EXHIBIT 4
EXECUTION COPY
U.S. $140,000,000
CREDIT AGREEMENT
Dated as of January 3, 2002
Among
XXXX CORPORATION
as Borrower
and
THE BANKS NAMED HEREIN
as Banks
and
CITIBANK, N.A.
as Administrative Agent
and
BANK OF AMERICA, N.A.
as Syndication Agent
and
WACHOVIA BANK, N.A.
as Documentation Agent
and
XXXXXXX XXXXX BARNEY INC.
as Lead Arranger
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms .......................................... 1
SECTION 1.02. Computation of Time Periods .................................... 16
SECTION 1.03. Accounting Terms ............................................... 16
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances and Letters of Credit ........................... 16
SECTION 2.02. Making the Advances ............................................ 17
SECTION 2.03. Fees ........................................................... 24
SECTION 2.04. Reduction and Extension of the Commitments/Substitution of Banks 25
SECTION 2.05. Repayment ...................................................... 26
SECTION 2.06. Interest ....................................................... 27
SECTION 2.07. Additional Interest on Eurodollar Rate Advances ................ 28
SECTION 2.08. Interest Rate Determination .................................... 28
SECTION 2.09. Prepayments .................................................... 28
SECTION 2.10. Increased Costs ................................................ 29
SECTION 2.11. Payments and Computations ...................................... 30
SECTION 2.12. Evidence of Indebtedness ....................................... 31
SECTION 2.13. Sharing of Payments, Etc ....................................... 32
SECTION 2.14. Taxes .......................................................... 32
SECTION 2.15. Interest Elections ............................................. 34
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Effectiveness of Sections 2.01 and 2.02 . 35
SECTION 3.02. Conditions Precedent to Each Borrowing Increasing the Aggregate
Amount of Advances and each Letter of Credit Issuance .......... 36
SECTION 3.03. Conditions Precedent to Each B Borrowing ....................... 37
SECTION 3.04. Determinations Under Section 3.01 .............................. 37
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower ................. 37
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants .......................................... 39
SECTION 5.02. Negative Covenants ............................................. 43
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default ............................................... 46
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default......... 48
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action ........................................ 49
SECTION 7.02. Agent's Reliance, Etc ........................................... 49
SECTION 7.03. Citibank and Affiliates ......................................... 50
SECTION 7.04. Lender Credit Decision .......................................... 50
SECTION 7.05. Indemnification ................................................. 50
SECTION 7.06. Successor Agent ................................................. 52
SECTION 7.07. Other Agents .................................................... 52
ARTICLE VIII
ASSIGNMENTS AND PARTICIPATIONS
SECTION 8.01. Binding Effect .................................................. 52
SECTION 8.02. Assignments ..................................................... 52
SECTION 8.03. Participations .................................................. 54
SECTION 8.04. Information ..................................................... 55
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc ................................................. 55
SECTION 9.02. Notices, Etc .................................................... 56
SECTION 9.03. No Waiver; Remedies ............................................. 56
SECTION 9.04. Costs, Expenses and Taxes ....................................... 56
SECTION 9.05. Right of Set-off ................................................ 57
SECTION 9.06. Indemnification by Borrower ..................................... 57
SECTION 9.07. Governing Law ................................................... 58
SECTION 9.08. Execution in Counterparts ....................................... 58
SECTION 9.09. Special Prepayment Right ........................................ 58
SECTION 9.10. Jurisdiction, Etc ............................................... 59
SECTION 9.11. No Liability of the Issuing Banks ............................... 59
SECTION 9.12. Confidentiality ................................................. 60
SECTION 9.13. Waiver of Jury Trial ............................................ 62
Schedule I - List of Applicable Lending Offices
Exhibit A-1 - A Promissory Note
Exhibit A-2 - Form of B Note
Exhibit B-1 - Notice of A Borrowing
Exhibit B-2 - Notice of B Borrowing
Exhibit C - Assignment and Acceptance
Exhibit D - Opinion of Counsel to the Borrower
Exhibit E - Assumption Agreement
Exhibit F - Form of Security Agreement
ii
CREDIT AGREEMENT
Dated as of January 3, 2002
XXXX CORPORATION, a Virginia corporation (the "Borrower"), the banks
(the "Banks") and issuers of letters of credit ("Issuing Banks") listed on the
signature pages hereof and CITIBANK, N.A., as administrative agent (the "Agent")
for the Banks and Issuing Banks, hereby agree as follows:
Article I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A Advance" means an advance (other than a B Advance) by a
Lender to the Borrower pursuant to Section 2.02(a) or (b)(iii), and
refers to a Base Rate Advance or a Eurodollar Rate Advance (each of
which shall be a "Type" of A Advance).
"A Borrowing" means a borrowing consisting of A Advances of
the same Type made on the same day by the Lenders.
"Acquisition" means any acquisition by the Borrower or any of
its Subsidiaries of all or substantially all of the capital stock of,
or all or a substantial part of the assets of, or of a business unit or
division of, any Person.
"A Commitment" means, with respect to any Bank at any time,
the amount set forth opposite such Bank's name on the signature pages
hereto under the caption "A Commitment" or, if such Bank has entered
into one or more Assignment and Acceptances, set forth for such Bank in
the Register maintained by the Agent pursuant to Section 8.02(d) as
such Bank's "A Commitment", as such amount may be reduced at or prior
to such time pursuant to Section 2.04.
"A Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-1
hereto, evidencing the aggregate Indebtedness of the Borrower to such
Lender resulting from the A Advances made by such Lender.
"Advance" means an A Advance or a B Advance.
"Affiliate" means, when used with respect to any Person, any
other Person directly or indirectly controlling, controlled by or under
common control with such Person. The term "control" (including the
terms "controlled by" or "under common control with") means the
possession directly or indirectly of the power, whether or not
exercised, to direct or cause the direction of the management and
policies of any Person, whether through ownership of voting securities
or by contract or otherwise.
"Agent's Account" means the account of the Agent maintained by
the Agent at Citibank at its office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Account No. 00000000, Attention: Bank Loan
Syndications.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance, and such Lender's Eurodollar Lending Office in the case
of a Eurodollar Rate Advance.
"Applicable Margin" means, as of any date of determination, a
rate per annum determined by reference to the Performance Level
applicable on such date as set forth below:
--------------------------------------------------------------
Performance Applicable Margin for Applicable Margin for
Level Base Rate Advances Eurodollar Rate Advances
--------------------------------------------------------------
I 0.000% 0.625%
--------------------------------------------------------------
II 0.000% 1.100%
--------------------------------------------------------------
III 0.450% 1.450%
--------------------------------------------------------------
IV 0.650% 1.650%
--------------------------------------------------------------
V 0.725% 1.725%
--------------------------------------------------------------
VI 1.700% 2.700%
--------------------------------------------------------------
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto and otherwise in accordance
with Article VIII.
"Assumption Agreement" has the meaning specified in Section
2.04(c).
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"B Advance" means an advance by a Lender to the Borrower
pursuant to the auction bidding procedure described in Section 2.02(c).
"B Borrowing" means a borrowing consisting of simultaneous B
Advances from each of the Lenders whose offer to make such B Advances
has been accepted under the auction bidding procedure described in
Section 2.02(c).
2
"B Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-2
hereto, evidencing the Indebtedness of the Borrower to such Lender
resulting from a B Advance made by such Lender.
"Base Rate" means, for any Interest Period or any other
period, a fluctuating interest rate per annum as shall be in effect
from time to time which rate per annum shall at all times be equal to
the higher of:
(a) The rate of interest announced publicly by
Citibank, N.A. in New York, New York, from time to time, as
Citibank, N.A.'s base rate, or
(b) The sum (adjusted to the nearest 1/100 of one
percent or, if there is no nearest 1/100 of one percent, to
the next higher 1/100 of one percent) of (i) 1/2 of one
percent per annum, plus (ii) the rate per annum obtained by
dividing (A) the Federal Funds Rate by (B) a percentage equal
to 100% minus the average of the daily percentages specified
during such period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank, N.A. in respect of liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
nonpersonal time deposits in the United States, plus (iii) the
average during such period of the annual assessment rates
estimated by Citibank, N.A. for determining the then current
annual assessment payable by Citibank, N.A. to the Federal
Deposit Insurance Corporation (or any successor) for insuring
U.S. dollar deposits of Citibank, N.A. in the United States.
"Base Rate Advance" means an A Advance which bears interest as
provided in Section 2.06(a).
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings
are carried on in the London interbank market.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease
of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet of
such Person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"Change in Law" has the meaning specified in Section 2.10(c).
"Collateral" means all "Collateral" referred to in the
Security Agreement and all other property that is or is intended to be
subject to any Lien in favor of the Agent for the benefit of the
Lenders.
3
"Collateral Trigger" means the occurrence of the Consolidated
Leverage Ratio being greater than or equal to 3.75:1.00 as of the last
day of any Reference Period, calculated on such date as is provided in
the definition of Consolidated Leverage Ratio, provided, that (i)
during the period from March 31, 2002 through May 30, 2002, the
Consolidated Leverage Ratio shall be calculated on the date of any
Advance (notwithstanding the definition of Consolidated Leverage Ratio
to the contrary) giving pro forma effect to such Advance and (ii) the
Collateral Trigger shall not be deemed to have occurred under any
circumstances after the occurrence and subsequent termination of the
Security Period.
"Commitment" means an A Commitment or a Letter of Credit
Commitment.
"Confidential Information" has the meaning specified in
Section 9.12.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period (adjusted to exclude all extraordinary or
unusual items and any gains or losses on sales of assets outside the
ordinary course of business) plus, without duplication and to the
extent deducted in calculating such Consolidated Net Income for such
period, the sum of (a) income tax expense, (b) interest expense,
amortization or writeoff of debt discount with respect to Indebtedness
(including the Advances), (c) depreciation and amortization expense,
(d) amortization of intangibles (including, but not limited to,
goodwill) and organization costs, and (e) any other non-cash charges.
For the purposes of calculating Consolidated EBITDA for any Reference
Period pursuant to any determination of the Consolidated Leverage
Ratio, (x) Consolidated EBITDA of the Borrower shall include, without
duplication, the Borrower's pro rata share of the "Consolidated EBITDA"
of Sunbelt Chlor Alkali Partnership (determined by reference to the
Borrower's actual ownership therein) and (y) if during such Reference
Period the Borrower or any Subsidiary shall have made an Acquisition,
Consolidated EBITDA for such Reference Period shall be calculated after
giving pro forma effect thereto and any Indebtedness incurred or
assumed in connection therewith as if such Acquisition occurred and
such Indebtedness had been incurred or assumed on the first day of such
Reference Period.
"Consolidated Interest Coverage Ratio" means, for any
Reference Period, the ratio of (a) Consolidated EBITDA for such
Reference Period to (b) Consolidated Interest Expense for such
Reference Period.
"Consolidated Interest Expense" means, for any period, total
cash interest expense (including that attributable to capitalized lease
obligations) of the Borrower and its Subsidiaries for such period with
respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries (including all commission, discounts and other fees and
charges accrued with respect to letters of credit and bankers'
acceptance financing allocable to such period in accordance with GAAP),
minus (in the case of net benefits) or plus (in the case of net costs)
the net benefits or net costs under all Hedging Agreements in respect
of Indebtedness of the Borrower and its Subsidiaries to the extent such
net benefits or net costs are allocable to such period in accordance
with GAAP.
4
"Consolidated Leverage Ratio" means, as at the last day of any
Reference Period, the ratio of (a) Consolidated Total Debt on such date
to (b) Consolidated EBITDA, for such Reference Period. The Consolidated
Leverage Ratio shall be calculated on the date on which the Borrower
delivers to the Agent the financial statements required to be delivered
pursuant to Section 5.01(i)(i) or (ii), as the case may be, and the
certificate required to be delivered pursuant to Section 5.01(i)(iv)
demonstrating such ratio.
"Consolidated Net Income" means, for any period, the
consolidated net income (or loss) of the Borrower and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP; provided
that there shall be excluded (a) the income (or deficit) of any Person
accrued prior to the date it becomes a Subsidiary of the Borrower or is
merged into or consolidated with the Borrower or any of its
Subsidiaries, (b) the income (or deficit) of any Person (other than a
Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any
such income is actually received by the Borrower or such Subsidiary in
the form of dividends or similar distributions and (c) the
undistributed earnings of any Subsidiary of the Borrower to the extent
that the declaration or payment of dividends or similar distributions
by such Subsidiary is not at the time permitted by the terms of any
Contractual Obligation (other than under any Loan Document) or any law
applicable to such Subsidiary.
"Consolidated Net Tangible Assets" means, at any date, the
total assets of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis, minus (a) the consolidated current
liabilities (excluding interest-bearing liabilities) of the Borrower
and its Subsidiaries as of such date, (b) unamortized debt discount and
expense, goodwill, trademarks, brand names, patents and other
intangible assets, and (c) any write-up of the value of any assets
(other than an allocation of purchase price in an acquisition) after
December 31, 2000; all as determined in accordance with GAAP.
"Consolidated Total Debt" means, at any date, the aggregate
principal amount of all Indebtedness of the Borrower and its
Subsidiaries at such date (including the Borrower's Indebtedness in
respect of its Guarantee of the Guaranteed Secured Senior Notes due
2017, Series O, of Sunbelt Chlor Alkali Partnership), determined on a
consolidated basis in accordance with GAAP; provided, that until June
30, 2002 Consolidated Total Debt shall be deemed to be reduced by an
amount up to $100,000,000 equal to cash on the consolidated balance
sheet of the Borrower.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
5
"Domestic Subsidiary" shall mean any Subsidiary organized
under the laws of any State of the United States of America,
substantially all of the assets of which are located, and substantially
all of the business of which is conducted, in the United States of
America.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 8.02, the Borrower;
provided, however, that neither the Borrower nor any Affiliate of the
Borrower shall qualify as an Eligible Assignee.
"Environmental Laws" means any and all applicable federal,
state, local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees,
injunctions, permits, grants, franchises, licenses or governmental
restrictions relating to (i) the effect of the environment on human
health, (ii) the environment or (iii) emissions, discharges or releases
of Hazardous Substances into the environment including, without
limitation, ambient air, surface water, groundwater, or land, or
otherwise relating to the effect on the environment of the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Substances or the remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person who for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated and rulings issued thereunder.
"ERISA Event" means (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, unless the 30-day notice
requirement with respect thereto has been waived by the PBGC; (ii) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a) (2) of ERISA
(including any such notice with respect to a plan amendment referred to
in Section 4041(e) of ERISA); (iii) the cessation of operations at a
facility in the circumstances described in Section 4068(f) of ERISA;
(iv) the withdrawal by the Borrower or an ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (v)
the failure by the Borrower or any ERISA Affiliate to make a payment to
a Plan required under Section 302(f)(1) of ERISA, which Section imposes
a lien for failure to make required payments; (vi) the adoption of an
amendment to a Plan requiring the provision of security to such Plan,
pursuant to Section 307 of ERISA; or (vii) the institution by the PBGC
of proceedings to terminate a Plan, pursuant to Section 4042 of ERISA,
or the occurrence of any event or condition which would constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, a Plan.
6
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing and, in
the case of each B Advance comprising part of the same B Borrowing, for
the period from the date of such B Advance to its maturity date as
specified in the applicable Notice of B Borrowing, an interest rate per
annum equal to the rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) appearing on Telerate Markets Page
3750 (or any successor page) as the London interbank offered rate for
deposits in U.S. dollars at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such period for a term
comparable to such period or, if for any reason such rate is not
available, the average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 10:00 A.M. (New York
time) two Business Days before the first day of such Interest Period
or, in the case of a B Advance, two Business Days before the date of
such B Borrowing in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such A Borrowing or,
in the case of a B Borrowing, in an amount substantially equal to one
quarter of the aggregate amount of such B Borrowing and for a period
equal to such Interest Period or, in the case of a B Advance, equal to
the period from the date of such B Advance to its maturity date as
specified in the applicable Notice of B Borrowing. If the Telerate
Markets Page 3750 (or any successor page) is unavailable, the
Eurodollar Rate for such period for each such Advance comprising part
of the same A Borrowing or B Borrowing (as applicable) shall be such
average as determined by the Agent on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period or, in the
case of a B Advance, two Business Days before the date of such B
Borrowing, subject, however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means an A Advance which bears
interest as provided in Section 2.06(b).
"Eurodollar Rate Reserve Percentage" of any Lender for the
Interest Period for any Eurodollar Rate Advance means the reserve
percentage applicable during such Interest Period (or if more than one
such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any
such percentage shall be so applicable) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency,
7
supplemental or other marginal reserve requirement) for such Lender
with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Facility Fee Rate" means, as of any date of determination, a
rate per annum determined by reference to the Performance Level
applicable on such date as set forth below:
-------------------------------------
Performance Level Facility Fee Rate
-------------------------------------
I 0.125%
-------------------------------------
II 0.150%
-------------------------------------
III 0.175%
-------------------------------------
IV 0.225%
-------------------------------------
V 0.275%
-------------------------------------
VI 0.300%
-------------------------------------
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published in Federal Reserve Statistical Release H.15(519),
for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing
selected by it.
"Foreign Subsidiary" shall mean any Subsidiary other than a
Domestic Subsidiary.
"GAAP" is defined in Section 1.03.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to
8
purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or
any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness
or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary
course of business.
"Hazardous Substances" means any toxic, radioactive, caustic
or otherwise hazardous substance, material or waste, including
petroleum, its derivatives, by-products and other hydrocarbons, in each
case regulated by Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate or
commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, (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 customarily
paid, (d) all obligations of such Person under conditional sale or
other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred
purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person,
whether or not the Indebtedness secured thereby has been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all
Capital Lease Obligations of such Person and all obligations of such
Person under synthetic leases, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty, other than letters of credit and
letters of guaranty issued to support obligations (other than
Indebtedness) incurred in the ordinary course of business, (j) all
obligations, contingent or otherwise, of such Person in respect of
bankers' acceptances and (k) all Invested Amounts. The Indebtedness of
any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner)
to the extent such Person is liable therefore as a result of such
Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Costs" has the meaning specified in Section
7.05(a).
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Election Request" means a request by the Borrower to
convert or continue an A Borrowing in accordance with Section 2.15.
9
"Interest Period" means, for each A Advance comprising part of
the same A Borrowing, the period commencing on the date of such A
Advance (or on the effective date of any election applicable to such A
Borrowing pursuant to Section 2.15) and ending the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be (a) in the case of a
Base Rate Advance, up to 180 days and (b) in the case of a Eurodollar
Rate Advance, 1, 2, 3 or 6 months or, with the consent of all the
Lenders, nine or twelve months, in each case as the Borrower may
select, upon notice received by the Agent not later than 11:00 A.M.
(New York City time) on (i) the third Business Day prior to the first
day of such Interest Period in the case of Eurodollar Rate Advances and
(ii) the first day of such Interest Period in the case of Base Rate
Advances; provided, however, that:
(A) the Borrower may not select any Interest Period
which ends after the Termination Date;
(B) Interest Periods commencing on the same date for
A Advances comprising part of the same Borrowing shall be of
the same duration; and
(C) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day on such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, in the case of any
Interest Period for a Eurodollar Rate Advance, that if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding
Business Day.
"Issuing Bank" means each Issuing Bank listed on the signature
pages hereof or any Eligible Assignee to which any Letter of Credit
Commitment hereunder has been assigned pursuant to Section 8.02 so long
as (a) the Borrower has consented to such assignment and (b) such
Eligible Assignee expressly agrees to perform in accordance with their
terms all of the obligations that by the terms of this Agreement are
required to be performed by it as an Issuing Bank and notifies the
Agent of its Applicable Lending Office (which information shall be
recorded by the Agent in the Register), for so long as such Issuing
Bank or Eligible Assignee, as the case may be, shall have a Letter of
Credit Commitment.
"Invested Amounts" means the amounts invested by investors
that are not Affiliates of the Borrower in connection with a
receivables securitization program and paid to the Borrower or any of
its Subsidiaries, as reduced by the aggregate amounts received by such
investors from the payment of receivables and applied to reduce such
invested amounts.
"L/C Cash Collateral Account" means an interest bearing cash
collateral account to be established and maintained by the Agent, over
which the Agent shall have sole dominion and control, upon terms as may
be satisfactory to the Agent.
"L/C Related Documents" has the meaning specified in Section
2.05(b)(i).
10
"Lenders" means the Banks and Issuing Banks listed on the
signature pages hereof (until such Bank or Issuing Bank shall have
assigned or had assumed all interests hereunder as provided in Sections
8.02 or 2.04(c)) and each assignee or Assuming Bank that shall become a
party hereto pursuant to Sections 8.02 or 2.04(c).
"Letter of Credit Agreement" has the meaning specified in
Section 2.02(b)(i).
"Letter of Credit Commitment" means, with respect to each
Issuing Bank at any time, the amount set forth opposite such Issuing
Bank's name on the signature pages hereto under the caption "Letter of
Credit Commitment" or, if such Issuing Bank has entered into one or
more Assignment and Acceptances, set forth for such Issuing Bank in the
Register maintained by the Agent pursuant to Section 8.02(d) as such
Issuing Bank's "Letter of Credit Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.04.
"Letter of Credit Facility" means, at any time, an amount
equal to the lesser of (a) the aggregate amount of the Issuing Banks'
Letter of Credit Commitments at such time and (b) $50,000,000, as such
amount may be reduced at or prior to such time pursuant to Section
2.04.
"Letters of Credit" has the meaning specified in Section
2.01(b).
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale
or other title retention agreement).
"Loan Documents" means this Agreement, the Notes and, during
the Security Period, the Security Agreement.
"Margin Stock" shall have the meaning given such term under
Regulation U issued by the Board of Governors of the Federal Reserve
System.
"Majority Lenders" means at any time Lenders owed at least 66
2/3% of the then aggregate unpaid principal amount of the A Advances
owing to Lenders, or, if no such principal amount is then outstanding,
Lenders having at least 66 2/3% of the A Commitments.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions, such plan being maintained pursuant
to one or more collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which (i) is maintained for
employees of the Borrower or an ERISA Affiliate and at least one Person
other than the Borrower and its ERISA Affiliates or (ii) was so
maintained and in respect of which the Borrower or an ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
11
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning specified in Section
2.02(a).
"Notice of B Borrowing" has the meaning specified in Section
2.02(c)(i).
"Notice of Issuance" has the meaning specified in Section
2.02(b)(i).
"Officer's Certificate" means a certificate signed in the name
of the Borrower by its President, one of its Vice Presidents, its
Treasurer or its Controller.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Performance Level" means, as of any date of determination,
the level set forth below as then applicable:
I Consolidated Leverage Ratio is less than or equal to
3.00:1.00.
II Consolidated Leverage Ratio is greater than 3.00:1.00
but less than or equal to 3.50:1.00.
III Consolidated Leverage Ratio is greater than 3.50:1.00
but less than or equal to 4.00:1.00.
IV Consolidated Leverage Ratio is greater than 4.00:1.00
but less than or equal to 4.50:1.00.
V Consolidated Leverage Ratio is greater than 4.50:1.00
but less than or equal to 5.00:1.00.
VI Consolidated Leverage Ratio is greater than 5.00:1.00.
For purposes of this definition, the Performance Level shall be
determined (i) from the date hereof, by reference to the Consolidated
Leverage Ratio calculated for the Reference Period that would have
ended September 30, 2001 had this Agreement then been in effect, (ii)
for any Advances made during the period from March 31, 2002 through May
30, 2002, by reference to the Consolidated Leverage Ratio giving pro
forma effect to such Advance and (iii) thereafter, as at the end of
each Reference Period based upon the calculation of the Consolidated
Leverage Ratio for such Reference Period. The Applicable Margin,
Facility Fee Rate and Utilization Fee Rate shall be adjusted (if
necessary) upward or downward on the first day following delivery of
the certificate referred to in Section 5.01(i)(iv).
"Permitted Encumbrances" means:
----------------------
(a) Liens imposed by law for taxes that are not yet
due or are being contested in good faith by appropriate
proceedings;
12
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by
law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are
being contested in good faith by appropriate proceedings;
(c) pledges and deposits made in the ordinary course
of business in compliance with workers' compensation,
unemployment insurance and other social security laws or
regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do
not constitute an Event of Default under Section 6.01(f); and
(f) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from
the value of the affected property or interfere with the
ordinary conduct of business of the Borrower or any
Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any
Lien securing Indebtedness.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pro Rata Share" of any amount means, with respect to any
Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's A Commitment at such
time (or, if the A Commitments shall have been terminated pursuant to
Section 2.04 or 6.01, such Lender's A Commitment as in effect
immediately prior to such termination) and the denominator of which is
the aggregate amount of all A Commitments at such time (or, if the A
Commitments shall have been terminated pursuant to Section 2.04 or
6.01, the aggregate amount of all A Commitments as in effect
immediately prior to such termination).
"Reference Banks" means Citibank, N.A., Bank of America, N.A.
and Wachovia Bank, N.A
"Reference Period" means any period of four consecutive fiscal
quarters of the Borrower.
"Register" has the meaning specified in Section 8.02(d).
13
"Regulation FD" has the meaning specified in Section 9.12.
"Security Agreement" has the meaning specified in Section
3.01(i)(d).
"Security Period" means the period, if any, beginning with the
occurrence of the Collateral Trigger until the date thereafter, if any,
on which both of (a) either (x) the Consolidated Leverage Ratio is less
than 3.75:1.00 as of the end of any two consecutive fiscal quarters or
(y) after June 30, 2002, the Consolidated Leverage Ratio is less than
3.25:1.00 as of the end of any fiscal quarter and (b) the Borrower's
non-credit enhanced long-term senior unsecured debt shall be rated
either BBB- or above by Standard & Poor's Ratings Group, a division of
The McGraw Hill Companies, Inc. (or its successor), or Baa3 or better
by Xxxxx'x Investors Service, Inc. (or its successor), provided, that
no Security Period shall occur after the termination of any Security
Period.
"Significant Subsidiary" means each Subsidiary, but excludes
any Foreign Subsidiary the United States dollar value (or equivalent
thereof) of whose assets is less than 5% of the total assets of the
Borrower and the Subsidiaries, on a consolidated basis.
"Single-Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which (i) is maintained for
employees of the Borrower or an ERISA Affiliate and no Person other
than the Borrower and its ERISA Affiliates or (ii) was so maintained
and in respect of which the Borrower or an ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Subsidiary" means, as at any particular time, any Person
controlled by the Borrower the accounts of which would be consolidated
with those of the Borrower in the Borrower's consolidated financial
statements if such financial statements were to be prepared at such
time in accordance with GAAP.
"Tax-Exempt Financing" means a transaction with a governmental
unit or instrumentality which involves (i) the issuance by such
governmental unit or instrumentality to Persons other than the Borrower
or a Subsidiary of bonds or other obligations on which the interest is
exempt from Federal income taxes under Section 103 of the Internal
Revenue Code and the proceeds of which are applied to finance or
refinance the cost of acquisition of equipment or facilities of the
Borrower or any of its subsidiaries, and (ii) participation in the
transaction by the Borrower or a Subsidiary in any manner permitted by
this Agreement.
"Termination Date" means (i) January 3, 2005 or (ii) any date
to which the Termination Date shall have been extended pursuant to
Section 2.04(b); or in each case of (i) and (ii), the earlier date on
which the termination in whole of the Commitments occurs pursuant to
Section 2.04(a) or 6.01.
"Type" shall have the meaning given such term in the
definition of A Advance.
"Unused Commitment" means, with respect to each Lender at any
time, (a) such Lender's A Commitment at such time minus (b) the sum of
(i) the aggregate principal
14
amount of all A Advances made by such Lender (in its capacity as a
Lender) and outstanding at such time, plus (ii) such Lender's Pro Rata
Share of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time, (B) the aggregate principal amount of all A
Advances made by the Issuing Bank pursuant to Section 2.02(b)(iii)
that have not been ratably funded by such Lender and outstanding at
such time and (C) the aggregate principal amount of B Advances then
outstanding.
"Usage" means, at any time, the sum of the aggregate principal
amount of the Advances then outstanding plus the Available Amount of
the outstanding Letters of Credit.
"Utilization Fee Rate" means, for any date on which the
aggregate Usage exceeds 33% of the aggregate A Commitments, a rate per
annum determined by reference to the Performance Level applicable on
such date as set forth below:
---------------------------------------------------
Performance Utilization Fee Rate
Level
---------------------------------------------------
I 0.125%
---------------------------------------------------
II 0.125%
---------------------------------------------------
III 0.125%
---------------------------------------------------
IV 0.125%
---------------------------------------------------
V 0.375%
---------------------------------------------------
VI 0.000%
---------------------------------------------------
"Voting Rights" means, as to any corporation or any other
entity, ordinary voting power (whether associated with outstanding
common stock or outstanding preferred stock, or both, or other
outstanding equity interests, as applicable) to elect members of the
Board of Directors of such corporation or other entity (irrespective of
whether or not at the time capital stock of any class or classes of
such corporation or entity shall or might have voting power or
additional voting power upon the occurrence of any contingency).
"Wholly Owned" means, with respect to any corporation or other
entity, a corporation or other entity of which 100% of the Voting
Rights are at the time directly or indirectly owned by the Borrower, by
the Borrower and one or more other Wholly Owned Subsidiaries, or by one
or more other Wholly Owned Subsidiaries.
"Withdrawal Liability" shall have the meaning given such term
under Part I of Subtitle E of Title IV of ERISA.
15
SECTION 1.02. Computation of Time Periods. (a) In this Agreement and the
other Loan Documents in the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including" and the
words "to" and "until" each means "to but excluding".
(b) In this Agreement and the other Loan Documents each reference to a year
shall be a reference to the twelve consecutive months beginning January 1 in
such year and ending December 31 in such year and each reference to a quarter
shall be a reference to one of the three consecutive month periods beginning
January 1, April 1, July 1 or October 1, in each year.
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP. "GAAP" shall mean
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent with the most recent certified consolidated financial
statements of the Borrower and its Subsidiaries delivered to the Lenders, except
that if the Borrower notifies the Agent that the Borrower requests an amendment
to any provision hereof to eliminate the effect of a change occurring after the
date of this Agreement in GAAP or the application thereof on the operation of
such provision (or if the Agent notifies the Borrower that the Majority Lenders
request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be construed and interpreted on
the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance with Section 9.01.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances and Letters of Credit. (a) A Advances. Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make A Advances to the Borrower from time to time on any Business Day during the
period from the date hereof until the Termination Date in an aggregate amount
not to exceed at any time such Lender's Unused Commitment. Each A Borrowing
shall be in an aggregate amount not less than $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and shall consist of A Advances of the
same Type made on the same day by the Lenders ratably according to their
respective A Commitments. Within the limits of each Lender's A Commitment, the
Borrower may borrow, repay pursuant to Section 2.05 or prepay pursuant to
Section 2.09(b), and reborrow, prior to the Termination Date, under this Section
2.01.
(b) Letters of Credit. Each Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (each a "Letter of
Credit") for the account of the Borrower from time to time on any Business Day
during the period from the date hereof until 30 days before the Termination Date
in an aggregate Available Amount (i) for all Letters of Credit issued by such
Issuing Bank not to exceed at any time the lesser of (x) the Letter of Credit
Facility at such time and (y) such Issuing Bank's Letter of Credit Commitment at
such time and (ii) for each such Letter of Credit not to exceed an amount equal
to the aggregate Unused
16
Commitments of the Lenders at such time. No Letter of Credit shall have an
expiration date (including all rights of the Borrower or the beneficiary to
require renewal, but excluding "evergreen" renewal provisions that permit the
Issuing Bank to decline to renew) later than five Business Days before the
Termination Date. Within the limits referred to above, the Borrower may request
the issuance of Letters of Credit under this Section 2.01(b), repay any A
Advances resulting from drawings thereunder pursuant to Section 2.05 or prepay
pursuant to Section 2.09(b) and request the issuance of additional Letters of
Credit under this Section 2.01(b).
SECTION 2.02. Making the Advances. (a) Making the A Advances. (i) (A) Each
A Borrowing shall be made on notice, given not later than 11:00 A.M. (New York
City time), (x) in the case of Eurodollar Rate Advances, on the third Business
Day prior to the date of the proposed A Borrowing and (y) in the case of Base
Rate Advances, on the day of the proposed A Borrowing, by the Borrower to the
Agent, which shall give to each Lender prompt notice thereof by telecopier. Each
such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telephone,
confirmed immediately in writing, in substantially the form of Exhibit B-1
hereto, specifying therein the requested (I) date of such A Borrowing, (II) Type
of A Advances comprising such A Borrowing, (III) aggregate amount of such A
Borrowing, and (IV) Interest Period for each such A Advance. Each Lender shall,
before 1:00 P.M. (New York City time) on the date of such A Borrowing make
available for the account of its Applicable Lending Office to the Agent at the
Agent's Account, in same day funds, such Lender's ratable portion of such A
Borrowing. After the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will make such funds
available to the Borrower at the Agent's address referred to in Section 8.02.
(B) The failure of any Lender to make the A Advance to be made
by it as part of any A Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its A Advance on the date of
such A Borrowing, but no Lender shall be responsible for the failure of
any other Lender to make the A Advance to be made by such other Lender
on the date of any A Borrowing.
(ii) Anything in subsection (i) above to the contrary notwithstanding,
(A) if any Lender shall, at least one Business Day before the
date of any requested A Borrowing, notify the Agent (with a copy to
the Borrower) that the introduction of or any change in or in the
interpretation of any law or regulation by any court, authority or
agency, or any other governmental, judicial or regulatory body, makes
it unlawful, or that any central bank or other governmental authority
asserts that it is unlawful, for such Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to fund or maintain Eurodollar Rate Advances hereunder,
the right of the Borrower to select Eurodollar Rate Advances for such
A Borrowing or any subsequent A Borrowing, with respect to such Lender
(only), shall be suspended until such Lender shall notify the Agent
(with a copy to the Borrower) that the circumstances causing such
suspension no longer exist or such Lender shall cease to be a party
hereto, and each A Advance comprising such A Borrowing shall, with
respect to such Lender (only), be a Base Rate Advance of an equivalent
amount and for an approximately equivalent term, provided that if all
the Lenders so notify the Agent, the Agent shall so notify the
Borrower and the Notice of A Borrowing in respect of such
17
requested A Borrowing shall be automatically revoked. Each Lender
giving a notice under this subclause (A) shall, promptly after giving
such notice, provide the Borrower (with a copy to the Agent) with an
explanation, in reasonable detail, as to the circumstances causing
such suspension;
(B) in the event that it is necessary to determine the
Eurodollar Rate with reference to the Reference Banks, and if none of
the Reference Banks furnish timely information to the Agent for
determining the Eurodollar Rate for Eurodollar Rate Advances
comprising any requested A Borrowing, the right of the Borrower to
select Eurodollar Rate Advances for such A Borrowing or any subsequent
A Borrowing shall be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such
suspension no longer exist, and each A Advance comprising such A
Borrowing shall be a Eurodollar Rate Advance, if available (or, if not
available or the Borrower so notifies the Lenders, a Base Rate
Advance); and
(C) if the Majority Lenders shall, at least one Business Day
before the date of any requested A Borrowing, notify the Agent (with a
copy to the Borrower) that the Eurodollar Rate for Eurodollar Rate
Advances comprising such A Borrowing will not adequately reflect the
cost to the Lenders of making or funding their respective Eurodollar
Rate Advances for such A Borrowing, the Notice of A Borrowing given in
respect of such requested A Borrowing shall be automatically revoked
and the right of the Borrower to select Eurodollar Rate Advances for
such A Borrowing or any subsequent A Borrowing shall be suspended
until the Majority Lenders shall notify the Agent (with a copy to the
Borrower) and the other Lenders that the circumstances causing such
suspension no longer exist. The Majority Lenders giving a notice under
this subclause (C) shall, promptly after giving such notice, provide
the Borrower (with a copy to the Agent) with an explanation, in
reasonable detail, as to the circumstances causing such suspension.
(D) Anything in subsection (i) above to the contrary
notwithstanding, (1) the Borrower may not select Eurodollar Rate
Advances for any A Borrowing if the aggregate amount of such A
Borrowing is less than $10,000,000 and (2) the Eurodollar Rate
Advances may not be outstanding as part of more than eight separate A
Borrowings.
(iii) Each Notice of A Borrowing (subject to (ii)(A) and (ii)(C) above)
shall be irrevocable and binding on the Borrower. In the case of any A Borrowing
which the related Notice of A Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of A Borrowing for such A
Borrowing the applicable conditions set forth in Article III, including, without
limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the A Advance to be made by such Lender as part
of such A Borrowing when such A Advance, as a result of such failure, is not
made on such date. Each Lender claiming indemnity for any such loss, cost or
expense under this clause (iii) shall provide, at the time of making such claim,
the Borrower (with a copy to the Agent) with reasonable details, including the
basis for the calculation thereof,
18
of such loss, cost or expense, provided that, in the absence of manifest error,
the amount of such claims so notified shall be conclusive and binding upon the
Borrower.
(iv) Unless the Agent shall have received notice from a Lender prior to
the date of any A Borrowing that such Lender will not make available to the
Agent such Lender's ratable portion of such A Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date of
such A Borrowing in accordance with subsection (i) of this Section 2.02(a) and
the Agent may, in reliance upon such assumption, make available to the Borrower
on such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Agent, such Lender and
the Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each date from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to A Advances comprising such A Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(b) Issuance of and Drawings and Reimbursement Under Letters
of Credit. (i) Request for Issuance. (A) Each Letter of Credit shall be issued
upon notice, given not later than 11:00 A.M. (New York City time) on the fifth
Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to any Issuing Bank, which shall give the Agent and each
Lender prompt notice thereof by telecopier. Each such notice of issuance of a
Letter of Credit (a "Notice of Issuance") shall be by telephone or telecopier,
confirmed immediately in writing, specifying therein the requested (I) date of
such issuance (which shall be a Business Day), (II) Available Amount of such
Letter of Credit, (III) expiration date of such Letter of Credit, (IV) name and
address of the beneficiary of such Letter of Credit and (V) form of such Letter
of Credit, and shall be accompanied by such application and agreement for letter
of credit (if any) as such Issuing Bank may reasonably specify to the Borrower
for use in connection with such requested Letter of Credit (a "Letter of Credit
Agreement"). If the requested form of such Letter of Credit is acceptable to the
applicable Issuing Bank in its reasonable discretion, such Issuing Bank will,
upon fulfillment of the applicable conditions set forth in Article III, make
such Letter of Credit available to the Borrower at its office referred to in
Section 9.02 or as otherwise agreed with the Borrower in connection with such
issuance. In the event and to the extent that the provisions of any Letter of
Credit Agreement shall conflict with this Agreement, the provisions of this
Agreement shall govern.
(ii) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of any Issuing Bank or the
Lenders, each Issuing Bank hereby grants to each Lender, and each
Lender hereby acquires from such Issuing Bank, a participation in such
Letter of Credit equal to such Lender's Pro Rata Share of the
aggregate amount available to be drawn under such Letter of Credit.
The Borrower hereby agrees to each such participation. In
consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Agent, for the
account of the Issuing Bank, such Lender's Pro Rata Share of each
drawing made under a Letter of Credit funded by the Issuing Bank and
not reimbursed by the Borrower on the date made, or of
19
any reimbursement payment required to be refunded to the Borrower for
any reason. Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the A
Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(iii) Drawing and Reimbursement. The payment by any Issuing
Bank of a draft drawn under any Letter of Credit shall constitute for
all purposes of this Agreement the making by such Issuing Bank of an A
Advance, which shall be a Base Rate Advance, in the amount of such
draft. Upon written demand by such Issuing Bank, with a copy of such
demand to the Agent, each Lender shall pay to the Agent such Lender's
Pro Rata Share of such outstanding A Advance, by making available for
the account of its Applicable Lending Office to the Agent for the
account of such Issuing Bank, by deposit to the Agent's Account, in
same day funds, an amount equal to the portion of the outstanding
principal amount of such A Advance to be funded by such Lender.
Promptly after receipt thereof, the Agent shall transfer such funds to
such Issuing Bank. Each Lender agrees to fund its Pro Rata Share of an
outstanding A Advance made by an Issuing Bank as a result of a drawing
under the Letter of Credit on (A) the Business Day on which demand
therefor is made by the Issuing Bank, provided that notice of such
demand is given not later than 11:00 A.M. (New York City time) on such
Business Day, or (B) the first Business Day next succeeding such demand
if notice of such demand is given after such time. If and to the extent
that any Lender shall not have so made the amount of such A Advance
available to the Agent, such Lender agrees to pay to the Agent
forthwith on demand such amount together with interest thereon, for
each day from the date of demand by the applicable Issuing Bank until
the date such amount is paid to the Agent, at the Federal Funds Rate
for its account or the account of such Issuing Bank, as applicable. If
such Lender shall pay to the Agent such amount for the account of such
Issuing Bank on any Business Day, such amount so paid in respect of
principal shall constitute an A Advance made by such Lender on such
Business Day for purposes of this Agreement, and the outstanding
principal amount of the A Advance made by the applicable Issuing Bank
shall be reduced by such amount on such Business Day.
(iv) Letter of Credit Reports. Each Issuing Bank shall furnish
(A) to the Agent on the first Business Day of each week a written
report summarizing issuance and expiration dates of Letters of Credit
issued during the previous week and drawings during such week under all
Letters of Credit, (B) to each Lender on the first Business Day of each
month a written report summarizing issuance and expiration dates of
Letters of Credit during the preceding month and drawings during such
month under all Letters of Credit and (C) to the Agent and each Lender
on the first Business Day of each calendar quarter a written report
setting forth the average daily aggregate Available Amount during the
preceding calendar quarter of all Letters of Credit.
(v) Notice to Borrower. Each Issuing Bank shall notify the
Borrower promptly of each request for drawing under a Letter of Credit
issued by it and each payment made by it under a Letter of Credit.
20
(vi) Failure to Make A Advances. The failure of any Lender to
make the A Advance to be made by it on the date specified in Section
2.02(b)(iii) shall not relieve any other Lender of its obligation
hereunder to make its A Advance on such date, but no Lender shall be
responsible for the failure of any other Lender to make the A Advance
to be made by such other Lender on such date.
(c) Making the B Advances. Each Lender severally agrees that
the Borrower may make B Borrowings under this Section 2.02(c) from time to time
on any Business Day during the period from the date hereof until the date
occurring one day prior to the Termination Date in the manner set forth below;
provided that, following the making of each B Borrowing, the Usage shall not
exceed the aggregate amount of the A Commitments of the Lenders.
(i) The Borrower may request a B Borrowing under this Section
2.02(c) by delivering to the Agent, by telephone, confirmed immediately
in writing, a notice of a B Borrowing (a "Notice of B Borrowing"), in
substantially the form of Exhibit B-2 hereto, specifying (I) the date
and aggregate amount of the proposed B Borrowing, (II) the type of
interest rate applicable to such B Borrowing (which shall be a margin
above or below the Eurodollar Rate or a fixed rate), (III) the interest
period or periods applicable to such B Borrowing (which shall be from
14 days up to 6 months in the case of Eurodollar Rate related B
Borrowings and from 14 days up to 180 days in the case of fixed rate B
Borrowings), (IV) the maturity date for repayment of each B Advance to
be made as part of such B Borrowing (which maturity date may not be
later than the Termination Date), (V) the interest payment date or
dates relating thereto, (VI) the time after which the offer of any
Lender bidding for such B Borrowing cannot be accepted by the Borrower
(which shall not be later than 10:30 A.M., New York City time, on the
date of the proposed B Borrowing in the case of a fixed rate B
Borrowing and on the third Business Day prior to the date of the
proposed B Borrowing in the case of a Eurodollar Rate B Borrowing), and
(VII) any other terms to be applicable to such B Borrowing, not later
than 9:00 A.M. (New York City time) (x) at least one Business Day prior
to the proposed B Borrowing if the Borrower shall specify in the Notice
of B Borrowing that the rates of interest to be offered by Lenders
shall be fixed rates and (y) at least three Business Days prior to the
proposed B Borrowing, if the Borrower shall instead specify in the
Notice of B Borrowing that the rates to be offered by the Lenders shall
be a margin above or below the Eurodollar Rate. The Agent shall in turn
notify each Lender of each request for a B Borrowing received by it
from the Borrower by sending such Lender a copy of the related Notice
of B Borrowing.
(ii) Each Lender shall, if, in its sole discretion, it elects
to do so, irrevocably offer to make one or more B Advances to the
Borrower as part of such proposed B Borrowing at a rate or rates of
interest, with maturity date or dates, and with a maximum principal
amount that may be accepted by the Borrower, each as specified by such
Lender in its sole discretion, by notifying the Agent (which shall give
prompt notice thereof to the Borrower) by telephone before 9:30 A.M.
(New York City time), confirmed in writing before 10:30 A.M. (New York
City time), (I) on the date of such proposed B Borrowing, if the
Borrower shall have specified in the Notice of B Borrowing that the
rates of interest to be offered by the Lenders were to be fixed rates
per annum and (II) on the second Business Day prior to the proposed B
Borrowing, if the Borrower shall have
21
instead specified in the Notice of B Borrowing that the rates of
interest to be offered by the Lenders were to be Eurodollar Rates, of
the maximum amount of each B Advance which such Lender would be willing
to make as part of such proposed B Borrowing (which amounts may,
subject to the proviso to the first sentence of this Section
2.02(c)(i), exceed such Lender's Commitment), the rate or rates of
interest and maturity date or dates therefor and such Lender's
Applicable Lending office with respect to such B Advance; provided that
if the Agent in its capacity as a Lender shall, in its sole discretion,
elect to make any such offer, it shall notify the Borrower of such
offer at least 30 minutes before the time and on the date on which
notice of such election is to be given to the Agent by the other
Lenders. If any Lender shall elect not to make such an offer, such
Lender shall so notify the Agent by telephone, confirmed immediately in
writing, before 9:30 A.M. (New York City time) on the date on which
notice of such election is to be given to the Agent by the other
Lenders and such Lender shall not be obligated to, and shall not, make
any B Advance as part of such B Borrowing; provided that the failure by
any Lender to give such notice shall not cause such Lender to be
obligated to make any B Advance as part of such proposed B Borrowing.
(iii) The Borrower shall, in turn, not later than the time
after which the Borrower cannot accept the bid of any Lender, as
specified by the Borrower in the Notice of B Borrowing delivered by it
in respect of such proposed B Borrowing, (I) on the date of such
proposed B Borrowing, if the Borrower shall have specified in the
Notice of B Borrowing that the rates of interest to be offered by the
Lenders were to be fixed rates per annum and (II) on the third Business
Day prior to the proposed B Borrowing, if the Borrower shall have
instead specified in the Notice of B Borrowing that the rates of
interest to be offered by the Lenders were to be Eurodollar Rates,
either,
(x) cancel such B Borrowing by giving the Agent
notice by telephone, confirmed immediately in writing, to that
effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (B) above, in
ascending order of the effective cost to the Borrower (and if
two or more of such offers have an equal effective cost to the
Borrower, the Borrower shall accept each such equal offer in
the proportion that the amount of each such equal offer bears
to the aggregate amount of all offers at such equal effective
cost made by the Lenders making such equal offers), provided
if the order referred to above would result in the acceptance
of an offer by any Lender in an aggregate amount of less than
$5,000,000, the Borrower shall accept such amounts as, in its
discretion, it chooses to ensure that no offer of a Lender is
accepted for an aggregate amount of less than $5,000,000; such
acceptance shall be made by the Borrower giving notice by
telephone, confirmed immediately in writing, to the Agent of
the amount of each B Advance (which amount shall be equal to
or less than the maximum amount notified to the Borrower by
such Lender for such B Advance pursuant to paragraph (B)
above) to be made by such Lender as part of such B Borrowing,
and reject any remaining offers made by Lenders pursuant to
paragraph (B) above by giving the Agent notice to that effect.
22
(iv) If the Borrower notifies the Agent that such B Borrowing
is cancelled pursuant to paragraph (C)(x) above, the Agent shall give
prompt notice thereof to the Lenders and such B Borrowing shall not be
made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (C)(y) above, the Agent
shall in turn promptly notify by telephone, confirmed immediately in
writing, (I) each Lender that has made an offer as described in
paragraph (B) above, of the date and aggregate amount of such B
Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (B) above have been accepted by the Borrower,
(II) each Lender that is to make a B Advance as part of such B
Borrowing, of the amount of each B Advance to be made by such Lender as
part of such B Borrowing, and (III) each Lender that is to make a B
Advance as part of such B Borrowing, upon receipt, that the Agent has
received forms of documents appearing to fulfill the applicable
conditions set forth in Article III. Each Lender that is to make a B
Advance as part of such B Borrowing shall, before 12:00 noon (New York
City time) on the date of such B Borrowing specified in the notice
received from the Agent pursuant to clause (I) of the preceding
sentence or any later time when such Lender shall have received notice
from the Agent pursuant to clause (III) of the preceding sentence, make
available for the account of its Applicable Lending Office to the Agent
at the Agent's Account, in same day funds, such Lender's portion of
such B Borrowing. Upon fulfillment of the applicable conditions set
forth in Article III and after receipt by the Agent of such funds, the
Agent will make such funds available to the Borrower at the Agent's
address referred to in Section 9.02. Promptly after each B Borrowing
the Agent will notify each Lender of the amount of the B Borrowing and
the dates upon which such B Borrowing commenced and will terminate.
(vi) The Borrower shall indemnify each Lender against any
loss, cost, or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified for such B Borrowing
the applicable conditions set forth in Article III, including, without
limitation, any loss (excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired or maintained by such Lender to fund
the B Advance to be made by such Lender as part of such B Borrowing
when such B Advance, as a result of such failure, is not made on such
date. Each Lender claiming indemnity for such loss, cost or expense
under this subclause (F) shall provide, at the time of making such
claim, the Borrower (with a copy to the Agent) with reasonable details,
including the basis for the calculation thereof, of such loss, cost or
expense, provided that, in the absence of manifest error, the amount of
such claim so notified shall be conclusive and binding upon the
Borrower.
(vii) In the case of a proposed B Borrowing comprised of
Eurodollar Rate related B Advances, the Agent shall, as soon as
possible, notify the Borrower and the Lenders of the applicable
Eurodollar Rate and, if the Majority Lenders disagree with the
calculation of the Eurodollar Rate so notified by the Agent, the
Majority Lenders shall promptly notify each other Lender, the Agent and
the Borrower of such applicable Eurodollar Rate.
23
(iii) Each B Borrowing shall be in an aggregate amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of such B Borrowing, shall not result in the limitations
set forth in the proviso to the first sentence of subsection (i) above being
exceeded.
(iv) Within the limits and on the conditions set forth in this Section
2.02(c), the Borrower may from time to time borrow under this Section 2.02(c),
repay or prepay pursuant to subsection (iv) below, and reborrow prior to the
Termination Date under this Section 2.02(c); provided, that a B Borrowing shall
not be made within three Business Days of the date of any other B Borrowing.
(v) The Borrower shall repay to the Agent for the account of each Lender
which has made a B Advance on the maturity date of each B Advance (such maturity
date being that specified by the Borrower for repayment of such B Advance in the
related Notice of B Borrowing delivered pursuant to subsection (i)(A) above and
provided in the B Note evidencing such B Advance), the then unpaid principal
amount of such B Advance. The Borrower shall have no right to prepay any
principal amount of any B Advance unless, and then only on the terms, specified
by the Borrower for such B Advance in the related Notice of B Borrowing
delivered pursuant to subsection (i)(A) above and provided in the B Note
evidencing such B Advance.
(vi) The Borrower shall pay interest on the unpaid principal amount of each
B Advance from the date of such B Advance to the date the principal amount of
such B Advance is repaid in full, at the rate of interest for such B Advance
specified by the Lender making such B Advance in its notice with respect thereto
delivered pursuant to subsection (i)(B) above, payable on the interest payment
date or dates specified by the Borrower for such B Advance in the related Notice
of B Borrowing delivered pursuant to subsection (i)(A) above, as provided in the
B Note evidencing such B Advance; provided that any amount of principal which is
not paid when due (whether at stated maturity, by acceleration or otherwise)
shall bear interest, from the date on which such amount is due until such amount
is paid in full, payable on demand, at a rate per annum equal at all times to
1-1/2% per annum above the Base Rate.
(vii) The Indebtedness of the Borrower resulting from each B Advance made
to the Borrower as part of a B Borrowing shall be evidenced by a separate B Note
of the Borrower payable to the order of the Lender making such B Advance.
SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a facility fee on the average daily
aggregate amount of the Lenders' Commitments from the date hereof in the case of
each Bank and from the effective date specified in the Assignment and Acceptance
or Assumption Agreement pursuant to which it became a Lender in the case of each
other Lender until the Termination Date at the Facility Fee Rate, payable
quarterly in arrears and on the Termination Date.
(b) Letter of Credit Fees. (i) The Borrower shall pay to the Agent for the
account of each Lender a commission on such Lender's Pro Rata Share of the
average daily aggregate Available Amount of all Letters of Credit outstanding
from time to time at a rate per
24
annum equal to the sum of the Applicable Margin for Eurodollar Rate Advances
plus the Utilization Fee Rate, if applicable, payable quarterly in arrears and
on the Termination Date.
(ii) The Borrower shall pay to each Issuing Bank, for its own account, a
fronting fee equal to 0.125% of the Available Amount of each Letter of Credit
issued by such Issuing Bank, payable quarterly in arrears, and shall pay such
other commissions, issuance fees, transfer fees and other fees and charges in
connection with the issuance or administration of each Letter of Credit as the
Borrower and such Issuing Bank shall agree.
(c) Agent's Fees. The Borrower shall pay to the Agent for its own account
such fees as may from time to time be agreed between the Borrower and the Agent.
SECTION 2.04. Reduction and Extension of the Commitments/Substitution of
Banks. (a) The Borrower shall have the right, upon at least two Business Days'
notice to the Agent, to terminate in whole or reduce ratably in part the
Commitments of the Lenders or of the Issuing Banks, provided that each partial
reduction shall be in the aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof.
(b) Not later than the date 45 days prior to the Termination Date then in
effect, the Borrower may deliver to the Agent a notice requesting that the
Commitments be extended to the fourth anniversary of such Termination Date, and
the Agent shall promptly forward such notice to the Lenders. Within 10 days
after its receipt of any such notice, each Lender shall notify the Agent of its
willingness or unwillingness so to extend its Commitment. Any Lender which shall
fail so to notify the Agent within such period shall be deemed to have declined
to extend its Commitment. In the event each Lender shall be willing to extend
its Commitment, the Agent shall so notify the Borrower and each Lender and the
Termination Date shall without further action be extended to the fourth
anniversary of the date which shall theretofore have been the Termination Date.
In the event that any Lender shall be unwilling to extend its Commitment, the
Commitments of the Lenders will not be extended and the Termination Date shall
remain unchanged.
(c) Optional Termination and Substitution of Lenders. The Borrower may,
upon not less than two Business Days prior notice to a Lender or Lenders,
terminate in whole the Commitment of such Lender or Lenders and arrange in
respect of each terminated Lender for one or more bank or banks ("Assuming
Lender or Lenders") other than the Lenders to assume a Commitment equal to or
Commitments in aggregate amount equal to the amount of the Commitment of the
terminated Lender, provided that no such termination shall be made unless, at
such time, no event has occurred and is continuing which constitutes an Event of
Default. Such termination shall be effective (x) with respect to each such
terminated Lender's Unused Commitment, on the date set forth in such notice,
provided, however, that such date shall be no earlier than two Business Days
after receipt of such notice or (y) in the event that an Advance is outstanding
from such terminated Lender which is to be paid in connection with such
termination, on the last day of the then current interest period relating to
such Advance. Such assumption shall be effective on the date specified in (x) or
(y) above, as the case may be, provided, however, that each Assuming Lender
shall have delivered to the other Lenders, on or prior to such date, an
agreement in form and substance satisfactory to the Borrower and the Agent (an
"Assumption Agreement") in substantially the form of Exhibit E hereto. (The term
25
"Lender" as used in this Agreement immediately following such assumption shall
include an Assuming Lender.) Notwithstanding the provisions of this Section
2.04(c), termination or substitution shall not be effective unless the Assuming
Lender meets, at the time of substitution, the criteria set forth in this
Agreement for an "Eligible Assignee."
Upon the termination of a Lender's Commitment under this subsection
2.04(c), the Borrower will pay or cause to be paid all principal of, and
interest accrued to the date of such payment on, Advances owing to such Lender
and pay any fees payable to such Lender pursuant to the provisions of Section
2.03 with respect to the Commitment which is terminated, any amounts payable
pursuant to the provisions of Section 9.04 and any other amounts payable to such
Lender hereunder with respect to the Commitment which is terminated or Advances
which are paid; and upon such payments, the obligations of such Lender hereunder
shall, by the provisions hereof, be released and discharged, and it shall be
deemed to have relinquished its rights under this Agreement (other than any
rights under Section 9.08).
SECTION 2.05. Repayment. (a) The Borrower shall repay to the Agent for the
ratable account of the Lenders the principal amount of each A Advance owing to
each Lender on the Termination Date.
(b) The obligations of the Borrower under this Agreement, any Letter of
Credit Agreement and any other agreement or instrument relating to any Letter of
Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement and
such other agreement or instrument under all circumstances, including, without
limitation, the following circumstances (it being understood that any such
payment by the Borrower is without prejudice to, and does not constitute a
waiver of, any rights the Borrower might have or might acquire as a result of
the payment by any Lender of any draft or the reimbursement by the Borrower
thereof):
(i) any lack of validity or enforceability of this Agreement, any
Note, any Letter of Credit Agreement, any Letter of Credit or any other
agreement or instrument relating thereto (all of the foregoing being,
collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any Persons for which any such beneficiary or any
such transferee may be acting), any Issuing Bank, the Agent, any Lender or
any other Person, whether in connection with the transactions contemplated
by the L/C Related Documents or any unrelated transaction;
(iv) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
26
(v) payment by an Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of the Borrower in respect of
the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
SECTION 2.06. Interest. The Borrower shall pay interest on the unpaid
principal amount of each A Advance owing to each Lender from the date of such A
Advance until such principal amount shall be paid in full, at the following
rates per annum:
(a) Base Rate Advances. If such A Advance is a Base Rate Advance, a
rate per annum equal at all times to the sum of the Base Rate in effect
from time to time, plus the Applicable Margin, plus the Utilization Fee
Rate, if applicable, payable in arrears on (i) the last day of each
quarter, (ii) the last day of the Interest Period applicable to such Base
Rate Advance, and (iii) the date such Base Rate Advance shall be paid in
full; provided that any amount of principal which is not paid when due
(whether at stated maturity, by acceleration or otherwise) shall bear
interest, from the date on which such amount is due until such amount is
paid in full, payable on demand, at a rate per annum equal at all times to
1-1/2% per annum above the Base Rate.
(b) Eurodollar Rate Advances. If such A Advance is a Eurodollar Rate
Advance, a rate per annum equal at all times during the Interest Period for
such A Advance to the sum of the Eurodollar Rate for such Interest Period,
plus the Applicable Margin plus the Utilization Fee Rate, if applicable,
payable in arrears on (A) if the Interest Period in respect of such Advance
is less than or equal to three months, the last day of such Interest
Period, or (B) if the Interest Period in respect of such Advance is greater
than three months, the last day of each three-month period (beginning the
first day of such Interest Period) occurring during that Interest Period,
and also on the last day of such Interest Period; provided that any amount
of principal which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable on demand, at a
rate per annum equal at all times to 1 1/2% per annum above the Base Rate
in effect from time to time.
SECTION 2.07. Additional Interest on Eurodollar Rate Advances. The
Borrower shall pay to the Agent for the account of each Lender additional
interest on the unpaid principal amount of each Eurodollar Rate Advance of such
Lender, from the date of such A Advance until such principal amount is paid in
full, at an interest rate per annum equal at all times to the remainder obtained
by subtracting (i) the Eurodollar Rate for the Interest Period for such A
Advance from (ii) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to
27
100% minus the Eurodollar Rate Reserve Percentage of such Lender for such
Interest Period, payable on each date on which interest is payable on such A
Advance. Such additional interest shall be determined by such Lender and
notified to the Borrower and the Agent. Each Lender notifying the Borrower and
the Agent of such additional interest shall provide the Borrower (with a copy to
the Agent), at the time of such notification, with reasonable details, including
the basis for the calculation thereof, of such additional interest, provided
that, in the absence of manifest error, the amount of such additional interest
so notified shall be conclusive and binding upon the Borrower.
SECTION 2.08. Interest Rate Determination. (a) If the Eurodollar Rate
cannot be determined by reference to the Telerate Markets Page 3750 or any
successor page (as provided in the definition of "Eurodollar Rate"), each
Reference Bank agrees to furnish to the Agent timely information for the purpose
of determining each Eurodollar Rate. Subject to Section 2.02(a)(ii)(B), if any
of the Reference Banks shall not furnish such timely information to the Agent
for the purpose of determining any such interest rate, the Agent shall determine
such interest rate on the basis of timely information furnished by the remaining
Reference Bank.
(b) The Agent shall give prompt notice to the Borrower and the Lenders
of the applicable interest rate determined by the Agent for purposes of Section
2.06(a) or (b), and the applicable rate, if any, furnished by each Reference
Bank for the purpose of determining the applicable interest rate or, in the case
of Section 2.02(c), applicable Eurodollar Rate under Sections 2.02(c) or
2.06(b).
SECTION 2.09. Prepayments. (a) The Borrower shall have no right to
prepay any principal amount of any A Advances other than as provided in
subsection (b) or (c) below.
(b) The Borrower may, (i) upon same-day notice in the case of Base
Rate Advances or (ii) upon at least three Business Days' notice in the case of
Eurodollar Rate Advances, to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amounts of the A Advances comprising
part of the same A Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (i) each partial prepayment shall be in an aggregate
principal amount not less than $10,000,000 or an integral multiple of $1,000,000
in excess thereof and (ii) in the event of any such prepayment of a Eurodollar
Rate Advance, the Borrower shall be obligated to reimburse the Banks in respect
thereof pursuant to Section 9.04(b).
(c) On the date of any termination or reduction of Commitments
pursuant to this Agreement, the Borrower shall pay or prepay so much of the
Advances as shall be necessary in order that the aggregate Usage will not exceed
the aggregate A Commitments of the Lenders after giving effect to such
termination or reduction.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements, in the case of Eurodollar Rate Advances,
included in the Eurodollar Rate Reserve Percentage) in or in the interpretation
of any law or regulation by any court, authority or agency, or any other
governmental, judicial or regulatory body, or (ii) the compliance with any
guideline or request
28
from any central bank or other governmental authority (whether or not having the
force of law), there shall be any increase in the cost to any Lender of agreeing
to make or making, funding or maintaining Eurodollar Rate Advances or of
agreeing to issue or of issuing or maintaining or participating in Letters of
Credit, then the Borrower shall from time to time, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost. Each Lender demanding payment of such amount shall provide, at
the time of making such demand, the Borrower and the Agent with reasonable
details, including the basis for the calculation thereof, of such increase,
provided that, in the absence of manifest error, the amount so notified shall be
conclusive and binding upon the Borrower.
(b) If any Lender determines (in good faith) that compliance with any
law or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Agent), the Borrower shall immediately
pay to the Agent for the account of such Lender, from time to time as specified
by such Lender, additional amounts sufficient to compensate such Lender in the
light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder. Each Lender demanding payment of such
amount shall provide, at the time of making such demand, the Borrower and the
Agent with reasonable details, including the basis for the calculation thereof,
of such increase, provided that, in the absence of manifest error, the amount so
notified shall be conclusive and binding upon the Borrower.
(c) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs incurred
more than 270 days prior to the date that such Lender notifies the Borrower and
the Agent of any event described in paragraph (a) or (b) of this Section (a
"Change in Law") which gives rise to such increased costs and of such Lender's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs is retroactive, then the 270-day
period referred to above shall be extended to include the period of retroactive
effect thereof.
(d) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
B Advances if the Change in Law which would otherwise entitle it to such
compensation shall have been publicly announced prior to submission of the
Notice of B Borrowing pursuant to which such Advance was made.
(e) If any Lender requests compensation under this Section, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Advances hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i)
29
would eliminate or reduce amounts payable pursuant to this Section and (ii)
would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
(f) If any Lender requests compensation under this Section, then the
Borrower may, at its sole expense and effort, upon notice to such Lender require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 8.02), all its interests,
rights and obligations under this Agreement (other than any outstanding B
Advances held by it) to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (i) at the time the Borrower requires such an assignment, no event has
occurred and is continuing which constitutes an Event of Default, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Advances (other than B Advances), accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts) and (iii) in the case of any
such assignment resulting from a claim for compensation under this Section, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.11. Payments and Computations. (a) The Borrower shall make each
payment hereunder and under the Notes, irrespective of any right of counterclaim
or set-off, not later than 1:00 P.M. (New York City time) on the day when due in
U.S. dollars to the Agent for the account of the applicable Lender at the
Agent's Account in same day funds. The Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.02(c),
2.07, 2.10, 2.14 or 9.04(b)) to the Lenders entitled thereto for the account of
their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 8.02(d), from and after the effective date specified in each Assignment
and Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) All computations of interest with respect to the A Advances based on
clause (a) of the definition of Base Rate and of fees (other than the facility
fee) shall be made by the Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest (i) with respect to the B
Advances, (ii) with respect to the A Advances based on clause (b) of the
definition of Base Rate, the Eurodollar Rate or the Federal Funds Rate, (iii)
letter of credit commissions, (iv) the facility fee and (v) pursuant to Section
2.07 shall be made by the Agent on the basis of a year of 360 days, in each case
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest, fee or
30
commission is payable. Each determination by the Agent (or, in the case of
Section 2.07, by a Lender) of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest and fees, as the case may be;
provided, however, if such extension would cause payment of interest on or
principal of Eurodollar Rate Advances to be made in the next following calendar
month, such payment, shall be made on the next preceding Business Day.
(d) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.12. Evidence of Indebtedness. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each A Advance owing
to such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder in respect
of A Advances. The Borrower agrees that upon notice by any Lender to the
Borrower (with a copy of such notice to the Agent) to the effect that an A Note
is required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the A Advances owing to, or to be
made by, such Lender, the Borrower shall promptly execute and deliver to such
Lender an A Note payable to the order of such Lender in a principal amount up to
the A Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 8.02(d) shall
include a control account, and a subsidiary account for each Lender, in which
accounts (taken together) shall be recorded (i) the date and amount of each
Borrowing made hereunder, the Type of Advances comprising such Borrowing and, if
appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iv) the amount of any sum received by the
Agent from the Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the amount of principal
and interest due and payable or to become due and payable from the Borrower to,
in the case of the Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement, absent manifest error; provided,
however, that the failure of the Agent or such Lender to make an entry, or any
finding
31
that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of the Borrower under this
Agreement.
SECTION 2.13. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the A Advances owing to it (other than
pursuant to Section 2.04(c), 2.07, 2.10 or 2.14) in excess of its ratable share
of payments on account of the A Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the A Advances owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them, provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.13
may, to the fullest extent permitted by law, exercise all its rights of payment
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under the Notes shall be made,
in accordance with Section 2.11, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Agent, (x) taxes imposed on its income, and franchise
taxes imposed on it, and any liability arising therefrom or with respect
thereto, by the United States or any State or other political subdivision
thereof or by the jurisdiction under the laws of which such Lender or the Agent
(as the case may be) is organized or any political subdivision thereof and (y)
taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Lender or the Agent, (i)
the sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.14) such Lender or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Notes or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes (hereinafter referred to as "Other Taxes").
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(c) The Borrower will indemnify each Lender and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.14) paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days from the date such
Lender or the Agent (as the case may be) makes written demand therefor. If a
Lender or the Agent receives an indemnification payment from the Borrower in
accordance with this subsection (c) and such Lender subsequently receives from
the applicable jurisdiction a payment of all or a portion of the amount of Taxes
or Other Taxes or liability with respect to which such indemnity payment was
made, such Lender shall promptly turn over (without interest) to the Borrower
the amount of such repayment.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Agent, at its address referred to in Section 9.02, the
original or a certified copy of a receipt evidencing payment thereof. If no
Taxes are payable in respect of any payment hereunder or under the Notes, the
Borrower will, if reasonably requested by a Lender or the Agent furnish to the
Agent, at such address, a certificate from each appropriate taxing authority, or
an opinion of counsel acceptable to the Agent, in either case stating that such
payment is exempt from or not subject to Taxes.
(e) Each Lender shall initially designate an Applicable Lending Office that
will avoid the need for payment of additional amounts by the Borrower pursuant
to this Section 2.14 and, furthermore, any Lender claiming any additional
amounts payable pursuant to this Section 2.14 shall use its best efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending office if the making of such a
change would avoid the need for, or reduce the amount of, any such additional
amounts which may thereafter accrue and would not, in the reasonable judgment of
such Lender, be otherwise disadvantageous to such Lender.
(f) Any Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower, at the time or
times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate.
(g) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.14 shall survive the payment in full of principal and interest
hereunder and under the Notes.
SECTION 2.15. Interest Elections. (a) Each A Borrowing initially shall be
of the Type specified in the applicable Notice of A Borrowing and, in the case
of a Eurodollar Rate A Borrowing, shall have an initial Interest Period as
specified in such Notice of A Borrowing, provided, that each A Advance made as a
result of a drawing under a Letter of Credit shall be a Base Rate Advance unless
and until each Lender shall have acquired participations equal to such Lender's
Pro Rata Share of the amount drawn under such Letter of Credit pursuant to
Section
33
2.02(b)(ii) (after which time the Borrower shall be entitled, pursuant to the
immediately succeeding sentence, to convert any such Base Rate Advance to a
different Type). Thereafter, the Borrower may elect to convert such A Borrowing
to a different Type or to continue such A Borrowing and, in the case of a
Eurodollar Rate A Borrowing, may elect Interest Periods therefor, all as
provided in this Section. The Borrower may elect different options with respect
to different portions of the affected A Borrowing, in which case each such A
Borrowing shall be allocated ratably among the Lenders having made the A
Advances comprising such A Borrowing, and the A Advances comprising each such
portion shall be considered a separate A Borrowing. This Section shall not apply
to B Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall notify
the Agent of such election by telephone by the time that a Notice of A Borrowing
would be required under Section 2.02 if the Borrower were requesting an A
Borrowing of the Type resulting from such election to be made on the effective
date of such election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Agent of a written Interest Election Request signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.02:
(i) the A Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions thereof,
the portions thereof to be allocated to each resulting A Borrowing (in which
case the information to be specified pursuant to clauses (iii) and (iv) below
shall be specified for each resulting A Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) the Type of A Advances comprising such A Borrowing; and
(iv) the Interest Period for each such A Advance.
If any such Interest Election Request requests a Eurodollar Rate A Borrowing but
does not specify an Interest Period, the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) If the Borrower fails to deliver a timely Interest Election Request
with respect to an A Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such A Borrowing is repaid as provided herein,
at the end of such Interest Period such A Borrowing shall be continued as or
converted to a Base Rate A Borrowing with an Interest Period ending on the next
day that is the last day of a quarter.
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ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Effectiveness of Sections 2.01
and 2.02. The effectiveness of Sections 2.01 and 2.02 is subject to the
execution and delivery of counterparts of this Agreement by the Borrower, the
Agent and the Lenders and the satisfaction of the following additional
conditions precedent:
(i) The Agent shall have received the following, each dated the date
hereof, in form and substance satisfactory to the Agent and (except for the
A Notes) in sufficient copies for each Lender:
(a) An A Note to the order of any Lender requesting such note
pursuant to Section 2.12.
(b) An Officer's Certificate attaching copies of the resolutions
of the Board of Directors of the Borrower (or an authorized committee
thereof) approving the Loan Documents, and of all documents evidencing
other necessary corporate action and governmental approvals, if any,
with respect to the Loan Documents.
(c) An Officer's Certificate certifying the names and true
signatures of the officers of the Borrower authorized to sign the Loan
Documents and the other documents to be delivered hereunder.
(d) A security agreement in substantially the form of Exhibit F
to this Agreement (as amended from time to time, the "Security
Agreement"), duly executed by the Borrower.
(e) A favorable opinion of a Senior Counsel of the Borrower,
substantially in the form of Exhibit D hereto and as to such other
matters as any Lender through the Agent may reasonably request.
(f) A favorable opinion of Shearman & Sterling, counsel for the
Agent, in form and substance satisfactory to the Agent.
(ii) The Borrower shall have paid all accrued fees and expenses of
the Agent and the Lenders (including the accrued fees and expenses of
counsel to the Agent).
(iii) The Borrower shall have terminated the commitments, and paid in
full all Indebtedness, interest, fees and other amounts outstanding under the
Amended and Restated Credit Agreement dated as of September 30, 1993, as amended
and restated as of February 22, 1999, among the Borrower and the banks named
therein, and each of the Banks that is a party to such Amended and Restated
Credit Agreement hereby waives the requirement of two Business Days prior notice
to the termination of their commitments thereunder as provided in Section
2.04(a) of said agreement.
35
(iv) The Borrower shall have issued not less than $200,000,000 face
amount of senior notes in the capital markets.
SECTION 3.02. Conditions Precedent to Each Borrowing Increasing the
Aggregate Amount of Advances and each Letter of Credit Issuance. The obligation
of each Lender to make an A Advance on the occasion of each A Borrowing
(including the initial A Borrowing) which would increase the aggregate
outstanding amount of A Advances owing to such Lender over the aggregate
outstanding amount of A Advances owing to such Lender immediately prior to the
making of such A Advance, and the obligation of each Issuing Bank to issue a
Letter of Credit shall be subject to the further conditions precedent that on
the date of such A Borrowing or issuance the following statements shall be true
(and each of the giving of the applicable Notice of A Borrowing, Notice of
Issuance and the acceptance by the Borrower of the proceeds of such A Borrowing
or of such Letter of Credit shall constitute a representation and warranty by
the Borrower that on the date of such A Borrowing or issuance such statements
are true):
(a) The representations and warranties contained in each Loan Document
are correct in all material respects on and as of the date of such A
Borrowing or Letter of Credit issuance, before and after giving effect to
such Borrowing or issuance and to the application of the proceeds
therefrom, as though made on and as of such date, and
(b) No event has occurred and is continuing, or would result from such
A Borrowing, such issuance or from the application of the proceeds
therefrom, which constitutes an Event of Default or which would constitute
an Event of Default but for the requirement that notice be given or time
elapse or both.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The obligation
of each Lender which is to make a B Advance on the occasion of a B Borrowing
(including the initial B Borrowing) to make such B Advance as part of such B
Borrowing is subject to the conditions precedent that (a) the Agent shall have
received the written confirmatory Notice of B Borrowing with respect thereto,
(b) on or before the date of such B Borrowing, but prior to such B Borrowing,
the Agent shall have received a B Note payable to the order of such Lender for
each of the one or more B Advances to be made by such Lender as part of such B
Borrowing, in a principal amount equal to the principal amount of the B Advance
to be evidenced thereby and otherwise on such terms as were agreed to for such B
Advance in accordance with Section 2.02(c), and (c) on the date of such B
Borrowing the following statements shall be true (and each of the giving of the
applicable Notice of B Borrowing and the acceptance by the Borrower of the
proceeds of such B Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such B Borrowing such statements are true):
(i) The representations and warranties contained in each Loan
Document are correct in all material respects on and as of the date of
such B Borrowing, before and after giving effect to such B Borrowing
and to the application of the proceeds therefrom, as though made on
and as of such date.
(ii) No event has occurred and is continuing, or would result
from such B Borrowing or from the application of the proceeds
therefrom, which constitutes
36
an Event of Default or which would constitute an Event of Default but
for the requirement that notice be given or time elapse or both.
SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed effective date of Sections
2.01 and 2.02, specifying its objection thereto. The Agent shall promptly notify
the Lenders of the occurrence of the effective date of Sections 2.01 and 2.02.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction indicated at the
beginning of this Agreement, has all requisite corporate power and
authority to conduct its business, to own its properties and assets as it
is now conducted and as proposed to be conducted and is qualified or
licensed to do business as a foreign corporation in good standing in all
jurisdictions in which the conduct of its business requires it to so
qualify or be licensed except where the failure to do so, individually or
in the aggregate, could not reasonably be expected to materially and
adversely affect the ability of the Borrower to perform its obligations
under any Loan Document.
(b) The execution, delivery and performance by the Borrower of the
Loan Documents, including the Borrower's use of the proceeds thereof, are
within the Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not (i) contravene the Borrower's
charter or by-laws, (ii) contravene law (including, without limitation,
Regulations T, U and X issued by the Board of Governors of the Federal
Reserve Board) or any contractual restriction binding on or affecting the
Borrower or (iii) except for the Liens created under the Loan Documents,
result in or require the creation or imposition of any Lien upon or with
respect to any of the properties of the Borrower or any of its
Subsidiaries.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for (i) the due execution, delivery and performance by the Borrower of any
Loan Documents or (ii) in the event that the Security Period is in effect,
(x) the grant by the Borrower of the Liens granted pursuant to the Loan
Documents, (y) other than the filing of a financing statement, the
perfection or maintenance of the Liens created under the Loan Documents or
(z) the
37
exercise by the Agent or any Lender of its rights under the Loan Documents
or its remedies under the Security Agreement.
(d) This Agreement is, and each of other Loan Documents when delivered
hereunder will be, the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with their respective terms.
(e) The consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2000, and the related consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of KPMG LLP,
independent public accountants, and the consolidated balance sheet of the
Borrower and its Subsidiaries as at September 30, 2001, and the related
consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the nine months then ended, duly certified by the chief
financial officer of the Borrower, copies of which have been furnished to
each Lender, fairly present, subject, in the case of said balance sheet as
at September 30, 2001 and said statements of income and cash flows for the
nine months then ended, to year-end audit adjustments, the consolidated
financial condition of the Borrower and its Subsidiaries as at such dates
and the consolidated results of the operations of the Borrower and its
Subsidiaries for the periods ended on such dates, all in accordance with
GAAP. Except as publicly disclosed prior to the date hereof, since December
31, 2000, there has been no material adverse change in the business,
financial condition or results of operations of the Borrower and its
Subsidiaries, taken as a whole.
(f) There are no actions, suits or proceedings pending or, to the
knowledge of the Borrower, threatened, against the Borrower or any
Subsidiary the reasonably anticipated outcome of which (i) would materially
and adversely affect the ability of the Borrower to perform its obligations
under the Loan Documents or (ii) purports to affect the legality, validity
or enforceability of any Loan Document.
(g) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds of
any Advance will be used to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin
Stock, except in compliance with Regulations T, U and X issued by the Board
of Governors of the Federal Reserve Board.
(h) Neither the Borrower nor any Subsidiary is an "investment company"
or a company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940.
(i) The Borrower and each Subsidiary have filed all material tax
returns (Federal, state and local) required to be filed and paid all taxes
shown thereon to be due, including interest and penalties, or provided
adequate reserves for payment thereof.
(j) In the ordinary course of its business, the Borrower conducts an
ongoing review of the effect of Environmental Laws on the operations and
properties of the Borrower, in the course of which it identifies and
evaluates associated liabilities and costs
38
(including, without limitation, any capital or operating expenditures
required for clean-up or closure of properties presently or previously
owned, any liabilities in connection with off-site disposal of Hazardous
Substances and any capital or operating expenditures required to achieve or
maintain compliance with Environmental Laws. On the basis of this review,
the Borrower has reasonably concluded that, except with respect to any
matter disclosed in Items 1 or 3 in the Borrower's 2000 Form 10-K or in the
Commitments and Contingencies Note to the consolidated financial statements
incorporated therein, such associated liabilities and costs, are unlikely
to cause a material adverse change in the business, financial condition or
results of operations of the Borrower and its Subsidiaries, taken as a
whole, from that shown on the consolidated financial statements as at, and
for the nine-month period ended September 30, 2001, provided that the
inclusion of such -------- exception does not indicate that any such matter
will cause such a material adverse change.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder, the Borrower will, unless the Majority Lenders
shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each Subsidiary to
comply, with all applicable laws, rules, regulations and orders (such
compliance to include, without limitation, paying before the same become
delinquent all taxes, assessments and governmental charges imposed upon it
or upon its property except to the extent contested in good faith) the
failure to comply with which would have a material adverse effect on the
business, financial condition or results of operations of the Borrower and
its Subsidiaries taken as a whole.
(b) Consolidated Leverage Ratio. Maintain a Consolidated Leverage
Ratio as of the last day of each Reference Period of not more than the
ratio set opposite such Reference Period as set forth below:
--------------------------------------------------
Reference Period Ended Ratio
--------------------------------------------------
On or before June 30, 2002 5.25: 1
--------------------------------------------------
September 30, 2002 5.35:1
--------------------------------------------------
December 31, 2002 5.00:1
--------------------------------------------------
March 31, 2003 4.50:1
--------------------------------------------------
June 30, 2003 4.00:1
--------------------------------------------------
September 30, 2003 and thereafter 3.50:1
--------------------------------------------------
39
(c) Consolidated Interest Coverage Ratio. Maintain a Consolidated
Interest Coverage Ratio for each Reference Period of not less than the
ratio set opposite such Reference Period as set forth below:
--------------------------------------------------
Reference Period Ended Ratio
--------------------------------------------------
On or before December 31, 2002 2.50: 1
--------------------------------------------------
March 31, 2003 3.00:1
--------------------------------------------------
June 30, 2003 3.00:1
--------------------------------------------------
September 30, 2003 and thereafter 3.50:1
--------------------------------------------------
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, and the rights (charter and statutory) and franchises material
to the business of the Borrower and its Subsidiaries; provided, however,
that (i) the Borrower and its Subsidiaries may consummate any merger or
consolidation permitted under Section 5.02(c), (ii) neither the Borrower
nor any of its Subsidiaries shall be required to preserve any such right or
franchise if the Borrower or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Borrower or such Subsidiary, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to the Borrower,
such Subsidiary or the Lenders and (iii) no Subsidiary shall be required to
preserve its corporate existence to the extent that, in accordance with
Section 5.02(c), it has conveyed, transferred or otherwise disposed of all
of its property and assets to another Person.
(e) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
the Borrower and each such Subsidiary in a manner which will permit the
preparation of consolidated financial statements in accordance with GAAP.
(f) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are material to the conduct of the business of the Borrower and its
Subsidiaries, taken as a whole, in good working order and condition,
ordinary wear and tear excepted.
(g) Insurance. Maintain, and cause each Subsidiary to maintain,
insurance with reputable insurance companies or associations in such amount
and covering such risks as the Borrower, in its good faith business
judgment, believes necessary.
40
(h) ERISA. Ensure that each ERISA Affiliate will meet its minimum
funding requirements and all of its other obligations under ERISA with
respect to all of its Plans and satisfy all of its obligations to
Multiemployer Plans, including any Withdrawal Liability, if the failure to
do so would have a material adverse effect on the business, financial
condition or results of operations of the Borrower and its Subsidiaries,
taken as a whole.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each year, balance
sheets of the Borrower and the Subsidiaries, on a consolidated basis,
as of the end of such quarter and statements of income and retained
earnings and cash flow of the Borrower and the Subsidiaries, on a
consolidated basis, for the period commencing at the end of the
previous year and ending with the end of such quarter, certified by
the chief financial officer of the Borrower, subject to audit and year
end adjustments;
(ii) as soon as available and in any event within 120 days after
the end of each year, a copy of the balance sheets of the Borrower and
the Subsidiaries, on a consolidated basis, as of the end of such year
and the statements of income and retained earnings and cash flow of
the Borrower and the Subsidiaries, on a consolidated basis, for such
year, certified by KPMG LLP or another independent nationally
recognized firm of public accountants;
(iii) as soon as possible and in any event within ten days after
an officer of the Borrower becomes aware of the occurrence of each
Event of Default (and each event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default), an
Officer's Certificate setting forth details of such Event of Default
or event and the action which the Borrower has taken and proposes to
take with respect thereto;
(iv) contemporaneously with each delivery of the statements
referred to in clauses (i) and (ii) above, (A) either an Officer's
Certificate stating that no Event of Default (other than by reason of
non-compliance with the covenants referred to in Sections 5.01(b) and
(c)) and no event which, with the giving of notice or lapse of time,
or both, would constitute an Event of Default (other than by reason of
non-compliance with the covenants referred to in Sections 5.01(b) and
(c)) occurred during such quarter or, if applicable, an Officer's
Certificate pursuant to clause (iii) above, (B) an Officer's
Certificate stating that, as of the last day of the preceding quarter,
and to the best of his or her knowledge, at all times during the
preceding quarter, the Borrower was in compliance with the covenants
referred to in Sections 5.01(b) and (c) and providing reasonable
details of the calculations evidencing the Borrower's compliance with
such covenants and (C) reasonable details of each material change in
GAAP from those applied in preparing the statements referred to in
Section 4.01(e) insofar as such changes are applicable to the
statements referred to in clauses (i) and (ii) above;
41
(v) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to any of its shareholders, and
copies of all reports and registration statements which the Borrower
or any Subsidiary files with the Securities and Exchange Commission or
any national securities exchange (other than those pertaining to
employee benefit plans); and
(vi) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any Subsidiary
as any Lender through the Agent may from time to time reasonably
request.
Reports and financial statements required to be delivered by the
Borrower pursuant to paragraphs (i), (ii) and (v) of this Section 5.01(j) shall
be deemed to have been delivered on the date on which it posts such reports
containing such financial statements are posted on the SEC's website at
xxx.xxx.xxx; provided that it shall deliver paper copies of the reports and
financial statements referred to in paragraphs (i), (ii) and (v) of this Section
5.01(j) to the Agent or any Lender who requests it to deliver such paper copies
until written notice to cease delivering paper copies is given by the Agent or
such Lender.
(j) Collateral Trigger. (i) Within five Business Days of the
Collateral Trigger, the Borrower (A) shall submit for filing with the
appropriate filing officers the financing statements referred to in clause
(I) below and (B) shall order the search reports referred to in clause (II)
below, and shall promptly upon receipt thereof, deliver to the Agent in
sufficient copies to each Lender:
(I) acknowledgment copies of proper financing statements, duly
filed on or before such day under the Uniform Commercial Code of all
jurisdictions that the Agent may deem necessary or desirable in order
to perfect and protect the liens and security interests created under
the Security Agreement, covering the Collateral described in the
Security Agreement, and
(II) completed requests for information, dated on or before such
day, listing the financing statements referred to in clause (i) above
and all other effective financing statements filed in the
jurisdictions referred to in clause (i) above that name the Borrower
as debtor, together with copies of such other financing statements;
and
(ii) within 30 days of the Collateral Trigger, the Borrower shall
deliver evidence of the insurance required by the terms of the Security
Agreement.
Upon the termination of the Security Period, the security interests granted
pursuant to the Security Agreement shall terminate on and subject to the terms
of the Security Agreement, and the parties thereto shall take such further
action all as provided therein.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender shall have any
Commitment hereunder, the Borrower will not, without the written consent of the
Majority Lenders:
42
(a) Liens. Create, assume or suffer to exist or permit any Subsidiary of
the Borrower to create, assume or suffer to exist any Lien upon any of its
property or assets, whether now owned or hereafter acquired, except
(i) Permitted Encumbrances,
(ii) other Liens incidental to the conduct of its business or the
ownership of its property and assets which were not incurred to secure
Indebtedness, and which do not in the aggregate materially detract from the
value of its property or assets or materially impair the use thereof in the
operation of its business,
(iii) Liens on property or assets of a Domestic Subsidiary to secure
obligations of such Subsidiary to the Borrower or another Domestic
Subsidiary,
(iv) any Lien on property of any Foreign Subsidiary to secure
Indebtedness of such Subsidiary, provided that, immediately after giving
effect thereto and to the concurrent repayment of any other Indebtedness,
the aggregate principal amount of outstanding Indebtedness secured by Liens
permitted by this clause (iv) or by clause (vi) or (ix) of this Section
does not exceed 10% of Consolidated Net Tangible Assets,
(v) Liens incurred in connection with any Tax-Exempt Financing which
do not in the aggregate materially detract from the value of the property
or assets affected thereby or materially impair the use of such property or
assets in the operation of its business,
(vi) Liens on property or assets granted in connection with
applications for or reimbursement obligations with respect to letters of
credit issued at the request of the Borrower or a Subsidiary by a banking
institution to secure the performance of obligations of the Borrower or a
Subsidiary relating to such letters of credit, to the extent such banking
institution requested the granting to it of such Lien as a condition for
its issuance of the letter of credit; provided that, immediately after
giving effect thereto and to the concurrent repayment of any other
Indebtedness, the aggregate principal amount of outstanding Indebtedness
secured by Liens permitted by this clause (vi) or by clause (iv) or (ix) of
this Section does not exceed 10% of Consolidated Net Tangible Assets,
(vii) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(A) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (B)
such Lien shall not apply to any other property or assets of the Borrower
or any Subsidiary and (C) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be, and extensions,
43
renewals and replacements thereof that do not increase the outstanding
principal amount thereof,
(viii) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (A) with respect
to Liens securing Indebtedness of any Domestic Subsidiary, such Liens
secure Indebtedness permitted by clause (ii) of Section 5.02(b), (B) such
Liens and the Indebtedness secured thereby are incurred prior to or within
90 days after acquisition or the completion of such construction or
improvement, (C) the Indebtedness secured thereby does not exceed 100% of
the cost of acquiring, constructing or improving such fixed or capital
assets and (D) such Liens shall not apply to any other property or assets
of the Borrower or any Subsidiary,
(ix) Liens on assets other than Collateral (or assets that would
constitute Collateral during the continuance of the Security Period)
securing other obligations of the Borrower and its Subsidiaries not
expressly permitted by clauses (i) through (viii) above; provided that,
immediately after giving effect thereto and to the concurrent repayment of
any other secured obligations, the aggregate principal amount of
outstanding obligations secured by Liens permitted by this clause (ix) or
by clause (iv) or (vi) of this Section does not exceed 10% of Consolidated
Net Tangible Assets,
(x) Liens on Margin Stock, if and to the extent the value of all
Margin Stock of the Borrower and its Subsidiaries exceeds 25% of the value
of the total assets subject to this Section 5.02(a) (it being understood
that Margin Stock not in excess of 25% of the value of such assets will be
subject to the restrictions of this Section 5.02(a)), and
(xi) Liens created under the Loan Documents.
(b) Domestic Subsidiary Indebtedness. Permit any Domestic Subsidiary to
create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness of any Domestic Subsidiary to the Borrower or any
other Domestic Subsidiary;
(ii) Indebtedness incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition
of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof;
provided that such Indebtedness is incurred prior to or within 90 days
after such acquisition or the completion of such construction or
improvement;
(iii) Indebtedness of any Person that becomes a Domestic Subsidiary
after the date hereof; provided that such Indebtedness exists at the time
such
44
Person becomes a Domestic Subsidiary and is not created in contemplation of
or in connection with such Person becoming a Domestic Subsidiary; and
(iv) other Indebtedness in an aggregate principal amount not exceeding
$10,000,000 at any time outstanding.
(c) Mergers, Etc. (i) Merge or consolidate with or into any other Person
(other than a Subsidiary) or (ii) convey, transfer, lease or otherwise dispose
of, or permit a Subsidiary to convey, transfer, lease, or otherwise dispose of,
(whether in one transaction or in a series of related transactions) all or
substantially all of the property or assets of the Borrower and its Subsidiaries
taken as a whole (whether now owned or hereafter acquired), directly or
indirectly, to any Person, including through a merger or consolidation of a
Subsidiary with an unaffiliated party, unless (A) in each case of (i) or (ii),
after giving effect to such proposed transaction, no Event of Default or event
which with the giving of notice or lapse of time, or both, would constitute an
Event of Default would exist and (B) in the case of clause (i),the surviving
corporation is the Borrower, provided that to the extent that the value of all
Margin Stock owned by the Borrower and its Subsidiaries taken as a whole exceeds
25% of the value of the total assets of the Borrower and its Subsidiaries
subject to this Section 5.02(c), nothing in this Section 5.02(c) shall prohibit
the sale of such Margin Stock (it being understood that Margin Stock not in
excess of 25% of the value of such assets will be subject to the restrictions of
this Section 5.02(c)) .
(d) Change in Nature of Business. Engage, or permit any of its Subsidiaries
to engage, to any material extent, in any business other than the businesses of
the type conducted by the Borrower and its Subsidiaries on the date of this
Agreement and businesses reasonably related thereto.
(e) ERISA. Create, assume or suffer to exist or permit any ERISA Affiliate
to create, assume or suffer to exist (i) any Insufficiency of any Plan (or, in
the case of a Plan with respect to which an ERISA Event described in clauses
(iii) through (vi) of the definition of ERISA Event shall have occurred and then
exist, the liability related thereto), in respect of which Plan an ERISA Event
has occurred, or (ii) any Withdrawal Liability under any Multiemployer Plan, if
the sum of (A) any such Insufficiency or Withdrawal Liability, as applicable,
(B) the Insufficiency of any and all other Plans with respect to which an ERISA
Event shall have occurred and then exist (or, in the case of a Plan with respect
to which an ERISA Event described in clauses (iii) through (vi) of the
definition of ERISA Event shall have occurred and then exist, the liability
related thereto), (C) amounts then required to be paid to any and all other
Multiemployer Plans by the Borrower or its ERISA Affiliates as Withdrawal
Liability and (D) the aggregate principal amount of all Indebtedness of the
Borrower and all the Subsidiaries secured by Liens permitted by clauses (iv),
(vi), (vii), (viii) and (ix) of Section 5.02(a), shall exceed 10% of
Consolidated Net Tangible Assets.
(f) Collateral. Until the termination of the Security Period (whether or
not the Collateral Trigger has occurred), convey, transfer, lease or otherwise
dispose of assets that constitute Collateral (or assets that would constitute
Collateral during the
45
continuance of the Security Period), other than (i) sales and dispositions of
inventory in the ordinary course of business, (ii) transfers of Collateral in
connection with the sale or disposition of a business segment or Subsidiary of
the Borrower or (iii) sales and dispositions of delinquent accounts receivable
in the ordinary course of collection; provided, that upon the termination of the
Security Period, the provisions of this Section 5.02(f) shall cease to apply.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay (i) any principal of any Advance
when the same becomes due and payable or (ii) any interest on any Advance
or any fees or other amounts payable under this Agreement within five days
of the same becoming due and payable; or
(b) Any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) The Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.01(b), (c), (i)(iii) or (j) or
Section 5.02, or (ii) any term, covenant or agreement contained in any Loan
Document (other than as referred to in subsection (a) or clause (i) above)
on its part to be performed or observed if, in the case of this clause
(ii), such failure shall remain unremedied for 30 days after written notice
thereof shall have been given to the Borrower by the Agent or any Lender;
or
(d) The Borrower or any Subsidiary shall fail to pay any installment
of principal of or any premium or interest on any Indebtedness, which is
outstanding in a principal amount of at least $25,000,000 in the aggregate
(but excluding Indebtedness outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Indebtedness, or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Indebtedness and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Indebtedness, or any Indebtedness of the Borrower or any Subsidiary which
is outstanding in an aggregate principal amount of at least $25,000,000
shall, for any reason, be accelerated (it being understood that a mandatory
prepayment on the sale of any asset shall be deemed not to be an
acceleration of the Indebtedness secured by such asset) ; or
46
(e) Either the Borrower or any Significant Subsidiary or any two or
more Subsidiaries which (when taken together) would have aggregate total
assets constituting those of a Significant Subsidiary shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Borrower or any such Subsidiary seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, or other similar official for it or for
any substantial part of its property, and, in the case of any such
proceeding instituted against the Borrower or such Subsidiary (but not
instituted by it), either such proceeding shall not be dismissed or stayed
for 60 days or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against it or the
appointment of a trustee, custodian or other similar official for it or any
substantial part of its property) shall occur; or the Borrower or any such
Subsidiary shall take any corporate action to authorize any of the actions
set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$25,000,000 shall be rendered against the Borrower or any Subsidiary and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order and, within 60 days of the
commencement of such proceedings, such judgment shall not have been
satisfied or (subject to clause (ii) below) shall have been stayed or (ii)
there shall be any period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) at any time during the Security Period, the Security Agreement or
any financing statement shall for any reason (other than pursuant to the
terms thereof) cease to create a valid and perfected first priority (other
than liens permitted by this Agreement that have priority as a matter of
law) lien on and security interest in the Collateral purported to be
covered thereby; or
(h) The Borrower or any of its ERISA Affiliates shall incur, or shall
be reasonably likely to incur liability in excess of $25,000,000 in the
aggregate as a result of one or more of the following: (i) the occurrence
of any ERISA Event; (ii) the partial or complete withdrawal of the Borrower
or any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent of the Majority Lenders, by notice to the Borrower declare the
obligation of each Lender to make Advances (other than A Advances by an Issuing
Bank or a Lender pursuant to Section 2.02(b)) and of the Issuing Banks to issue
Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent of the
Majority Lenders, by notice to the Borrower, declare the Notes, all interest
thereon and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without
47
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower; provided, however, that in the event of
an Event of Default resulting from the actual or deemed entry of an order for
relief with respect to the Borrower under the Federal Bankruptcy Code, (A) the
obligation of each Lender to make Advances (other than A Advances by an Issuing
Bank or a Lender pursuant to Section 2.02(b)) and of the Issuing Banks to issue
Letters of Credit shall automatically be terminated and (B) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Agent may with the consent, or shall at the request, of the Majority Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, (a) pay to the Agent on behalf of the Lenders in same
day funds at the Agent's office designated in such demand, for deposit in the
L/C Cash Collateral Account, an amount equal to the aggregate Available Amount
of all Letters of Credit then outstanding or (b) make such other arrangements in
respect of the outstanding Letters of Credit as shall be acceptable to the
Majority Lenders. If at any time the Agent determines that any funds held in the
L/C Cash Collateral Account are subject to any right or claim of any Person
other than the Agent and the Lenders or that the total amount of such funds is
less than the aggregate Available Amount of all Letters of Credit, the Borrower
will, forthwith upon demand by the Agent, pay to the Agent, as additional funds
to be deposited and held in the L/C Cash Collateral Account, an amount equal to
the excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the Agent
determines to be free and clear of any such right and claim. Upon the drawing of
any Letter of Credit, to the extent funds are on deposit in the L/C Cash
Collateral Account, such funds shall be applied to reimburse the Issuing Bank or
the Lenders, as applicable, to the extent permitted by applicable law. The
Agent, in its sole discretion and at the risk and expense of the Borrower, may
invest the funds in the L/C Cash Collateral Account, and interest or profits
therefrom (if any) shall accumulate in the L/C Cash Collateral Account. At any
time that the amount of funds in the L/C Cash Collateral Account exceeds the
Available Amount of all Letters of Credit outstanding, the Agent shall promptly
return such excess amount to the Borrower. All amounts in the L/C Cash
Collateral Account shall be returned to the Borrower upon the earlier of (x) the
date that all Letters of Credit shall have expired or been fully drawn upon and
all reimbursement obligations shall have been satisfied and (y) the date on
which no Event of Default shall be continuing or on which every Event of Default
shall have been waived.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender (in its capacities
as a Lender and an Issuing Bank, if applicable) hereby appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such powers
and discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
48
(including, without limitation, enforcement or collection of the Notes), the
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting ) upon the instructions of the Majority
Lenders, and such instructions shall be binding upon all Lenders and all holders
of Notes; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to this
Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
payee of any Note as the holder thereof until the Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note as assignor, and an Eligible Assignee, as assignee, as provided in Section
8.02; (ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance, observance or satisfaction of
any of the terms, covenants or conditions of this Agreement on the part of the
Borrower or the existence at any time of any event which constitutes, or with
the passage of time would constitute, an Event of Default or to inspect the
property (including the books and records) of the Borrower; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created in
under or in connection with, this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in respect
of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or telex) believed
by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its Commitment,
the Advances made by it and the Notes issued to it, Citibank shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Citibank in its individual
capacity. Citibank and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, accept investment banking engagements from
and generally engage in any kind of business with, the Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if Citibank were not the Agent and
without any duty to account therefore to the Lenders. The Agent shall have no
duty to disclose information obtained or received by it or any of its Affiliates
relating to the Borrower or its Subsidiaries to the extent such information was
obtained or received in any capacity other than as Agent.
49
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender severally agrees to
indemnify the Agent (to the extent not reimbursed by the Borrower), from and
against such Lender's ratable share of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement
(collectively, the "Indemnified Costs"), provided that no Lender shall be liable
for any portion of the Indemnified Costs resulting from the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its ratable share
of any out-of-pocket expenses (including reasonable counsel fees) incurred by
the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the Agent
is not reimbursed for such expenses by the Borrower. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify each Issuing Bank (to
the extent not promptly reimbursed by the Borrower) from and against such
Lender's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against such Issuing Bank in any way
relating to or arising out of this Agreement or any action taken or omitted by
such Issuing Bank hereunder or in connection herewith; provided, however, that
no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Issuing Bank's gross negligence or willful
misconduct as found in a final, non-appealable judgment by a court of competent
jurisdiction. Without limitation of the foregoing, each Lender agrees to
reimburse each Issuing Bank promptly upon demand for its ratable share of any
costs and expenses (including, without limitation, fees and expenses of counsel)
payable by the Borrower under Section 8.04, to the extent that the Issuing Bank
is not promptly reimbursed for such costs and expenses by the Borrower.
(c) For purposes of this Section 7.05, the Lenders' respective ratable
shares of any amount shall be determined, at any time, according to the sum of
(i) the aggregate principal amount of the A Advances outstanding at such time
and owing to the respective Lenders, (ii) their respective Pro Rata Shares of
the aggregate Available Amount of all Letters of Credit outstanding at such time
and (iii) their respective Unused Commitments at such time; provided that the
aggregate principal amount of A Advances made as a result of a drawing under a
Letter
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of Credit owing to the Issuing Bank shall be considered to be owed to the
Lenders ratably in accordance with their respective A Commitments. The failure
of any Lender Party to reimburse the Agent or the Issuing Bank, as the case may
be, promptly upon demand for its ratable share of any amount required to be paid
by the Lender Parties to such Agent or the Issuing Bank, as the case may be, as
provided herein shall not relieve any other Lender Party of its obligation
hereunder to reimburse such Agent or Issuing Bank, as the case may be, for its
ratable share of such amount, but no Lender shall be responsible for the failure
of any other Lender to reimburse the Agent or the Issuing Bank, as the case may
be, for such other Lender's ratable share of such amount. Without prejudice to
the survival of any other agreement of any Lender hereunder, the agreement and
obligations of each Lender contained in this Section 7.05 shall survive the
payment in full of principal, interest and all other amounts payable hereunder
and under the Notes.
SECTION 7.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Agent, subject, so long as no Event of Default has occurred and is
continuing, to the Borrower's approval. If no successor Agent shall have been so
appointed by the Majority Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of resignation or the
Majority Lenders' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be a commercial
bank organized under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $500,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement other than the obligations provided in Section 9.12. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement.
SECTION 7.07. Other Agents. Each Lender hereby acknowledges that
neither the documentation agent nor any other Lender designated as any other
type of agent (other than administrative agent) on the signature pages hereof
has any liability hereunder other than in its capacity as a Lender.
ARTICLE VIII
ASSIGNMENTS AND PARTICIPATIONS
SECTION 8.01. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower, the Agent and by each Bank and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent and each Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
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SECTION 8.02. Assignments. (a) Each Lender may, upon at least 10
Business Days' notice to the Borrower, the Issuing Banks and the Agent, assign
to one or more banks or other entities (other than an assignment which would
result in increased costs to the Borrower pursuant to Sections 2.07, 2.10 or
2.14 hereof) all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) if
such bank or other entity is not already a Lender or an Affiliate of a Lender
and prior to the expiring of the 10 Business Days' notice referred to above, the
Borrower (unless an Event of Default has occurred and is continuing at such
time) or the Agent notifies the assignor Lender that such assignee is, in its
sole discretion, not acceptable to it, or any Issuing Bank notifies the assignor
Lender that such assignee is, in its reasonable determination, not acceptable to
it, such assignor Lender shall not make such assignment, (ii) the parties to
each such assignment shall execute and deliver to the Agent, for its acceptance
and recording in the Register an Assignment and Acceptance, together with any
Note or Notes subject to such assignment and a processing and recordation fee of
$3,500 payable by the parties to each such assignment, (iii) each such
assignment shall be only to an Eligible Assignee, (iv) each such assignment
shall be of a constant, and not a varying, percentage of all of the assigning
Lender's rights and obligations under this Agreement and (v) the amount of the A
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000, in the
case of an assignment to a Lender and $10,000,000, in the case of an Assignment
to an Eligible Assignee not already a Lender and, in each case, shall be an
integral multiple of $5,000,000. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (A) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (B) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (other than its rights under
Sections 2.07, 2.10, 2.14, 9.04 and 9.06 to the extent any claim thereunder
relates to an event arising prior to such assignment) and be released from its
obligations (other than those provided in Section 9.12) under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01(e) and such other documents and information as it has deemed
appropriate to make its own credit
52
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of this Agreement are required to be performed by it as a Lender; (vi)
such assignee confirms that it is an Eligible Assignee; and (vii) such assignee
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any A Note or Notes subject to such assignment and the fee
referred to in clause (a)(ii) above, the Agent shall (subject to any consents to
such assignment required pursuant to the terms of this Agreement), if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower.
(d) The Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent demonstrable error,
provided, that the failure of the Agent to make an entry, or any finding that an
entry is incorrect, in the Register shall not limit or otherwise affect the
obligations of the Borrower under this Agreement and the Borrower, the Agent and
the Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Each Lender may assign to one or more banks or other entities any
B Note or B Notes held by it.
(f) Any Lender may pledge all or a portion of its Advances to any
Federal Reserve Bank as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and any Operating Circular
issued by such Federal Revenue Bank. No such assignment shall release the
assigning Lender from its obligations under the Agreement.
(g) Each Issuing Bank may, upon at least 10 Business Days' notice to
the Borrower, assign to any other Lender all of its rights and obligations under
the undrawn portion of its Letter of Credit Commitment at any time; provided,
however, that (i) if prior to the expiring of the 10 Business Days' notice
referred to above, the Borrower notifies the assignor Issuing Bank that such
assignee is, in its sole discretion, not acceptable to it, such assignor Issuing
Bank shall not make such assignment, (ii) the amount of the Letter of Credit
Commitment of the assigning Issuing Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment)
53
shall in no event be less than $10,000,000 or an integral multiple of $1,000,000
in excess thereof, and (iii) the parties to each such assignment shall execute
and deliver to the Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500.
SECTION 8.03. Participations . Each Lender may sell participations to
one or more banks or other entities in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, and the Advances owing to it and the Note or Notes
held by it); provided, however, that (a) such Lender's obligations under this
Agreement (including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (b) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(c) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (d) the Borrower 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, (e) such participation is not prohibited by
applicable law and (f) no participant shall have any claim against the Borrower
or the Agent for any amounts due to it under its participation agreement and no
Lender shall have any additional claim under Sections 2.07, 2.10 or 2.14 as a
result of any participation. Any agreement or instrument pursuant to which a
Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Person acquiring such participation, agree to any amendment,
modification or waiver described in the proviso to Section 9.01 that affects
such Person.
SECTION 8.04. Information. Any Lender may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Article VIII, disclose to the assignee or participant or proposed assignee
or participant, any information relating to the Borrower furnished to such
Lender by or on behalf of the Borrower.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Majority Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall: (a) increase the Commitment of any Lender or subject any
Lender to any additional obligations without the written consent of such Lender,
(b) reduce the principal of, or interest on, any A Note, A Advance, or any fee
or other amount payable hereunder without the written consent of each Lender
affected thereby, (c) postpone any date fixed for any payment of principal of,
or interest on, the A Notes, A Advances, or any fees or other amounts payable
hereunder without the written consent of each Lender affected thereby, (d)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the A Notes, A Advances, or the number of Lenders, which shall be
required for the Lenders or
54
any of them to take any action hereunder without the written consent of all the
Lenders, (e) during the Security Period, release all or substantially all of the
Collateral without the written consent of all the Lenders (except as expressly
permitted under the Security Agreement) or (f) amend this Section 9.01 without
the written consent of all the Lenders and provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Lenders required above to take such action, affect the rights or duties
of the Agent under this Agreement or any Note; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the affected
Issuing Bank in addition to the Lenders required above to take such action,
affect the rights or obligations of such Issuing Bank under this Agreement.
SECTION 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including, telegraphic, telex,
telecopy or cable communication) and mailed, telegraphed, telexed, telecopied,
cabled or delivered, if to the Borrower, at its address at 000 Xxxxxxx 0, X.X.
Xxx 0000, Xxxxxxx, Xxxxxxxxxxx, 00000-0000, telecopy no. (000) 000-0000,
Attention: Treasury Department; if to any Bank, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assignment and Acceptance pursuant to
which it became a Lender; and if to the Agent, at its address at Xxx Xxxxx Xxx,
Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan Syndications Department; or, as
to the Borrower or the Agent, at such other address as shall be designated by
such party in a written notice to the other parties and, as to each other party,
at such other address as shall be designated by such party in a written notice
to the Borrower and the Agent. All such notices and communications shall, when
mailed, telegraphed, telexed, telecopied or cabled, be effective only when
received by the relevant party (which in the case of telex shall be when receipt
is confirmed by the appropriate telex answer back). Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs, Expenses and Taxes. (a) The Borrower agrees to
pay on demand all reasonable out-of-pocket costs and expenses of the Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, the reasonable fees
and out-of-pocket expenses of counsel for the Agent with respect thereto and
with respect to advising the Agent as to its rights and responsibilities under
this Agreement, and all out-of-pocket costs and expenses of the Agent and the
Lenders, if any (including, without limitation, reasonable fees and expenses of
counsel for each Lender), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 9.04(a).
55
(b) If any payment of principal of any Eurodollar Rate Advance is made
by the Borrower to or for the account of a Lender other than on the last day of
the Interest Period for such Advance, as a result of a payment pursuant to
Section 2.09(b), acceleration of the maturity of the Notes pursuant to Section
6.01 or for any other reason, the Borrower shall, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the account of
such Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses which it may reasonably incur as a result of such
payment, including, without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by any Lender to fund or maintain such
Advance.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and the other Loan Documents,
whether or not such Lender shall have made any demand under this Agreement or
the Note held by such Lender and although such obligations may be unmatured.
Each Lender agrees promptly to notify the Borrower after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender may have.
SECTION 9.06. Indemnification by Borrower. The Borrower agrees to
indemnify and hold harmless the Agent and each Lender (and each of their
respective officers, agents, employees and directors) (each, an "Indemnified
Party") from and against any and all claims, damages, liabilities, obligations,
losses, penalties, actions, judgments, suits, costs, expenses and disbursements
(including, without limitation, reasonable fees and disbursements of counsel) of
any kind or nature whatsoever ("Claims") which may be imposed on, incurred by or
asserted against such Lender or any of its officers, agents, employees or
directors (but excluding Claims of any Person resulting from such Person's gross
negligence or willful misconduct) in connection with or arising out of any
investigation, litigation or proceeding (including, without limitation, any
threatened investigation, litigation or proceeding or preparation of a defense
in connection therewith) related to the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances, except to the extent such claim, damage, loss, liability or
expense resulted from such Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation, litigation or other proceeding to
which the indemnity in this Section 9.06 applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by the Borrower, its directors, equityholders or creditors or an Indemnified
Party or any other Person, whether or not any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. The Borrower also agrees not to assert any claim for special,
indirect, consequential or punitive damages against the Agent, any Lender, any
of their Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability,
56
arising out of or otherwise relating to the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances.
SECTION 9.07. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.09. Special Prepayment Right. (a) In the event that a Change
of Control Date shall occur, the Borrower will, within 10 days after such Change
of Control Date, give the Agent written notice thereof and describe in
reasonable detail the facts and circumstances giving rise thereto, and the
Borrower will prepay, if any Lender shall so request, all of the Advances from
such Lender plus interest accrued to the date of prepayment and any other fees
and amounts as may then be payable by Borrower under this Agreement. Said
request (the "Prepayment Notice") shall be made by a Lender in writing not later
than 45 days after the Change of Control Date and shall specify (i) the date
(the "Special Prepayment Date") upon which the Borrower shall prepay the
Advances, which date shall be not less than 15 days nor more than 45 days from
the date of the Prepayment Notice and (ii) the amount of the Advances to be
prepaid. In the event of such request, the Commitment of such Lender to make
Advances shall forthwith terminate.
(b) On the Special Prepayment Date, the Borrower shall prepay all of
the Advances of such Lender plus interest accrued thereon to the Special
Prepayment Date and such other fees and amounts as may then be payable by
Borrower under this Agreement. Payment shall be made as provided in this
Agreement.
(c) For the purposes of this Section 9.09:
(i) the term "Change of Control Date" shall mean (A) the first day on
which any person, or group of related persons, has beneficial ownership of
more than 33 1/3% of the outstanding voting stock of the Borrower or (B)
the date immediately following the first date on which the members of the
Board of Directors of the Borrower (the "Board") at the commencement of any
period of 730 consecutive days (together with any other Directors whose
appointment or election by the Board or whose nomination for election by
the stockholders of the Borrower was approved by a vote of at least a
majority of the Directors then in office who either were Directors at the
beginning of such period or whose appointment or election or nomination for
election was previously so approved) shall cease to constitute a majority
of the Board at the end of such period; provided, however, that a Change of
Control Date shall not be deemed to have occurred under clause (A) hereof
if (x) the Borrower shall have merged or disposed of a portion of its
assets in compliance with the requirements of subsection 5.02(c) hereof
within 10 days after the acquisition of such beneficial ownership shall
have occurred and (y) no person
57
or group of related persons shall have beneficial ownership of more than 33
1/3% of the outstanding voting stock of the Borrower after such merger or
disposition.
(ii) the term "voting stock" shall mean stock of any class or classes
(however designated) having ordinary voting power for the election of a
majority of the directors of the Borrower other than stock having such
power only by reason of a contingency.
SECTION 9.10. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of 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 any such New York State court or, to
the extent permitted by law, in such federal court. The Borrower hereby further
irrevocably consents to the service of process in any action or proceeding in
such courts by the mailing thereof by any parties hereto by registered or
certified mail, postage prepaid, to the Borrower at its address specified
pursuant to Section 9.02. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or any of the other Loan Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other Loan
Documents in any New York State or federal court sitting in New York City. Each
of the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
SECTION 9.11. No Liability of the Issuing Banks. The Borrower assumes
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit. Neither any
Issuing Bank nor any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by an Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against an Issuing Bank, and such Issuing Bank shall
be liable to the Borrower, to the extent of any direct, but not consequential,
damages suffered by the Borrower that were caused by (i) such Issuing Bank's
willful misconduct or gross negligence in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) such Issuing
58
Bank's willful failure to make lawful payment under a Letter of Credit after the
presentation to it of a draft and certificates strictly complying with the terms
and conditions of the Letter of Credit. In furtherance and not in limitation of
the foregoing, each Issuing Bank may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary.
SECTION 9.12. Confidentiality. Each of the Agent and the Lenders
expressly agrees, for the benefit of the Borrower and its Subsidiaries, to
maintain the confidentiality of the Confidential Information, except that
Confidential Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Confidential
Information and instructed to keep such Confidential Information confidential),
(b) to the extent requested by any regulatory authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to
this Agreement or the enforcement of rights hereunder, (f) subject to an express
agreement for the benefit of the Borrower and its Subsidiaries containing
provisions substantially the same as those of this Section, to any Eligible
Assignee of or participant in, or any prospective assignee of or participant in,
any of its rights or obligations under this Agreement, (g) with the consent of
the Borrower or (h) to the extent such Confidential Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Agent or any Lender on a nonconfidential basis from a
source other than the Borrower or any of its Subsidiaries. For the purposes of
this Section, "Confidential Information" means all information, including
material nonpublic information with the meaning of Regulation FD promulgated by
the SEC ("Regulation FD"), received from the Borrower or its Subsidiaries
relating to such entities or their respective businesses, other than any such
information that is available to the Agent or any Lender on a nonconfidential
basis prior to disclosure by such entities; provided, that such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Confidential Information as provided in this
Section shall be considered to have compiled with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such information as such Person customarily accords to its
own confidential information; provided, however, that with respect to
disclosures pursuant to clauses (b) and (c) of this Section, unless prohibited
by law or applicable court order, each Lender and the Agent shall attempt to
notify the Borrower or any request by any governmental agency or representative
thereof or other Person for disclosure of Confidential Information after receipt
of such request, and if reasonable, practicable and permissible, before
disclosure of such Confidential Information. It is understood and agreed that
the Borrower, its Subsidiaries and their respective Affiliates may relay upon
this Section for any purpose, including without limitation to comply with
Regulation FD.
59
SECTION 9.13. Waiver of Jury Trial. Each of the Borrower, the Agent
and the Lenders hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or any of the other Loan
Documents or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
Borrower
--------
XXXX CORPORATION
By: /s/ X.X. Xxxxxxxx
-------------------------------
Name: X.X. Xxxxxxxx
Title: Vice President
and Treasurer
Agent
-----
CITIBANK, N.A., as Agent
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Lenders
-------
A Commitment
------------
$57,500,000 CITIBANK, N.A.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
$52,500,000 BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
60
$30,000,000 WACHOVIA BANK, N.A.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
$140,000,000 Total of A Commitments
Issuing Bank
------------
Letter of Credit Commitment
---------------------------
$50,000,000 WACHOVIA BANK, N.A.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
61
