Period, in Dollars or one or more
Alternative Currencies (as specified in the Borrowing Requests with respect
thereto), in an aggregate principal amount at any time outstanding that will not
result in such Lender's Committed Credit Exposure exceeding such Lender's
Commitment, subject, however, to the conditions that
-18-
(i) at no time shall (A) the sum of (I) the aggregate Committed Credit Exposure
of all the Lenders, plus (II) the outstanding aggregate principal amount or
Assigned Dollar Value of all Competitive Loans made by all Lenders, exceed (B)
the Total Commitment and (ii) at all times the outstanding aggregate principal
amount of all Standby Loans made by each Lender shall equal such Lender's
Applicable Percentage of the outstanding aggregate principal amount of all
Standby Loans made pursuant to Section 2.04. Each Lender's Commitment is set
forth opposite its name in Schedule 2.01. Such Commitments may be terminated,
reduced or increased from time to time pursuant to Section 2.11 or Section 2.22.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrowers may borrow, pay or prepay and reborrow Standby Loans.
(b) For purposes of paragraph (a) above, if the Dollar Equivalent of
an outstanding Borrowing denominated in an Alternative Currency, determined by
the Administrative Agent based upon the applicable Spot Exchange Rate as of the
date that is three Business days before the end of the Interest Period with
respect to such Borrowing, does not exceed by more than 5% the Assigned Dollar
Value of such Borrowing, and if the entire amount of such Borrowing is to be
refinanced with a new Borrowing of equivalent amount in the same currency and by
the same Borrower, then such Borrowing shall continue to have the same Assigned
Dollar Value as in effect prior to such refinancing. The Administrative Agent
shall determine the applicable Spot Exchange Rate as of the date three Business
days before the end of an Interest Period with respect to a Borrowing
denominated in an Alternative Currency and shall promptly notify the Company and
the Lenders whether the Dollar Equivalent of such Borrowing exceeds by more than
5% the Assigned Dollar Value thereof.
(c) In the event that any Borrower wishes to make a Borrowing in any
Alternative Currency other than Euros or Sterling, such Borrowing shall be made
as a Competitive Borrowing.
SECTION 2.02. Loans. (a) Each Standby Loan shall be made as part of
a Borrowing consisting of Loans made by the Lenders ratably in accordance with
their applicable Commitments; provided, however, that the failure of any Lender
to make any Standby Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender shall
be responsible for the failure of any other Lender to make any Loan required to
be made by such other Lender). Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.03. The Competitive Loans and Standby
Loans comprising any Borrowing shall be in (i) an aggregate principal amount
which is not less than the Borrowing Minimum and an integral multiple of the
Borrowing Multiple or (ii) an aggregate principal amount equal to the remaining
balance of the available applicable Commitments.
(b) Each Competitive Borrowing shall be comprised entirely of
Eurocurrency Competitive Loans or Fixed Rate Loans, and each Standby Borrowing
shall be comprised entirely of Eurocurrency Standby Loans or ABR Loans, as the
Borrowers may request pursuant to Section 2.03 or 2.04, as applicable. Each
Lender may at its
-19-
option make any 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 applicable Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that none of the
Borrowers shall be entitled to request any Borrowing which, if made, would
result in an aggregate of more than ten separate Standby Loans of any Lender
being outstanding hereunder at any one time. For purposes of the foregoing,
Borrowings having different Interest Periods or denominated in different
currencies, regardless of whether they commence on the same date, shall be
considered separate Borrowings.
(c) Subject to Section 2.05, each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer to such
account as the Administrative Agent may designate in federal funds (in the case
of any Loan denominated in Dollars) or such other immediately available funds as
may then be customary for the settlement of international transactions in the
relevant currency not later than 11:00 a.m., New York City time, in the case of
fundings to an account in New York City, or 11:00 a.m., local time, in the case
of fundings to an account(s) in another jurisdiction, and the Administrative
Agent shall by 12:00 (noon), New York City time, in the case of fundings to (an)
account(s) in New York City, or 12:00 (noon), local time, in the case of
fundings to an account(s) in another jurisdiction, credit the amounts so
received to an account(s) designated by the applicable Borrower in the
applicable Borrowing Request, which account(s) must be in the country of the
currency of the Loan (it being understood that the funding may be for the credit
of an account outside such country) or in a country that is a member of the
European Union, in the case of Borrowings denominated in Euros, or, if a
Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, return the amounts so received to the
respective Lenders. Competitive Loans shall be made by the Lender or Lenders
whose Competitive Bids therefor are accepted pursuant to Section 2.03 in the
amounts so accepted and Standby Loans shall be made by the Lenders pro rata in
accordance with Section 2.16. Unless the Administrative Agent shall have
received notice from a Lender prior to the date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender's portion
of such Borrowing, the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the date of such Borrowing
in accordance with this paragraph (c) and the Administrative Agent may, in
reliance upon such assumption, make available to the applicable Borrower on such
date a corresponding amount in the required currency. If the Administrative
Agent shall have so made funds available then to the extent that such Lender
shall not have made such portion available to the Administrative Agent, such
Lender and the applicable Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon in such currency, for each day from the date such amount is
made available to the applicable Borrower until the date such amount is repaid
to the Administrative Agent at (i) in the case of the Borrower, the interest
rate applicable at the time to the Loans comprising such Borrowing and (ii) in
the case of such Lender, a rate determined by the Administrative Agent to
represent its cost of overnight or short-term funds in the relevant currency
(which determination shall be
-20-
conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, none of
the Borrowers shall be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
SECTION 2.03. Competitive Bid Procedure. (a) In order to request
Competitive Bids, a Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Competitive Bid Request in the form of
Exhibit A-1 hereto, to be received by the Administrative Agent (i) in the case
of a Eurocurrency Competitive Borrowing, not later than 11:00 a.m., New York
City time (or, if the Bid Request is delivered or telecopied to the
Administrative Agent in London, 10:00 a.m., London time), four Business days
before a proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before a proposed Competitive Borrowing. No ABR Loan shall be requested in, or
made pursuant to, a Competitive Bid Request. A Competitive Bid Request that does
not conform substantially to the format of Exhibit A-1 may be rejected in the
Administrative Agent's sole discretion, and the Administrative Agent shall
promptly notify the applicable Borrower of such rejection by telecopier. Such
request shall in each case refer to this Agreement and specify (A) whether the
Borrowing then being requested is to be a Eurocurrency Borrowing or a Fixed Rate
Borrowing, (B) the date of such Borrowing (which shall be a Business Day), (C)
the aggregate principal amount of such Borrowing, (D) the currency of such
Borrowing and (E) the Interest Period with respect thereto (which may not end
after the Maturity Date). If no election as to the currency of Borrowing is
specified in any Competitive Bid Request, then the applicable Borrower shall be
deemed to have requested Borrowings in Dollars. Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the Administrative
Agent shall invite by telecopier (in the form set forth in Exhibit A-2 hereto)
the Lenders to bid, on the terms and conditions of this Agreement, to make
Competitive Loans pursuant to the Competitive Bid Request.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to a Borrower responsive to a Competitive Bid Request. Each
Competitive Bid by a Lender must be received by the Administrative Agent via
telecopier, in the form of Exhibit A-3 hereto, (i) in the case of a Eurocurrency
Competitive Borrowing not later than 11:00 a.m., New York City time (or, if the
Competitive Bid is delivered or telecopied to the Administrative Agent in
London, 10:00 a.m., London time), three Business days before a proposed
Competitive Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later
than 11:00 a.m., New York City time, on the day of a proposed Competitive
Borrowing. Multiple bids will be accepted by the Administrative Agent.
Competitive Bids that do not conform substantially to the format of Exhibit A-3
may be rejected by the Administrative Agent after conferring with, and upon the
instruction of, the applicable Borrower, and the Administrative Agent shall
notify the Lender making such nonconforming bid of such rejection as soon as
practicable. Each Competitive Bid shall refer to this Agreement and specify (A)
the
-21-
principal amount (which (x) shall be in a minimum principal amount or Assigned
Dollar Value of $5,000,000 and (except in the case of Alternative Currency
Borrowings) in an integral multiple of $1,000,000, (y) shall be expressed in
Dollars or, in the case of an Alternative Currency Borrowing, in both the
Alternative Currency and the Assigned Dollar Value thereof and (z) may equal the
entire principal amount of the Competitive Borrowing requested by the Borrower)
of the Competitive Loan or Loans that the Lender is willing to make to the
applicable Borrower, (B) the Competitive Bid Rate or Rates at which the Lender
is prepared to make the Competitive Loan or Loans and (C) the Interest Period
and the last day thereof. If any Lender shall elect not to make a Competitive
Bid, such Lender shall so notify the Administrative Agent by telecopier (I) in
the case of Eurocurrency Competitive Loans, not later than 11:00 a.m., New York
City time (or, if the notice is delivered or telecopied to the Administrative
Agent in London, 10:00 a.m., London time), three Business days before a proposed
Competitive Borrowing, and (II) in the case of Fixed Rate Loans, not later than
11:00 a.m., New York City time, on the day of a proposed Competitive Borrowing;
provided, however, that failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Loan as part of such
Competitive Borrowing. A Competitive Bid submitted by a Lender pursuant to this
paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify the applicable
Borrower by telecopier of all the Competitive Bids made, the Competitive Bid
Rate and the principal amount of each Competitive Loan in respect of which a
Competitive Bid was made and the identity of the Lender that made each bid. The
Administrative Agent shall send a copy of all Competitive Bids to the applicable
Borrower for its records as soon as practicable after completion of the bidding
process set forth in this Section 2.03.
(d) The applicable Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The Borrower shall notify
the Administrative Agent by telephone, confirmed by telecopier in the form of a
Competitive Bid Accept/Reject Letter, whether and to what extent it has decided
to accept or reject any of or all the bids referred to in paragraph (c) above,
(x) in the case of a Eurocurrency Competitive Borrowing, not later than 11:30
a.m., New York City time (or, if the notice is delivered or telecopied to the
Administrative Agent in London, 10:30 a.m., London time), three Business days
before a proposed Competitive Borrowing, and (y) in the case of a Fixed Rate
Borrowing, not later than 11:30 a.m., New York City time, on the day of a
proposed Competitive Borrowing; provided, however, that (i) the failure by the
applicable Borrower to give such notice shall be deemed to be a rejection of all
the bids referred to in paragraph (c) above, (ii) such Borrower shall not accept
a bid made at a particular Competitive Bid Rate if the Borrower has decided to
reject a bid made at a lower Competitive Bid Rate, (iii) the aggregate amount of
the Competitive Bids accepted by such Borrower shall not exceed the principal
amount specified in the Competitive Bid Request, (iv) if such Borrower shall
accept a bid or bids made at a particular Competitive Bid Rate but the amount of
such bid or bids shall cause the total amount of bids to be accepted by the
Borrower to exceed the amount specified in the Competitive Bid Request, then
such Borrower shall accept a portion of such bid or bids in an amount equal to
the amount specified in the Competitive Bid Request less the amount of all other
-22-
Competitive Bids accepted with respect to such Competitive Bid Request, which
acceptance, in the case of multiple bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such bid at such Competitive
Bid Rate, and (v) except pursuant to clause (iv) above, no bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in (x) a minimum
principal amount or Assigned Dollar Value of $5,000,000 and (except in the case
of Alternative Currency Borrowings) an integral multiple of $1,000,000 or (y) an
aggregate principal amount equal to the remaining balance of the available
applicable Commitments; provided further, however, that if a Competitive Loan
must be in an amount less than $5,000,000 because of the provisions of clause
(iv) above, such Competitive Loan may be for a minimum of $1,000,000 or any
integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple bids at a particular Competitive Bid Rate
pursuant to clause (iv) the amounts shall be rounded to integral multiples of
$1,000,000 in a manner which shall be in the discretion of the applicable
Borrower. A notice given by the applicable Borrower pursuant to this paragraph
(d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender whether or not its Competitive Bid has been accepted (and if so, in what
amount and at what Competitive Bid Rate) by telecopy sent by the Administrative
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Loan in respect of
which its bid has been accepted.
(f) A Competitive Bid Request shall not be made within five Business
days after the date of any previous Competitive Bid Request.
(g) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such bid directly to the
applicable Borrower one quarter of an hour earlier than the latest time at which
the other Lenders are required to submit their bids to the Administrative Agent
pursuant to paragraph (b) above.
(h) All notices required by this Section 2.03 shall be given in
accordance with Section 10.01.
SECTION 2.04. Standby Borrowing Procedure. In order to request a
Standby Borrowing, a Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Standby Borrowing Request in the form of
Exhibit A-5 hereto, to be received by the Administrative Agent (a) in the case
of a Eurocurrency Standby Borrowing, not later than 11:00 a.m., New York City
time (or, if the Borrowing Request is delivered or telecopied to the
Administrative Agent in London, 10:00 a.m., London time), three Business days
before a proposed borrowing and (b) in the case of an ABR Borrowing, not later
than 10:00 a.m., New York City time, on the date of the proposed borrowing. No
Fixed Rate Loan shall be requested or made pursuant to a Standby Borrowing
Request. Such notice shall be irrevocable and shall in each case specify (i)
whether the Borrowing then being requested is to be a Eurocurrency Borrowing or
an ABR Borrowing; (ii) the date of such Borrowing (which shall be a Business
Day), (iii) the aggregate principal amount of the Borrowing, (iv) the currency
of such Borrowing (which, in the case of an ABR Borrowing, shall be Dollars) and
(v) if such
-23-
Borrowing is to be a Eurocurrency Borrowing, the Interest Period with respect
thereto. If no election as to the currency of Borrowing is specified in any
Standby Borrowing Request, then the applicable Borrower shall be deemed to have
requested Borrowings in Dollars. If no election as to the Type of Borrowing is
specified, then the requested Borrowing shall be an ABR Borrowing if denominated
in Dollars or a Eurocurrency Borrowing if denominated in an Alternative
Currency. If no Interest Period with respect to any Eurocurrency Borrowing is
specified, then the applicable Borrower shall be deemed to have selected an
Interest Period of one month's duration. If the applicable Borrower shall not
have given notice in accordance with this Section 2.04 of its election to
refinance a Standby Borrowing prior to the end of the Interest Period in effect
for such Borrowing, then such Borrower shall (unless such Borrowing is repaid at
the end of such Interest Period) be deemed to have given notice of an election
to refinance such Borrowing with an ABR Borrowing if denominated in Dollars or a
Eurocurrency Borrowing in the same currency and with an Interest Period of one
month if denominated in an Alternative Currency. The Administrative Agent shall
promptly advise the Lenders of any notice given pursuant to this Section 2.04
(and the contents thereof), of each Lender's portion of the requested Borrowing
and, in the case of an Alternative Currency Borrowing, of the Dollar Equivalent
of the Alternative Currency amount specified in the applicable Standby Borrowing
Request and the Spot Exchange Rate utilized to determine such Dollar Equivalent.
Subject to Section 2.01(b), if the Dollar Equivalent of a Lender's portion of
any such Borrowing would exceed such Lender's remaining available applicable
Commitment, then such Lender's portion of such Borrowing shall be reduced to the
Alternative Currency Equivalent of such Lender's remaining available Commitment.
SECTION 2.05. Refinancings. A Borrower may refinance all or any part
of any Competitive Borrowing or Standby Borrowing with a Competitive Borrowing
or a Standby Borrowing of the same or a different Type made pursuant to Section
2.03 or Section 2.04, subject to the conditions and limitations set forth herein
and elsewhere in this Agreement, including refinancings of Competitive
Borrowings with Standby Borrowings and Standby Borrowings with Competitive
Borrowings. Any Borrowing or part thereof so refinanced shall be deemed to be
repaid in accordance with Section 2.07 with the proceeds of a new Borrowing
hereunder and the proceeds of the new Borrowing, to the extent they do not
exceed the principal amount of the Borrowing being refinanced, shall not be paid
by the Lenders to the Administrative Agent or by the Administrative Agent to the
applicable Borrower pursuant to Section 2.02(c); provided, however, that in the
case of any refinancing of a Borrowing with another Borrowing in the same
currency, (i) if the principal amount extended by a Lender in a refinancing is
greater than the principal amount extended by such Lender in the Borrowing being
refinanced, then such Lender shall pay such difference to the Administrative
Agent for distribution to the Lenders described in (ii) below, (ii) if the
principal amount extended by a Lender in the Borrowing being refinanced is
greater than the principal amount being extended by such Lender in the
refinancing, the Administrative Agent shall return the difference to such Lender
out of amounts received pursuant to (i) above, and (iii) to the extent any
Lender fails to pay the Administrative Agent amounts due from it pursuant to (i)
above, any Loan or portion thereof being refinanced with such amounts shall not
be deemed repaid in accordance with Section 2.07 and shall be payable by the
applicable Borrower.
-24-
SECTION 2.06. Fees. (a) The Company agrees to pay to each Lender,
through the Administrative Agent, on each March 31, June 30, September 30 and
December 31 and on the Maturity Date and any subsequent date on which the Loans
of such Lender shall be repaid (or on the date of termination of such Lender's
Commitment if such Lender has no Standby Loans outstanding after such date), a
facility fee (a "Facility Fee") equal to the Facility Fee Percentage of the
daily average amount of the Commitment of such Lender, whether used or unused
(and whether or not the conditions set forth in Section 4.01 shall have been
satisfied), during the preceding quarter (or shorter period commencing with the
date hereof or ending with the date on which the Commitment of such Lender shall
be terminated and all outstanding Loans of such Lender repaid). All Facility
Fees shall be computed on the basis of the actual number of days elapsed in a
year of 365 days (or 366 days in a leap year). The Facility Fee due to each
Lender shall commence to accrue on the date hereof and shall cease to accrue on
the date on which the Commitment of such Lender is terminated and the Loans of
such Lender have been repaid.
(b) The Company agrees to pay the Administrative Agent, for its own
account, the fees set forth in the letter agreement dated July 9, 2004, among
the Administrative Agent, X.X. Xxxxxx Securities Inc. and the Company (the
"Administrative Fees") at the times and in the amounts set forth therein.
(c) The Company agrees to pay to each Lender, through the
Administrative Agent, on each March 31, June 30, September 30 and December 31,
on each date on which the Commitment of such Lender shall be terminated or
reduced as provided herein and on any date after the termination of such
Lender's Commitment on which all the Loans of such Lender shall be repaid, a
utilization fee (a "Utilization Fee") equal to the Utilization Fee Percentage
per annum of the sum of (i) the Committed Credit Exposure of such Lender plus
(ii) the outstanding principal amount (or Assigned Dollar Value, in the case of
Loans denominated in Alternative Currencies) of the Competitive Loans of such
Lender for each day on which the outstanding aggregate principal amount (or
Assigned Dollar Value) of Loans exceeds 50% of the Total Commitment (including
each day after the termination of the Commitments). All Utilization Fees shall
be computed on the basis of the actual number of days elapsed in a year of 360
days.
(d) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders. Once paid, none of the Fees shall be refundable
under any circumstances.
SECTION 2.07. Repayment of Loans. (a) Each Borrower agrees to pay
the outstanding principal balance of each Loan on the last day of the Interest
Period applicable to such Loan and on the Maturity Date. Each Loan shall bear
interest from the date of the Borrowing of which such Loan is a part on the
outstanding principal balance thereof as set forth in Section 2.08.
(b) Each Lender shall, and is hereby authorized by the Borrowers to,
maintain, in accordance with its usual practice, records evidencing the
indebtedness of each Borrower to such Lender hereunder from time to time,
including the date, amount,
-25-
currency and Type of and the Interest Period applicable to each Loan made by
such Lender from time to time and the amounts of principal and interest paid to
such Lender from time to time in respect of each such Loan.
(c) The entries made in the records maintained pursuant to paragraph
(b) of this Section 2.07 and in the Register maintained by the Administrative
Agent pursuant to Section 10.04(d) shall be prima facie evidence of the
existence and amounts of the obligations of each Borrower to which such entries
relate; provided, however, that the failure of any Lender or the Administrative
Agent to maintain or to make any entry in such records or the Register, as
applicable, or any error therein shall not in any manner affect the obligation
of any Borrower to repay any Loans in accordance with the terms of this
Agreement.
SECTION 2.08. Interest on Loans. (a) Subject to the provisions of
Section 2.09, the Loans comprising each Eurocurrency Borrowing shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 360 days (or, in the case of Loans denominated in (A) Sterling, over a year
of 365 or 366 days, or (B) any Alternative Currency other than Sterling or
Euros, on the basis customarily used for borrowings between banks in the
principal market for such Alternative Currency)), at a rate per annum equal to
(i) in the case of each Eurocurrency Standby Loan, the Adjusted LIBO Rate for
the Interest Period in effect for the Borrowing of which such Loan is part plus
the Applicable Margin from time to time in effect and (ii) in the case of each
Eurocurrency Competitive Loan, the LIBO Rate for the Interest Period in effect
for the Borrowing of which such Loan is a part plus the Competitive Margin
offered by the Lender making such Loan and accepted by the Borrower pursuant to
Section 2.03.
(b) Subject to the provisions of Section 2.09, the Loans comprising
each ABR Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as appropriate, when
determined by reference to the Prime Rate and over a year of 360 days at all
other times) at a rate per annum equal to the Alternate Base Rate.
(c) Subject to the provisions of Section 2.09, each Fixed Rate Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the fixed rate of
interest offered by the Lender making such Loan and accepted by the Borrower
pursuant to Section 2.03.
(d) Interest on each Loan shall be payable in arrears on each
Interest Payment Date applicable to such Loan except as otherwise provided in
this Agreement. The applicable LIBO Rate or Alternate Base Rate for each
Interest Period or day within an Interest Period, as the case may be, shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.09. Default Interest. If any Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, whether by scheduled maturity, notice of prepayment, acceleration
or otherwise, such Borrower shall on demand from time to time from the
Administrative
-26-
Agent pay interest, to the extent permitted by law, on such defaulted amount up
to (but not including) the date of actual payment (after as well as before
judgment) at a rate per annum (computed on the basis of the actual number of
days elapsed over a year of 360 days) equal to the Alternate Base Rate plus 2%
per annum (or, in the case of the principal of any Loan, if higher, the rate of
interest otherwise applicable, or most recently applicable, to such Loan
hereunder plus 2% per annum).
SECTION 2.10. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business days prior to the commencement of any
Interest Period for a Eurocurrency Borrowing of any Type the Administrative
Agent shall have determined that Dollar deposits or deposits in the Alternative
Currency in which such Borrowing is to be denominated in the principal amounts
of the Loans comprising such Borrowing are not generally available in the London
interbank market, or that the rates at which such deposits are being offered
will not adequately and fairly reflect the cost to any Lender of making or
maintaining its Eurocurrency Loan during such Interest Period, or that
reasonable means do not exist for ascertaining the LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or telecopy notice
of such determination to the applicable Borrower and the Lenders. In the event
of any such determination, until the Administrative Agent shall have advised the
applicable Borrower and the Lenders that the circumstances giving rise to such
notice no longer exist, (i) any request by a Borrower for a Eurocurrency
Competitive Borrowing pursuant to Section 2.03 shall be of no force or effect
and shall be denied by the Administrative Agent and (ii) any request by a
Borrower for a Eurocurrency Standby Borrowing of the affected Type or in the
affected currency shall be deemed to be a request for an ABR Borrowing
denominated in Dollars. Each determination by the Administrative Agent hereunder
shall be conclusive absent manifest error.
SECTION 2.11. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) Upon at least three Business days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Company (on behalf of all the
Borrowers) may at any time in whole permanently terminate, or from time to time
in part permanently reduce, the Total Commitment; provided, however, that (i)
each partial reduction of the Total Commitment shall be in an integral multiple
of $1,000,000 and in a minimum principal amount of $5,000,000 and (ii) no such
termination or reduction shall be made which would reduce the Total Commitment
to an amount less than the aggregate outstanding principal amount (or Assigned
Dollar Value, in the case of Loans denominated in Alternative Currencies) of the
Competitive Loans and Standby Loans.
(c) Each reduction in the Total Commitment hereunder shall be made
ratably among the Lenders in accordance with their respective Commitments. The
Company shall pay to the Administrative Agent for the account of the Lenders, on
the date of each termination or reduction, the Facility Fees on the amount of
the Commitments so terminated or reduced accrued to but not including the date
of such termination or reduction.
-27-
SECTION 2.12. Prepayment. (a) Each Borrower shall have the right at
any time and from time to time to prepay any Standby Borrowing, in whole or in
part, upon giving written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Administrative Agent: (i) in the
case of Eurocurrency Loans before 11:00 a.m., New York City time (or, if such
notice is delivered or telecopied to the Administrative Agent in London, 10:00
a.m., London time), three Business days prior to prepayment and (ii) in the case
of ABR Loans, before 11:00 a.m., New York City time, one Business Day prior to
prepayment; provided, however, that each partial prepayment shall be in an
amount which is an integral multiple of $1,000,000 and not less than $5,000,000.
The Borrowers shall not have the right to prepay any Competitive Borrowing.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.11(b), the Company shall (or shall cause each responsible
Borrower to) pay or prepay so much of the Standby Borrowings as shall be
necessary in order that the aggregate outstanding principal amount of all Loans
will not exceed the Total Commitment after giving effect to such termination or
reduction.
(c) Each notice of prepayment under this Section 2.12 shall specify
the prepayment date and the principal amount of each Borrowing (or portion
thereof) to be prepaid, shall be irrevocable and shall commit the applicable
Borrower to prepay such Borrowing (or portion thereof) by the amount stated
therein on the date stated therein. All prepayments under this Section 2.12
shall be subject to Section 2.15 but otherwise without premium or penalty.
SECTION 2.13. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender (or any
lending office of any Lender) of the principal of or interest on any
Eurocurrency Loan or Fixed Rate Loan made by such Lender or any Fees or other
amounts payable hereunder (other than changes in respect of taxes imposed on the
overall net income of such Lender by the jurisdiction in which such Lender has
its principal office or by any political subdivision or taxing authority
therein), or shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of or credit extended by such Lender (or any lending office of such
Lender), or shall impose on such Lender or the London interbank market any other
condition affecting this Agreement or any Eurocurrency Loan or Fixed Rate Loan
made by such Lender, 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 Fixed
Rate Loan or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise) by an amount
deemed by such Lender to be material, then the Company shall (or shall cause the
Borrowers to) pay to such Lender upon demand such additional amount or amounts
as will compensate such Lender for such additional costs incurred or reduction
suffered. Notwithstanding the foregoing, no Lender shall be entitled to request
compensation under this paragraph with respect to any
-28-
Competitive Loan if it shall have been aware of the change giving rise to such
request at the time of submission of the Competitive Bid pursuant to which such
Competitive Loan shall have been made.
(b) If any Lender shall have determined that any change after the
date hereof in the applicability of any law, rule, regulation or guideline
adopted pursuant to or arising out of the July 1988 report of the Basle
Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital Standards", or the
adoption after the date hereof of any other law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any lending office of
such Lender) or any Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement or the
Loans made by such Lender pursuant hereto to a level below that which such
Lender or such Lender's holding company could have achieved but for such
applicability, adoption, change or compliance (taking into consideration such
Lender's policies and the policies of such Lender's holding company with respect
to capital adequacy) by an amount deemed by such Lender to be material, then
from time to time the Company shall (or shall cause the responsible Borrower to)
pay to such Lender such additional amount or amounts as will compensate such
Lender or such Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth such amount or amounts
as shall be necessary to compensate such Lender as specified in paragraph (a) or
(b) above, as the case may be, shall be delivered to the Company and shall be
conclusive absent manifest error. The Company shall (or shall cause the
responsible Borrower to) pay each Lender the amount shown as due on any such
certificate delivered by it within 10 days after the receipt of the same.
(d) Except as provided below in this paragraph (d), failure on the
part of any Lender to demand compensation for any increased costs or reduction
in amounts received or receivable or reduction in return on capital with respect
to any period shall not constitute a waiver of such Lender's right to demand
compensation with respect to such period or any other period. The protection of
this Section shall be available to each Lender regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed. No Lender shall be entitled to compensation under this Section 2.13 for
any costs incurred or reductions suffered with respect to any date unless it
shall have notified the Company that it will demand compensation for such costs
or reductions not more than 60 days after the later of (i) such date and (ii)
the date on which it shall have, or should have, become aware of such costs or
reductions.
-29-
SECTION 2.14. Change in Legality. (a) Notwithstanding any other
provision herein, if, after the date hereof, (i) any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurocurrency Loan or Alternative Currency
Loan or to give effect to its obligations as contemplated hereby with respect to
any Eurocurrency Loan or Alternative Currency Loan, or (ii) there shall have
occurred any change in national or international financial, political or
economic conditions (including the imposition of or any change in exchange
controls) or currency exchange rates which would make it impracticable for any
Lender to make Loans denominated in such Alternative Currency or to any
Borrower, then, by written notice to the Company and to the Administrative
Agent, such Lender may:
(i) declare that Eurocurrency Loans or Alternative Currency Loans
(in the affected currency or currencies or to the affected Borrower), as
the case may be, will not thereafter (for the duration of such unlawfulness
or impracticability) be made by such Lender hereunder, whereupon such
Lender shall not submit a Competitive Bid in response to a request for such
Alternative Currency Loans or Eurocurrency Competitive Loans and any
request by a Borrower for a Eurocurrency Standby Borrowing or Alternative
Currency Borrowing (in the affected currency or currencies or to the
affected Borrower), as the case may be, shall, as to such Lender only, be
deemed a request for an ABR Loan or a Loan denominated in Dollars, as the
case may be, unless such declaration shall be subsequently withdrawn (or,
if a Loan to the requesting Borrower cannot be made for the reasons
specified above, such request shall be deemed to have been withdrawn); and
(ii) require that all outstanding Eurocurrency Loans or Alternative
Currency Loans (in the affected currency or currencies or to the affected
Borrower), as the case may be, made by it be converted to ABR Loans
denominated in Dollars in which event all such Eurocurrency Loans or
Alternative Currency Loans (in the affected currency or currencies or to
the affected Borrower) shall be automatically converted to ABR Loans
denominated in Dollars as of the effective date of such notice as provided
in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurocurrency Loans or Alternative Currency Loans, as the case may be,
that would have been made by such Lender or the converted Eurocurrency Loans or
Alternative Currency Loans, as the case may be, of such Lender shall instead be
applied to repay the ABR Loans or Loans denominated in Dollars, as the case may
be, made by such Lender in lieu of, or resulting from the conversion of, such
Eurocurrency Loans or Loans denominated in Dollars, as the case may be. In the
event any Alternative Currency Loan is converted into a Loan denominated in
Dollars pursuant to this Section, (A) the principal amount of such Loan shall be
deemed to be an amount equal to the Assigned Dollar Value of such Alternative
Currency Loan determined based upon the applicable Spot Exchange Rate as of the
Denomination Date for the Borrowing which includes such Alternative Currency
-30-
Loan and (B) the applicable Borrower shall indemnify the Lender of such
converted Alternative Currency Loan against any loss it sustains as a result of
such conversion.
(b) For purposes of this Section 2.14, a notice to the Company by
any Lender shall be effective as to each Eurocurrency Loan, if lawful, on the
last day of the Interest Period currently applicable to such Eurocurrency Loan;
in all other cases such notice shall be effective on the date of receipt by the
Company.
SECTION 2.15. Indemnity. Each Borrower shall indemnify each Lender
against any loss or expense which such Lender may sustain or incur as a
consequence of (a) any failure by such Borrower to fulfill on the date of any
borrowing hereunder the applicable conditions set forth in Article IV, (b) any
failure by such Borrower to borrow or to refinance or continue any Loan
hereunder after irrevocable notice of such borrowing, refinancing or
continuation has been given pursuant to Section 2.03 or 2.04, (c) any payment,
prepayment, conversion or transfer of a Eurocurrency Loan or Fixed Rate Loan
required by any other provision of this Agreement or otherwise made or deemed
made on a date other than the last day of the Interest Period applicable
thereto, (d) any default in payment or prepayment of the principal amount of any
Loan or any part thereof or interest accrued thereon, as and when due and
payable (at the due date thereof, whether by scheduled maturity, acceleration,
irrevocable notice of prepayment or otherwise) or (e) the occurrence of any
other Event of Default, including, in each such case, any loss or reasonable
expense sustained or incurred or to be sustained or incurred in liquidating or
employing deposits from third parties acquired to effect or maintain such Loan
or any part thereof as a Eurocurrency Loan or Fixed Rate Loan. Such loss or
reasonable expense shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (i) its cost of obtaining the funds for
the Loan being paid, prepaid, converted, transferred or not borrowed (assumed to
be the LIBO Rate or, in the case of a Fixed Rate Loan, the fixed rate of
interest applicable thereto) for the period from the date of such payment,
prepayment, conversion, transfer or failure to borrow to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan which would have commenced on the date of such
failure) over (ii) the amount of interest (as reasonably determined by such
Lender) that would be realized by such Lender in reemploying the funds so paid,
prepaid, converted, transferred or not borrowed for such period or Interest
Period, as the case may be. A certificate of any Lender setting forth any amount
or amounts which such Lender is entitled to receive pursuant to this Section
shall be delivered to the Company and shall be conclusive absent manifest error.
SECTION 2.16. Pro Rata Treatment. Except as required under Section
2.14, each Standby Borrowing, each payment or prepayment of principal of any
Standby Borrowing, each payment of interest on the Standby Loans, each payment
of the Facility Fees and Utilization Fees, each reduction of the Commitments and
each refinancing of any Borrowing with a Standby Borrowing of any Type, shall be
allocated pro rata among the Lenders in accordance with their respective
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Standby
Loans). Each payment of principal of any Competitive Borrowing shall be
allocated pro rata among the Lenders participating in
-31-
such Borrowing in accordance with the respective principal amounts of their
outstanding Competitive Loans comprising such Borrowing. Each payment of
interest on any Competitive Borrowing shall be allocated pro rata among the
Lenders participating in such Borrowing in accordance with the respective
amounts of accrued and unpaid interest on their outstanding Competitive Loans
comprising such Borrowing. For purposes of determining (i) the aggregate
available Commitments of the Lenders at any time and (ii) the available
Commitment of each Lender, each outstanding Competitive Borrowing shall be
deemed to have utilized the Commitments of the Lenders (including those Lenders
which shall not have made Loans as part of such Competitive Borrowing) pro rata
in accordance with such respective Commitments. Each Lender agrees that in
computing such Lender's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender's percentage of
such Borrowing to the next higher or lower whole Dollar (or comparable unit of
any applicable Alternative Currency) amount.
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against any Borrower, or pursuant to a secured claim under Section 506 of Title
11 of the United States Code or other security or interest arising from, or in
lieu of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntary or involuntary) in respect of any Standby Loan or
Standby Loans as a result of which the unpaid principal portion of its Standby
Loans shall be proportionately less than the unpaid principal portion of the
Standby Loans of any other Lender, it shall be deemed simultaneously to have
purchased from such other Lender at face value, and shall promptly pay to such
other Lender the purchase price for, a participation in the Standby Loans of
such other Lender, so that the aggregate unpaid principal amount of the Standby
Loans and participations in the Standby Loans held by each Lender shall be in
the same proportion to the aggregate unpaid principal amount of all Standby
Loans then outstanding as the principal amount of its Standby Loans prior to
such exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all Standby Loans outstanding prior to such exercise of
banker's lien, setoff or counterclaim or other event; provided, however, that,
if any such purchase or purchases or adjustments shall be made pursuant to this
Section 2.17 and the payment giving rise thereto shall thereafter be recovered,
such purchase or purchases or adjustments shall be rescinded to the extent of
such recovery and the purchase price or prices or adjustment restored without
interest. Each Borrower expressly consents to the foregoing arrangements and
agrees that any Lender holding a participation in a Standby Loan deemed to have
been so purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by such Borrower to such
Lender by reason thereof as fully as if such Lender had made a Standby Loan
directly to such Borrower in the amount of such participation.
SECTION 2.18. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder and under each other Loan Document not later than 12:00 noon,
local time at the place of payment, on the date when due in immediately
available funds. Each such payment shall be made to the Administrative Agent at
its offices at 000 Xxxx Xxxxxx,
-00-
Xxx Xxxx, Xxx Xxxx. Each such payment (other than principal of and interest on
Alternative Currency Loans, which shall be made in the applicable Alternative
Currency) shall be made in Dollars.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.19. Taxes. (a) Any and all payments by or on account of
any obligation of each Borrower hereunder shall be made, in accordance with
Section 2.18, free and clear of and without deduction for any and all current or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding (i) income taxes imposed on the net
income of the Administrative Agent or any Lender (or any transferee or assignee
thereof, including a participation holder (any such individual or entity, a
"Transferee")), and (ii) franchise taxes imposed on the net income of the
Administrative Agent or any Lender (or Transferee), in each case by the
jurisdiction under the laws of which the Administrative Agent or such Lender (or
Transferee) is organized, domiciled, resident or doing business or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities, collectively or individually, "Taxes").
If any Borrower shall be required to deduct any Taxes from or in respect of any
sum payable hereunder to any Lender (or any Transferee) or the Administrative
Agent, (i) the sum payable shall be increased by the amount (an "additional
amount") necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.19) such
Lender (or Transferee) or the Administrative Agent (as the case may be) shall
receive an amount equal to the sum it would have received had no such deductions
been made, (ii) each Borrower shall make such deductions and (iii) each Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to bear and to pay to the
relevant Governmental Authority in accordance with applicable law any current or
future recording, stamp, documentary, excise, transfer, sales, property or
similar taxes, charges or levies that arise from any payment made hereunder or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or any other Loan Document ("Other Taxes").
(c) The Borrowers will indemnify each Lender (or Transferee) and the
Administrative Agent, within 10 days after written demand therefor, for the full
amount of Taxes and Other Taxes paid by such Lender (or Transferee) or the
Administrative Agent, as the case may be, on or with respect to any payment by
or on account of any obligation of any Borrower hereunder or under any other
Loan Document (including Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any liability and any
penalties, interest and expenses (including reasonable attorney's fees and
expenses) arising therefrom or with respect thereto,
-33-
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant Governmental Authority. A certificate as to the amount of such
payment or liability prepared by a Lender, or the Administrative Agent on its
behalf, absent manifest error, shall be final, conclusive and binding for all
purposes.
(d) If a Lender (or Transferee) or the Administrative Agent shall
become aware that it is entitled to claim a refund from a Governmental Authority
in respect of Taxes or Other Taxes as to which it has been indemnified by a
Borrower, or with respect to which any Borrower has paid additional amounts,
pursuant to this Section 2.19, it shall promptly notify the Company of the
availability of such refund claim and shall, within 30 days after receipt of a
request by the Company, make a claim to such Governmental Authority for such
refund at the Company's expense. If a Lender (or Transferee) or the
Administrative Agent receives a refund (including pursuant to a claim for refund
made pursuant to the preceding sentence) in respect of any Taxes or Other Taxes
as to which it has been indemnified by a Borrower or with respect to which any
Borrower has paid additional amounts pursuant to this Section 2.19, it shall
within 30 days from the date of such receipt pay over such refund to the Company
(but only to the extent of indemnity payments made, or additional amounts paid,
by such Borrower under this Section 2.19 with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of such
Lender (or Transferee) or the Administrative Agent and without interest (other
than interest paid by the relevant Governmental Authority with respect to such
refund); provided, however, that the Company, upon the request of such Lender
(or Transferee) or the Administrative Agent, agrees to (or to cause the
responsible Borrower to) repay the amount paid over to the Company (plus
penalties, interest or other charges) to such Lender (or Transferee) or the
Administrative Agent in the event such Lender (or Transferee) or the
Administrative Agent is required to repay such refund to such Governmental
Authority.
(e) As soon as practicable after the date of any payment of Taxes or
Other Taxes by any Borrower to the relevant Governmental Authority, the Company
will deliver to the Administrative Agent, at its address referred to in Section
10.01, the original or a certified copy of a receipt issued by such Governmental
Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.19
shall survive the payment in full of the principal of and interest on all Loans
made hereunder.
(g) Each Lender (or Transferee) that is organized under the laws of
a jurisdiction other than the United States, any State thereof or the District
of Columbia (a "Non-U.S. Lender") shall deliver to the Company and the
Administrative Agent two copies of either United States Internal Revenue Service
Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Lender
delivers a Form W-8, a certificate representing that such Non-U.S. Lender is not
a bank for purposes of Section 881(c) of the Code, is not a
-34-
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code)
of the Company and is not a controlled foreign corporation related to the
Company (within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or reduced rate of, U.S. Federal withholding tax on payments by the
Borrowers under this Agreement and the other Loan Documents. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of a Transferee that is a participation holder,
on or before the date such participation holder becomes a Transferee hereunder)
and on or before the date, if any, such Non-U.S. Lender changes its applicable
lending office by designating a different lending office (a "New Lending
Office"). In addition, each Non-U.S. Lender shall deliver such forms promptly
upon the obsolescence or invalidity of any form previously delivered by such
Non-U.S. Lender. Notwithstanding any other provision of this Section 2.19(g), a
Non-U.S. Lender shall not be required to deliver any form pursuant to this
Section 2.19(g) that such Non-U.S. Lender is not legally able to deliver.
(h) None of the Borrowers shall be required to indemnify any
Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in
respect of United States Federal withholding tax pursuant to paragraph (a) or
(c) above to the extent that (i) the obligation to withhold amounts with respect
to United States Federal withholding tax existed on the date such Non-U.S.
Lender became a party to this Agreement (or, in the case of a Transferee that is
a participation holder, on the date such participation holder became a
Transferee hereunder) or, with respect to payments to a New Lending Office, the
date such Non-U.S. Lender designated such New Lending Office with respect to a
Loan; provided, however, that this clause (i) shall not apply to any Transferee
or New Lending Office that becomes a Transferee or New Lending Office as a
result of an assignment, participation, transfer or designation made at the
request of the Company; and provided further, however, that this clause (i)
shall not apply to the extent the indemnity payment or additional amounts any
Transferee, or Lender (or Transferee) through a New Lending Office, would be
entitled to receive (without regard to this clause (i)) do not exceed the
indemnity payment or additional amounts that the person making the assignment,
participation or transfer to such Transferee, or Lender (or Transferee) making
the designation of such New Lending Office, would have been entitled to receive
in the absence of such assignment, participation, transfer or designation or
(ii) the obligation to pay such additional amounts would not have arisen but for
a failure by such Non-U.S. Lender to comply with the provisions of paragraph (g)
above.
(i) Any Lender (or Transferee) claiming any indemnity payment or
additional amounts payable pursuant to this Section 2.19 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to file any
certificate or document reasonably requested in writing by the Company or to
change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
indemnity payment or additional amounts that may thereafter accrue and would
not, in the sole determination of such Lender (or Transferee), be otherwise
disadvantageous to such Lender (or Transferee).
-35-
(j) Nothing contained in this Section 2.19 shall require any Lender
(or Transferee) or the Administrative Agent to make available any of its tax
returns (or any other information that it deems to be confidential or
proprietary).
SECTION 2.20. Assignment of Commitments Under Certain Circumstances.
(a) Any Lender (or Transferee) claiming any additional amounts payable pursuant
to Section 2.13 or Section 2.19 shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate or document requested
by the Company or to change the jurisdiction of its applicable lending office if
the making of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue and would not,
in the judgment of such Lender, be otherwise disadvantageous to such Lender (or
Transferee).
(b) In the event that any Lender shall have delivered a notice or
certificate pursuant to Section 2.13 or 2.14, or the Borrowers shall be required
to make additional payments to any Lender under Section 2.19, the Company shall
have the right, at its own expense, upon notice to such Lender and the
Administrative Agent, to require such Lender to transfer and assign 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
another financial institution acceptable to the Administrative Agent which shall
assume such obligations; provided that (i) no such assignment shall conflict
with any law, rule or regulation or order of any Governmental Authority (ii) no
Event of Default shall have occurred and be continuing and (iii) the Company or
the assignee, as the case may be, shall pay to the affected Lender in
immediately available funds on the date of such assignment the principal of and
interest accrued to the date of payment on the Loans made by it hereunder and
all other amounts accrued for its account or owed to it hereunder.
SECTION 2.21. Borrowings by Approved Borrowers. The Company may, at
any time or from time to time, designate one or more wholly owned Subsidiaries
as Borrowers hereunder by furnishing to the Administrative Agent a letter (a
"Designation Letter") substantially in the form of Exhibit E-1 hereto, duly
completed and executed by the Company and such Subsidiary, whereupon each
Subsidiary so designated shall become an Approved Borrower. There may be no more
than ten Approved Borrowers at any one time. So long as all principal and
interest on all Loans of any Approved Borrower have been paid in full, the
Company may terminate an Approved Borrower's status as an Approved Borrower by
furnishing to the Administrative Agent a letter (a "Termination Letter"),
substantially in the form of Exhibit E-2 hereto, duly completed and executed by
the Company and such Approved Borrower. Any Termination Letter furnished in
accordance with this Section 2.21 shall be effective upon receipt by the
Administrative Agent. Notwithstanding the foregoing, the delivery of a
Termination Letter with respect to any Approved Borrower shall not affect any
obligation of such Approved Borrower theretofore incurred. Each Subsidiary set
forth in Schedule 2.21 shall be deemed an Approved Borrower until delivery of a
Termination Letter with respect to such Subsidiary.
-36-
SECTION 2.22. Increase in Commitments. After the Effective Date, the
Company may, by written notice to the Administrative Agent, executed by the
Company and one or more financial institutions (any such financial institution
referred to in this Section being called a "Prospective Lender"), which may
include any Lender, cause the Commitments of the Prospective Lenders to be
increased (or cause Commitments to be extended by the Prospective Lenders, as
the case may be) in an amount for each Prospective Lender set forth in such
notice, provided, however, that (a) the aggregate amount of the Lenders'
Commitments after giving effect to such increase shall in no event exceed
$400,000,000, (b) each Prospective Lender, if not already a Lender hereunder,
shall be subject to the approval of the Administrative Agent (which approval
shall not be unreasonably withheld) and (c) each Prospective Lender, if not
already a Lender hereunder, shall become a party to this Agreement by completing
and delivering to the Administrative Agent a duly executed Accession Agreement.
Increases and new Commitments created pursuant to this Section shall become
effective (A) in the case of Prospective Lenders already parties hereunder, on
the date specified in the notice delivered pursuant to this Section and (B) in
the case of Prospective Lenders not already parties hereunder, on the effective
date of the Accession Agreement. Upon the effectiveness of any Accession
Agreement to which any Prospective Lender is a party, (i) such Prospective
Lender shall thereafter be deemed to be a party to this Agreement and shall be
entitled to all rights, benefits and privileges accorded a Lender hereunder and
subject to all obligations of a Lender hereunder and (ii) Schedule 2.01 shall be
deemed to have been amended to reflect the Commitment of the additional Lender
as provided in such Accession Agreement. Upon the effectiveness of any increase
pursuant to this Section in the Commitment of a Lender already a party
hereunder, Schedule 2.01 shall be deemed to have been amended to reflect the
increased Commitment of such Lender. Notwithstanding the foregoing, no increase
in the aggregate Commitments (or in the Commitment of any Lender) shall become
effective under this Section unless, on the date of such increase, the
conditions set forth in paragraphs (b) and (c) of Section 4.03 shall be
satisfied (with all references in such paragraphs to a Borrowing being deemed to
be references to such increase) and the Administrative Agent shall have received
a certificate to that effect dated such date and executed by a Financial Officer
of the Company. Following any increase of a Lender's Commitment or any extension
of a new Commitment pursuant to this paragraph, any Standby Loans outstanding
prior to the effectiveness of such increase or extension shall continue
outstanding until the ends of the respective Interests Periods applicable
thereto, and shall then be repaid or refinanced with new Standby Loans made
pursuant to Sections 2.01 and 2.05.
ARTICLE III
Representations and Warranties
------------------------------
Part A. Representations and Warranties of the Company. The Company
represents and warrants as of the date hereof and the date of each Borrowing in
accordance with Section 4.03(b) to each of the Lenders that:
-37-
SECTION 3.01. Corporate Existence. Each of the Company and its
Subsidiaries: (a) is a corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could (either
individually or in the aggregate) have a Material Adverse Effect.
SECTION 3.02. Financial Condition. The Company has heretofore
furnished to each of the Lenders a consolidated balance sheet of the Company and
its Subsidiaries as at December 31, 2003, and the related consolidated
statements of income, cash flows and changes in shareholders' equity of the
Company and its Subsidiaries for the fiscal year ended on such date, with the
opinion thereon of PriceWaterhouseCoopers, and the unaudited consolidated
balance sheet of the Company and its Subsidiaries as at June 30, 2004, and the
related consolidated statements of income and cash flows of the Company and its
Subsidiaries for the six-month period ended on such date. All such financial
statements present fairly, in all material respects, the consolidated financial
condition of the Company and its Subsidiaries as at such dates and the
consolidated results of their operations for the fiscal year and six-month
period ended on such dates (subject, in the case of the financial statements as
at June 30, 2004, to normal year-end audit adjustments), all in accordance with
generally accepted accounting principles and practices applied on a consistent
basis. None of the Company nor any of its Subsidiaries has on the date hereof
any material contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in the balance
sheets as at such dates or the notes thereto. Since December 31, 2003, there has
been no Material Adverse Change.
SECTION 3.03. Litigation. Except as disclosed in note 10 of the
audited annual consolidated financial statements of the Company included in the
Company's Form 10-K, dated March 11, 2004, and in the notes to the unaudited
quarterly consolidated financial statements of the Company included in the
Company's Form 10-Q, dated August 6, 2004, filed with the Securities and
Exchange Commission, there are no legal or arbitral proceedings, or any
proceedings by or before any Governmental Authority, now pending or (to the
knowledge of the Company) threatened against the Company or any of its
Subsidiaries that is materially likely to be adversely determined and which, if
adversely determined could (either individually or in the aggregate) have a
Material Adverse Effect.
SECTION 3.04. No Breach. None of the execution and delivery of this
Agreement, the consummation of the transactions herein contemplated or
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or by-laws of the
Company, or any applicable law or regulation, or any order, writ, injunction or
decree of any court or Governmental Authority, or any material agreement or
instrument to which the Company or any of its
-38-
Subsidiaries is a party or by which any of them or any of their assets or
properties is bound or to which any of them is subject, or constitute a default
under any such agreement or instrument.
SECTION 3.05. Action. The Company has all necessary corporate power,
authority and legal right to execute, deliver and perform its obligations under
this Agreement; the execution, delivery and performance by the Company of this
Agreement has been duly authorized by all necessary corporate action on its part
(including, without limitation, any required shareholder approvals); and this
Agreement has been duly and validly executed and delivered by the Company and
constitutes its legal, valid and binding obligation, enforceable against the
Company 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).
SECTION 3.06. Approvals. No authorizations, approvals or consents
of, and no filings or registrations with, any Governmental Authority, or any
securities exchange, are necessary for the execution, delivery or performance by
the Company of this Agreement or for the legality, validity or enforceability
hereof.
SECTION 3.07. Use of Credit. None of the Company 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
the Loans hereunder will be used to buy or carry any Margin Stock.
SECTION 3.08. ERISA. Each Plan, and, to the knowledge of the
Company, each Multiemployer Plan, is in compliance in all material respects
with, and has been administered in all material respects in compliance with, the
applicable provisions of ERISA, the Code and any other Federal or state law, and
no event or condition has occurred and is continuing as to which the Company
would be under an obligation to furnish a report to the Lenders under Section
5.06 hereof.
SECTION 3.09. Taxes. As of the date hereof, the Company and its
Domestic Subsidiaries are members of an affiliated group of corporations filing
a consolidated return for Federal income tax purposes, of which the Company is
the "common parent" (within the meaning of Section 1504 of the Code) of such
group. The Company and its Subsidiaries have filed all Federal income tax
returns and all other material tax returns that are required to be filed by them
and have paid, accrued or reserved all taxes due pursuant to such returns or
pursuant to any assessment received by the Company or any of its Subsidiaries.
The charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of taxes and other governmental charges are, in the
opinion of the Company, adequate. The Company has in the ordinary course of
business given extensions or waivers of the statutes of limitations relating to
payment of U.S. Federal taxes and relating to various state, local and foreign
taxes or impositions, none of which might reasonably be expected to result in a
Material Adverse Effect.
-39-
SECTION 3.10. Investment Company Act. Neither the Company nor any of
its Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 3.11. Public Utility Holding Company Act. Neither the
Company nor any of its Subsidiaries is a "holding company", or an "affiliate" of
a "holding company" or a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 3.12. Material Agreements and Liens. (a) Part A of Schedule
3.12 hereto is a complete and correct list, as of the date hereof, of each
credit agreement, loan agreement, indenture, guarantee, letter of credit or
other arrangement providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit) to, or
guaranteed by, the Company or any of its Subsidiaries, the aggregate principal
or face amount of which equals or exceeds (or may equal or exceed) $5,000,000,
and the aggregate principal or face amount outstanding or that may become
outstanding under each such arrangement is correctly described in Part A of such
Schedule 3.12.
(b) Part B of Schedule 3.12 hereto is a complete and correct list,
as of the date hereof, of each Lien securing Indebtedness of any person, the
aggregate principal or face amount of which equals or exceeds (or may equal or
exceed) $5,000,000 and covering any property of the Company or any of its
Subsidiaries, and the aggregate Indebtedness secured (or that may be secured) by
each such Lien and the property covered by each such Lien is correctly described
in Part B of such Schedule 3.12.
SECTION 3.13. Environmental Matters. (a) Except as disclosed in the
notes to the unaudited quarterly consolidated financial statements of the
Company included in the Company's Form 10-Q, dated August 6, 2004 filed with the
Securities and Exchange Commission and except with respect to any other matters
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, neither the Company nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.
(b) There has been no change in the status of the matters disclosed
in the notes to the unaudited quarterly consolidated financial statements of the
Company included in the Company's Form 10-Q, dated August 6, 2004 filed with the
Securities and Exchange Commission that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.14. Subsidiaries, etc. Set forth in Schedule 3.14 hereto
is a complete and correct list, as of the date hereof, of all of the
Subsidiaries of the Company, together with, for each such Subsidiary, (i) the
jurisdiction of organization of such
-40-
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.
SECTION 3.15. True and Complete Disclosure. The information,
reports, financial statements, exhibits and schedules furnished in writing by or
on behalf of the Company to the Agent or any Lender in connection with the
negotiation, preparation or delivery of this Agreement or included herein or
delivered pursuant hereto, when taken as a whole, do not contain any untrue
statement of material fact or omit to state any material fact necessary to make
the statements herein or therein, in light of the circumstances under which they
were made, not misleading. All written information furnished after the date
hereof by the Company and its Subsidiaries to the Administrative Agent and the
Lenders in connection with this Agreement and the transactions contemplated
hereby will be true, complete and accurate in every material respect, or (in the
case of projections) based on reasonable estimates, on the date as of which such
information is stated or certified. There is no fact known to the Company that
could have a Material Adverse Effect that has not been disclosed herein or in a
report, financial statement, exhibit, schedule, disclosure letter or other
writing furnished to the Lenders for use in connection with the transactions
contemplated hereby.
Part B. Representations and Warranties of the Approved Borrowers.
Each Approved Borrower represents and warrants as of the Effective Date and the
date of each Borrowing in accordance with Section 4.03(b) to each of the Lenders
that:
SECTION 3.16. Corporate Existence of Approved Borrower. It and each
of its Subsidiaries: (a) is a corporation, partnership or other entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite corporate or other
power, and has all material governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being or
as proposed to be conducted; and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure so to qualify would have
a Material Adverse Effect.
SECTION 3.17. No Breach. None of the execution and delivery of its
Designation Letter and this Agreement, the consummation of the transactions
therein and herein contemplated and compliance with the terms and provisions
thereof and hereof will conflict with or result in a breach of, or require any
consent under, the charter or by-laws or other organizational documents of such
Approved Borrower, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or Governmental Authority or agency, or any
material agreement or instrument to which such Approved Borrower or any of its
Subsidiaries is a party or by which any of them or their assets or properties is
bound or to which any of them is subject, or constitute a default under any such
agreement or instrument.
SECTION 3.18. Action. Such Approved Borrower has all necessary
corporate or other power and authority to execute, deliver and perform its
obligations
-41-
under its Designation Letter and this Agreement, and to perform its obligations
hereunder and thereunder; the execution and delivery by such Approved Borrower
of its Designation Letter and the performance by such Approved Borrower hereof
and thereof have been duly authorized by all necessary corporate or other action
on its part (including, without limitation, any required shareholder approvals);
and its Designation Letter, when executed and delivered by such Approved
Borrower, will constitute the legal, valid and binding obligation of such
Approved Borrower, enforceable against such Approved Borrower 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).
SECTION 3.19. Approvals. No authorizations, approvals or consents
of, and no filings or registrations with, any Governmental Authority are
necessary for the execution, delivery or performance by such Approved Borrower
of its Designation Letter or this Agreement or for the validity or
enforceability thereof.
SECTION 3.20. Taxes on Payments of Approved Borrowers. Except as
disclosed to the Lenders in writing prior to the delivery of such Approved
Borrower's Designation Letter, there is no income, stamp or other tax of any
country, or of any taxing authority thereof or therein, imposed by or in the
nature of withholding or otherwise, which is imposed on any payment to be made
by such Approved Borrower pursuant hereto, or is imposed on or by virtue of the
execution, delivery or enforcement of its Designation Letter or this Agreement.
ARTICLE IV
Conditions of Effectiveness and Lending
---------------------------------------
SECTION 4.01. Effective Date. The obligations of the Lenders under
this Agreement shall not become effective until the date on which each of the
following conditions shall have been satisfied (or waived in accordance with
Section 10.08):
(a) The Administrative Agent (or its counsel) shall have received
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 of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received favorable written
opinions (each dated as of the Effective Date and addressed to the
Administrative Agent and the Lenders) of (i) the general counsel of the
Company, substantially in the form of Exhibit D-1 hereto and (ii) Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for the Company, substantially in
the form of Exhibit D-2 hereto, covering such other matters relating to the
Company, this Agreement and the
-42-
Transactions as the Administrative Agent or its counsel shall reasonably
request. The Company hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation (or such other analogous
documents), including all amendments thereto, of the Company, certified as
of a recent date by the Secretary of State of Delaware, and a certificate
as to the good standing of the Company as of a recent date, from the
Secretary of State of Delaware; (ii) a certificate of the Secretary or
Assistant Secretary of the Company dated the Effective Date certifying (A)
that attached thereto is a true and complete copy of the by-laws of the
Company as in effect on the Effective Date and at all times since a date
prior to the date of the resolutions of the Company described in item (B)
below, (B) that attached thereto is a true and complete copy of resolutions
adopted by the Board of Directors of the Company authorizing the execution,
delivery and performance of this Agreement and the borrowings hereunder by
the Company, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the certificate or
articles of incorporation of the Company have not been amended since the
date of the last amendment thereto shown on the certificate of good
standing furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each officer of the Company executing
this Agreement or any other document delivered in connection herewith;
(iii) a certificate of another officer of the Company as to the incumbency
and signature of the Secretary or such Assistant Secretary of the Company
executing the certificate pursuant to (ii) above; and (iv) such other
documents as the Lenders or counsel for the Administrative Agent may
reasonably request.
(d) The Administrative Agent shall have received a certificate of
the Company, dated the Effective Date and signed by a Financial Officer of
the Company, confirming compliance with the conditions precedent set forth
in paragraphs (b) and (c) of Section 4.03.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to such date.
(f) All principal, interest, fees and other amounts outstanding,
accrued or owing under the 364-Day Credit Agreement and the Five-Year
Credit Agreement shall have been repaid and all commitments under the
364-Day Credit Agreement and the Five-Year Credit Agreement shall have been
terminated (or shall be terminated as of the Effective Date).
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing and any other provision herein to the contrary, the obligations of
the Lenders to make Loans to any Borrower hereunder shall not become effective
unless each of the foregoing conditions is satisfied (or waived pursuant to
Section 10.08) at or prior to 2:00 p.m., New
-43-
York City time, on August 12, 2004 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. First Borrowing by Each Approved Borrower. On the date
of any Approved Borrower's initial Borrowing hereunder, the obligations of the
Lenders to make Loans to such Approved Borrower are subject to the satisfaction
of (or waiver in accordance with Section 10.08 of) each of the conditions set
forth in Section 4.01 and the following further conditions:
(a) The Administrative Agent shall have received a favorable written
opinion of the general counsel of such Approved Borrower dated as of a
recent date and addressed to the Lenders, to the effect set forth in
Exhibit D-1 hereto, subject to necessary changes to reflect local law.
(b) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation (or such other analogous
documents), including all amendments thereto, of such Approved Borrower,
certified as of a recent date by the Secretary of State (or other
appropriate Governmental Authority) of the state (or country) of its
organization or such other evidence as is reasonably satisfactory to the
Administrative Agent, and a certificate as to the good standing (or other
analogous certification to the extent available) of such Approved Borrower
as of a recent date, from such Secretary of State (or other appropriate
Governmental Authority) or such other evidence reasonably acceptable to the
Administrative Agent; (ii) a certificate of the Secretary or Assistant
Secretary of such Approved Borrower dated the date on which such Loans are
to be made and certifying (A) that attached thereto is a true and complete
copy of the by-laws (or such other analogous documents to the extent
available) of such Approved Borrower as in effect on the date of such
certificate and at all times since a date prior to the date of the
resolution of such Approved Borrower described in item (B) below, (B) that
attached thereto is a true and complete copy of resolutions adopted by the
Board of Directors of such Approved Borrower authorizing the execution,
delivery and performance of the Designation Letter delivered by such
Approved Borrower and the borrowings hereunder by such Approved Borrower,
and that such resolutions have not been modified, rescinded or amended and
are in full force and effect, (C) that the certificate or articles of
incorporation (or other analogous documents) of such Approved Borrower have
not been amended since the date of the last amendment thereto shown on the
certificate of good standing (or other analogous certification or such
other evidence reasonably acceptable to the Agent) furnished pursuant to
clause (i) above, and (D) as to the incumbency and specimen signature of
each officer of such Approved Borrower executing the Designation Letter
delivered by such Approved Borrower or any other document delivered in
connection herewith or therewith; (iii) a certificate of another officer of
such Approved Borrower as to the incumbency and signature of the Secretary
or such Assistant Secretary of such Approved Borrower executing the
certificate pursuant to (ii) above; and (iv) such other documents as the
Lenders or counsel for the Administrative Agent, may reasonably request.
-44-
(c) The Administrative Agent shall have received (with sufficient
copies for each Lender) a Designation Letter, duly executed by such
Approved Borrower and the Company and acknowledged by the Administrative
Agent.
(d) The Administrative Agent shall have received a certificate of
each of the Borrowers, dated such date and signed, in the case of the
Company, by a Financial Officer of the Company, and in the case of the
Borrowers other than the Company, a Responsible Officer of such Borrower,
confirming compliance with the conditions precedent set forth in paragraphs
(b) and (c) of Section 4.03.
Upon the satisfaction of the conditions precedent set forth in this
Section 4.02, such Approved Borrower shall become a Borrower hereunder with the
same force and effect as if originally named as a Borrower hereunder. The rights
and obligations of each Borrower hereunder shall remain in full force and effect
notwithstanding the addition of any new Borrower as a party to this Agreement.
SECTION 4.03. All Borrowings. On the date of each Borrowing,
including each Borrowing in which Loans are refinanced with new Loans as
contemplated by Section 2.05, the obligations of the lenders to make the Loans
comprising such Borrowing are subject to the satisfaction of the following
conditions:
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 or Section 2.04, as applicable.
(b) The representations and warranties set forth in Article III
hereof shall be true and correct in all material respects on and as of the
date of such Borrowing with the same effect as though made on and as of
such date, except to the extent such representations and warranties
expressly relate to an earlier date; provided, however, that no
representation as to either (i) the absence of any Material Adverse Change
in the financial condition of the Company, as provided in the last sentence
of Section 3.02, or (ii) the absence of any pending or threatened legal or
arbitral proceedings, or any proceedings by or before any Governmental
Authority, that could have a Material Adverse Effect on the Company, as
provided in Section 3.03, shall be required as a condition to any Borrowing
following the Effective Date.
(c) Each Borrower shall be in compliance with all the terms and
provisions set forth herein and in each other Loan Document on its part to
be observed or performed, and at the time of and immediately after such
Borrowing no Event of Default or Default shall have occurred and be
continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrowers on the date of such Borrowing as to the matters specified in
paragraphs (b) and (c) of this Section 4.03.
-45-
ARTICLE V
Affirmative Covenants
---------------------
The Company covenants and agrees with each Lender and the
Administrative Agent that, so long as this Agreement shall remain in effect or
the principal of or interest on any Loan, any Fees or any other expenses or
amounts payable under any Loan Document shall be unpaid, unless the Required
Lenders shall otherwise consent in writing, the Company will, and will cause
each of its Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Preserve and
maintain its corporate existence, rights (charter and statute) and material
franchises, except as otherwise permitted by Section 6.03; provided, however,
that the Company shall not be required to preserve any such right or franchise
if (i) the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and (ii) the loss of any
such right or franchise is not disadvantageous in any material respect to the
Lenders.
(b) Comply in all material respects with all applicable laws, rules,
regulations and orders (including, without limitation, laws requiring payment of
all taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith by appropriate
proceedings) and all Environmental Laws except where the failure to so comply
would not result in a Material Adverse Change.
(c) Maintain and preserve all of its properties which are used in
the conduct of its business in good working order and condition, ordinary wear
and tear excepted, to the extent that any failure to do so would result in a
Material Adverse Change and except for dispositions thereof permitted by Section
6.03.
SECTION 5.02. Insurance. Maintain insurance with financially sound
and reputable insurance companies (which insurance companies shall, in any
event, have an A.M. Best rating of "B+" or better), and with respect to property
and risks of a character usually maintained by corporations engaged in the same
or similar business similarly situated, against loss, damage and liability of
the kinds and in the amounts customarily maintained by such corporations.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise which, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Company
shall have set aside on its books adequate reserves with respect thereto.
-46-
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Company, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, its
consolidated balance sheets and related statements of income, changes in
stockholders' equity and cash flows, showing the financial condition of the
Company and its Subsidiaries as of the close of such fiscal year and the
results of its operations and the operations of its Subsidiaries during
such year, all audited by PricewaterhouseCoopers or other independent
public accountants of recognized national standing acceptable to the
Required Lenders and accompanied by an opinion of such accountants (which
shall not be qualified in any material respect) to the effect that such
consolidated financial statements fairly present the financial condition
and results of operations of the Company on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheets and related
statements of income, changes in stockholders' equity and cash flows,
showing the financial condition of the Company and its Subsidiaries as of
the close of such fiscal quarter and the results of its operations and the
operations of its Subsidiaries during such fiscal quarter and the then
elapsed portion of such fiscal year, all certified by one of its Financial
Officers as fairly presenting the financial condition and results of
operations of the Company on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a)
or (b) above, a certificate of the accounting firm or Financial Officer
opining on or certifying such statements (which certificate, when furnished
by an accounting firm, may be limited to accounting matters and disclaim
responsibility for legal interpretations) (i) certifying that no Event of
Default or Default has occurred or, if such an Event of Default or Default
has occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto and (ii) setting
forth computations in reasonable detail satisfactory to the Administrative
Agent demonstrating compliance with the covenant contained in Section 6.06;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
it with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of or all the functions of such Commission, or
with any national securities exchange, or distributed to its shareholders,
as the case may be; and
(e) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of the Company or
any Subsidiary, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Lender may reasonably request.
-47-
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) proposed to be taken with
respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against the Company or any Affiliate thereof which, if adversely
determined, could result in a Material Adverse Change; and
(c) any other development that has resulted in, or could reasonably
be anticipated to result in, a Material Adverse Change.
SECTION 5.06. ERISA. (a) Comply in all material respects with the
applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent and each Lender (i) as soon as possible, and in any event
within 30 days after any Responsible Officer of the Company or any ERISA
Affiliate either knows or has reason to know that any Reportable Event has
occurred that alone or together with any other Reportable Event could reasonably
be expected to result in liability of the Company to the PBGC in an aggregate
amount exceeding $5,000,000, a statement of a Financial Officer setting forth
details as to such Reportable Event and the action proposed to be taken with
respect thereto, together with a copy of the notice, if any, of such Reportable
Event given to the PBGC, (ii) promptly after receipt thereof, a copy of any
notice the Company or any ERISA Affiliate may receive from the PBGC relating to
the intention of the PBGC to terminate any Plan or Plans (other than a Plan
maintained by an ERISA Affiliate which is considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Section 414 of the Code) or to appoint a
trustee to administer any Plan or Plans, and (iii) within 10 days after the due
date for filing with the PBGC pursuant to Section 412(n) of the Code of a notice
of failure to make a required installment or other payment with respect to a
Plan, a statement of a Financial Officer setting forth details as to such
failure and the action proposed to be taken with respect thereto, together with
a copy of such notice given to the PBGC.
SECTION 5.07. Maintaining Records. Maintain all financial records in
accordance with GAAP and unless protected by attorney-client privilege permit
any representatives designated by any Lender, upon reasonable request, to
examine and make abstracts from the records and books of account of, and visit
the properties of, the Company or any of its Subsidiaries, and to discuss the
affairs, finances and condition of the Company or any Subsidiary with the
officers thereof and independent accountants therefor all upon reasonable
notice, at such reasonable times and as often as may reasonably be desired,
provided that all non-public information obtained by any such Lender pursuant to
this shall be treated as confidential in accordance with customary practices.
-48-
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans only
for the purposes set forth in the preamble to this Agreement.
ARTICLE VI
Negative Covenants
------------------
The Company covenants and agrees with each Lender and the
Administrative Agent that, so long as this Agreement shall remain in effect or
the principal of or interest on any Loan, any Fees or any other expenses or
amounts payable under any Loan Document shall be unpaid, unless the Required
Lenders shall otherwise consent in writing, the Company will not, and will not
cause or permit any of its Subsidiaries to:
SECTION 6.01. Liens. Create, incur, assume or suffer to exist any
Lien upon any of its property, whether now owned or hereafter acquired, except:
(a) Liens in existence on the date hereof and listed in Part B of
Schedule 3.12 hereto;
(b) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Company or the affected
Subsidiaries, as the case may be, in accordance with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
that are not overdue for a period of more than 30 days or that are being
contested in good faith and by appropriate proceedings and Liens securing
judgments but only to the extent for an amount and for a period not
resulting in an Event of Default under Article VII clause (i) hereof;
(d) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the
use of property or minor imperfections in title thereto that, in the
aggregate, are not material in amount, and that do not in any case
materially detract from the value of the
-49-
property subject thereto or interfere with the ordinary conduct of the
business of the Company or any of its Subsidiaries;
(g) Liens on property of any corporation that becomes a Subsidiary
of the Company after the date of this Agreement; provided that such Liens
are in existence at the time such corporation becomes a Subsidiary of the
Company and were not created in anticipation thereof;
(h) Liens upon real and/or tangible personal property acquired after
the date hereof (by purchase, construction or otherwise) by the Company or
any of its Subsidiaries, each of which Liens either (A) existed on such
property before the time of its acquisition and was not created in
anticipation thereof or (B) was created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, the
cost (including the cost of construction) of such property; provided that
no such Lien shall extend to or cover any property of the Company or such
Subsidiary other than the property so acquired and improvements thereon;
(i) additional Liens upon real and/or personal property created
after the date hereof; provided that the aggregate Indebtedness secured
thereby and incurred on and after the date hereof shall not exceed
$25,000,000 in the aggregate at any one time outstanding; and
(j) any extension, renewal or replacement of the foregoing; provided
that the Liens permitted hereunder shall not be spread to cover any
additional Indebtedness or property (other than a substitution of like
property).
SECTION 6.02. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (such an arrangement, a "Sale
and Lease-Back Transaction"), other than (i) Sale and Lease-Back Transactions
entered into in connection with the financing of aircraft to be used in
connection with the Company's business capitalized on the books of the Company
or treated as operating leases if the aggregate sale price of all such Sale and
Lease-Back Transactions does not exceed $25,000,000 in aggregate amount at any
time outstanding, and (ii) Sale and Lease-Back Transactions capitalized on the
books of the Company or treated as operating leases (other than a Sale and
Lease-Back Transaction permitted by clause (i) above) if the aggregate sale
price of all such Sale and Lease-Back Transactions does not exceed $25,000,000
in aggregate amount at any time outstanding.
SECTION 6.03. Mergers, Sales of Assets, etc. (a) In the case of any
Borrower, consolidate or merge with or into any other corporation or convey,
transfer or lease its properties and assets substantially as an entirety to any
person, unless:
-50-
(i) the corporation formed by such consolidation or merger or the
person which acquires by conveyance or transfer, or which leases, the
properties and assets of such Borrower substantially as an entirety shall
be a corporation organized and existing under the laws of the United States
of America or any state or the District of Columbia and shall expressly
assume, by an agreement supplemental hereto, executed and delivered to each
other party hereto, in form satisfactory to the Administrative Agent, the
due and punctual payment of the principal of and interest on the Loans and
all other obligations of such Borrower under the Loan Documents and the
performance or observance of every covenant of this Agreement on the part
of such Borrower to be performed or observed;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Administrative Agent
an officers' certificate and an opinion of counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
agreement comply with this paragraph (a) and that all conditions precedent
herein provided for relating to such transaction have been complied with.
(b) Upon any consolidation by any Borrower with or merger by any
Borrower into any other corporation or any conveyance, transfer or lease of the
properties and assets of any Borrower substantially as an entirety in accordance
with paragraph (a) above, the successor corporation formed by such consolidation
or into which such Borrower is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the applicable Borrower under the Loan Documents with the
same effect as if such successor corporation had been named as a Borrower
herein, and thereafter, the predecessor corporation shall be relieved of all
obligations and covenants under the Loan Documents.
SECTION 6.04. Lines of Business; Fiscal Year. Engage or invest in
operations engaging to any substantial extent in any line or lines of business
activity other than the business of manufacturing, providing, distributing and
selling such diverse goods and industrial services, principally for industrial,
commercial, construction and defense applications, the same or similar to those
goods and services as are manufactured, provided, distributed and sold by the
Company on the date hereof and business activities reasonably related,
ancillary, similar or supportive thereto. In the case of the Company, change its
fiscal year end from that in effect at December 31, 1999.
SECTION 6.05. Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
that as long as no Default or Event of Default shall have occurred and be
continuing, the Company or any Subsidiary may engage in any of the foregoing
transactions in the ordinary course of business at prices and on terms and
conditions not less favorable to the Company or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties.
-51-
SECTION 6.06. Total Debt to Total Capital Ratio. The Company will
not permit the ratio of Total Debt to Total Capital at any time on or after the
date hereof to exceed the ratio 0.60 to 1.
ARTICLE VII
Events of Default
-----------------
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings hereunder, or any
representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal of any
Loan when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan
or any Fee or any other amount (other than an amount referred to in (b)
above) due under any Loan Document, when and as the same shall become due
and payable, and such default shall continue unremedied for a period of
five days;
(d) default shall be made in the due observance or performance by
any of the Borrowers or any Subsidiary of any covenant, condition or
agreement contained in Section 5.01(a) or 5.05 or in Article VI;
(e) default shall be made in the due observance or performance by
any of the Borrowers or any Subsidiary of any covenant, condition or
agreement contained in any Loan Document (other than those specified in
(b), (c) or (d) above) and such default shall continue unremedied for a
period of 30 days after notice thereof from the Administrative Agent or any
Lender to the Company;
(f) (i) the Company or any Subsidiary shall (A) fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of (I) $20,000,000, in the
case of any single obligation, or (II) $20,000,000, in the case of all
obligations in the aggregate, in each case, when and as the same shall
become due and payable, or (B) fail to observe or perform any other term,
covenant, condition or agreement contained in any agreement or instrument
evidencing or governing any Indebtedness in an aggregate principal amount
in excess of $20,000,000 and such failure shall continue beyond any
-52-
applicable grace period; or (ii) Indebtedness of the Company and its
Subsidiaries, or any of them, in a principal amount in excess of (A)
$20,000,000, in the case of any single obligation, or (B) $20,000,000, in
the case of all obligations in the aggregate, shall be declared due and
payable or required to be prepaid prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of any Borrower or any Subsidiary, or of a substantial
part of the property or assets of any Borrower or a Subsidiary, under Title
11 of the United States Code, as now constituted or hereafter amended, or
any other Federal or state bankruptcy, insolvency, receivership or similar
law (or similar statute or law in any other jurisdiction), (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for any Borrower or any Subsidiary or for a substantial
part of the property or assets of any Borrower or a Subsidiary or (iii) the
winding-up or liquidation of any Borrower or any Subsidiary; and such
proceeding or petition shall continue undismissed for 45 days or an order
or decree approving or ordering any of the foregoing shall be entered;
(h) any Borrower or any Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership or similar law (or
similar statute or law in any other jurisdiction), (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (g) above, (iii)
apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for any Borrower or any
Subsidiary or for a substantial part of the property or assets of any
Borrower or any Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they
become due or (vii) take any action for the purpose of effecting any of the
foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $20,000,000 (exclusive of amounts fully covered by
insurance where the insurer has admitted liability in respect of such
judgment) shall be rendered against any Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of
60 consecutive days during which 60 days execution shall not be effectively
stayed, or otherwise being appropriately contested in good faith, or any
action shall be legally taken by a judgment creditor to levy upon assets or
properties of any Borrower or any Subsidiary to enforce any such judgment;
(j) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section
412(n)(l) of the Code), shall have occurred with respect to any Plan or
Plans that reasonably
-53-
could be expected to result in liability of any Borrower to the PBGC or to
a Plan in an aggregate amount exceeding $10,000,000 and, within 30 days
after the reporting of any such Reportable Event to the Administrative
Agent or after the receipt by the Administrative Agent of the statement
required pursuant to Section 5.06, the Administrative Agent shall have
notified such Borrower in writing that (i) the Required Lenders have made a
determination that, on the basis of such Reportable Event or Reportable
Events or the failure to make a required payment, there are reasonable
grounds (A) for the termination of such Plan or Plans by the PBGC, (B) for
the appointment by the appropriate United States District Court of a
trustee to administer such Plan or Plans or (C) for the imposition of a
lien in favor of a Plan and (ii) as a result thereof an Event of Default
exists hereunder; or a trustee shall be appointed by a United States
District Court to administer any such Plan or Plans; or the PBGC shall
institute proceedings to terminate any Plan or Plans;
(k) the Guarantor's guarantee hereunder shall become ineffective for
any reason or the Guarantor shall deny its obligations as a guarantor
hereunder in writing; or
(l) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to a Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, with the consent of the
Required Lenders, may, or at the request of the Required Lenders, shall, by
notice to the Borrowers, take either or both of the following actions, at the
same or different times: (i) terminate forthwith the Commitments and (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or
in part, whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrowers accrued hereunder and under any other Loan
Document, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrowers, anything contained herein or in any other Loan Document
to the contrary notwithstanding; and in any event with respect to a Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrowers accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrowers, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
-54-
ARTICLE VIII
The Administrative Agent
------------------------
In order to expedite the transactions contemplated by this
Agreement, JPMorgan Chase Bank is hereby appointed to act as Administrative
Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably
authorizes the Administrative Agent to take such actions on behalf of such
Lender or holder and to exercise such powers as are specifically delegated to
the Administrative Agent by the terms and provisions hereof and of the other
Loan Documents, together with such actions and powers as are reasonably
incidental thereto. The Administrative Agent is hereby expressly authorized by
the Lenders, without hereby limiting any implied authority, (a) to receive on
behalf of the Lenders all payments of principal of and interest on the Loans and
all other amounts due to the Lenders hereunder, and promptly to distribute to
each Lender its proper share of each payment so received; (b) as provided in
Article VII, to give notice on behalf of each of the Lenders to the Borrowers of
any Event of Default specified in this Agreement of which the Administrative
Agent has actual knowledge acquired in connection with its agency hereunder; and
(c) to distribute to each Lender copies of all notices, financial statements and
other materials delivered by any Borrower pursuant to this Agreement as received
by the Administrative Agent.
The Administrative Agent is hereby authorized to designate one of
its affiliates (the "Agent Designee") to perform the functions of the
Administrative Agent with respect to Alternative Currency Borrowings. The
Administrative Agent shall designate the Agent Designee by notice to the Company
and the Lenders (and may from time to time replace the Agent Designee with any
of its affiliates by notice to the Company and the Lenders). Upon and after any
such designation, (i) copies of all Borrowing Requests, Competitive Bid
Requests, Competitive Bids and all other notices required to be delivered
hereunder with respect to Alternative Currency Borrowings shall be delivered to
both the Administrative Agent and the Agent Designee and (ii) all references
hereunder to the "Administrative Agent" and "Administrative Agent in London" in
the context of Alternative Currency Borrowings shall be construed as including
references to the Agent Designee. The Administrative Agent hereby designates
X.X. Xxxxxx Europe Limited as the initial Agent Designee.
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrowers of any of the terms, conditions, covenants or agreements contained in
any Loan Document. The Administrative Agent shall not be responsible to the
Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement, or any other Loan Documents or other
instruments or agreements. The Administrative Agent shall in all cases be fully
protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and, except as otherwise
specifically
-55-
provided herein, such instructions and any action or inaction pursuant thereto
shall be binding on all the Lenders. The Administrative Agent shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to have been
signed or sent by the proper person or persons. Neither the Administrative Agent
nor any of its directors, officers, employees or agents shall have any
responsibility to the Borrowers on account of the failure of or delay in
performance or breach by any Lender of any of its obligations hereunder or to
any Lender on account of the failure of or delay in performance or breach by any
other Lender or the Borrowers of any of their respective obligations hereunder
or under any other Loan Document or in connection herewith or therewith. The
Administrative Agent may execute any and all duties hereunder by or through
agents or employees and shall be entitled to rely upon the advice of legal
counsel selected by it with respect to all matters arising hereunder and shall
not be liable for any action taken or suffered in good faith by it in accordance
with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agent shall
be under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Lenders and the Company. Upon any such resignation,
the Required Lenders shall have the right 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 may, on
behalf of the Lenders, appoint a successor Administrative Agent which shall be a
bank with an office in New York, New York, having a combined capital and surplus
of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 10.05 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
With respect to the Loans made by it hereunder, the Administrative
Agent in its individual capacity and not as Administrative Agent shall have the
same rights and powers as any other Lender and may exercise the same as though
it were not the Administrative Agent, and the Administrative Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrowers or any Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent.
Each Lender agrees (i) to reimburse the Administrative Agent, on
demand, in the amount of its pro rata share (based on its Commitment hereunder)
of any expenses
-56-
incurred for the benefit of the Lenders by the Administrative Agent, including
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, which shall not have been reimbursed by the Borrowers
and (ii) to indemnify and hold harmless the Administrative Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it in its capacity as the Administrative Agent or any of
them in any way relating to or arising out of this Agreement or any other Loan
Document or any action taken or omitted by it or any of them under this
Agreement or any other Loan Document, to the extent the same shall not have been
reimbursed by the Borrowers; provided that no Lender shall be liable to the
Administrative Agent for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or wilful misconduct of the Administrative
Agent or any of its directors, officers, employees or agents.
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
or any other Loan Document, any related agreement or any document furnished
hereunder or thereunder.
ARTICLE IX
Guarantee
---------
SECTION 9.01. Guarantee. The Guarantor hereby guarantees 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, by optional prepayment or otherwise) of the principal of and
interest on the Loans made by the Lenders to any Approved Borrower and all other
amounts from time to time owing to the Lenders or the Administrative Agent by
any Approved Borrower under this Agreement or pursuant to its Designation
Letter, strictly in accordance with the terms thereof (such obligations being
herein collectively called the "Guaranteed Obligations"). The Guarantor hereby
further agrees that if any Approved Borrower shall fail to pay in full when due
(whether at stated maturity, by acceleration, by optional prepayment or
otherwise) any of the Guaranteed Obligations, the Guarantor 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
-57-
in full when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
SECTION 9.02. Obligations Unconditional. The obligations of the
Guarantor under Section 9.01 hereof are absolute and unconditional irrespective
of the value, genuineness, validity, regularity or enforceability of the
obligations of any Approved Borrower under this Agreement or any other agreement
or instrument referred to herein or therein (including, without limitation, any
Designation Letter), or any substitution, release or exchange of any other
guarantee of or security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 9.02 that the obligations of the Guarantor hereunder shall be absolute
and unconditional under any and all circumstances. Without limiting the
generality of the foregoing, it is agreed that the occurrence of any one or more
of the following shall not affect the liability of the Guarantor hereunder:
(i) at any time or from time to time, without notice to the
Guarantor, 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;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or any other agreement or instrument referred to herein or
therein shall be done or omitted; or
(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 or therein 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.
The Guarantor hereby expressly waives 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 any
Approved Borrower under this Agreement or any other agreement or instrument
referred to herein or therein, or against any other person under any other
guarantee of, or security for, any of the Guaranteed Obligations.
SECTION 9.03. Reinstatement. The obligations of the Guarantor under
this Article IX shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of any Approved 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 Guarantor
agrees that it will indemnify the
-58-
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration.
SECTION 9.04. Subrogation. The Guarantor hereby irrevocably waives
all rights of subrogation or contribution, whether arising by operation of law
(including, without limitation, any such right arising under Title 11 of the
United States Code) or otherwise, by reason of any payment by it pursuant to the
provisions of this Article IX and further agrees that for the benefit of each of
its creditors (including, without limitation, each Lender and the Administrative
Agent) that any such payment by it of the Guaranteed Obligations of any Approved
Borrower shall constitute a contribution of capital by the Guarantor to such
Approved Borrower.
SECTION 9.05. Remedies. The Guarantor agrees that, as between the
Guarantor and the Lenders, the obligations of any Approved Borrower under this
Agreement may be declared to be forthwith due and payable as provided in Article
VII hereof (and shall be deemed to have become automatically due and payable in
the circumstances provided in said Article VII) for purposes of Section 9.01
hereof notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against any Approved 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 such Approved Borrower)
shall forthwith become due and payable by the Guarantor for purposes of such
Section 9.01.
SECTION 9.06. Continuing Guarantee. The guarantee in this Article IX
is a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Notices. Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy, as
follows:
(a) if to the Company, to it at X.X. Xxx 0000, Xxxx Xxxx,
Xxxxxxxxxxxx 00000-0000, Attention of Xxxxxxxxx X. Xxxxxxxxx (Telecopy No.
717-763-6402);
(b) if to an Approved Borrower, to it at its address as set forth in
its Designation Letter;
(c) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and
Agency Services, 0000 Xxxxxx, 00xx Xxxxx, Xxxxxxx XX 00000, Attention of
Xxxxxxx X. Xxxxxxxx (Telecopy No. 713-750-2452), with copies to JPMorgan
Chase Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxx
-59-
Ruyter (Telecopy No. 212-270-5120) and, with respect to any Alternative
Currency Borrowing, to X.X. Xxxxxx Europe Limited, 9 Xxxxxx Xxxx St.,
London, England E1W9YT, Attention of Xxxxx Xxxxxx (Telecopy No.
x00-00-0000-0000) or to any other Agent Designee as directed by the
Administrative Agent; and
(d) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy, or on the date five Business days after dispatch by certified or
registered mail, in each case delivered, sent or mailed (properly addressed) to
such party as provided in this Section 10.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 10.01.
SECTION 10.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and shall survive the making by the Lenders
of the Loans, regardless of any investigation made by the Lenders or on their
behalf, and shall continue in full force and effect as long as the principal of
or any accrued interest on any Loan or any Fee or any other amount payable under
this Agreement or any other Loan Document is outstanding and unpaid and so long
as the Commitments have not been terminated.
SECTION 10.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Company and the Administrative Agent and
when the Administrative Agent shall have received copies hereof which, when
taken together, bear the signatures of each Lender, and thereafter shall be
binding upon and inure to the benefit of the Borrowers, the Administrative Agent
and each Lender and their respective successors and assigns, except that the
Borrowers shall not have the right to assign rights hereunder or any interest
herein without the prior consent of all the Lenders.
SECTION 10.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrowers, the Administrative
Agent or the Lenders that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement (including all or
a portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) the Administrative Agent and, except in the case of an
assignment to a Lender or an Affiliate
-60-
of such Lender, the Company, must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld and in the case of
the Company, shall not be required during the continuation of an Event of
Default), (ii) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Lender's rights and obligations under this
Agreement, (iii) 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 (or, if smaller, such Lender's remaining Commitment)
and the amount of the Commitment of such Lender remaining after such assignment
shall not be less than $5,000,000 or shall be zero, (iv) the parties to each
such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, and 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. Upon acceptance and
recording pursuant to paragraph (e) of this Section 10.04, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business days after the execution thereof, (A) 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 (B) 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 or the remaining portion of an 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
2.13, 2.15, 2.19 and 10.05, as well as to any Fees accrued for its account
hereunder and not yet paid)). Notwithstanding the foregoing, any Lender
assigning its rights and obligations under this Agreement may retain any
Competitive Loans made by it outstanding at such time, and in such case shall
retain its rights hereunder in respect of any Loans so retained until such Loans
have been repaid in full in accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment, if any, and the outstanding balances of its Standby Loans and
Competitive Loans, if any, in each case without giving effect to assignments
thereof which have not become effective, are as set forth in such Assignment and
Acceptance, (ii) except as set forth in (i) above, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto or the financial condition of
the Company or any Subsidiary or the performance or observance by any Borrower
of any of its obligations under this Agreement, any other Loan Document or any
other instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) such assignee confirms that it has
-61-
received a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 5.04 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at one of its offices in
The City of New York 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 owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive in the absence of manifest error and the
Borrower, the Administrative Agent 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. The Register shall be available
for inspection by the Company and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Company and the
Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Lenders.
(f) Upon giving written notice to the Company, each Lender may
without the consent of the Company or the Administrative Agent sell
participations to one or more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.13, 2.15 and 2.19 to the same extent as if they were Lenders and (iv) the
Borrowers, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrowers relating to the Loans and to approve
any amendment, modification or waiver
-62-
of any provision of this Agreement (other than amendments, modifications or
waivers decreasing any fees payable hereunder or the amount of principal of or
the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans or
changing or extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 10.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrowers furnished to such Lender
by or on behalf of the Borrowers; provided that, prior to any such disclosure of
information designated by the Company as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information. It
is understood that confidential information relating to the Borrowers would not
ordinarily be provided in connection with assignments or participations of
Competitive Loans.
(h) Any Lender may at any time assign all or any portion of its
rights under this Agreement to a Federal Reserve Bank; provided that no such
assignment shall release a Lender from any of its obligations hereunder. In
order to facilitate such an assignment to a Federal Reserve Bank, the applicable
Borrower shall, at the request of the assigning Lender, duly execute and deliver
to the assigning Lender a promissory note or notes evidencing the Loans made to
such Borrower by the assigning Lender hereunder.
(i) The Borrowers shall not assign or delegate any of their rights
or duties hereunder, except as permitted by Section 6.03.
SECTION 10.05. Expenses; Indemnity. (a) Each Borrower agrees to pay
all out-of-pocket expenses incurred by the Administrative Agent in connection
with the preparation of this Agreement and the other Loan Documents or in
connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby contemplated shall be
consummated) or incurred by the Administrative Agent or any Lender in connection
with the enforcement or protection of their rights in connection with this
Agreement and the other Loan Documents or in connection with the Loans made
hereunder, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx LLP, counsel for the Administrative Agent, and, in connection
with any such amendment, modification or waiver or any such enforcement or
protection, the reasonable fees, charges and disbursements of any other counsel
for the Administrative Agent or any Lender. Each Borrower further agrees that it
shall indemnify the Lenders from and hold them harmless against any documentary
taxes, assessments or charges made by any Governmental Authority by reason of
the execution and delivery of this Agreement or any of the other Loan Documents.
(b) Each Borrower agrees to indemnify the Administrative Agent, each
Lender, any of their respective Affiliates that have made Loans as provided in
Section 2.2(b) and the respective directors, officers, employees and agents of
the foregoing persons (each such person being called an "Indemnitee") against,
and to hold each
-63-
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the transactions contemplated thereby, (ii)
the actual or proposed use of the proceeds of the Loans, (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto or (iv) any actual or alleged
presence or release of Hazardous Materials on or from any property currently or
formerly owned or operated by the Borrower or its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or its subsidiaries;
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 wilful misconduct of such
Indemnitee.
(c) The provisions of this Section 10.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent or any Lender. All amounts due
under this Section 10.05 shall be payable on written demand therefor.
SECTION 10.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender (and any of its Affiliates that have
made Loans as provided in Section 2.2(b)) is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender (or
such Affiliates) to or for the credit or the account of any Borrower against any
of and all the obligations of such Borrower now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other
Loan Document 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.
SECTION 10.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 10.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent or any Lender in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power.
-64-
The rights and remedies of the Administrative Agent and the Lenders hereunder
and under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies which they would otherwise have. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by any
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Borrower in any case shall entitle such Borrower to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Company and the Required Lenders; provided, however, that no
such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan, without the prior written
consent of each Lender affected thereby, (ii) change or extend the Commitment or
decrease the Utilization Fees or Facility Fees of any Lender without the prior
written consent of such Lender, or (iii) amend or modify the provisions of
Section 2.16, the provisions of Article IX, the provisions of this Section or
the definition of "Required Lenders", without the prior written consent of each
Lender; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder without the
prior written consent of the Administrative Agent.
SECTION 10.09. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the applicable interest rate, together
with all fees and charges which are treated as interest under applicable law
(collectively the "Charges"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by any Lender, shall exceed the maximum lawful rate (the
"Maximum Rate") which may be contracted for, charged, taken, received or
reserved by such Lender in accordance with applicable law, the rate of interest
payable on the Loan of such Lender, together with all Charges payable to such
Lender, shall be limited to the Maximum Rate.
SECTION 10.10. Entire Agreement. This Agreement and the other Loan
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
SECTION 10.11. Waiver of Jury Trial. Each party hereto hereby
waives, to the fullest extent permitted by applicable law, any right it may have
to a trial by jury in respect of any litigation directly or indirectly arising
out of, under or in connection with this Agreement or any of the other Loan
Documents. Each party hereto (a) certifies that
-65-
no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver and (b) acknowledges that it
and the other parties hereto have been induced to enter into this Agreement and
the other Loan Documents, as applicable, by, among other things, the mutual
waivers and certifications in this Section 10.11.
SECTION 10.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10.13. Judgment Currency. (a) The Borrowers' obligations
hereunder and under the other Loan Documents to make payments in Dollars or in
any Alternative Currency (the "Obligation Currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by the
Administrative Agent or a Lender of the full amount of the Obligation Currency
expressed to be payable to the Administrative Agent or such Lender under this
Agreement or the other Loan Documents. If, for the purpose of obtaining or
enforcing judgment against any Borrower or in any court or in any jurisdiction,
it becomes necessary to convert into or from any currency other than the
Obligation Currency (such other currency being hereinafter referred to as the
"Judgment Currency") an amount due in the Obligation Currency, the conversion
shall be made at the Alternative Currency Equivalent or Dollar Equivalent, in
the case of any Alternative Currency or Dollars, and, in the case of other
currencies, the rate of exchange (as quoted by the Administrative Agent or if
the Administrative Agent does not quote a rate of exchange on such currency, by
a known dealer in such currency designated by the Administrative Agent)
determined, in each case, as of the date immediately preceding the day on which
the judgment is given (such Business Day being hereinafter referred to as the
"Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, the Borrower covenants and agrees to pay, or cause to be paid, as a
separate obligation and notwithstanding any judgment, such additional amounts,
if any (but in any event not a lesser amount), as may be necessary to ensure
that the amount paid in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of Judgment
Currency stipulated in the judgment or judicial award at the rate of exchange
prevailing on the Judgment Currency Conversion Date.
-66-
(c) For purposes of determining the Alternative Currency Equivalent
or Dollar Equivalent or rate of exchange for this Section, such amounts shall
include any premium and costs payable in connection with the purchase of the
Obligation Currency.
SECTION 10.14. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective as provided in Section 10.03.
SECTION 10.15. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 10.16. Jurisdiction; Consent to Service of Process. (a) Each
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against any Borrower or its properties in
the courts of any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 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 10.17. USA Patriot Act. Each Lender hereby notifies the
Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required
to obtain, verify and record information that identifies each Borrower, which
information includes the
-67-
name and address of each Borrower and other information that will allow such
Lender to identify each Borrower in accordance with the Act.
-68-
SIGNATURE PAGE to
HARSCO CORPORATION
THREE-YEAR CREDIT
AGREEMENT DATED AS OF
AUGUST 12, 2004
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their duly authorized officers, all as of the date first
above written.
HARSCO CORPORATION,
by: /S/ Xxxxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
JPMORGAN CHASE BANK,
individually and as Administrative Agent,
by: /S/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
-69-
