1
EXHIBIT 10.4
SHORT TERM REVOLVING CREDIT AGREEMENT
AMONG
XXXXXX XXXXXXX CORPORATION,
THE GUARANTORS SIGNATORY HERETO,
THE LENDERS SIGNATORY HERETO,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
AS ADMINISTRATIVE AGENT,
FIRST UNION NATIONAL BANK, AS SYNDICATION AGENT,
AND
ABN AMRO BANK N.V., AS DOCUMENTATION AGENT
ARRANGED BY
NATIONSBANC XXXXXXXXXX SECURITIES LLC, AS LEAD ARRANGER,
AND
ABN AMRO BANK N.V., FIRST UNION CAPITAL MARKETS, A DIVISION OF WHEAT FIRST
SECURITIES, INC., GREENWICH NATWEST STRUCTURED FINANCE INC. AND TD SECURITIES
(USA) INC., AS ARRANGERS
------------------------
DATED AS OF FEBRUARY 12, 1999
------------------------
2
TABLE OF CONTENTS
SECTION HEADING PAGE
------- ------- ----
Recitals...................................................................... 1
ARTICLE I DEFINITIONS; CONSTRUCTION................................... 1
Section 1.01. Certain Definitions......................................... 1
Section 1.02. Construction................................................ 13
Section 1.03. Accounting Principles....................................... 13
Section 1.04. Optional Increase of the Commitments........................ 14
Section 1.05. Utilization of Commitments in Foreign Currencies............ 15
ARTICLE II THE CREDITS................................................. 15
Section 2.01. Revolving Credit Loans...................................... 15
Section 2.02. Fees; Reduction of the Committed Amounts.................... 16
Section 2.03. Competitive Bid Loans....................................... 16
Section 2.04. Maximum Aggregate Amount of Loans........................... 22
Section 2.05. [Intentionally Omitted]..................................... 22
Section 2.06. [Intentionally Omitted]..................................... 22
Section 2.07. Making of Loans............................................. 22
Section 2.08. Interest Rates.............................................. 22
Section 2.09. Conversion or Renewal of Interest Rate Options.............. 25
Section 2.10. Prepayments Generally....................................... 26
Section 2.11. Optional Prepayments; Mandatory Prepayments................. 26
Section 2.12. Interest Payment Dates...................................... 27
Section 2.13. Pro Rata Treatment.......................................... 27
Section 2.14. Additional Compensation in Certain Circumstances............ 27
Section 2.15. Payments Generally; Interest on Overdue Amounts............. 29
Section 2.16. Taxes....................................................... 30
Section 2.17. Funding by Branch, Subsidiary or Affiliate.................. 31
Section 2.18. Extension of Revolving Credit Maturity Date................. 32
ARTICLE III REPRESENTATIONS AND WARRANTIES.............................. 33
Section 3.01. Corporate Status............................................ 33
Section 3.02. Corporate Power and Authorization........................... 33
Section 3.03. Execution and Binding Effect................................ 33
Section 3.04. Governmental Approvals and Filings.......................... 33
Section 3.05. Absence of Conflicts........................................ 34
Section 3.06. Audited Financial Statements................................ 34
Section 3.07. Absence of Undisclosed Liabilities.......................... 34
Section 3.08. Absence of Material Adverse Changes......................... 34
Section 3.09. Accurate and Complete Disclosure............................ 34
Section 3.10. Margin Regulations.......................................... 34
Section 3.11. Subsidiaries................................................ 35
Section 3.12. Partnerships, etc........................................... 35
Section 3.13. Litigation.................................................. 35
Section 3.14. Absence of Events of Default................................ 35
Section 3.15. Absence of Other Defaults................................... 35
Section 3.16. Insurance................................................... 35
Section 3.17. Title to Property........................................... 36
i
3
SECTION HEADING PAGE
------- ------- ----
Section 3.18. Intellectual Property....................................... 36
Section 3.19. Taxes....................................................... 36
Section 3.20. Employee Benefits........................................... 36
Section 3.21. Environmental Matters....................................... 37
Section 3.22. Year 2000................................................... 37
ARTICLE IV CONDITIONS OF LENDING....................................... 38
Section 4.01. Conditions to Initial Loans................................. 38
Section 4.02. Conditions to All Loans..................................... 39
ARTICLE V AFFIRMATIVE COVENANTS....................................... 39
Section 5.01. Basic Reporting Requirements................................ 39
Section 5.02. Insurance................................................... 41
Section 5.03. Payment of Taxes and Other Potential Charges and Priority 42
Claims......................................................
Section 5.04. Preservation of Corporate Status............................ 42
Section 5.05. Governmental Approvals and Filings.......................... 42
Section 5.06. Maintenance of Properties................................... 42
Section 5.07. Avoidance of Other Conflicts................................ 42
Section 5.08. Financial Accounting Practices.............................. 43
Section 5.09. Use of Proceeds............................................. 43
Section 5.10. Continuation of or Change in Business....................... 43
Section 5.11. Consolidated Tax Return..................................... 43
Section 5.12. Fiscal Year................................................. 43
Section 5.13. ERISA....................................................... 43
Section 5.14. Ratings..................................................... 43
Section 5.15. Subsidiary Guaranty......................................... 44
ARTICLE VI NEGATIVE COVENANTS.......................................... 44
Section 6.01. Financial Covenants......................................... 44
Section 6.02. Liens....................................................... 45
Section 6.03. Indebtedness................................................ 46
Section 6.04. Loans, Advances and Certain Investments..................... 46
Section 6.05. Changes in Business......................................... 46
Section 6.06. Amendment of Certain Documents.............................. 46
Section 6.07. Mergers; Acquisitions....................................... 46
Section 6.08. ERISA Obligations........................................... 46
Section 6.09. Principal Foreign Affiliates................................ 47
Section 6.10. Certain Agreements.......................................... 47
Section 6.11. Restricted Payments......................................... 47
Section 6.12. Transactions with Affiliates................................ 48
Section 6.13. Capital Expenditures........................................ 48
ARTICLE VII DEFAULTS.................................................... 48
Section 7.01. Events of Default........................................... 48
Section 7.02. Consequences of an Event of Default......................... 50
ARTICLE VIII THE AGENTS.................................................. 50
Section 8.01. Appointment................................................. 50
Section 8.02. General Nature of Agents' Duties............................ 51
ii
4
SECTION HEADING PAGE
------- ------- ----
Section 8.03. Exercise of Powers.......................................... 51
Section 8.04. Certain Provisions.......................................... 51
Section 8.05. Administration by the Agents................................ 52
Section 8.06. Lender Not Relying on Agents or Other Lenders............... 52
Section 8.07. Indemnification............................................. 53
Section 8.08. Agents in their Individual Capacities....................... 53
Section 8.09. Holders of Notes............................................ 53
Section 8.10. Successor Agents............................................ 53
Section 8.11. Calculations................................................ 54
Section 8.12. Funding by Administrative Agent............................. 54
Section 8.13. Syndication Agent and Documentation Agent................... 54
ARTICLE IX GUARANTY.................................................... 54
Section 9.01. The Guaranty................................................ 54
Section 9.02. Bankruptcy.................................................. 54
Section 9.03. Nature of Liability......................................... 54
Section 9.04. Independent Obligation...................................... 55
Section 9.05. Authorization............................................... 55
Section 9.06. Reliance.................................................... 55
Section 9.07. Subordination............................................... 56
Section 9.08. Waiver...................................................... 56
Section 9.09. Nature of Liability......................................... 56
Section 9.10. Judgments Binding........................................... 57
ARTICLE X MISCELLANEOUS............................................... 57
Section 10.01. Holidays.................................................... 57
Section 10.02. Records..................................................... 57
Section 10.03. Amendments and Waivers...................................... 57
Section 10.04. No Implied Waiver; Cumulative Remedies...................... 58
Section 10.05. Notices..................................................... 58
Section 10.06. Expenses; Taxes; Indemnity.................................. 58
Section 10.07. Severability................................................ 59
Section 10.08. Prior Understandings........................................ 59
Section 10.09. Duration; Survival.......................................... 59
Section 10.10. Counterparts................................................ 59
Section 10.11. Limitation on Payments...................................... 60
Section 10.12. Set-Off..................................................... 60
Section 10.13. Sharing of Collections...................................... 60
Section 10.14. Successors and Assigns; Participations; Assignments......... 60
Section 10.15. Governing Law; Submission to Jurisdiction; Waiver of Jury 63
Trial.......................................................
Section 10.16. Confidentiality............................................. 64
iii
5
SECTION HEADING PAGE
------- ------- ----
Section 10.17. Replacement of Lenders...................................... 64
Section 10.18. Judgment Currency........................................... 65
Signature Page................................................................ 65
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B Form of Competitive Bid Loan Quote Request
EXHIBIT C Form of Competitive Bid Loan Quote
EXHIBIT D Form of Competitive Bid Note
EXHIBIT E [Intentionally Omitted]
EXHIBIT F Form of Quarterly Compliance Certificate
EXHIBIT G Form of Transfer Supplement
EXHIBIT H Subsidiary Guaranty Agreement
EXHIBIT I Joinder to Revolving Credit Agreement
EXHIBIT J Pledge Agreement
EXHIBIT K Commitment Increase Supplement
EXHIBIT L Request for Extension of Credit
SCHEDULE 3.01 Corporate Status
SCHEDULE 3.02 Consents and Approvals
SCHEDULE 3.07 Indebtedness
SCHEDULE 3.11 Subsidiaries
SCHEDULE 3.12 Partnerships
SCHEDULE 3.21 Environmental Matters
SCHEDULE 6.02 Liens
iv
6
SHORT TERM REVOLVING CREDIT AGREEMENT
THIS AGREEMENT, dated as of February 12, 1999, by and among XXXXXX XXXXXXX
CORPORATION, a New York corporation (the "Borrower"), the guarantors party
hereto from time to time (the "Guarantors", as defined further below), the
lenders party hereto from time to time (the "Lenders", as defined further
below), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Administrative Agent for the Lenders hereunder, First Union National Bank, as
Syndication Agent, and ABN AMRO Bank N.V., as Documentation Agent.
RECITALS:
A. The Borrower has requested the Lenders to extend credit to the Borrower
to enable it to borrow, repay and reborrow hereunder amounts not exceeding
$90,000,000 (subject to increase or reduction as provided herein) aggregate
principal amount at any time outstanding, and the Lenders are willing to extend
such credit upon the terms and conditions set forth herein.
B. The Borrower and the Lenders desire to establish an uncommitted
competitive bid facility.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.01. Certain Definitions. In addition to other words and terms
defined elsewhere in this Agreement, as used herein the following words and
terms shall have the following meanings, respectively, unless the context hereof
otherwise clearly requires:
"Absolute Rate" shall have the meaning set forth in Section 2.03(d)(ii)(F)
hereof.
"Absolute Rate Auction" shall mean a solicitation of Competitive Bid Loan
Quotes setting forth Absolute Rates pursuant to Section 2.03 hereof.
"Absolute Rate Loan" or "Absolute Rate Loans" shall mean any or all
Competitive Bid Loans the interest rates of which are determined on the basis of
Absolute Rates pursuant to an Absolute Rate Auction.
"Administrative Agent" shall mean, initially, Bank of America National
Trust and Savings Association, in its capacity as Administrative Agent for the
Lenders hereunder, and any successor Administrative Agent appointed in
accordance with Section 8.10 hereof.
"Affected Lender" shall have the meaning set forth in Section 2.08(e)
hereof.
"Affiliate" of a Person (the "Specified Person") shall mean (a) any Person
which directly or indirectly controls, or is controlled by, or is under common
control with, the Specified Person, and (b) any director or officer (or, in the
case of a Person which is not a corporation, any individual having analogous
powers) of the Specified Person or of a Person who is an Affiliate of the
Specified Person within the meaning of the preceding clause (a). For purposes of
the preceding sentence, "control" of a Person means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agents" shall mean, collectively, the Administrative Agent, the
Syndication Agent and the Documentation Agent and "Agent" shall mean any of the
foregoing.
1
7
"Applicable Margin", "Facility Fee" and "Utilization Fee" each means the
number of basis points designated below in the applicable column and appropriate
grid:
------------------------------------------------------------------------------------------------------
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
DAY DAY DAY DAY DAY
-------- -------- --------- --------- -------------
------------------------------------------------------------------------------------------------------
Applicable Margin for Base Rate
Option.................................. 0 bps 0 bps 35 bps 55 bps 85 bps
------------------------------------------------------------------------------------------------------
Applicable Margin for CD Rate Option.... 67.5 bps 77.5 bps 122.5 bps 142.5 bps 172.5 bps
------------------------------------------------------------------------------------------------------
Applicable Margin for Euro Rate
Option.................................. 55 bps 65 bps 110 bps 130 bps 160 bps
------------------------------------------------------------------------------------------------------
Facility Fee............................ 15 bps 20 bps 25 bps 30 bps 50 bps
------------------------------------------------------------------------------------------------------
Utilization Fee......................... 15 bps 15 bps 15 bps 15 bps 15 bps
------------------------------------------------------------------------------------------------------
(bps = basis points per annum)
provided, however, that:
(a) if on any day the Dollar Equivalent of the sum of the aggregate
principal amount of outstanding Loans under this Agreement exceeds 50% of the
Total Revolving Credit Commitment under this Agreement, an additional 0.15% per
annum (the "Utilization Fee") shall be added to the Applicable Margin for such
day (and the term "Applicable Margin" shall be deemed to include the Utilization
Fee); and (b) for each day from and including the date hereof and to and
including the last day of the third fiscal quarter of the Borrower in 1999, the
pricing under this Agreement shall be no lower than that applicable to Level II
Day.
"Assessment Rate" shall have the meaning set forth in Section 2.08(a)(ii)
hereof.
"Bank of America" means Bank of America National Trust and Savings
Association, a national banking association.
"Base Rate" shall have the meaning set forth in Section 2.08(a)(i) hereof.
"Base Rate Auction" shall mean a solicitation of Competitive Bid Loan
Quotes setting forth Base Rate Margins based on the Base Rate pursuant to
Section 2.03 hereof.
"Base Rate Loans" shall mean Competitive Bid Loans the interest rates of
which are determined on the basis of the Base Rate pursuant to a Base Rate
Auction.
"Base Rate Margin" shall have the meaning set forth in Section
2.03(d)(ii)(E) hereof.
"Base Rate Option" shall have the meaning set forth in Section 2.08(a)(i)
hereof.
"Base Rate Portion" of any Loan or Loans shall mean at any time the
portion, including the whole, of such Loan or Loans bearing interest at such
time (i) under the Base Rate Option or (ii) in accordance with Section 2.15
hereof. If no Loan or Loans is specified, "Base Rate Portion" shall refer to the
Base Rate Portion of all Loans outstanding at such time.
"Benefit Plan" shall mean any plan, agreement, arrangement or commitment
which is an employment or consulting agreement, executive compensation plan,
bonus plan, deferred compensation agreement, employee pension, profit-sharing,
savings or retirement plan, employee stock option or stock purchase plan,
retiree medical or life, group life, health, or accident insurance or other
benefit plan, agreement, arrangement or commitment, including, without
limitation, severance, or other bonus practice (including, but not limited to,
employee benefit plans, as defined in section 3(3) of ERISA), with respect to
which the Borrower, any of its Significant Subsidiaries, or a member of their
respective Controlled Group, at any relevant time have some liability or
obligation to contribute or pay benefits and which relates to current or former
employees of the Borrower, any Significant Subsidiary or any member of their
respective Controlled Group.
"Business Day" shall mean (a) with respect to selection of the Euro-Rate
Option, prepayment of any Euro-Rate Portion of any Revolving Credit Loans,
determining the first or last day of any Euro-Rate Funding Period, the giving of
notices or quotes in connection with a LIBOR Auction or a payment of principal
of or
2
8
interest on, or the Interest Period for, a LIBOR-based Loan, a day for dealings
in deposits in Dollars by and among banks in the London interbank market and on
which commercial banks are open for domestic and international business in Los
Angeles, California and New York, New York and (b) with respect to selection of
any other interest rate Option, prepayment of any part of any other Portion of
any Revolving Credit Loans, determining the first or last day of any other
Funding Period, the giving of notices or quotes in connection with an Absolute
Rate or a payment of principal of or interest on, or the Interest Period for, an
Absolute Rate Loan and in every other context, any day other than a Saturday,
Sunday or other day on which banking institutions are authorized or obligated to
close in Los Angeles, California or New York, New York.
"Capitalized Lease" shall mean at any time any lease which is, or is
required under GAAP to be, capitalized on the balance sheet of the lessee at
such time, and "Capitalized Lease Obligation" of any Person at any time shall
mean the aggregate amount which is, or is required under GAAP to be, reported as
a liability on the balance sheet of such Person at such time as lessee under a
Capitalized Lease.
"CD Rate" shall have the meaning set forth in Section 2.08(a)(ii) hereof.
"CD Rate Funding Period" shall have the meaning set forth in Section
2.08(c) hereof.
"CD Rate Option" shall have the meaning set forth in Section 2.08(a)(ii)
hereof.
"CD Rate Portion" of any Loan or Loans shall mean at any time the portion,
including the whole, of such Loan or Loans bearing interest at any time under
the CD Rate Option or at a rate calculated by reference to the CD Rate under
Section 2.15 hereof. If no Loan or Loans is specified, "CD Rate Portion" shall
refer to the CD Rate Portion of all Loans outstanding at such time.
"CD Rate Reserve Percentage" for any day and for any CD Rate Funding Period
shall mean the percentage (expressed as a decimal, rounded upward to the nearest
1/100 of 1%), as determined in good faith by the Administrative Agent (which
determination shall be conclusive absent manifest error), which is in effect on
such day as prescribed by the Board of Governors of the Federal Reserve System
(or any successor) representing the maximum reserve requirement (including
without limitation supplemental, marginal and emergency reserve requirements)
for a member bank of such System in respect of nonpersonal time deposits in
Dollars in the United States having a maturity comparable to such CD Rate
Funding Period.
"Change of Control" shall mean (a) any Person or group of Persons (as used
in Sections 13 and 14 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations thereunder) shall have become the
beneficial owner (as defined in Rules 13d-3 and 13d-5 promulgated by the
Securities and Exchange Commission (the "SEC") under the Exchange Act) of 20% or
more of the Borrower's outstanding Voting Stock, unless a majority of the
Continuing Directors approves the acquisition not later than 10 days after such
acquisition or (b) a change in the board of directors of the Borrower shall have
occurred which results in a majority of directors not being Continuing
Directors.
"Closing Date" shall mean the date on which the last of the conditions set
forth in Section 4.01 hereof has been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute of similar import, and regulations thereunder, in each case as
in effect from time to time. References to sections of the Code shall be
construed also to refer to any successor sections.
"Commitments" of a Lender shall mean the Revolving Credit Commitment of
such Lender.
"Commitment Percentage" of a Lender at any time shall mean the Commitment
Percentage for such Lender set forth below its name on the signature page
hereof, subject to adjustment as provided in Sections 1.04 and 10.17 hereof and
subject to transfer to another Lender as provided in Section 10.14 hereof.
"Competitive Bid Borrowing" shall have the meaning set forth in Section
2.03(b) hereof.
"Competitive Bid Expiration Date" shall mean February 5, 2000, or such
later date as may be established as the Competitive Bid Expiration Date pursuant
to Section 2.18 hereof.
3
9
"Competitive Bid Loan" or "Competitive Bid Loans" shall mean any or all
loans provided for by Section 2.03 hereof.
"Competitive Bid Loan Maturity Date" shall have the meaning set forth in
Section 2.03(j) hereof.
"Competitive Bid Loan Quote" shall mean an offer in accordance with Section
2.03(d) hereof by a Lender to make a Competitive Bid Loan.
"Competitive Bid Loan Quote Request" shall have the meaning set forth in
Section 2.03(b) hereof.
"Competitive Bid Note" shall have the meaning set forth in Section 2.03(p)
hereof.
"Competitive Bid Record" shall have the meaning set forth in Section
2.03(l) hereof.
"Consolidated Adjusted EBITDAR" for any period, with respect to the
Borrower and its consolidated Subsidiaries, shall mean the sum of (a)
Consolidated Net Income for such period, (b) Consolidated Adjusted Interest
Expense for such period, (c) charges against income for foreign, federal, state
and local income taxes for such period, (d) the amount of all expenses for
depreciation and amortization for such period and (e) Consolidated Adjusted
Rental Expense for such period, all as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Adjusted Interest Expense" for any period shall mean the sum
of (a) the total interest expense of the Borrower and its consolidated
Subsidiaries (other than Special Purpose Subsidiaries) and (b) any cash dividend
paid on the Borrower's Trust Preferred, for such period determined on a
consolidated basis in accordance with GAAP.
"Consolidated Adjusted Rental Expense" for any period shall mean aggregate
rent and lease payments made pursuant to operating leases for such period by the
Borrower and its consolidated Subsidiaries (other than Special Purpose
Subsidiaries) determined on a consolidated basis in accordance with GAAP.
"Consolidated Capitalization" at any time shall mean the sum of
Consolidated Net Worth at such time and Consolidated Indebtedness at such time.
"Consolidated Fixed Charges" for any period shall mean the sum of
Consolidated Adjusted Interest Expense for such period and Consolidated Adjusted
Rental Expense for such period.
"Consolidated Fixed Charges Coverage Ratio" for any period shall mean the
ratio of the Consolidated Adjusted EBITDAR (less any cash dividend paid on the
Borrower's common stock) for such period to the Consolidated Fixed Charges for
such period.
"Consolidated Indebtedness" at any time shall mean the Indebtedness of the
Borrower and its consolidated Subsidiaries at such time determined on a
consolidated basis in accordance with GAAP.
"Consolidated Leverage Ratio" at any time shall mean the ratio of
Consolidated Indebtedness to the Consolidated Capitalization at such time.
"Consolidated Net Income" for any period shall mean the net earnings (or
loss) after taxes of the Borrower and its consolidated Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth" at any time shall mean the total amount of
stockholders' equity (including, without duplication, the face amount of the
Borrower's Trust Preferred issued and outstanding at such time) of the Borrower
and its consolidated Subsidiaries at such time determined on a consolidated
basis in accordance with GAAP, provided, that in the calculation of Consolidated
Net Worth of the Borrower solely for the purposes of Section 6.01(b),
accumulated translation adjustments with respect to the Borrower's investments
in foreign entities shall be excluded.
"Continuing Directors" shall mean members of the board of directors of the
Borrower who (a) were directors on January 1, 1999 or (b) have been directors
for at least two years, or (c) were nominated or elected with the affirmative
vote of the greater of (x) a majority of the Continuing Directors on the board
or (y) three Continuing Directors.
4
10
"Controlled Group" shall mean with respect to any Person, all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with such Person, are treated
as a single employer under Section 414(b), 414(c), 414(m) or 414(o) of the Code
or Section 4001(a)(2) of ERISA.
"Corresponding Source of Funds" shall mean:
(a) In the case of any Funding Segment of the CD Rate Portion, the
proceeds of hypothetical issuances by a Lender of one or more of its
certificates of deposit at the beginning of the CD Rate Funding Period
corresponding to such Funding Segment, having maturities approximately
equal to such CD Rate Funding Period and in an aggregate amount
approximately equal to such Lender's Pro Rata share of such Funding
Segment; and
(b) In the case of any Funding Segment of the Euro-Rate Portion, the
proceeds of hypothetical receipts by a Notional Euro-Rate Funding Office or
by a Lender through a Notional Euro-Rate Funding Office of one or more
Dollar deposits in the interbank eurodollar market at the beginning of the
Euro-Rate Funding Period corresponding to such Funding Segment having
maturities approximately equal to such Euro-Rate Funding Period and in an
aggregate amount approximately equal to such Lender's Pro Rata share of
such Funding Segment.
"Creditors" shall mean the Lenders and the Agents.
"Credit Party" shall mean each of the Borrower and the Guarantors.
"Debt Instrument" shall have the meaning set forth in Section 7.01(f)
hereof.
"Documentation Agent" shall mean ABN AMRO Bank N.V., in its capacity as
documentation agent hereunder.
"Dollar," "Dollars" and the symbol "$" shall mean lawful money of the
United States of America.
"Dollar Equivalent" shall mean, as of the date of determination, (a) the
amount denominated in Dollars, and (b) as to any amount denominated in another
currency, the equivalent amount in Dollars as determined by the Administrative
Agent on the basis of the Spot Rate for the purchase of Dollars with such
currency.
"Eligible Assignee" means (a) a financial institution organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; (b) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of any such country, and
having a combined capital and surplus of at least $100,000,000, provided that
such bank is acting through a branch or agency located in the United States; (c)
a Person that is primarily engaged in the business of commercial banking and
that is (i) a Subsidiary of a Lender, (ii) a Subsidiary of a Person of which a
Lender is a Subsidiary, or (iii) a Person of which a Lender is a Subsidiary or
(d) another Lender.
"Environmental Claim" shall mean, with respect to any Person, any action,
suit, proceeding, investigation, notice, claim, complaint, demand, request for
information or other communication (written or oral) by any other Person
(including but not limited to any Governmental Authority, citizens' group or
present or former employee of such Person) alleging, asserting or claiming any
actual or potential (a) violation of any Requirements of Law, (b) liability
under any Requirements of Law or (c) liability for investigatory costs, cleanup
costs, governmental response costs, natural resources damages, property damages,
personal injuries, fines or penalties arising out of, based on or resulting from
the presence, or release into the environment, of any Hazardous Materials at any
location, whether or not owned by such Person.
"Environmental Matters" means any matter arising out of, relating to, or
resulting from any emissions, discharges, releases or threatened releases of
Hazardous Materials into the air, surface water, groundwater, or soil, or
otherwise arising out of, relating to, or resulting from the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials.
5
11
"Environmental Permits" means all permits, licenses, authorizations,
registrations and other governmental consents required by applicable
Requirements of Law for the use, storage, treatment, transportation, release,
emission and disposal of raw materials, by-products, wastes and other substances
used or produced by or otherwise relating to the operations of the Borrower and
any Significant Subsidiary of the Borrower.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to sections
of ERISA shall be construed also to refer to any successor sections.
"ERISA Lien" shall mean a security interest or lien arising under or in
connection with a Pension Plan or Title IV of ERISA or a claim asserted
(including for failure to withhold) by the government which if successful would
result in such a lien; provided, however, that any claim asserted, (a) for which
the Borrower has reasonable grounds to contest and (b) which the Borrower is
diligently contesting in good faith through appropriate proceedings with the IRS
or a court of law, shall not be deemed an ERISA Lien for so long as all of the
above conditions are met.
"Eurocurrency Liabilities" shall have the meaning set forth in the
definition of Euro-Rate Reserve Percentage set forth in Section 1.01 hereof.
"Eurocurrency Loan" shall have the meaning set forth in Section 2.03(r)
hereof.
"Euro-Rate" shall have the meaning set forth in Section 2.08(a)(iii)
hereof.
"Euro-Rate Funding Period" shall have the meaning set forth in Section
2.08(c) hereof.
"Euro-Rate Option" shall have the meaning set forth in Section 2.08(a)(iii)
hereof.
"Euro-Rate Portion" of any Loan or Loans shall mean at any time the
portion, including the whole, of such Loan or Loans bearing interest at any time
under the Euro-Rate Option or at a rate calculated by reference to the Euro-Rate
under Section 2.15 hereof. If no Loan or Loans is specified, "Euro-Rate Portion"
shall refer to the Euro-Rate Portion of all Loans outstanding at such time.
"Euro-Rate Reserve Percentage" means for any day for any Lender for any
Funding Segment or Interest Period the reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect on such day, as
determined in good faith by such Lender (which determination shall be conclusive
absent manifest error), under regulations issued from time to time by the Board
of Governors of the Federal Reserve System for determining the maximum reserve
requirement of such Lender (including any emergency, supplemental or other
marginal reserve requirement) with respect to eurocurrency funding (currently
referred to as "Eurocurrency Liabilities").
"Event of Default" shall mean any of the Events of Default described in
Section 7.01 hereof.
"Existing Credit Agreements" shall have the meaning set forth in Section
4.01(f) hereof.
"Facility Fee" is set forth in the definition of "Applicable Margin."
"Federal Funds Effective Rate" for any day shall mean the rate per annum
(rounded upward to the nearest 1/100 of 1%) determined by the Administrative
Agent (which determination shall be conclusive) to be the rate per annum
announced by the Federal Reserve Bank of New York (or any successor) on such day
as being the weighted average of the rates on overnight Federal funds
transactions arranged by Federal funds brokers on the previous trading day, as
computed and announced by such Federal Reserve Bank (or any successor) in
substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the "Federal Funds Effective
Rate" as of the date of this Agreement; provided, that if such Federal Reserve
Bank (or its successor) does not announce such rate on any day, the "Federal
Funds Effective Rate" for such day shall be the Federal Funds Effective Rate for
the last day on which such rate was announced.
"Financial Provisions" shall have the meaning set forth in Section 1.03(d)
hereof.
"Funding Periods" shall have the meaning set forth in Section 2.08(c)
hereof.
6
12
"Funding Segment" of the CD Rate Portion or the Euro-Rate Portion, as the
case may be, of the Revolving Credit Loans at any time shall mean the entire
principal amount of such Portion to which at the time in question there is
applicable a particular Funding Period beginning on a particular day and ending
on a particular day. (By definition, each such Portion is at all times composed
of an integral number of discrete Funding Segments and the sum of the principal
amounts of all Funding Segments of any such Portion at any time equals the
principal amount of such Portion at such time.)
"GAAP" shall have the meaning set forth in Section 1.03 hereof.
"Governmental Action" shall have the meaning set forth in Section 3.04
hereof.
"Governmental Authority" shall mean any government or political subdivision
or any agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
"Guarantee" shall mean the guarantee by any Person to pay or perform the
obligations of any other Person, including any agreement, whether such agreement
is on a contingency basis or otherwise, to purchase, repurchase or otherwise
acquire Indebtedness of any other Person, or to purchase, sell or lease, as
lessee or lessor, property or services, in any such case primarily for the
purpose of enabling another Person to make payment of Indebtedness.
"Guaranteed Obligations" shall mean the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of the principal
and interest on each Note and Loan made under this Agreement, together with all
the other obligations and liabilities (including, without limitation,
indemnities, fees and interest thereon) of the Borrower to the Agents and the
Lenders now existing or hereafter incurred under, arising out of or in
connection with this Agreement or any other Loan Document to which the Borrower
is a party and the due performance and compliance with all the terms, conditions
and agreements contained in such Loan Documents by the Borrower.
"Guarantor" shall mean Xxxxxx Xxxxxxx USA Corporation, Xxxxxx Xxxxxxx
Energy International, Inc., Xxxxxx Xxxxxxx Energy Corporation and any other
domestic Subsidiary of the Borrower designated pursuant to Section 5.15 hereof.
"Guaranty" shall mean the Guaranty as set forth in Article IX hereof.
"Hazardous Materials" means any pollutants, contaminants, hazardous or
toxic substances, materials or wastes (including petroleum, petroleum
by-products, PCBs, and friable asbestos) as those concepts are used in the
Comprehensive Environmental Response Compensation and Liability Act (CERCLA),
the Resource Conservation and Recovery Act (RCRA), the Toxic Substance Control
Act (TSCA), the Clean Air Act, the Clean Water Act, and other similar federal or
state statutes or regulations.
"Indebtedness" of a Person shall mean with respect to any Person, without
duplication, all (a) liabilities or obligations incurred in connection with
borrowings (including reimbursement obligations in respect of letters of credit
or banker's acceptances which have been drawn and including the sale of debt
securities) of such Person which in accordance with generally accepted
accounting principles would be included in determining total liabilities as
shown on the liability side of a balance sheet of such Person at the date as of
which Indebtedness is to be determined, including, without limitation,
Capitalized Lease Obligations of such Person; (b) liabilities or obligations of
such Person issued, incurred or assumed in respect of the purchase price of
property except for trade accounts payable incurred in the ordinary course of
business on which interest is not being accrued; (c) liabilities or obligations
of others of any of the types specified in the preceding clauses (a) and (b) for
which such Person is directly or indirectly liable, by way of guaranty (whether
by direct guaranty, suretyship, discount, endorsement, take-or-pay agreement,
agreement to purchase or advance or keep in funds or other agreement having the
effect of a guaranty) or otherwise; (d) liabilities or obligations of others of
any of the types specified in the preceding clauses (a) and (b) which are
secured by Liens on any assets of such Person, whether or not such liabilities
or obligations shall have been assumed by it; and (e) to the extent not included
in the preceding clauses (a) through (d), the excess over
7
13
$10,000,000 of the aggregate undrawn amount of all financial letters of credit
issued on account of such Person.
"Indemnified Parties" shall mean the Agents, the Lenders, their respective
affiliates, and the directors, officers, employees, attorneys and agents of each
of the foregoing.
"Indenture" shall have the meaning set forth in Section 6.10 hereof.
"Initial Revolving Credit Committed Amount" shall have the meaning set
forth in Section 2.01(a) hereof.
"Interest Period" shall mean with respect to any Competitive Bid Loan, the
period commencing on the date such Competitive Bid Loan is made and ending on a
date not less than seven days nor more than 180 days thereafter (with respect to
any Absolute Rate Loan) or 30, 60, 90 or 180 days thereafter (with respect to
any CD Rate Loan) or one, two, three or six months (with respect to any
LIBO-Rate Loan), as the Borrower may specify in the related Competitive Bid Loan
Quote Request as provided in Section 2.03(b) hereof, provided that:
(a) No Interest Period may end after the Competitive Bid Expiration
Date;
(b) Each Interest Period that would otherwise end on a day that is not
a Business Day shall end on the next succeeding Business Day or, in the
case of an Interest Period for a LIBOR-based Loan, if such next succeeding
Business Day falls in the next succeeding calendar month, then such
Interest Period shall end on the next preceding Business Day; and
(c) Notwithstanding clauses (a) and (b) above, no Interest Period for
any Competitive Bid Loan shall have a duration of less than seven days and,
if the Interest Period for any Competitive Bid Loan would otherwise be a
shorter period, such Competitive Bid Loan shall not be available hereunder.
"Investment" by any Person in any other Person shall mean:
(a) the amount paid, or the value of property or services contributed,
by such Person for or in connection with the acquisition by such Person of
any stock, bonds, notes, debentures, option contracts, investment
contracts, partnership or other ownership interests or other securities of
any other Person;
(b) the amount of any advance, loan or extension of credit to any
other Person by such Person; and
(c) the amount of any Indebtedness of any other Person which such
Person has guaranteed and which by its terms or as a consequence of any
default thereunder such Indebtedness has or may, at the option of the
holder thereof, become due and payable by acceleration or otherwise.
"IRS" shall mean the Internal Revenue Service.
"Law" shall mean any law (including common law), constitution, statute,
treaty, convention, regulation, rule, ordinance, order, injunction, writ, decree
or award of any Governmental Authority.
"Lender" shall mean any of the Lenders listed on the signature pages
hereof, subject to the provisions of Sections 1.05, 10.14 and 10.17 hereof
pertaining to Persons becoming or ceasing to be Lenders.
"Level I Day" shall mean a day on which there is in effect a Xxxxx'x Rating
of Baa2 or better and an S&P Rating of BBB or better.
"Level II Day" shall mean a day which is not a Level I Day and on which
there is in effect a Xxxxx'x Rating of Baa3 or better and an S&P Rating of
BBB-or better.
"Level III Day" shall mean a day which is not a Level I Day or a Level II
Day and on which there is in effect a Xxxxx'x Rating of Ba1 or better and an S&P
Rating of BB+ or better.
"Level IV Day" shall mean a day which is not a Level I Day, a Level II Day
or a Level III Day and on which there is in effect a Xxxxx'x Rating of Ba2 or
better and an S&P Rating of BB or better.
8
14
"Level V Day" shall mean a day which is not a Level I Day, a Level II Day,
a Level III Day or a Level IV Day.
"LIBO-Rate" for any day, as used herein, shall mean with respect to each
proposed LIBOR-based Loan a rate of interest (which shall be the same for each
day in the applicable Interest Period) equal to the rate of interest determined
in good faith by the Administrative Agent in accordance with its usual
procedures from the Reuters Screen LIBO page (which determination shall be
conclusive absent manifest error) to be the average of the rates per annum for
deposits in Dollars offered to the leading banks in the London interbank market
at approximately 11:00 a.m., London time, two Business Days prior to the first
day of such Interest Period for delivery on the first day of such Interest
Period in amounts comparable to the amount of the LIBOR-based Loan to be funded
and having maturities comparable to such Interest Period.
"LIBOR Auction" shall mean a solicitation of Competitive Bid Loan Quotes
setting forth LIBOR-based Margins based on the LIBO-Rate pursuant to Section
2.03 hereof.
"LIBOR-based Loans" shall mean Competitive Bid Loans the interest rates of
which are determined on the basis of the LIBO-Rate pursuant to a LIBOR Auction.
"Lien" shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, including but not limited to any conditional sale or title retention
arrangement, and any assignment, deposit arrangement or lease intended as, or
having the effect of, security.
"Loan" shall mean any loan or advance by a Lender under this Agreement,
whether a Revolving Credit Loan or a Competitive Bid Loan and "Loans" shall mean
all Revolving Credit Loans and Competitive Bid Loans made by Lenders under this
Agreement.
"Loan Documents" shall mean this Agreement, the Notes, the Subsidiary
Guaranty Agreements, the Pledge Agreement and the Transfer Supplements, and all
other agreements and instruments extending or renewing any indebtedness,
obligation or liability arising under any of the foregoing, and any certificate
or instrument delivered by the Borrower or the Guarantors in connection herewith
or therewith, in each case as the same may be amended, modified or supplemented
from time to time hereafter.
"Material Adverse Effect" shall mean a material adverse effect on the
business, operations, properties, assets or condition (financial or otherwise)
of the Borrower and its Subsidiaries taken as a whole.
"Material Domestic Subsidiary" shall mean each Significant Subsidiary of
the Borrower (other than Special Purpose Subsidiaries) that is organized under
the laws of one of the States of the United States.
"Xxxxx'x" shall mean Xxxxx'x Investor's Services, Inc., or any successor
thereto.
"Xxxxx'x Rating" shall mean the rating assigned to the Borrower's senior
unsecured long term debt by Xxxxx'x, or in the event the Borrower has no
Xxxxx'x-rated senior unsecured long-term debt outstanding, the "hypothetical
senior long-term debt rating" most recently assigned to the Borrower by Xxxxx'x,
which assignment shall have been made not more than fifteen months prior to the
time in question and not more than ninety (90) days after a request therefor by
the Required Lenders pursuant to Section 5.14 hereof.
"Nonextending Lender" shall have the meaning set forth in Section 2.18
hereof.
"Note" or "Notes" shall mean the Revolving Credit Note(s) or the
Competitive Bid Note(s), as the case may be, of the Borrower executed and
delivered under this Agreement, together with all extensions, renewals,
refinancings or refundings of any thereof in whole or part.
"Notional Euro-Rate Funding Office" shall have the meaning given to that
term in Section 2.17(a) hereof.
"Obligations" shall mean all indebtedness, obligations and liabilities of
the Borrower to any Lender or any Agent from time to time arising under or in
connection with or related to or evidenced by or secured by this Agreement or
any other Loan Document, and all extensions or renewals thereof, whether such
indebtedness, obligations or liabilities are direct or indirect, otherwise
secured or unsecured, joint or several, absolute or
9
15
contingent, due or to become due, whether for payment or performance, now
existing or hereafter arising. Without limitation of the foregoing, such
indebtedness, obligations and liabilities include the principal amount of Loans,
interest, fees, indemnities or expenses under or in connection with this
Agreement or any other Loan Document, and all extensions and renewals thereof,
whether or not such Loans were made in compliance with the terms and conditions
of this Agreement or in excess of the obligation of the Lenders to lend.
Obligations shall remain Obligations notwithstanding any assignment or transfer
or any subsequent assignment or transfer of any of the Obligations or any
interest therein.
"Office," when used in connection with the Administrative Agent, shall mean
its office located at 0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxxxx
00000, or at such other office or offices of the Administrative Agent or any
branch, subsidiary or affiliate thereof as may be designated in writing from
time to time by the Administrative Agent to the Borrower.
"Option" shall mean the Base Rate Option, the CD Rate Option or the
Euro-Rate Option, as the case may be.
"Other Credit Agreement" shall mean the Revolving Credit Agreement dated as
of February 12, 1999 among Xxxxxx Xxxxxxx Corporation, the guarantors signatory
thereto, the lenders signatory thereto, Bank of America National Trust and
Savings Association, as administrative agent, and other agents party thereto, as
the same may be amended, modified or supplemented from time to time.
"Participants" shall have the meaning set forth in Section 10.14(b) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation established under
Title IV of ERISA or any other governmental agency, department or
instrumentality succeeding to the functions of said corporation.
"Pension Plan" shall mean a single employer plan as defined in Section
4001(a)(15) of ERISA or an individual account plan which is subject to the
funding standards of Section 302 of ERISA with respect to which the Borrower,
any of its Significant Subsidiaries, or members of their respective Controlled
Groups, at any relevant time have some liability or obligation to contribute or
pay benefits and which relates to current or former employees of the Borrower,
any of its Significant Subsidiaries or any member of their respective Controlled
Groups.
"Permitted Liens" shall mean (a) pledges or deposits by the Borrower or any
of its Subsidiaries under workers' compensation laws, unemployment insurance
laws, social security laws, or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness of the Borrower or any of its Subsidiaries), or leases to which the
Borrower or any of its Subsidiaries is a party, or deposits to secure public or
statutory obligations of the Borrower or any of its Subsidiaries or deposits of
cash or U.S. governmental bonds to secure surety, appeal, performance or other
similar bonds to which the Borrower or any of its Subsidiaries is a party, or
deposits as security for contested taxes or import duties or for the payment of
rent; (b) Liens imposed by law such as carriers', warehousemen's, materialmen's
and mechanics' or other similar liens, or Liens arising out of judgments or
awards against the Borrower or any of its Subsidiaries with respect to which the
Borrower or any of its Subsidiaries at the time shall currently be prosecuting
an appeal or proceedings for review; (c) Liens for taxes, assessments or
governmental charges or levies not yet subject to penalties for nonpayment and
Liens for taxes, assessments or governmental charges or levies the payment of
which is being contested as permitted by Section 5.03 hereof; (d) survey
exceptions, encumbrances, easements or reservations of, or rights of others for
rights of way, highways and railroad crossings, sewers, electric lines,
telephone and telegraph lines and other similar purposes, or zoning or other
restrictions as to the use of real property; all of which Liens described in
clause (d) hereof do not in the aggregate materially detract from the value of
the properties to which they relate or materially impair their use in the
operation of the business of the Borrower and its Subsidiaries taken as a whole;
(e) Liens (i) in favor of the United States of America or any State thereof, or
any department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or (ii) in favor of any other country,
or any political subdivision thereof, to secure partial, progress, advance or
other payments pursuant to any contract or statute; (f) Liens made in favor of
any customer arising in the ordinary course of business of the Borrower or any
Subsidiary thereof in respect of payments made by or on behalf of such customer
for goods produced or
10
16
services rendered to such customer; (g) a security interest granted to the
"Administrative Agent", for the benefit of the "Administrative Agent", the "LC
Issuer" and the "Lenders", in "Cash Collateral" under the Other Credit Agreement
(all terms in quotation having the meanings ascribed to such terms under the
Other Credit Agreement); and (h) Liens granted pursuant to the Pledge Agreement.
"Person" shall mean an individual, corporation, partnership, trust,
unincorporated association, joint venture, joint-stock company, Governmental
Authority or any other entity.
"Portion" shall mean the Base Rate Portion, the CD Rate Portion or the
Euro-Rate Portion, as the case may be.
"Potential Default" shall mean any event or condition which with notice or
passage of time, or any combination of the foregoing, would constitute an Event
of Default.
"Pledge Agreement" shall mean the pledge agreement in the form of Exhibit
J.
"Principal Foreign Affiliates" shall have the meaning set forth in Section
6.09 hereof.
"Project" shall mean any municipal solid waste project or any other project
the assets of which are financed on a limited recourse basis.
"Pro Rata" shall have the meaning set forth in Section 2.13 hereof.
"Purchasing Lender" shall have the meaning set forth in Section 10.14(c)
hereof.
"Reference Rate" as used herein, shall mean for any day the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "reference rate." (The "reference rate" is a rate set by Bank
of America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate.) Any change in the reference rate announced by Bank of
America shall take effect at the opening of business on the day specified in the
public announcement of such change.
"Register" shall have the meaning set forth in Section 10.14(d) hereof.
"Regular Payment Date" shall mean the last Business Day of each March,
June, September and December after the date hereof.
"Relevant Date" shall have the meaning set forth in Section 1.03(a) hereof.
"Replacement Lender" shall have the meaning set forth in Section 2.18
hereof.
"Reportable Event" means an event described in Section 4043 of ERISA or in
the regulations thereunder with respect to which the 30-day notice is not waived
or an event described in Section 4043 or in the regulations thereunder with
respect to which the 30-day notice has been waived and which involves a
liability of $1,000,000 or more or a material plan or a receipt of a notice of
withdrawal liabilities pursuant to Section 4202 of ERISA. For purposes of this
definition a material plan is a plan in which benefit liabilities exceed assets
on a termination basis based on PBGC assumptions by $1,000,000.
"Required Lenders" shall mean, at any time prior to the termination or
expiration of the Commitments, Lenders which have Commitments constituting, in
the aggregate, more than 50% of the total Commitments of all the Lenders at such
time and shall mean, at any time thereafter, Lenders which have outstanding
Loans constituting, in the aggregate, more than 50% of all Loans outstanding at
such time.
"Requirements of Law" means all applicable federal, state, and local laws,
statutes, rules, regulations, codes, ordinances, orders, decrees, directives,
permits, licenses and judgments relating to Environmental Matters in effect from
time to time.
"Responsible Officer" of the Borrower shall mean its Chief Executive
Officer, its Chief Financial Officer, its Executive Vice President, any Senior
Vice President, any Vice President, the Treasurer or one of its Assistant
Treasurers.
11
17
"Revolving Credit Commitment" shall have the meaning set forth in Section
2.01(a) hereof.
"Revolving Credit Committed Amount" shall have the meaning set forth in
Section 2.01(a) hereof.
"Revolving Credit Loans" shall have the meaning set forth in Section
2.01(a) hereof.
"Revolving Credit Maturity Date" shall mean February 11, 2000, as such date
may be extended pursuant to Section 2.18 hereof.
"Revolving Credit Note" shall mean the promissory note of the Borrower
executed and delivered under Section 2.01(c) hereof, any promissory note issued
in substitution therefor pursuant to Sections 2.17(b) or 10.14(c) hereof,
together with all extensions, renewals, refinancings or refundings thereof in
whole or part.
"S&P" shall mean Standard & Poor's Rating Services, or any successor
thereto.
"S&P Rating" shall mean the rating assigned to the Borrower's senior
unsecured long term debt by S&P, or in the event the Borrower has no S&P-rated
senior unsecured long-term debt outstanding, the "issuer credit rating" most
recently assigned to the Borrower by S&P, which assignment shall have been made
not more than fifteen months prior to the time in question and not more than
ninety (90) days after a request therefor by the Required Lenders pursuant to
Section 5.14 hereof.
"Significant Subsidiary" shall mean (a) each Special Purpose Subsidiary and
(b) each other Subsidiary of the Borrower which in the most recent fiscal year
of the Borrower accounted for more than 10% of the consolidated assets of the
Borrower and its Subsidiaries or which accounted for more than 10% of the
consolidated income of the Borrower and its Subsidiaries for each of the most
recent three fiscal years of the Borrower; provided, however, that with respect
to Subsidiaries created or acquired after the date hereof, if thereafter such
entity, in a fiscal year, accounts for more than 10% of the consolidated assets
of the Borrower and its Subsidiaries or accounts for more than 10% of the
consolidated income of the Borrower and its Subsidiaries in such fiscal year, it
shall be deemed to be a Significant Subsidiary for such fiscal year.
"Special Purpose Subsidiary" shall mean a Subsidiary of the Borrower formed
with the express and sole purpose of, and which is engaged solely in the
business of, constructing or owning, leasing or operating a specific Project,
and with respect to which Subsidiary, neither the Borrower nor any of its other
Subsidiaries is obligated (except as guarantor of completion or performance) to
pay any Indebtedness (including lease obligations) incurred to construct, own,
lease or operate any such Project or any other Indebtedness of such Subsidiary.
"Spot Rate" for a currency means the rate quoted (expressed as a decimal,
rounded to the fourth decimal place) to the Administrative Agent as the spot
rate for the purchase of such currency with another currency through the FX
Trading Office of Bank of America at approximately 12:00 noon (London time) on
the date two Business Days prior to the date as of which the foreign exchange
settlement is made.
"Standard Notice" shall mean an irrevocable notice substantially in the
form of Exhibit L provided to the Administrative Agent on a Business Day which
is:
(a) At least two Business Day in advance in the case of selection of,
conversion to or renewal of the CD Rate Option or prepayment of CD Rate
Portion;
(b) At least three Business Days in advance in the case of selection
of, conversion to or renewal of the Euro-Rate Option or prepayment of any
Euro-Rate Portion; and
(c) On the same Business Day in the case of selection of, conversion
to or renewal of the Base Rate Option or prepayment of Base Rate Portion.
Standard Notice must be provided no later than 9:00 a.m., Los Angeles time, on
the last day permitted for such notice in the case of notices given pursuant to
clause (c) above, and no later than 10:00 a.m., Los Angeles time, on the last
day permitted for such notice in the case of notices given pursuant to clauses
(a) and (b) above.
12
18
"Stock Payment" by any Person shall mean any dividend, distribution or
payment of any nature (whether in cash, securities, or other property) on
account of or in respect of any shares of the capital stock (or warrants,
options or rights therefor) of such Person, including but not limited to any
payment on account of the purchase, redemption, retirement, defeasance or
acquisition of any shares of the capital stock (or warrants, options or rights
therefor) of such Person, in each case regardless of whether required by the
terms of such capital stock (or warrants, options or rights) or any other
agreement or instrument.
"Subsidiary" of a Person at any time shall mean any corporation of which a
majority (by number of shares or number of votes) of any class of outstanding
capital stock normally entitled to vote for the election of one or more
directors (regardless of any contingency which does or may suspend or dilute the
voting rights of such class) is at such time owned directly or indirectly,
beneficially or of record, by such Person or one or more Subsidiaries of such
Person, and any trust of which a majority of the beneficial interest is at such
time owned directly or indirectly, beneficially or of record, by such Person or
one or more Subsidiaries of such Person.
"Subsidiary Guaranty Agreement" shall mean the agreement of a Subsidiary in
the form of Exhibit H hereof whereby it acknowledges to become a party hereto as
a Guarantor under Section 9 hereof.
"Syndication Agent" shall mean First Union National Bank, in its capacity
as Syndication Agent hereunder.
"Taxes" shall have the meaning set forth in Section 2.16 hereof.
"Total Revolving Credit Commitment" shall mean at any time, the aggregate
Revolving Credit Committed Amounts of all Lenders hereunder at such time.
"Transfer Effective Date" shall have the meaning set forth in the
applicable Transfer Supplement.
"Transfer Supplement" shall have the meaning set forth in Section 10.14(c)
hereof.
"Trust Preferred" shall mean 9% $175,000,000 Trust Preferred Securities of
the Borrower issued on or about January 13, 1999.
"Utilization Fee" is set forth in the definition of "Applicable Margin."
"Voting Stock" shall mean, with respect to any corporation, the capital
stock of such corporation having the power to vote for a majority of the board
of directors of such corporation under ordinary circumstances.
Section 1.02. Construction. Unless the context of this Agreement
otherwise clearly requires, references to the plural include the singular, the
singular the plural and the part the whole; "or" has the inclusive meaning
represented by the phrase "and/or"; and "property" includes all properties and
assets of any kind or nature, tangible or intangible, real, personal or mixed.
References in this Agreement to "determination" (and similar terms) by any Agent
or by any Lender include reasonable and good faith estimates by such Agent or by
such Lender (in the case of quantitative determinations) and good faith beliefs
by such Agent or by such Lender (in the case of qualitative determinations). The
words "hereof," "herein," "hereunder" and similar terms in this Agreement refer
to this Agreement as a whole and not to any particular provision of this
Agreement. The section and other headings contained in this Agreement and the
Table of Contents preceding this Agreement are for reference purposes only and
shall not control or affect the construction of this Agreement or the
interpretation thereof in any respect. Section, subsection and exhibit
references are to this Agreement unless otherwise specified.
Section 1.03. Accounting Principles. (a) As used herein, "GAAP" shall
mean generally accepted accounting principles as such principles shall be in
effect at the Relevant Date, subject to the provisions of this Section 1.03. As
used herein, "Relevant Date" shall mean the date a relevant computation or
determination is to be made or the date of relevant financial statements, as the
case may be.
(b) Except as otherwise provided in this Agreement, all computations and
determinations as to accounting or financial matters shall be made, and all
financial statements to be delivered pursuant to this
13
19
Agreement shall be prepared, in accordance with GAAP (including principles of
consolidation where appropriate), and all accounting or financial terms shall
have the meanings ascribed to such terms by GAAP.
(c) If any change in GAAP after the date of this Agreement is or shall be
required to be applied to transactions then or thereafter in existence, and a
violation of one or more provisions of this Agreement shall have occurred or in
the opinion of the Borrower would likely occur which would not have occurred or
be likely to occur if no change in accounting principles had taken place,
(i) The parties agree that such violation shall not be considered to
constitute an Event of Default or a Potential Default for a period of 60
days from the date the Borrower notifies the Administrative Agent of the
application of this Section 1.03(c);
(ii) The parties agree in such event to negotiate in good faith an
amendment of this Agreement which shall approximate to the extent possible
the financial effect of the original financial covenants after taking into
account such change in GAAP; and
(iii) If the parties are unable to negotiate such an amendment within
60 days, the Borrower shall have the option of prepaying the Loans (subject
to Section 2.14(b) hereof). If the Borrower does not exercise such option
within said period, then as used in this Agreement, "GAAP" shall mean
generally accepted accounting principles in effect at the Relevant Date.
(d) If any change in GAAP after the date of this Agreement is required to
be applied to transactions or conditions then or thereafter in existence, and
the Administrative Agent shall assert that the effect of such change is or shall
likely be to distort materially the effect of any of the definitions of
financial terms in Article I hereof or any of the covenants of the Borrower in
Article VI hereof (the "Financial Provisions"), so that the intended financial
effect of any of the Financial Provisions will not in fact be accomplished,
(i) The Administrative Agent shall notify the Borrower of such
assertion, specifying the change in GAAP which is objected to, and until
otherwise determined as provided below, the specified change in GAAP shall
not be made by the Borrower in its financial statements for the purpose of
applying the Financial Provisions; and
(ii) The parties shall follow the procedures set forth in paragraph
(ii) and the first sentence of paragraph (iii) of subsection (c) of this
Section. If the parties are unable to agree on an amendment as provided in
said paragraph (ii) and if the Borrower does not exercise the option set
forth in the first sentence of said paragraph (iii) within the specified
period, then as used in this Agreement "GAAP" shall mean generally accepted
accounting principles in effect at the Relevant Date, except that the
specified change in GAAP which is objected to by the Administrative Agent
shall not be made in applying the Financial Provisions.
(e) All expenses of compliance with this Section 1.03 shall be paid for by
the Borrower upon demand.
Section 1.04. Optional Increase of the Commitments. (a) The Borrower may
from time to time increase the Total Revolving Credit Commitment by the addition
of one or more new Lenders consented to by the Administrative Agent or by the
agreement of any existing Lender (a "Proposed Combined Commitments Increase") in
the manner set forth below; provided that (i) the then Total Revolving Credit
Commitment plus the Proposed Combined Commitments Increase shall not be greater
than the $100,000,000; (ii) immediately prior to and after giving effect to the
Proposed Combined Commitments Increase no event has occurred and is continuing
that constitutes an Event of Default or Potential Default; (iii) the Borrower
shall pay any costs payable under Section 2.14(b) if and to the extent any Loans
are prepaid on the effective date of such increase (the "Increase Date"); (iv)
to the extent the Other Credit Agreement is in effect, the Borrower must request
the increase of the Total Revolving Credit Commitment under the Other Credit
Agreement and such new or existing Lender consenting to the increase under this
Agreement must also consent to the increase under the Other Credit Agreement at
the same percentage; and (v) the Borrower may not request the increase of the
Total Revolving Credit Commitment hereunder once the Borrower has reduced such
Commitment under Section 2.02(c) hereof.
14
20
(b) The Total Revolving Credit Commitment shall be increased by the
Proposed Combined Commitments Increase on the Increase Date provided (i) each
such new Lender shall execute and deliver to the Administrative Agent the
Joinder to Revolving Credit Agreement (and by such execution and delivery, each
such new Lender shall be deemed to have agreed with the matters set forth in
this Agreement) and/or such existing Lender shall execute and deliver the
Commitment Increase Supplement in the form of Exhibit K and (ii) the
Administrative Agent shall have received on or before the Increase Date
certified copies of the resolutions of the Board of Directors of the Borrower
approving such increase of the Total Revolving Credit Commitment, and of all
documents evidencing other necessary corporate action, if any, with respect to
such increase. Upon satisfaction of the foregoing conditions, such new Lender
shall become a Lender hereunder and/or such existing Lender's Commitment shall
be increased, and the Administrative Agent shall, promptly following the
effective date thereof, provide to the Borrower and the Lenders a revised Pro
Rata shares giving effect thereto. The Borrower agrees that it shall execute and
deliver upon request of such new or existing Lender, one or more Notes
evidencing that such new or existing Lender's Pro Rata share.
(c) If, after giving effect to the Proposed Combined Commitments Increase,
any Lender's revised Pro Rata share of the Total Revolving Credit Commitment is
different than its share of Obligations, the Obligations shall be reallocated
among the Lenders as follows. On the Increase Date the Borrower shall be deemed
to have prepaid all outstanding Revolving Credit Loans in accordance with
Section 2.11 and reborrowed all Revolving Credit Loans in accordance with
Section 2.01 from all Lenders ratably in accordance with their revised Pro Rata
shares. On the Increase Date, the Administrative Agent shall distribute to each
Lender having a decreased Pro Rata share an amount equal to the difference
between its Revolving Credit Loans so prepaid and the new Revolving Credit Loans
deemed to have been made by it (plus interest payable hereunder). Such payments
shall be deemed to be a payment of the Revolving Credit Loans by the Borrower on
the date such payment is received.
Section 1.05. Utilization of Commitments in Foreign Currencies. The
Administrative Agent will determine the Dollar Equivalent with respect to any
(i) borrowing of Eurocurrency Loans as of the requested borrowing date and (ii)
outstanding Eurocurrency Currency Loans as of the last Business Day of each
month provided, however, that (i) upon the occurrence and during the
continuation of any Potential Default or Event of Default or (ii) for the
purpose of calculating fees payable under this Agreement or for other purposes,
such determination shall be made as often as the Administrative Agent or the
Required Lenders may reasonably deem necessary.
ARTICLE II
THE CREDITS
Section 2.01. Revolving Credit Loans. (a) Revolving Credit
Commitments. Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender, severally and not
jointly, agrees (such agreement being herein called such Lender's "Revolving
Credit Commitment") to make committed loans in Dollars (the "Revolving Credit
Loans") to the Borrower from time to time on or after the date hereof and to but
not including the Revolving Credit Maturity Date. A Lender shall have no
obligation to make any Revolving Credit Loan to the extent that, upon the making
of such Revolving Credit Loan, the sum of the aggregate principal amount of such
Lender's outstanding Revolving Credit Loans would exceed such Lender's Revolving
Credit Committed Amount. No Revolving Credit Loans shall be made hereunder to
the extent that such Revolving Credit Loans would cause the Dollar Equivalent of
the sum of the aggregate outstanding principal amount of all Loans outstanding
hereunder to exceed the Total Revolving Credit Commitment. Each Lender's
"Revolving Credit Committed Amount" at any time shall be equal to the amount set
forth as its "Initial Revolving Credit Committed Amount" below its name on the
signature pages hereof, as such amount may have been reduced pursuant to Section
2.02(c) hereof at such time, subject to adjustment as provided in Sections 1.05
and 10.17 hereof and subject to transfer to another Lender as provided in
Section 10.14 hereof.
15
21
(b) Nature of Credit. Within the limits of time and amount set forth in
this Section 2.01, and subject to the provisions of this Agreement, the Borrower
may borrow, repay and reborrow Revolving Credit Loans hereunder.
(c) Revolving Credit Notes. To the extent so requested by any Lender
through the Administrative Agent, the obligation of the Borrower to repay the
unpaid principal amount of the Revolving Credit Loans made to it by such Lender
and to pay interest thereon shall be evidenced in part by promissory notes of
the Borrower, one to such Lender, dated the Closing Date (the "Revolving Credit
Notes") in substantially the form attached hereto as Exhibit A, with the blanks
appropriately filled, payable to the order of such Lender in a face amount equal
to such Lender's Initial Revolving Credit Committed Amount.
(d) Maturity. To the extent not due and payable earlier, the Revolving
Credit Loans shall be due and payable on the Revolving Credit Maturity Date.
Section 2.02. Fees; Reduction of the Committed Amounts. (a) Facility
Fee. The Borrower shall pay to the Administrative Agent for the account of each
Lender a fee (the "Facility Fee") for each day from and including the date
hereof and to but not including the Revolving Credit Maturity Date, on the
amount of such Lender's Revolving Credit Committed Amount (whether used or
unused) on such day (based upon a year of 365 or 366 days and actual days
elapsed) at a rate per annum equal to the rate in effect for such day determined
in accordance with the pricing grid set forth in the definition of "Applicable
Margin". Facility Fees shall be due and payable for the preceding period for
which such fees have not been paid on each Regular Payment Date and on the
Revolving Credit Maturity Date.
(b) Other Fees. The Borrower shall pay to each Agent an agency fee and
other fees at the times and in the amounts previously agreed upon among the
Agents and the Borrower.
(c) Optional Reduction of the Revolving Credit Committed Amounts. The
Borrower may at any time or from time to time reduce Pro Rata the Revolving
Credit Committed Amounts of the Lenders to an aggregate amount (which may be
zero) not less than the Dollar Equivalent of the sum of the unpaid principal
amount of the Revolving Credit Loans and Competitive Bid Loans then outstanding
plus the principal amount of all Revolving Credit Loans and Competitive Bid
Loans not yet made as to which notice has been given by Borrower under Section
2.07 hereof. Any reduction of the Revolving Credit Committed Amounts shall be in
an aggregate amount not less than $10,000,000 which is an integral multiple of
$1,000,000. Reduction of the Revolving Credit Committed Amounts shall be made by
providing not less than two Business Days' notice (which notice shall be
irrevocable) to such effect to the Administrative Agent. After the date
specified in such notice the Facility Fee shall be calculated upon the Revolving
Credit Committed Amounts as so reduced. The Administrative Agent will promptly
send copies of such notice to the Lenders.
(d) Bid Fees. In consideration of the Administrative Agent's management of
bidding procedures for Competitive Bid Loans, the Borrower shall pay to the
Administrative Agent for the Administrative Agent's own account on the date of
each LIBOR Auction, CD Rate Auction, Base Rate Auction and Absolute Rate
Auction, bid agency fees in the amount of $150 for each Competitive Bid Loan
Quote submitted by each Lender, but in no event less than $450 per auction.
Section 2.03. Competitive Bid Loans. (a) Making of Competitive Bid
Loans. In addition to Revolving Credit Loans, the Borrower may, as set forth in
this Section 2.03, request the Lenders to make offers to make one or more
Competitive Bid Loans to the Borrower. Each Lender may, but shall have no
obligation to, make one or more such offers and, subject to the terms and
provisions hereof, the Borrower may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section 2.03. Competitive Bid Loans
may be Base Rate Loans, CD Rate Loans, Absolute Rate Loans or LIBOR-based Loans
(each a "type" of Competitive Bid Loan) and, subject to Section 2.03(r) hereof,
may be in any freely available currency agreed upon by the Borrower and each
Lender. Competitive Bid Loans shall be due and payable on the earlier of the
Competitive Bid Expiration Date and the applicable Competitive Bid Loan Maturity
Date. After giving effect to any borrowing of Competitive Bid Loans, the Dollar
Equivalent of the sum of the aggregate principal amount of all Loans outstanding
hereunder shall not exceed the Total Revolving Credit Commitment at any time;
provided, however, that the outstanding Competitive Bid Loans made by any
16
22
Lender may exceed its Revolving Credit Committed Amount. The Competitive Bid
Loans shall be deemed to utilize the Total Revolving Credit Commitment by an
amount equal to the Dollar Equivalent of the aggregate outstanding principal
amount thereof.
(b) Competitive Bid Loan Quote Requests. When the Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.03, it shall
transmit to the Administrative Agent by telecopy, at its Office, notice (a
"Competitive Bid Loan Quote Request") so as to be received no later than 10:00
a.m., Los Angeles time on (x) the fourth Business Day prior to the date of
borrowing proposed therein, in the case of a LIBOR Auction, (y) the third
Business Day prior to the date of Borrowing proposed therein, in the case of a
CD Rate Auction, or (z) the Business Day next preceding the date of borrowing
proposed therein, in the case of a Base Rate Auction or Absolute Rate Auction
(or, in any case, such other time as the Borrower and Administrative Agent may
agree). The Borrower may request offers to make Competitive Bid Loans for
different Interest Periods in a single notice; provided that the request for
each separate Interest Period shall be deemed to be a separate Competitive Bid
Loan Quote Request for a separate Competitive Bid Loan (all Competitive Bid
Loans proposed to be made at one time herein collectively referred to as a
"Competitive Bid Borrowing"). Each such notice shall be substantially in the
form of Exhibit B hereto and in any case shall specify as to each Competitive
Bid Borrowing:
(i) The proposed date of such Competitive Bid Borrowing, which shall
be a Business Day;
(ii) The currency or currencies in which such Competitive Borrowing is
to be made;
(iii) The aggregate amount of such Competitive Bid Borrowing which
shall be a Dollar Equivalent of at least $5,000,000 (or a higher integral
multiple of $1,000,000) (to the extent practical in the case of
Eurocurrency Loans), but shall not cause the limits specified in Section
2.04 hereof to be violated;
(iv) The duration of the initial Interest Period or Periods applicable
thereto, subject to the provisions of the definition of "Interest Period"
(including without limitation that no such Interest Period shall end after
the Competitive Bid Expiration Date); and
(v) Whether the Competitive Bid Loan Quotes requested are to set forth
a LIBOR-based Margin, a Base Rate Margin, a CD Rate Margin or an Absolute
Rate.
The Borrower may not request Competitive Bid Borrowings for more than three
maturities nor request more than one type of Competitive Bid Loan in a single
Competitive Bid Borrowing. Unless the Administrative Agent otherwise agrees, in
its sole and absolute discretion, the Borrower may not submit a request for a
Competitive Bid Borrowing if it has submitted another such request within the
prior two Business Days.
(c) Invitation for Competitive Bid Loan Quotes. The Administrative Agent
shall promptly transmit to the Lenders by telecopy notice of such Competitive
Bid Loan Request, which notice shall constitute an invitation by the Borrower to
each Lender to submit Competitive Bid Loan Quotes offering to make Competitive
Bid Loans in accordance with such Competitive Bid Loan Quote Request.
No Competitive Bid Loan Request shall be given if such request could result
in more than six Competitive Bid Loans being outstanding at any one time unless
otherwise permitted by the Administrative Agent.
(d) Submission and Contents of Competitive Bid Loan Quotes. (i) Each
Lender may submit one or more Competitive Bid Loan Quotes, each containing an
offer to make a Competitive Bid Loan in response to any Competitive Bid Loan
Quote Request. Each Competitive Bid Loan Quote must comply with the requirements
of this Section 2.03(d) and must be submitted to the Administrative Agent by
telecopy at its Office not later than (x) 8:00 a.m., Los Angeles time on the
third Business Day prior to the proposed date of borrowing, in the case of a
LIBOR Auction or (y) 7:00 a.m., Los Angeles time on the proposed date of
borrowing, in the case of a Base Rate Auction, CD Rate Auction or an Absolute
Rate Auction (or, in either case upon reasonable notice to the Lenders, such
other time and date as the Borrower and the Administrative Agent may agree);
provided that any Competitive Bid Loan Quote submitted by the Administrative
Agent (or an Affiliate of the Administrative Agent) in the capacity of a Lender
may be submitted, and may only be submitted, if the Administrative Agent (or
such Affiliate) notifies the Borrower of the terms of the offer or
17
23
offers contained therein not later than (x) 7:30 a.m., Los Angeles time on the
third Business Day prior to the proposed date of borrowing, in the case of a
LIBOR Auction or (y) 6:30 a.m., Los Angeles time on the proposed date of
borrowing, in the case of a Base Rate Auction, CD Rate Auction or an Absolute
Rate Auction. Subject to Sections 2.14, 2.03(r) and 4.01 hereof, any Competitive
Bid Loan Quote so made shall be irrevocable except with the written consent of
the Administrative Agent given on the written instructions of the Borrower.
(ii) Each Competitive Bid Loan Quote shall be substantially in the form of
Exhibit C hereto and shall in any case specify:
(A) The proposed date of borrowing, the proposed currency and the
Interest Period therefor;
(B) The principal amount of the Competitive Bid Loan for which each
such offer is being made, which principal amount shall be a Dollar
Equivalent of at least $5,000,000 or a higher integral multiple of
$1,000,000; provided that the aggregate principal amount of all Competitive
Bid Loans for which a Lender submits Competitive Bid Loan Quotes (x) may be
greater than, less than or equal to the Revolving Credit Committed Amount
of such Lender but (y) may not exceed the principal amount of the
Competitive Bid Borrowing for which offers were requested in the related
Competitive Bid Loan Quote Request;
(C) In the case of a LIBOR Auction, the margin above (or, if a
negative margin is offered, below) the applicable LIBOR Rate (the
"LIBOR-based Margin") offered for each such Competitive Bid Loan, expressed
as a percentage (rounded upwards, if necessary, to the nearest 1/10,000th
of 1%) to be added to the applicable LIBOR Rate;
(D) In the case of a CD Rate Auction, the margin above (or, if a
negative margin is offered, below) the applicable CD Rate (the "CD Rate
Margin") offered for each such Competitive Bid Loan expressed as a
percentage (rounded upward, if necessary, to the nearest 1/10,000th of 1%)
to be added to the applicable CD Rate;
(E) In the case of a Base Rate Auction, the margin above (or, if a
negative margin is offered, below) the applicable Base Rate (the "Base Rate
Margin") offered for each such Competitive Bid Loan, expressed as a
percentage (rounded upward, if necessary, to the nearest 1/10,000th of 1%)
to be added to the applicable Base Rate;
(F) In the case of an Absolute Rate Auction, the rate of interest per
annum, calculated on the basis of a 360-day year (rounded upwards, if
necessary, to the nearest 1/10,000th of 1%) (the "Absolute Rate") offered
for each such Competitive Bid Loan; and
(G) The identity of the quoting Lender.
(iii) No Competitive Bid Loan Quote shall contain qualifying, conditional
or similar language or propose terms other than or in addition to those set
forth in the applicable Competitive Bid Loan Quote Request and, in particular,
no Competitive Bid Loan Quote may be conditioned upon acceptance by the Borrower
of all (or some specified minimum) of the principal amount of the Competitive
Bid Loan for which such Competitive Bid Loan Quote is being made, and the
Administrative Agent shall disregard any Competitive Bid Loan Quote that
contains such language or terms or conditions or that arrives at the
Administrative Agent's Office after the time set forth for submission of
Competitive Bid Loan Quotes in Section 2.03(d)(i) hereof.
(e) Notice to the Borrower. The Administrative Agent shall (x) in the case
of a LIBOR Auction, by 9:00 a.m., Los Angeles time on the day (which shall be a
Business Day) a Competitive Bid Loan Quote is submitted or (y) in the case of a
Base Rate Auction, CD Rate Auction or an Absolute Rate Auction, by 7:30 a.m.,
Los Angeles time on the day (which shall be a Business Day) a Competitive Bid
Loan Quote is submitted, notify the Borrower by telecopy of the terms (i) of any
Competitive Bid Loan Quote submitted by a Lender that is in accordance with
Section 2.03(d) hereof and (ii) of any Competitive Bid Loan Quote that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid Loan Quote
submitted by such Lender with respect to the same Competitive Bid Loan Quote
Request. Any such subsequent Competitive Bid Loan Quote shall be disregarded by
the Administrative Agent unless such subsequent Competitive Bid Loan
18
24
Quote is submitted solely to correct a manifest error in such former Competitive
Bid Loan Quote. The Administrative Agent's notice to the Borrower shall specify
(A) the aggregate principal amount of each Competitive Bid Loan for which
Competitive Bid Loan Quotes have been received for each Interest Period
specified in the related Competitive Bid Loan Quote Request, (B) the respective
principal amounts and LIBOR-based Margins, CD Rate Margins, Base Rate Margins or
Absolute Rates, as the case may be, so offered by each Lender, identifying the
Lender that made each Competitive Bid Loan Quote and (C) if the Administrative
Agent is notifying the Borrower of more than one Competitive Bid Loan Quote for
a single Interest Period, the Administrative Agent shall arrange the Competitive
Bid Loan Quotes in ascending yield order.
(f) Acceptance and Notice by the Borrower. Not later than (x) 9:30 a.m.,
Los Angeles time on the third Business Day prior to the proposed date of the
borrowing, in the case of a LIBOR Auction or (y) 8:00 a.m., Los Angeles time on
the proposed date of the borrowing, in the case of a Base Rate Auction, CD Rate
Auction or an Absolute Rate Auction (or, in either case upon reasonable prior
notice to the Lenders, such other time and date as the Borrower and the
Administrative Agent may agree), the Borrower shall notify the Administrative
Agent by telecopy at its Office of its acceptance or nonacceptance of the
Competitive Bid Loan Quotes so notified to it pursuant to Section 2.03(e) hereof
(and the failure of the Borrower to give such notice by such time shall
constitute nonacceptance) and the Administrative Agent shall promptly notify
each affected Lender in accordance with Section 2.03(h) hereof. In the case of
acceptance, such notice shall specify the aggregate principal amount of
Competitive Bid Loan Quotes for each Interest Period that are accepted. The
Borrower may accept one or more Competitive Bid Loan Quotes in whole or in part
(provided that any Competitive Bid Loan Quote accepted in part shall be a Dollar
Equivalent of at least $5,000,000 or a higher integral multiple of $1,000,000,
to the extent practical in the case of Eurocurrency Loans); provided that:
(i) The aggregate principal amount of each Competitive Bid Borrowing
may not exceed the applicable amount set forth in the related Competitive
Bid Loan Quote Request;
(ii) The aggregate principal amount of each Competitive Bid Borrowing
shall be a Dollar Equivalent of at least $5,000,000 (or a higher integral
multiple of $1,000,000);
(iii) Acceptance of offers may be made only in ascending yield order
of LIBOR-based Margins, CD Rate Margins, Base Rate Margins or Absolute
Rates, as the case may be; and
(iv) The Borrower shall not accept any offer where the Administrative
Agent has advised the Borrower that such offer fails to comply with Section
2.03(d)(ii) hereof or otherwise fails to comply with the requirements of
this Agreement.
(g) Allocation by Administrative Agent. If Competitive Bid Loan Quotes are
made by two or more Lenders with the same LIBOR-based Margins, CD Rate Margins,
Base Rate Margins or Absolute Rates, as the case may be, for a greater aggregate
principal amount than the amount in respect of which Competitive Bid Loan Quotes
are accepted for the related Interest Period, the principal amount of
Competitive Bid Loans in respect of which such Competitive Bid Loan Quotes are
accepted shall be allocated by the Administrative Agent among such Lenders as
nearly as possible (in such multiples, not less than $500,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amount of such offers. If two or more such Competitive Bid Loan Quotes
cannot be allocated evenly within the limits set forth in the immediately
preceding sentence, the Administrative Agent shall have discretion to allocate a
larger share of such Competitive Bid Loans to one or more of the successful
Lenders and in making such allocation shall use reasonable efforts to take into
account previous allocations of unequal shares to one or more of such Lenders in
connection with other Competitive Bid Loans. Determinations by the
Administrative Agent of the amounts of Competitive Bid Loans to be allocated to
each such Lender shall be conclusive absent manifest error.
(h) Notice to Lenders. On the date the Borrower notifies the
Administrative Agent of its acceptance of one or more of the offers made by any
Lender or Lenders pursuant to Section 2.03(f) hereof, the Administrative Agent
shall promptly notify each Lender which has made an offer (i) of the aggregate
amount of each Competitive Bid Borrowing with respect to which the Borrower
accepted one or more Competitive Bid
19
25
Loan Quotes and such Lender's share of such Competitive Bid Borrowing or (ii)
that the Borrower accepted no offers, such notice to be by telecopy.
(i) Funding of Competitive Bid Loans. Any Lender whose offer to make any
Competitive Bid Loan has been accepted shall, not later than 11:00 a.m., Los
Angeles time, on the date specified in the related Competitive Bid Loan Quote
Request for the making of such Competitive Bid Loan, make the amount of such
Competitive Bid Loan available to the Borrower at the Administrative Agent's
Office in immediately available funds. If any Lender makes a new Competitive Bid
Loan hereunder on a day on which the Borrower is to repay all or any part of an
outstanding Competitive Bid Loan from such Lender, such Lender shall apply the
proceeds of its new Competitive Bid Loan to make such repayment and only an
amount equal to the difference (if any) between the amount being borrowed and
the amount being repaid shall be made available by such Lender to the Borrower
as provided by this Section 2.03(i), or remitted by the Borrower to the
Administrative Agent as provided in Section 2.14 hereof, as the case may be.
(j) Competitive Bid Loan Maturity Dates. The principal amount of each
Competitive Bid Loan shall be due and payable on the last day of the applicable
Interest Period specified in the related Competitive Bid Loan Quote Request (the
"Competitive Bid Loan Maturity Date").
(k) Competitive Bid Loan Interest Payment Dates. Interest on each
Competitive Bid Loan shall be due and payable on the Competitive Bid Loan
Maturity Date thereof and thereafter on demand at the rates provided for in
Section 2.03(o), and if any Interest Period is longer than 90 days, also on each
90th day of such Interest Period.
(l) Competitive Bid Record. The Administrative Agent shall maintain a
record of the names and addresses of Lenders that have made Competitive Bid
Loans and the principal amount of the Competitive Bid Loans owing to each Lender
from time to time together with the Competitive Bid Loan Maturity Dates and
interest rates applicable to each such Competitive Bid Loan, and other terms
applicable thereto (the "Competitive Bid Record"). The entries in the
Competitive Bid Record shall be prima facie evidence with respect to the entries
therein.
(m) Review of Competitive Bid Record. The Competitive Bid Record shall be
available to the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(n) Interest Rates for Competitive Bid Loans. The outstanding principal
amount of each Competitive Bid Loan shall bear interest for each day until due
at the following rate or rates per annum:
(i) For each LIBOR-based Loan, a rate per annum (computed on the basis
of a year of 360 days and actual days elapsed) equal to the LIBO Rate
applicable to the Interest Period therefor plus the LIBOR-based Margin
quoted by the Lender making such Loan in the related Competitive Bid Loan
Quote submitted in accordance with Section 2.03(d) hereof;
(ii) For each Base Rate Loan, a rate per annum (computed on the basis
of a year of 365 or 366 days and actual days elapsed) equal to the Base
Rate as in effect from time to time plus the Base Rate Margin quoted by the
Lender making such Loan in the related Competitive Bid Loan Quote submitted
in accordance with Section 2.03(d) hereof;
(iii) For each CD Rate Loan, a rate per annum (computed on the basis
of a year of 360 days and actual days elapsed) equal to the CD Rate
applicable to the Interest Period therefor plus the CD Rate Margin quoted
by the Lender making such Loan in the related Competitive Bid Loan Quote
submitted in accordance with Section 2.03(d) hereof;
(iv) For each Absolute Rate Loan, a rate per annum (computed on the
basis of a year of 360 days and actual days elapsed) equal to the Absolute
Rate quoted by the Lender making such Loan in the related Competitive Bid
Loan Quote submitted in accordance with Section 2.03(d) hereof.
(o) Interest after Maturity for Competitive Bid Loans. After the principal
amount of any Competitive Bid Loan shall have become due (by acceleration or
otherwise), such Loan shall bear interest for each day until paid (before and
after judgment) (i) until the Competitive Bid Loan Maturity Date of the
applicable
20
26
Interest Period of such Loan, at a rate per annum 2% above the rate applicable
to such Loan prior to such Competitive Bid Loan Maturity Date and (ii)
thereafter at a rate per annum determined in accordance with Section 2.15(b).
(p) Competitive Bid Notes. To the extent so requested by any Lender
through the Administrative Agent, the obligation of the Borrower to repay the
unpaid principal amount of any Competitive Bid Loans made by such Lender and to
pay interest thereon shall be evidenced by a single promissory note of the
Borrower (a "Competitive Bid Note") in substantially the form attached hereto as
Exhibit D, with the blanks appropriately filled. The Competitive Bid Note
payable to such Lender shall be dated the Closing Date, shall bear interest as
provided in Section 2.03(n) or as otherwise provided herein, and shall be
payable to the order of the Lender named as payee therein in a maximum face
amount of the Total Revolving Credit Commitment. The Competitive Bid Note for
such Lender shall be delivered, duly executed by the Borrower to the
Administrative Agent at or prior to the funding of the first Competitive Bid
Loan made by such Lender hereunder and the Administrative Agent shall promptly
forward such Competitive Bid Note to such Lender.
The outstanding principal amount of each Competitive Bid Loan evidenced by
each Competitive Bid Note from time to time, the Competitive Bid Loan Maturity
Date of such Competitive Bid Loan and the rate of interest and the amount of
accrued and unpaid interest payable in respect thereof shall be determined from
the records of the Administrative Agent, which shall be prima facie evidence
with respect to the entries therein. In the event the holder of a Competitive
Bid Note shall assign said Competitive Bid Note, it shall attach thereto a
schedule, which shall be verified by the Administrative Agent, setting forth the
then outstanding principal amount of each Competitive Bid Loan evidenced by such
Competitive Bid Note and the Competitive Bid Loan Maturity Date thereof.
(q) Payments. All payments to be made by the Borrower in Dollars in
respect of any Competitive Bid Loan shall be payable at 11:00 a.m., Los Angeles
time, on the day when due without presentment, demand, protest or notice of any
kind, all of which are hereby expressly waived, and an action therefor shall
immediately accrue, without setoff, counterclaim, withholding or other deduction
of any kind or nature, except for payments to a Lender subject to a withholding
deduction under Section 2.16(c) hereof. Such payments shall be made to the
Administrative Agent at its Office in Dollars in funds immediately available at
such Office. Any payment received by the Administrative Agent or such Lender
after 11:00 a.m., Los Angeles time, on any day shall be deemed to have been
received on the next succeeding Business Day. The Administrative Agent shall
distribute to the Lenders all such payments received by it from the Borrower as
promptly as practicable after receipt by the Administrative Agent. If and to the
extent that the Administrative Agent has not forwarded to any Lender such
Lender's share of any such payment on the same Business Day as such payment is
received (or deemed received) from the Borrower, the Administrative Agent shall
pay to such Lender interest on such amount at the Federal Funds Effective Rate
for each day until such payment is made. All payments of any Competitive Bid
Loans to be made in any currency other than Dollars shall be made by payment in
that currency in immediately available and freely transferable funds by the time
required by relevant local regulation and practice in the principal financial
center in the country of such currency for value on the applicable payment date
and such payment shall be due without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived, and an action therefor shall
immediately accrue, without setoff, counterclaim, withholding or other deduction
of any kind or nature, except for payments to a Lender subject to a withholding
deduction under Section 2.16(c) hereof.
(r) Multiple Currency Option. (i) Competitive Bid Loans may be made in any
currency requested by the Borrower and acceptable to the applicable Lender (each
a "Eurocurrency Loan"). If Eurocurrency Loans are to be made or are made, the
amount of such Loans shall be deemed to be, for purposes of determining
utilization of Commitments and other provisions of this Agreement, equal to the
Dollar Equivalent thereof. If the Dollar Equivalent of the sum of the all
Eurocurrency Loans outstanding on the day of any such determination plus the
outstanding Loans made in Dollars exceeds the Total Revolving Credit Commitment
as then in effect, the Administrative Agent shall immediately notify the
Borrower and the Borrower shall prepay on the Business Day following such day
Base Rate Loans and then, if necessary, Eurocurrency Loans to the extent
required so that such aggregate unpaid amount will not exceed the Total
Revolving Credit Commitment as then in effect; such prepayment being subject
however to Section 2.14(b) hereof. The
21
27
Borrower may designate the Loans to be prepaid by notice to the Administrative
Agent before each such prepayment.
(ii) Changes in Law Rendering Eurocurrency Loans Unlawful. In the event
that any change in Law or guideline or interpretation or application thereof
should at any time make it unlawful for any Lender to make, maintain or fund its
Eurocurrency Loans, such Lender shall promptly notify the Borrower and the
Administrative Agent thereof. Thereupon, (i) the obligation of such Lender to
make its Eurocurrency Loans shall, upon the later of the effectiveness of such
event and the receipt of such notice, be suspended for the duration of such
illegality, and (ii) the Borrower shall, on the applicable Competitive Bid Loan
Maturity Date with respect to such Eurocurrency Loans (or, if later, on the last
Competitive Bid Loan Maturity Date with respect to such Eurocurrency Loans to
end prior to the effectiveness of such change) or, in any event, if such Lender
so requests, on such earlier date as may be required by the relevant Law, prepay
or repay such Eurocurrency Loans.
Section 2.04. Maximum Aggregate Amount of Loans. No Revolving Credit Loan
or Competitive Bid Loan shall be made or requested or permitted to remain
outstanding hereunder if the making or maintenance of such Loan would cause the
Dollar Equivalent of the sum of the aggregate amount of all Loans to the
Borrower outstanding hereunder to exceed the Total Revolving Credit Commitment
as then in effect.
Section 2.05. [INTENTIONALLY OMITTED].
Section 2.06. [INTENTIONALLY OMITTED].
Section 2.07. Making of Loans. Whenever the Borrower desires that the
Lenders make Revolving Credit Loans, the Borrower shall provide Standard Notice
to the Administrative Agent setting forth the following information (a separate
notice being required for each such type of Loans):
(a) The date, which shall be a Business Day, on which such proposed
Loans are to be made;
(b) The aggregate principal amount of such proposed Loans, which shall
be the sum of the principal amounts selected pursuant to clause (c) of this
Section 2.07, and, except as provided in Section 2.06.03, which shall be at
least $5,000,000 and integral multiples of $1,000,000 in excess thereof;
(c) The interest rate Option or Options selected in accordance with
Section 2.08(a) hereof and the principal amounts selected in accordance
with Section 2.08(d) hereof of the Base Rate Portion and each Funding
Segment of the CD Rate Portion and the Euro-Rate Portion, as the case may
be, of such proposed Loans; and
(d) With respect to each such Funding Segment of such proposed Loans,
the Funding Period to apply to such Funding Segment, selected in accordance
with Section 2.08(c) hereof.
Standard Notice having been so provided, the Administrative Agent shall promptly
notify each Lender of the information contained therein and of the amount of
such Lender's Loan, calculated in accordance with Section 2.13. Unless any
applicable condition specified in Article IV hereof has not been satisfied, on
the date specified in such Standard Notice each Lender shall make the proceeds
of its Loan available to the Administrative Agent at the Administrative Agent's
Office, no later than 11:00 a.m., Los Angeles time, in funds immediately
available at such Office. The Administrative Agent will make the funds so
received available to the Borrower in funds immediately available at the
Administrative Agent's Office. If and to the extent that the Administrative
Agent does not make such funds available to the Borrower on the date specified
in such Standard Notice the Administrative Agent shall pay to each Lender
interest on the amount made available by such Lender at the Federal Funds
Effective Rate for each day until either (i) the date such funds are made
available to the Borrower or (ii) the date such amounts are returned to such
Lender.
Section 2.08. Interest Rates. (a) Optional Bases of Borrowing. The
unpaid principal amount of the Revolving Credit Loans shall bear interest for
each day from and including the date on which funds are made available to the
Borrower by the Administrative Agent and to but excluding the date of repayment
on one or more bases selected by the Borrower from among the interest rate
options set forth below. Subject to the provisions of this Agreement the
Borrower may select different options to apply simultaneously to different
22
28
Portions of the Loans and may select different Funding Segments to apply
simultaneously to different parts of the CD Rate Portion or the Euro-Rate
Portion of the Loans. Each selection of a rate Option shall apply separately and
without overlap to the Revolving Credit Loans as a class. The aggregate number
of Funding Segments applicable to the CD Rate Portion and the Euro-Rate Portion
of the Revolving Credit Loans at any time shall not exceed ten unless otherwise
permitted by the Administrative Agent.
(i) Base Rate Option: A rate per annum (computed on the basis of a
year of 365 or 366 days and actual days elapsed) for each day equal to the
Base Rate for such day plus the Applicable Margin for such day. The "Base
Rate" for any day shall mean the greater of (A) the Reference Rate for such
day or (B) 0.50% plus the Federal Funds Effective Rate for such day, such
interest rate to change automatically from time to time effective as of the
effective date of each change in the Reference Rate or the Federal Funds
Effective Rate.
(ii) CD Rate Option: A rate per annum (based on a year of 360 days
and actual days elapsed) for each day during the applicable CD Rate Funding
Period equal to the CD Rate for such day plus the Applicable Margin for
such day. "CD Rate" for any day shall mean for each Funding Segment of the
CD Rate Portion corresponding to a proposed or existing CD Rate Funding
Period the rate per annum determined by the Administrative Agent by adding
(A) the rate per annum (which shall be the same for each day in
such CD Rate Funding Period) determined in good faith by the
Administrative Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be the
arithmetic average of the secondary market bid rates at or about 8:00
a.m., Los Angeles time, on the first day of such CD Rate Funding Period
by dealers of recognized standing in negotiable certificates of deposit
for the purchase at face value of negotiable certificates of deposit of
major money center banks for delivery on such day in amounts comparable
to such Funding Segment and having maturities comparable to such CD Rate
Funding Period plus
(B) the Assessment Rate.
"Assessment Rate" for any day shall mean the rate per annum (rounded
upward to the nearest 1/100 of 1%) determined in good faith by the
Administrative Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be the maximum
effective rate per annum payable by a depository institution insured by the
Federal Deposit Insurance Corporation (or any successor) for such day as an
assessment for insurance on Dollar time deposits, exclusive of any credit
that is or may be allowed against such assessment on account of assessment
payments made or to be made by such depository institution. The CD Rate
shall be adjusted automatically as of the effective date of each change in
the Assessment Rate. The CD Rate Option shall be calculated in accordance
with the foregoing if any Lender is actually required to pay FDIC
assessments or, if required to pay such assessments, is required to pay
such assessments at the "Assessment Rate" as herein defined.
The Administrative Agent shall give prompt notice to the Borrower and
to the Lenders of the CD Rate determined or adjusted in accordance with the
definition of CD Rate, which determination or adjustment shall be
conclusive if made in good faith.
(iii) Euro-Rate Option: A rate per annum (based on a year of 360 days
and actual days elapsed) for each day during the applicable Euro-Rate
Funding Period equal to the Euro-Rate for such day plus, in each case, the
Applicable Margin for Euro-Rate Option for such day. "Euro-Rate" for any
day, as used herein, shall mean for each Funding Segment of the Euro-Rate
Portion corresponding to a proposed or existing Euro-Rate Funding Period
the rate per annum determined by the Administrative Agent to be the rate of
interest (which shall be the same for each day in such Euro-Rate Funding
Period) determined in good faith by the Administrative Agent in accordance
with its usual procedures from the Reuters Screen LIBO page (which
determination shall be conclusive absent manifest error) to be the average
of the rates per annum for deposits in Dollars offered to the leading banks
in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the first day of such Euro-Rate
23
29
Funding Period for delivery on the first day of such Euro-Rate Funding
Period in amounts comparable to such Funding Segment and having maturities
comparable to such Funding Period.
The Administrative Agent shall give prompt notice to the Borrower and
to the Lenders of the Euro-Rate determined in accordance with the
definition of the Euro-Rate, which determination shall be conclusive if
made in good faith.
(b) Applicable Margins. The "Applicable Margin" with respect to the Base
Rate Option, the CD Rate Option and the Euro-Rate Option shall be determined in
accordance with the pricing grid set forth in the definition of "Applicable
Margin".
(c) Funding Periods. At any time when the Borrower shall select, convert
to or renew the CD Rate Option or the Euro-Rate Option to apply to any part of
the Loans, the Borrower shall specify one or more periods (the "Funding
Periods") during which each such Option shall apply, such Funding Periods being
as set forth below:
Interest Rate Option Available Funding Periods
-------------------- --------------------------------------------------
CD Rate Option................. 30, 60, 90 or 180 days or such longer period as
may be offered by all of the Lenders ("CD Rate
Funding Period"); and
Euro-Rate Option............... One, two, three or six months ("Euro-Rate Funding
Period");
provided, that:
(i) Each CD Rate Funding Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding
Business Day;
(ii) Each Euro-Rate Funding Period shall begin on a Business Day, and
the term "month", when used in connection with a Euro-Rate Funding Period,
shall be construed in accordance with prevailing practices in the interbank
eurodollar market at the commencement of such Euro-Rate Funding Period, as
determined in good faith by the Administrative Agent (which determination
shall be conclusive); and
(iii) In the case of Revolving Credit Loans, the Borrower may not
select a Funding Period that would end after the Revolving Credit Maturity
Date.
(d) Transactional Amounts. Every selection of, conversion from, conversion
to or renewal of an interest rate option and every payment or prepayment of any
Loans shall be in a principal amount such that after giving effect thereto the
aggregate principal amount of the Base Rate Portion of the Revolving Credit
Loans, or the aggregate principal amount of each Funding Segment of the CD Rate
Portion or the Euro-Rate Portion of the Revolving Credit Loans, shall be at
least $5,000,000 and integral multiples of $1,000,000 in excess thereof.
(e) CD Rate or Euro-Rate Unascertainable; Impracticability. If
(i) on any date on which a CD Rate or a Euro-Rate would otherwise be
set, the Administrative Agent (in the case of clause (A) or (B) below)
shall have determined in good faith (which determination shall be
conclusive absent manifest error) that:
(A) adequate and reasonable means do not exist for ascertaining
such CD Rate or Euro-Rate, or
(B) a contingency has occurred which materially and adversely
affects the secondary market for negotiable certificates of deposit
maintained by dealers of recognized standing or the interbank eurodollar
market, as the case may be, or
(ii) at any time any Lender shall have determined in good faith (which
determination shall be conclusive absent manifest error) that the making,
maintenance or funding of any part of the CD Rate Portion or the Euro-Rate
Portion has been made impracticable or unlawful by compliance by such
Lender or a Notional Euro-Rate Funding Office in good faith with any Law or
guideline or interpretation
24
30
or administration thereof by any Governmental Authority charged with the
interpretation or administration thereof or with any request or directive
of any such Governmental Authority (whether or not having the force of
law);
then, and in any such event, the Administrative Agent or such Lender, as the
case may be, may notify the Borrower of such determination (and any Lender
giving such notice shall notify the Administrative Agent). Upon such date as
shall be specified in such notice (which shall not be earlier than the date such
notice is given), the obligation of each of the Lenders, in the case of clause
(i) above, or such Affected Lender, in the case of clause (ii) above, to allow
the Borrower to select, convert to or renew the CD Rate Option or Euro-Rate
Option, as the case may be, shall be suspended until the Administrative Agent or
such Lender, as the case may be, shall have later notified the Borrower (and any
Lender giving such notice shall notify the Administrative Agent) of the
Administrative Agent's or such Lender's determination in good faith (which
determination shall be conclusive absent manifest error) that the circumstance
giving rise to such previous determination no longer exist.
If any Lender notifies the Borrower of a determination under subsection
(ii) of this Section 2.08(e), the CD Rate Portion or the Euro-Rate Portion, as
the case may be, of the Loans of such Lender (the "Affected Lender") shall,
subject to Section 2.14(b) hereof, automatically be converted to the Base Rate
Option as of the last day of the then current Funding Period with respect to
such Loans (in the case of a determination that the making, maintenance or
funding of any CD Rate Portion or Euro-Rate Portion of such Loans is
impracticable) and the last day on which the making, maintenance or funding of
any CD Rate Portion or Euro-Rate Portion of such Loans is not unlawful (in the
case of a determination that the making, maintenance or funding of any CD Rate
Portion or Euro-Rate Portion of such Loans is unlawful) and accrued interest
thereon shall be due and payable on such date.
If at the time the Administrative Agent or an Affected Lender makes a
determination under subsection (i) or (ii) of this Section 2.08(e), as the case
may be, the Borrower previously has notified the Administrative Agent that it
wishes to select, convert to or renew the CD Rate Option or the Euro-Rate
Option, as the case may be, with respect to any proposed Loans but such Loans
have not yet been made, such notification shall be deemed to provide for
selection of, conversion to or renewal of the Base Rate Option instead of the CD
Rate Option or the Euro-Rate Option, as the case may be, with respect to such
Loans or, in the case of a determination by an Affected Lender, such Loans only
of such Affected Lender.
Section 2.09. Conversion or Renewal of Interest Rate
Options. (a) Conversion or Renewal. Subject to the provisions of Section
2.14(b) hereof the Borrower may convert any part of its Revolving Credit Loans
from any interest rate Option or Options to one or more different interest rate
Options and may renew the CD Rate Option or the Euro-Rate Option as to any
Funding Segment of the CD Rate Portion or the Euro-Rate Portion:
(i) At any time with respect to conversion from the Base Rate Option;
or
(ii) At the expiration of any Funding Period with respect to
conversions from or renewals of the CD Rate Option or the Euro-Rate Option,
as the case may be, as to the Funding Segment corresponding to such
expiring Funding Period.
Whenever the Borrower desires to convert or renew any interest rate Option
or Options, the Borrower shall provide to the Administrative Agent Standard
Notice setting forth the following information:
(w) The date, which shall be a Business Day, on which the proposed
conversion or renewal is to be made;
(x) The principal amounts selected in accordance with Section 2.08(d)
hereof of the Base Rate Portion and each Funding Segment of the CD Rate
Portion and the Euro-Rate Portion, as the case may be, to be converted from
or renewed;
(y) The interest rate Option or Options selected in accordance with
Section 2.08(a) hereof and the principal amounts selected in accordance
with Section 2.08(d) hereof of the Base Rate Portion and each
25
31
Funding Segment of the CD Rate Portion and the Euro-Rate Portion, as the
case may be, to be converted to; and
(z) With respect to each Funding Segment to be converted to or
renewed, the Funding Period selected in accordance with Section 2.08(c)
hereof to apply to such Funding Segment.
Standard Notice having been so provided, after the date specified in such
Standard Notice, interest shall be calculated upon the principal amount of the
Loans as so converted or renewed.
(b) Failure to Convert or Renew. Absent due notice from the Borrower of
conversion or renewal in the circumstances described in Section 2.09(a)(ii)
hereof, any part of the CD Rate Portion or Euro-Rate Portion for which such
notice is not received shall be converted automatically to the Base Rate Option
on the last day of the expiring Funding Period.
Section 2.10. Prepayments Generally. Whenever the Borrower desires to
prepay any part of its Loans, it shall provide Standard Notice to the
Administrative Agent setting forth the following information:
(a) The date, which shall be a Business Day, on which the proposed
prepayment is to be made;
(b) The total principal amount of such prepayment, which shall be the
sum of the principal amounts selected pursuant to clause (c) of this
Section 2.10; and
(c) The principal amounts selected in accordance with Section 2.08(d)
hereof of the Base Rate Portion and each part of each Funding Segment of
the CD Rate Portion and the Euro-Rate Portion, as the case may be, to be
prepaid.
Section 2.11. Optional Prepayments; Mandatory Prepayments. (a) Optional
Prepayments. The Borrower shall have the right at its option from time to time
to prepay its Revolving Credit Loans in whole or part without premium or penalty
(subject, however, to Section 2.14(b) hereof).
(b) Mandatory Prepayments. (i) Unless the Required Lenders otherwise agree
in writing, the Borrower shall, within 15 days after a Change in Control, prepay
in full all outstanding Loans (subject to Section 2.14(b) hereof) and terminate,
permanently and irrevocably, all existing Commitments of the Lenders hereunder.
(ii) If, on any day, the Dollar Equivalent of the sum of the all
Eurocurrency Loans outstanding on the day of any such determination plus the
outstanding Loans made in Dollars exceeds the Total Revolving Credit Commitment
as then in effect, the Administrative Agent shall immediately notify the
Borrower and the Borrower shall prepay on the Business Day following such day
Base Rate Loans and then, if necessary, Eurocurrency Loans to the extent
required so that such aggregate unpaid amount will not exceed the Total
Revolving Credit Commitment as then in effect; such prepayment being subject
however to Section 2.14(b) hereof. The Borrower may designate the Loans to be
prepaid by notice to the Administrative Agent before each such prepayment.
(c) General. All prepayments shall be made in accordance with Section 2.10
hereof. No prepayments shall be permitted with respect to Competitive Bid Loans
except as required by Sections 2.18 and 10.17 or (ii) with the consent of the
Lender or Lenders that have made the same.
Each Lender shall maintain in accordance with its usual practice an account
or accounts evidencing indebtedness of the Borrower to such Lender resulting
from each Loan of such Lender from time to time, including without limitation,
the amounts of principal and interest payable and paid to such Lender from time
to time under this Agreement. The entries made in the accounts of each Lender
maintained pursuant hereto shall, to the extent permitted by applicable law, be
prima facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded; provided that the failure of any Lender to maintain
any such account, or any error therein, shall not in any manner effect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower by such Lender in accordance with the terms of this Agreement.
26
32
Section 2.12. Interest Payment Dates. Interest on the Base Rate Portion
shall be due and payable on each Regular Payment Date. Interest on each Funding
Segment of the CD Rate Portion shall be due and payable on the last day of the
corresponding CD Rate Funding Period and, if such CD Rate Funding Period is
longer than 90 days, also every 90th day during such CD Rate Funding Period.
Interest on each Funding Segment of the Euro-Rate Portion shall be due and
payable on the last day of the corresponding Euro-Rate Funding Period and, if
such Euro-Rate Funding Period is longer than three months, also on the last day
of every third month during such Funding Period. After maturity of any part of
the Loans (by acceleration or otherwise), interest on such part of the Loans
shall be due and payable on demand.
Section 2.13. Pro Rata Treatment. (a) Certain Definitions. As used in
this Agreement, the following term has the meaning indicated:
"Pro Rata" means from or to each Lender: (i) in the case of payments
of Facility Fee, reductions pursuant to Section 2.02(c) hereof of the
Revolving Credit Committed Amounts and indemnification payments under
Section 8.07 hereof, ratably in accordance with such Lender's Commitment
Percentage; (ii) in the case of payments of principal of and interest on,
and conversions and renewals of interest rate options with respect to, any
particular Funding Segments, ratably in accordance with such Lender's
percentage share of such Funding Segment; (iii) in the case of payments of
principal and conversions and renewals of interest rate options with
respect to, the Base Rate Portion of some or all of the Revolving Credit
Loans, ratably in accordance with such Lender's percentage share of such
Base Rate Portion; and (iv) in the case of payments of interest for any day
with respect to the Base Rate Portion of some of all of the Revolving
Credit Loans, ratably in accordance with such Lender's percentage share of
such Base Rate Portion on such day.
(b) Making of Revolving Credit Loans. Revolving Credit Loans shall be made
by the Lenders ratably in accordance with their respective Commitment
Percentages.
(c) Several Obligations. The failure of any Lender to make a Revolving
Credit Loan shall not relieve any other Lender of its obligation to lend
hereunder, but neither any Agent nor any Lender shall be responsible for the
failure of any other Lender to make a Revolving Credit Loan.
Section 2.14. Additional Compensation in Certain
Circumstances. (a) Increased Costs or Reduced Return Resulting from Taxes,
Reserves, Capital Adequacy Requirements, Expenses, Etc. If any Law or change
therein or guideline or interpretation or application thereof by any
Governmental Authority charged with the interpretation or administration thereof
or compliance with any request or directive of any Governmental Authority
(whether or not having the force of law) adopted or made after the date hereof:
(i) subjects any Lender or any Notional Euro-Rate Funding Office to
any tax or changes the basis of taxation, to the extent such tax or change
relates to the Euro-Rate Loans or the CD Rate Loans, with respect to this
Agreement, the Notes, the Euro-Rate Loans or the CD Rate Loans, or payments
by the Borrower of principal of, or interest on, the Euro-Rate Loans or the
CD Rate Loans, from the Borrower hereunder or under the Notes (except for
taxes on the overall net income or overall gross receipts of such Lender or
such Notional Euro-Rate Funding Office imposed by the jurisdictions
(federal, state, local and foreign) in which the Lender's principal office
or Notional Euro-Rate Funding Office is located),
(ii) imposes, modifies or deems applicable any reserve, special
deposit or similar requirement against credits or commitments to extend
credit extended by, assets (funded or contingent) of, deposits with or for
the account of, other acquisitions of funds by, such Lender or any Notional
Euro-Rate Funding Office (in connection with the Euro-Rate Loans or the CD
Rate Loans) (other than requirements expressly included herein in the
determination of the CD Rate or the Euro-Rate, as the case may be,
hereunder),
(iii) imposes, modifies or deems applicable any capital adequacy or
similar requirement (A) against assets (funded or contingent) of, or
credits or commitments to extend credit extended by, any Lender or any
Notional Euro-Rate Funding Office or (B) otherwise applicable to the
obligations of any Lender or any Notional Euro-Rate Funding Office under
this Agreement, or
27
33
(iv) imposes upon any Lender or any Notional Euro-Rate Funding Office
any other condition or expense, to the extent such condition or expense
relates to the Euro-Rate Loans or the CD Rate Loans, directly related to
this Agreement, the Notes or its making, maintenance or funding of any
Euro-Rate or CD Rate Loan.
and the result of any of the foregoing is reasonably determined by any Lender to
increase the cost to, reduce the income receivable by, or impose any expense
(excluding loss of margin) upon such Lender or any Notional Euro-Rate Funding
Office, as applicable, or, in the case of clause (iii) hereof, any Person
controlling a Lender, with respect to this Agreement, the Notes or the making,
maintenance or funding of any Loan (or, in the case of any capital adequacy or
similar requirement, to have the effect of reducing the rate of return on such
Lender's or controlling Person's capital, taking into consideration such
Lender's or controlling Person's policies with respect to capital adequacy) by
an amount which such Lender reasonably deems to be material (such Lender being
deemed for this purpose to have made, maintained or funded each Funding Segment
of the CD Rate Portion and the Euro-Rate Portion from a Corresponding Source of
Funds), such Lender may from time to time promptly notify the Borrower of the
amount determined in good faith (using any reasonable averaging and attribution
methods) by such Lender (which determination shall be conclusive absent manifest
error) to be necessary to compensate such Lender or such Notional Euro-Rate
Funding Office for such increase, reduction or imposition. The Borrower shall
have no obligation to reimburse a Lender under this Section 2.14(a) for any
amount with respect to any such increase, reduction or imposition which amount
is attributable to a period of more than 60 days ending prior to the date of
such Lender's first notice to the Borrower of such increase, reduction or
imposition. Each Lender will notify the Borrower and the Administrative Agent of
any event occurring after the date of this Agreement which will entitle such
Lender to compensation pursuant to this Section 2.14 as promptly as practicable
after it obtains knowledge thereof and determines to request such compensation.
Each Lender will furnish the Borrower and the Administrative Agent with a
statement setting forth in reasonable detail the basis, the manner of
calculation and the amount of each request by such Lender for compensation from
the Borrower under this Section 2.14. Such amount shall be due and payable by
the Borrower to such Lender five Business Days after such notice is given. In
the event that after the Borrower shall have paid any additional amount under
this Section 2.14(a) with respect to any Loan such Lender shall have
successfully contested such law, regulation, treaty, order, directive,
interpretation or condition, then, to the extent that such Lender is or will be
placed in the same position it was prior to the incurrence of the additional
costs received or receivable (on an after-tax basis) and its contest of such
law, regulation or other condition, such Lender shall refund to the Borrower
such additional amount or any portion thereof with respect to which such Lender
is or will be placed in such position.
(b) Funding Breakage. In addition to the compensation required under
Section 2.14(a) hereof, the Borrower shall indemnify each Lender against any
loss or expense (excluding loss of margin) which such Lender has incurred as a
consequence of:
(i) any payment, prepayment or conversion of any part of any Funding
Segment of any CD Rate Portion or Euro-Rate Portion of the Loans on a day
other than the last day of the corresponding Funding Period or any
prepayment of any Competitive Bid Loan prior to its maturity date (whether
or not such payment, prepayment or conversion is mandatory or automatic and
whether or not such payment or prepayment is then due),
(ii) any attempt by the Borrower to revoke (expressly, by later
inconsistent notices or otherwise) in whole or in part any notice stated
herein to be irrevocable (the Administrative Agent having in its sole
discretion the options (A) to give effect to such attempted revocation
provided that indemnity under this Section 2.14(b) is obtained or (B) to
treat such attempted revocation as having no force or effect, as if never
made), or
(iii) any failure of the Borrower to pay when due (by acceleration or
otherwise) any principal, interest or any other amount due hereunder or
under any Note relating to a Euro-Rate Loan or a CD Rate Loan.
If any Lender sustains or incurs any such loss or expense it shall from
time to time promptly notify the Borrower and the Administrative Agent in
writing setting forth in reasonable detail the amount determined in
28
34
good faith by such Lender (which determination shall be conclusive absent
manifest error) to be necessary to indemnify such Lender for such loss or
expense. Such amount shall be due and payable by the Borrower to the
Administrative Agent for the account of such Lender, five Business Days after
such notice is given.
(c) Additional Interest. (i) So long as any Lender shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or including loans
made with reference to the CD Rate, such Lender may require the Borrower to pay,
but only in respect of any period during which such reserves shall actually be
maintained by such Lender, additional interest on the unpaid principal amount of
the CD Rate Portion of the Loans, at an interest rate per annum equal at all
times during each CD Rate Funding Period to the difference obtained by
subtracting (A) the CD Rate for such CD Rate Funding Period from (B) the rate
obtained by dividing such CD Rate referred to in clause (A) above by that
percentage equal to 100% minus the CD Rate Reserve Percentage of such Lender for
such CD Rate Funding Period, payable on each date on which interest is payable
on such CD Rate Portion.
(ii) So long as any Lender shall be required under regulations of the Board
of Governors of the Federal Reserve System to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities, such
Lender may require the Borrower to pay, but only in respect of any period during
which such reserves shall actually be maintained by such Lender, additional
interest on the unpaid principal amount of the Euro-Rate Portion of the Loans,
at an interest rate per annum equal at all times during each Euro-Rate Funding
Period to the difference obtained by subtracting (A) the Euro-Rate for such
Euro-Rate Funding Period from (B) the rate obtained by dividing such Euro-Rate
referred to in clause (A) above by that percentage equal to 100% minus the
Euro-Rate Reserve Percentage of such Lender for such Euro-Rate Funding Period,
payable on each date on which interest is payable on such Euro-Rate Portion.
(iii) If any Lender shall claim entitlement to any additional amount
pursuant to this Section 2.14(c), then such Lender shall deliver to the Borrower
a certificate setting forth the basis for the determination thereof as promptly
as practicable. More than one such certificate may be so delivered. Each such
certificate shall be conclusive and binding for all purposes as to the amount
due absent manifest error. The Borrower shall pay to each Lender the amount
shown as due on any such certificate within five Business Days after its receipt
of the same.
Section 2.15. Payments Generally; Interest on Overdue
Amounts. (a) Payments Generally. All payments and prepayments to be made by
the Borrower in respect of principal, interest, fees, indemnity, expenses or
other amounts due from the Borrower hereunder or under any other Loan Document
in Dollars shall be payable at 11:00 a.m., Los Angeles time, on the day when due
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived, and an action therefor shall immediately accrue,
without setoff, counterclaim, withholding or other deduction of any kind or
nature, except for payments to a Lender subject to a withholding deduction under
Section 2.16(c) hereof. Except for payments under Sections 2.03(q), 2.14 and
10.06 hereof, such payments shall be made for the account of Lenders to the
Administrative Agent's Bancontrol Account #12334-16521 at its Office in Dollars
in funds immediately available at such Office, and payments under Sections 2.14
and 10.06 hereof shall be made to the applicable Lender at such domestic account
as it shall specify to the Borrower from time to time in funds immediately
available at such account. Any payment or prepayment received by the
Administrative Agent or such Lender after 11:00 a.m., Los Angeles time, on any
day shall be deemed to have been received on the next succeeding Business Day.
The Administrative Agent shall distribute to the Lenders all such payments
received by it from the Borrower as promptly as practicable after receipt by the
Administrative Agent. If and to the extent that the Administrative Agent has not
forwarded to any Lender such Lender's share of any such payment on the same
Business Day as such payment is received (or deemed received) from the Borrower,
the Administrative Agent shall pay to such Lender interest on such amount at the
Federal Funds Effective Rate for each day until such payment is made. Upon
termination of this Agreement and payment in full of all principal, interest,
fees, expenses and other amounts due from the Borrower hereunder or under any
other Loan Document, each Lender will promptly xxxx its Notes "cancelled" and
forward them to the Administrative Agent for delivery to the Borrower.
29
35
(b) Interest on Overdue Amounts. To the extent permitted by law, after
there shall have become due (by acceleration or otherwise) principal, interest,
fees, indemnity, expenses or any other amounts due from the Borrower hereunder
or under any other Loan Document, such amounts shall bear interest for each day
until paid (before and after judgment), payable on demand, at a rate per annum
based on a year of 365 or 366 days, as the case may be, and actual days elapsed
(in the case of any Portion of Loans bearing interest at the Base Rate Option)
and 360 days and actual days elapsed (in the case of any Portion of Loans
bearing interest at the CD Rate Option or the Euro-Rate Option) which for each
day shall be equal to the following:
(i) In the case of any part of the CD Rate Portion or Euro-Rate
Portion of any Loans, (A) until the end of the applicable then-current
Funding Period at a rate per annum 2% above the rate otherwise applicable
to such part, and (B) thereafter in accordance with the following clause
(ii); and
(ii) In the case of any other amount due from the Borrower hereunder
or under any other Loan Document, 2% above the then-current Base Rate plus
the Applicable Margin for Base Rate Option.
Section 2.16. Taxes. (a) Payments Net of Taxes. All payments made by the
Borrower under this Agreement shall be made free and clear of, and without
reduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, and all liabilities with respect thereto,
excluding
(i) in the case of each Agent and each Lender, income or franchise
taxes imposed on such Agent or such Lender by the jurisdiction under the
laws of which such Agent or such Lender is organized or any political
subdivision or taxing authority thereof or therein or as a result of a
connection between such Agent or such Lender and any jurisdiction other
than a connection resulting solely from this Agreement and the transactions
contemplated hereby, and
(ii) in the case of each Lender, income or franchise taxes imposed by
any jurisdiction in which such Lender's lending offices which make or book
Loans are located or any political subdivision or taxing authority thereof
or therein
(all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld or deducted from any amounts payable to any Agent or any Lender under
this Agreement or any other Loan Document, the Borrower shall pay the relevant
amount of such Taxes and the amounts so payable to such Agent or such Lender
shall be increased to the extent necessary to yield to such Agent or such Lender
(after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
other Loan Documents. Whenever any Taxes are paid by the Borrower with respect
to payments made in connection with this Agreement, as promptly as possible
thereafter, the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. In the event that after the Borrower shall have paid any additional
amount under this Section 2.16(a) with respect to any Loan the Lender shall have
received a refund or credit of any Taxes paid by the Borrower with respect to
payments made in connection with this Agreement, then, to the extent that such
Lender receives a refund or credit of all or a portion of such Taxes from the
Governmental Authority to whom such Taxes were paid by the Borrower, such Lender
shall refund to the Borrower such additional amount or any portion thereof with
respect to which such Lender receives such refund or credit. Nothing contained
in this paragraph (a) shall require any Lender or any Agent to make available
any of its tax returns (or any other information relating to its taxes which it
deems to be confidential).
(b) Indemnity. The Borrower hereby indemnifies each Agent and each of the
Lenders for the full amount of all Taxes attributable to payments by or on
behalf of the Borrower hereunder or under any of the other Loan Documents, any
such Taxes paid by such Agent or such Lender, as the case may be, any present or
future claims, liabilities or losses with respect to or resulting from any
omission of the Borrower to pay or delay in paying any Taxes (including any
incremental Taxes, interest or penalties that may become payable by such Agent
or such Lender as a result of any failure of the Borrower to pay such Taxes),
whether or not such Taxes
30
36
were correctly or legally asserted. Such indemnification shall be made within 30
days from the date such Lender or such Agent, as the case may be, makes written
demand therefor.
(c) Withholding and Backup Withholding. Each Lender that is incorporated
or organized under the laws of any jurisdiction other than the United States or
any State thereof agrees that, on or prior to the Closing Date (or, with respect
to any Lender which becomes a party to this Agreement pursuant to Section 10.14
hereof, the Transfer Effective Date), it will furnish to the Borrower and the
Administrative Agent
(i) two valid, duly completed copies of United States Internal Revenue
Service Form 4224 or United States Internal Revenue Form 1001 or successor
applicable form, as the case may be, certifying in each case that such
Lender is entitled to receive payments under this Agreement and the other
Loan Documents without deduction or withholding of any United States
federal income taxes, and
(ii) a valid, duly completed Internal Revenue Service Form W-8 or W-9
or successor applicable form, as the case may be, to establish an exemption
from United States backup withholding tax.
Each Lender which so delivers to the Borrower and the Administrative Agent
a Form 1001 or 4224 and Form W-8 or W-9 applicable forms (the "Forms") agrees to
deliver to the Borrower and the Administrative Agent two further copies of the
Forms, or other manner of certification, as the case may be, on or before the
date that any such form expires or becomes obsolete or otherwise is required to
be resubmitted as a condition to obtaining an exemption from withholding tax, or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it, and such extensions or renewals thereof as may
reasonably be requested by the Borrower and the Administrative Agent, certifying
in the case of a Form 1001 or Form 4224 that such Lender is entitled to receive
payments under this Agreement or any other Loan Document without deduction or
withholding of any United States federal income taxes, unless in any such cases
an event (including any changes in Law) has occurred prior to the date on which
any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such letter or form with respect to it and such Lender advises
the Borrower and the Administrative Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax, and in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax. Notwithstanding anything to the contrary
contained herein, the Borrower shall not be required to pay any additional
amounts pursuant to this Section 2.16 or pursuant to Section 2.14 if the
obligation to pay such additional amounts would not have arisen but for the
failure by any Agent or any Lender to comply with its obligations hereunder, or
if such Agent or Lender shall have delivered the appropriate Forms and such
Agent or Lender is not entitled to exemption from deduction or withholding of
U.S. federal income tax in respect of payments made by the Borrower hereunder
for any reason other than a change in U.S. law or regulations or in the official
interpretation thereof after the date of delivery of such Forms.
Section 2.17. Funding by Branch, Subsidiary or Affiliate. (a) Notional
Funding. Each Lender shall have the right from time to time, prospectively or
retrospectively, without notice to the Borrower, to deem any branch, subsidiary
or affiliate of such Lender to have made, maintained or funded any part of the
Euro-Rate Portion at any time. Any branch, subsidiary or affiliate so deemed
shall be known as a "Notional Euro-Rate Funding Office." Such Lender shall deem
any part of the Euro-Rate Portion of the Loans or the funding therefor to have
been transferred to a different Notional Euro-Rate Funding Office if such
transfer would avoid or cure an event or condition described in Section
2.08(e)(ii) hereof or would lessen compensation payable by the Borrower under
Sections 2.14(a), 2.16(a) or 2.16(b) hereof, and provided that such Lender
determines in its reasonable discretion that such transfer would be practicable
and would not have a material adverse effect on such part of the Loans, such
Lender or any Notional Euro-Rate Funding Office (it being assumed for purposes
of such determination that each part of the Euro-Rate Portion is actually made
or maintained by or funded through the corresponding Notional Euro-Rate Funding
Office). Notional Euro-Rate Funding Offices may be selected by such Lender
without regard to such Lender's actual methods of making, maintaining or funding
Loans or any sources of funding actually used by or available to such Lender.
(b) Actual Funding. Each Lender shall have the right from time to time to
make or maintain any part of the Euro-Rate Portion by arranging for a branch,
subsidiary or affiliate of such Lender to make or maintain
31
37
such part of the Euro-Rate Portion. Such Lender shall have the right to hold any
applicable Note payable to its order for the benefit and account of such branch,
subsidiary or affiliate or (ii) request the Borrower to issue one or more
promissory notes in the principal amount of such Euro-Rate Portion, in
substantially the form attached hereto as Exhibit A with the blanks
appropriately filled, payable to such branch, subsidiary or affiliate and with
appropriate changes reflecting that the holder thereof is not obligated to make
any additional Loans to the Borrower. The Borrower agrees to comply promptly
with any request under subsection (ii) of this Section 2.17(b). If any Lender
causes a branch, subsidiary or affiliate to make or maintain any part of the
Euro-Rate Portion hereunder, all terms and conditions of this Agreement shall,
except where the context clearly requires otherwise, be applicable to such part
of the Euro-Rate Portion and to any note payable to the order of such branch,
subsidiary or affiliate to the same extent as if such part of the Euro-Rate
Portion were made or maintained and such note were a Revolving Credit Note
payable to such Lender's order.
Section 2.18. Extension of Revolving Credit Maturity Date. The Revolving
Credit Maturity Date may be extended with respect to a Lender for an additional
364 day period with the express written consent of such Lender (to be at such
Lender's sole discretion) as provided below. If the Borrower desires to extend
the Revolving Credit Maturity Date it shall send a request therefor, which shall
be made to all Lenders, to the Administrative Agent; provided that the Borrower
must, to the extent the Other Credit Agreement is in effect, also request the
extension of the "Revolving Credit Maturity Date" under the Other Credit
Agreement. No earlier than the date 45 days and no later than the date 40 days
prior to the Revolving Credit Maturity Date the Borrower shall, at its option,
in a written notice to the Administrative Agent request that the Revolving
Credit Maturity Date be extended for a period of 364 days. The Administrative
Agent shall promptly inform the Lenders of such request. Each Lender that agrees
with such request shall deliver to the Administrative Agent its express written
consent thereto no earlier than the date 30 days and no later than the date 27
days prior to the Revolving Credit Maturity Date. If the aggregate amount of (i)
the Revolving Credit Commitment Amount of the Lenders so consented and (ii) the
Revolving Credit Commitment Amount to be assumed by the Replacement Lenders or
the existing Lenders (as provided below) equals or exceeds 85% of the Total
Revolving Credit Commitment in effect as of the 10th day prior to the Revolving
Credit Maturity Date then in effect, then, with respect to each Lender which has
consented to an extension of the Revolving Credit Maturity Date as provided in
the immediately preceding sentence and with respect to the Replacement Lenders,
the Revolving Credit Maturity Date shall be extended for, and shall thereafter
be the date, 364 days after the then effective Revolving Credit Maturity Date.
If any Lender notifies the Administrative Agent in writing on or before the 27th
day prior to such then effective Revolving Credit Maturity Date that it will not
consent to such Extension Request or shall not have in writing expressly
consented to any such Extension Request as provided in the preceding sentence,
then the Administrative Agent shall so notify the Borrower and the Borrower, at
its option, may replace each Nonextending Lender with another commercial lending
institution reasonable satisfactory to the Administrative Agent (a "Replacement
Lender") and/or with one or more of the existing Lenders by giving notice of the
name of such Replacement Lender and/or such existing Lenders to the
Administrative Agent by the 15th day prior to the then effective Revolving
Credit Maturity Date. Unless either Agent shall object to the identity of such
proposed Replacement Lender (in the case of a Replacement Lender) on or before
the 10th day prior to the then effective Revolving Credit Maturity Date, upon
notice from the Administrative Agent, each Nonextending Lender shall promptly
(but in no event later than the close of business on the then effective
Revolving Credit Maturity Date) assign all of its interests hereunder to such
Replacement Lender and/or such existing Lenders in accordance with the
provisions of Section 9.14(c) hereof. Such Replacement Lender shall have a
Revolving Credit Commitment and shall have a Revolving Credit Commitment Amount
equal to the then most recently effective Revolving Credit Commitment Amount of
the related Nonextending Lender (less the amount assumed, if any, by such
existing Lenders). To the extent any Nonextending Lender is not replaced with a
Replacement Lender or the Revolving Commitment Amount of such Nonextending
Lender is not assumed by an existing Lender, on the then effective Revolving
Credit Maturity Date the Total Revolving Credit Commitments shall be reduced by
the Revolving Credit Committed Amount of each such Nonext ending Lender which is
not so replaced or so assumed. If the Revolving Credit Maturity Date with
respect to a Lender is extended pursuant to this Section 2.17, the Competitive
Bid Expiration Date with respect to such Lender shall be deemed to have been
extended for, and shall be the date, not more than 364 days after the then
effective Competitive Bid Expiration
32
38
Date. To the extent the Other Credit Agreement is in effect, the "Revolving
Credit Commitment Amount" of a Nonextending Lender under the Other Credit
Agreement shall be replaced or assumed at the same percentage by such
Replacement Lender and/or such existing Lenders.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to each Agent and each Lender
as follows:
Section 3.01. Corporate Status. The Borrower and each Significant
Subsidiary thereof (a) is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation; (b) has
corporate power and authority to own its property and to transact the business
in which it is engaged or presently proposes to engage; and (c) is duly
qualified to do business as a foreign corporation and is in good standing in all
jurisdictions in which the ownership of its properties or the nature of its
activities or both makes such qualification necessary; except for matters that,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
Schedule 3.01 hereof states as of the date hereof the jurisdiction of
incorporation of the Borrower, each Significant Subsidiary and each Special
Purpose Subsidiary.
Section 3.02. Corporate Power and Authorization. Each Credit Party has
the corporate power to execute, deliver and perform the Loan Documents to be
executed by it and has taken all necessary action, corporate or otherwise, to
authorize the execution, delivery and performance of this Agreement and the
other Loan Documents to be executed by it. The Borrower has the power to borrow
and has taken all necessary corporate action to authorize the borrowings
hereunder on the terms and conditions of this Agreement. No consent or approval
of any Person (including, without limitation, any stockholder of any Credit
Party), no consent or approval of any landlord or mortgagee, no waiver of any
Lien of right or distraint or other similar right and no consent, license,
approval, authorization or declaration of any governmental authority, bureau or
agency, is or will be required in connection with the execution, delivery or
performance by each Credit Party, or the validity, enforcement or priority, of
the Loan Documents to be executed by it, except as set forth on Schedule 3.02
hereto, each of which has been duly and validly obtained on or prior to the date
hereof and is now in full force and effect and is sufficient for its intended
purpose.
Section 3.03. Execution and Binding Effect. This Agreement and each other
Loan Document to which each Credit Party is a party has been, or upon its
execution and delivery will be, duly executed and delivered by such Credit Party
and each constitutes, or upon its execution and delivery will constitute, the
valid and legally binding obligation of such Credit Party, enforceable in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or other similar
laws, now or hereafter in effect, relating to or affecting the enforcement of
creditors' rights generally and except that the remedy of specific performance
and other equitable remedies are subject to judicial discretion. There is no
action, suit, proceeding or investigation pending or, to the knowledge of any
Credit Party, threatened against or affecting the Borrower or any of its
Subsidiaries which questions the validity or the enforceability of any of the
Loan Documents.
Section 3.04. Governmental Approvals and Filings. No approval, order,
consent, authorization, certificate, license, permit or validation of, or
exemption or other action by, or filing, recording or registration with, or
notice to, any Governmental Authority (collectively, "Governmental Action") is
or will be necessary in connection with execution and delivery of this Agreement
or any other Loan Document, consummation by the Credit Parties of the
transactions herein or therein contemplated, or performance of or compliance
with the terms and conditions hereof or thereof. Neither the Borrower nor any
Subsidiary thereof is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940 or to any Federal or state statute or regulation
limiting the Borrower's ability to incur Indebtedness for money borrowed.
Neither the Borrower nor any Subsidiary thereof is an "investment company" or a
company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
33
39
Section 3.05. Absence of Conflicts. The execution and delivery by each
Credit Party of this Agreement and each other Loan Document to which it is a
party and performance by it hereunder and thereunder, will not violate any Law
(including, without limitation, Regulations U, T and X of the Federal Reserve
Board) and will not conflict with or result in a breach of any order, writ,
injunction, ordinance, resolution, decree, or other similar document or
instrument of any court or governmental authority, bureau or agency, domestic or
foreign, or its certificate of incorporation or by-laws or any similar
constituent documents or create (with or without the giving of notice or lapse
of time, or both) a default under or breach of any material agreement, bond,
note or indenture to which it is a party (by successor in interest or
otherwise), or by which it is bound or any of its properties or assets is
affected, or result in the imposition of any Lien of any nature whatsoever upon
any of the properties or assets owned by or used in connection with the business
of the Borrower or any of its Subsidiaries.
Section 3.06. Audited Financial Statements. The Borrower has heretofore
furnished to each Agent and each Lender consolidated balance sheets of the
Borrower and its consolidated Subsidiaries as of December 26, 1997 (as such
financial statements have been restated and filed with the Securities and
Exchange Commission) and September 25, 1998 (as such financial statements have
been restated and filed with the Securities and Exchange Commission) and the
related consolidated statements of income, cash flows and changes in
stockholders' equity for the fiscal year or three fiscal quarters, as the case
may be, then ended, and with respect to such information as of December 26,
1997, as examined and reported on by Coopers & Xxxxxxx, independent certified
public accountants for the Borrower, who delivered an unqualified opinion in
respect thereof. Such financial statements (including the notes thereto) present
fairly in all material respects the financial condition of the Borrower and its
consolidated Subsidiaries as of the end of each such fiscal year or nine month
period, as the case may be, and the results of their operations and their cash
flows for the fiscal years then ended, all in conformity with GAAP, except for
the absence of footnotes and for normal year end audit adjustments in the case
of the nine month statements.
Section 3.07. Absence of Undisclosed Liabilities. As of the Closing Date,
neither the Borrower nor any Subsidiary of the Borrower has any liability or
obligation of any nature whatever (whether absolute, accrued, contingent or
otherwise, whether or not due), forward or long-term commitments or unrealized
or anticipated losses from unfavorable commitments, except (a) as disclosed in
the financial statements referred to in Section 3.06 hereof, (b) matters that,
individually or in the aggregate, in the Borrower's reasonable judgment, could
not reasonably be expected to have a Material Adverse Effect and (c)
liabilities, obligations, commitments and losses incurred after September 25,
1998 otherwise permitted, or not restricted, by the Existing Credit Agreements.
As of the Closing Date, neither the Borrower nor any Subsidiary of the Borrower
has any Indebtedness other than the Indebtedness of the Borrower and its
Subsidiaries set forth on Schedule 3.07 hereto.
Section 3.08. Absence of Material Adverse Changes. Except as disclosed in
the financial statements referred to in Section 3.06 hereof, since September 25,
1998, there has been no material adverse change in the business, operations,
properties, assets or condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole.
Section 3.09. Accurate and Complete Disclosure. No information heretofore,
contemporaneously or hereafter provided by or on behalf of the Borrower or any
Subsidiary thereof in writing to any Agent or any Lender in writing pursuant to
or in connection with any Loan Document or any transaction contemplated hereby
or thereby contains any untrue statement of a material fact or omits to state
any material fact necessary to make such information (taken as a whole) not
misleading in any material respect at such time in light of the circumstances in
which it was provided. The Borrower has disclosed to each Agent and each Lender
in writing every fact or circumstance known to the Borrower which has a Material
Adverse Effect.
Section 3.10. Margin Regulations. No part of the proceeds of any Loan
hereunder will be used for the purpose of buying or carrying any "margin stock,"
as such term is used in Regulation U of the Board of Governors of the Federal
Reserve System, as amended from time to time, or to extend credit to others for
the purpose of buying or carrying any "margin stock," in either case in a manner
which would violate or conflict with Regulation T, U, or X of the Board of
Governors of the Federal Reserve System. Neither the Borrower
34
40
nor any Subsidiary thereof is engaged in the business of extending credit to
others for the purpose of buying or carrying "margin stock." Neither the making
of any Loan nor any use of proceeds of any such Loan will violate or conflict
with the provisions of Regulation T, U or X of the Board of Governors of the
Federal Reserve System, as amended from time to time.
Section 3.11. Subsidiaries. Schedule 3.11 hereof states as of the Closing
Date each Significant Subsidiary of the Borrower and the percentage of
outstanding shares owned by the Borrower and by each Significant Subsidiary. The
outstanding shares of each Significant Subsidiary of the Borrower have been duly
authorized and validly issued and are fully paid and nonassessable. The Borrower
and each Significant Subsidiary thereof owns beneficially and of record and has
good title to all of the shares represented by the ownership percentage shown in
such Schedule 3.11, free and clear of any Lien. There are no options, warrants,
calls, subscriptions, conversion rights, exchange rights, preemptive rights or
other rights, agreements or arrangements (contingent or otherwise) which may in
any circumstances now or hereafter obligate any Significant Subsidiary to issue
any shares of its capital stock or any other securities. As of the Closing Date,
no Significant Subsidiary has outstanding any class of preferred stock or any
class of common stock with a prior right to dividends.
Section 3.12. Partnerships, Etc. As of the Closing Date, neither the
Borrower nor any Significant Subsidiary thereof is a partner (general or
limited) of any partnership, is a party to any joint venture or owns
(beneficially or of record) any equity or similar interest in any Person
(including but not limited to any interest pursuant to which the Borrower or
such Significant Subsidiary has or may in any circumstance have an obligation to
make capital contributions to, or be generally liable for or on account of the
liabilities, acts or omissions of such other Person), except for the partnership
interests and joint ventures set forth in Schedule 3.12 hereof.
Section 3.13. Litigation. There is no pending or (to the Borrower's
knowledge) threatened action, suit, proceeding or investigation by or before any
Governmental Authority against or affecting the Borrower or any Subsidiary of
the Borrower, except for (a) matters described in the financial statements
referred to in Section 3.06 hereof, and (b) matters that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 3.14. Absence of Events of Default. No event has occurred and is
continuing and no condition exists which constitutes an Event of Default or
Potential Default.
Section 3.15. Absence of Other Defaults. Neither the Borrower nor any
Subsidiary thereof is in default under any agreement, ordinance, resolution,
decree, bond, note, indenture, order or judgment to which it is a party (by
successor in interest or otherwise) or by which it is bound, or any other
agreement or other instrument by which any of the properties or assets owned by
it or used in the conduct of its business is affected, which individually or in
the aggregate, would have a Material Adverse Effect. The Borrower and each
Subsidiary thereof have complied and are in compliance in all respects with all
Laws, except for such instances of non-compliance that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 3.16. Insurance. The policies, binders or self-insurance programs
for fire, liability, product liability, workmen's compensation, vehicular and
other insurance currently held by or on behalf of the Borrower and each
Subsidiary thereof insure its material properties and business activities
against such losses and risks as are adequate to protect its properties in
accordance with customary industry practice when entered into or renewed. To the
best knowledge of the Borrower, as of the date hereof, all such policies,
binders and self-insurance programs are in full force and effect. As of the date
hereof, neither the Borrower nor, to the best knowledge of the Borrower, any of
its Subsidiaries has received notice from any insurer or agent of such insurer
that substantial capital improvements or other expenditures will have to be made
in order to continue such insurance and, to the best knowledge of the Borrower,
no such improvements or expenditures are required. As of the date hereof,
neither the Borrower nor, to the best knowledge of the Borrower, any of its
Subsidiaries has received notice of cancellation of any material insurance
policy or binder.
35
41
Section 3.17. Title to Property. The Borrower and each Subsidiary thereof
has good and marketable title in fee simple to all material real property owned
or purported to be owned by it and necessary for the operation of its business
and good title to all other material property of whatever nature owned or
purported to be owned by it, including but not limited to all property reflected
in the most recent audited balance sheet referred to in Section 3.06 hereof or
submitted pursuant to Section 5.01(a) hereof, as the case may be (except as sold
or otherwise disposed of in the ordinary course of business after the date of
such balance sheet or the Existing Credit Agreements for periods prior to the
Closing Date and thereafter as otherwise expressly permitted by the Loan
Documents) in each case free and clear of all Liens, other than Permitted Liens
or Liens permitted pursuant to Section 6.02 hereof.
Section 3.18. Intellectual Property. The Borrower and each Subsidiary
thereof owns, or is licensed or otherwise has the right to use, all the patents,
trademarks, service marks, names (trade, service, fictitious or otherwise),
copyrights, technology (including but not limited to computer programs and
software), processes, data bases and other rights, free from burdensome
restrictions, necessary to own and operate its properties and to carry on its
business as presently conducted and presently planned to be conducted without
conflict with the rights of others, except for such instances of non-compliance
that, individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
Section 3.19. Taxes. The Borrower and each Subsidiary thereof have filed
all Federal and other material tax returns required to be filed by it and has
not failed to pay any material taxes, or interest and penalties relating
thereto, on or before the due dates thereof except for taxes not yet due and
except for those the amount or validity of which is currently being contested in
good faith by appropriate proceedings. Except to the extent that reserves
therefor are reflected in the financial statements, to the best knowledge of the
Borrower (a) there are no material Federal, state or local tax liabilities of
the Borrower or any of its Subsidiaries due or to become due for any tax year
ended on or prior to the Closing Date relating to the Borrower or any of its
Subsidiaries, whether incurred in respect of or measured by the income of the
Borrower or any of its Subsidiaries, which are not properly reflected in the
financial statements delivered pursuant to Section 3.06, and (b) there are no
material claims pending, proposed or threatened against the Borrower or any of
its Subsidiaries for past Federal, state or local taxes, except those, if any,
as to which proper reserves in accordance with GAAP are reflected in such
financial statements.
Section 3.20. Employee Benefits. (a) No borrowing or issuance of Letters
of Credit contemplated by this Agreement is a transaction which is subject to
the prohibitions of Section 406 of ERISA or in connection with which a tax could
be imposed pursuant to Section 4975 of the Code or a civil penalty assessed
pursuant to Section 502(i) of ERISA (assuming that monies other than monies
representing plan assets are borrowed hereunder). Neither the Borrower, any of
its Subsidiaries nor any other Person, including any fiduciary, has engaged in
any prohibited transaction (as defined in Section 4975 of the Code or Section
406 of ERISA) which could subject any of the Benefit Plans, the Borrower, or any
Subsidiary (or any entity which they have an obligation to indemnify) to any tax
or penalty imposed under 4975 of the Code or Section 502(i) of ERISA or any
other material liability under a foreign law of similar nature which alone or
together with any other item described in this Section 3.20 would have a
Material Adverse Effect.
(b) Neither the Borrower nor any of its Significant Subsidiaries (including
any member of their respective Controlled Group) (i) has incurred or expects to
incur any liability under Title IV of ERISA or Section 502(g) of ERISA or any
analogous provision relating to Section 515 of ERISA or (ii) has become subject
or expects to be subject to the lien described in Section 412(n) of the Code,
which alone or together with any other item described in this Section 3.20 would
have a Material Adverse Effect.
(c) The Pension Plans do not have an "accumulated funding deficiency"
(whether or not waived) within the meaning of Section 412 of the Code or Section
302 of ERISA. No Pension Plan has benefit liabilities as defined in Section
4001(a)(16) of ERISA which exceed the assets of such Pension Plan by such an
amount that the termination of such Pension Plan alone or together with any
other item described in this Section would have a Material Adverse Effect. The
Borrower has received a favorable determination letter from the IRS with respect
to all Pension Plans except for such Pension Plans with respect to which the
failure to receive such a favorable determination would not alone or together
with any other item described in this
36
42
Section 3.20 have a Material Adverse Effect and nothing has happened since the
date of such letter that has adversely affected such qualification. There is no
Lien outstanding or security interest given in connection with a Pension Plan or
under Title IV of ERISA which would exceed the percentage limitations of Section
6.02(a) hereof. As of the date hereof, the Borrower has received both IRS and
PBGC approval with respect to any terminated Benefit Plans subject to Title IV
of ERISA.
(d) Neither the Borrower nor any of its Significant Subsidiaries (including
any member of their respective Controlled Group) is in default in any material
respect under any Benefit Plan and all Benefit Plans are administered in
accordance with their terms and are in all material respects in compliance with
all applicable Laws, except where any such default or failure to comply would
not alone or together with any other item described in this Section 3.20 have a
Material Adverse Effect.
Section 3.21. Environmental Matters. (a) The Borrower and each
Significant Subsidiary of the Borrower, to its knowledge, has been operated in
compliance with all applicable Requirements of Law, except for (i) matters set
forth in Schedule 3.21(a) hereof and (ii) matters which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
(b) The Borrower and each Significant Subsidiary of the Borrower, to its
knowledge, has obtained all Environmental Permits required by applicable
Requirements of Law for the ownership and operation of their respective
properties, and all such Environmental Permits are in full force and effect or
the Borrower and each Significant Subsidiary of the Borrower, as the case may
be, has made all appropriate filings for issuance or renewal of such
Environmental Permits, except for (i) matters set forth in Schedule 3.21(b)
hereof, and (ii) matters which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(c) The Borrower and each Significant Subsidiary of the Borrower, to its
knowledge, is not aware of any acts, omissions, events or circumstances that may
interfere with or prevent continued compliance with the Requirements of Law and
Environmental Permits referred to in (a) and (b) above, except for (i) matters
set forth in Schedule 3.21(c) hereof, and (ii) matters which, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(d) The Borrower and each Significant Subsidiary of the Borrower will use
its best efforts to comply with all Requirements of Law and obtain all
Environmental Permits which may be legally imposed in the future in
jurisdictions in which the Borrower and each Significant Subsidiary, as the case
may be, may then be doing business; provided, however, that the Borrower and
each Significant Subsidiary shall not be deemed to be in violation of Section
3.21 of this Agreement as a result of any failure to comply with any provisions
of such Requirements of Law and Environmental Permits (i) the applicability or
validity of which is being contested by the Borrower or any of its Significant
Subsidiaries in good faith and by appropriate proceedings, or (ii) the
noncompliance with which would not result in fines, penalties, injunctive relief
of other civil or criminal liabilities which, individually or in the aggregate,
would have a Material Adverse Effect.
(e) The Borrower and each Significant Subsidiary of the Borrower, to its
knowledge, has not received notice of any asserted or threatened claim, action,
suit, proceeding, hearing, investigation or request for information relating to
any Environmental Matter, except for (i) matters set forth in Schedule 3.21(e)
hereof, and (ii) matters which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(f) The Borrower and each Significant Subsidiary of the Borrower, to its
knowledge, has not received notice from any governmental authority that any of
them is a potentially responsible party under any Requirements of Law at any
disposal site containing Hazardous Materials, nor received any notice that any
lien under any Requirements of Law against any property of the Borrower or
Significant Subsidiary of the Borrower exists, except for (i) matters setting
forth in Schedule 3.21(f) hereof, and (ii) matters, which, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
Section 3.22. Year 2000. The Borrower has (a) initiated a review and
assessment of all areas within its and each of its Subsidiaries' business and
operations (including those affected by key suppliers and vendors) that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that computer
applications used
37
43
by the Borrower or any of its Subsidiaries (or its key suppliers and vendors)
may be unable to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December 31, 1999), (ii)
developed a plan and timeline for addressing the Year 2000 Problem on a timely
basis, and (iii) to the date hereof, implemented that plan in accordance with
the timetable. The Borrower reasonably believes that all computer applications
(including those of its key suppliers and vendors) that are material to its or
any of its Subsidiaries' business and operations will on a timely basis be able
to perform properly date-sensitive functions for all dates before and after
January 1, 2000 (that is, be "Year 2000 compliant"), except to the extent that a
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
ARTICLE IV
CONDITIONS OF LENDING
Section 4.01. Conditions to Initial Loans. The obligation of each Lender
to make Loans on the Closing Date is subject to the satisfaction, immediately
prior to or concurrently with the making of such Loan, of the following
conditions precedent, in addition to the conditions precedent set forth in
Section 4.02 hereof:
(a) Agreement; Notes. The Administrative Agent shall have received
executed counterparts of this Agreement for each Lender, duly executed by
each Credit Party, each Agent and each Lender, and executed Revolving
Credit Notes and Competitive Bid Loan Notes conforming to the requirements
hereof, duly executed on behalf of the Borrower for each Lender requesting
the same.
(b) Corporate Proceedings. The Administrative Agent shall have
received, with copies for each Lender, certificates by the Secretary or
Assistant Secretary of each Credit Party dated as of the Closing Date as to
(i) true copies of the articles of incorporation and by-laws (or other
constituent documents) of such Credit Party in effect on such date, (ii)
true copies of all corporate action taken by such Credit Party relative to
this Agreement and the other Loan Documents and (iii) the incumbency and
signature of the respective officers of such Credit Party executing this
Agreement and the other Loan Documents to which such Credit Party is a
party, together with satisfactory evidence of the incumbency of such
Secretary or Assistant Secretary. The Administrative Agent shall have
received, with a copy for each Lender, certificates from the appropriate
Secretary of State or other applicable Governmental Authority dated not
more than 30 days before the Closing Date showing the good standing of each
Credit Party in its state of incorporation.
(c) Financial Statements. The Administrative Agent shall have
received, with a copy for each Lender, copies of the consolidated financial
statements referred to in Section 3.06 hereof.
(d) Legal Opinion of Counsel to the Credit Parties. The
Administrative Agent shall have received, with an executed counterpart for
each Lender, opinions addressed to the Agents and each Lender, dated the
Closing Date, of (i) Xxxxxx X. X'Xxxxx, Esquire, Senior Vice President and
General Counsel of the Borrower, and (ii) White & Case LLP, special New
York counsel to the Credit Parties, each in a form reasonably satisfactory
to the Administrative Agent.
(e) Fees, Expenses, Etc. All fees and other compensation required to
be paid to each Agent or the Lenders pursuant hereto or pursuant to any
other written agreement on or prior to the Closing Date shall have been
paid or received.
(f) Existing Credit Agreements. The Administrative Agent shall have
received evidence of the termination of the Revolving Credit Agreement and
the Short Term Revolving Credit Agreement, each dated as of September 20,
1995 among the Borrower, the lenders signatory thereto, Mellon Bank, N.A.,
as Funding Agent, and National Westminster Bank PLC, as Administrative
Agent (the "Existing Credit Agreements").
(g) Year 2000 Review. The Administrative Agent shall have received
and completed the review, with results reasonably satisfactory to the
Agents and Lenders, of information confirming that (a) the Borrower and its
Subsidiaries are taking all necessary and appropriate steps to ascertain
the extent of, and successfully address, business and financial risks
facing the Borrower and its Subsidiaries as a result of
38
44
what is commonly referred to as the "Year 2000 Problem" (i.e., the
inability of certain computer applications to recognize correctly and
perform date-sensitive functions involving certain dates prior to and after
December 31, 1999), including risks resulting from the failure of key
vendors and customers of the Borrower and its Subsidiaries to successfully
address the Year 2000 Problem, and (b) the Borrower's and its Subsidiaries'
material computer applications and those of its key vendors and customers
will, on a timely basis, adequately address the Year 2000 Problem in all
material respects.
(h) Pledge. The Administrative Agent shall have received (i) executed
counterparts of the Pledge Agreement, duly executed by each Guarantor and
the collateral agent thereunder and (ii) as the collateral agent
thereunder, the collateral pledged thereunder.
(i) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be reasonably satisfactory in form and substance to each Agent.
Section 4.02. Conditions to All Loans. The obligation of each Lender to
make any Loan (including the initial Loans) is subject to satisfaction of the
following further conditions precedent:
(a) Notice. Appropriate notice of such Loan shall have been given by
the Borrower as provided in Article II hereof.
(b) Representations and Warranties. Each of the representations and
warranties made by the Borrower herein shall be true and correct in all
material respects on and as of such date as if made on and as of such date
(except with respect to representations and warranties which specifically
refer to an earlier date, which shall be true and correct in all material
respects as of such earlier date), both before and after giving effect to
the Loans requested to be made on such date, except that the foregoing
shall not apply to the representations and warranties set forth in Section
3.08 hereof in the case of any Loans the proceeds of which are used solely
to repay Loans maturing on such date.
(c) No Defaults. No Event of Default or Potential Default shall have
occurred and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
(d) No Violations of Law, Etc. Neither the making nor use of the
Loans shall cause any Lender to violate or conflict with any Law.
Each request by the Borrower for any Loan (including the initial Loans)
shall constitute a representation and warranty by the Borrower that the
conditions set forth in this Section 4.02 have been satisfied as of the date of
such request. Failure of the Administrative Agent to receive notice from the
Borrower to the contrary before such Loan is made shall constitute a further
representation and warranty by the Borrower that the conditions referred to in
this Section 4.02 have been satisfied as of the date such Loan is made.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower hereby covenants to each Agent and each Lender as follows:
Section 5.01. Basic Reporting Requirements. (a) Annual Audit Reports. The
Borrower shall deliver to the Administrative Agent, with a copy for each Lender,
as soon as available, but in any event within 90 days after the last day of each
of its fiscal years, a consolidated balance sheet of the Borrower as at such
last day of the fiscal year, and the related consolidated statement of income
and retained earnings and changes in financial position, for such fiscal year,
each prepared in accordance with GAAP (except as required by any change in
accounting principles or concurred in by the Borrower's independent certified
public accountants), in reasonable detail, and, as to the financial statements,
certified without qualification (other than relating to a change in accounting
principles with which such accountants concur and other than any other
qualification which the Administrative Agent and the Required Lenders deem, in
their reasonable judgment, to be immaterial) by PricewaterhouseCoopers LLP or
another firm of independent certified public accountants reasonably satisfactory
to the Administrative Agent as fairly presenting in all material respects the
financial
39
45
position and the results of operations of the Borrower as at and for the year
ending on such date and as having been prepared in accordance with GAAP.
(b) Quarterly Consolidated Reports. The Borrower shall deliver to the
Administrative Agent, with a copy for each Lender, as soon as available, but in
any event within 45 days after the end of each of the Borrower's first three
fiscal quarterly periods, a consolidated balance sheet of the Borrower as of the
last day of such quarter and consolidated statement of income and retained
earnings and changes in financial position, for such quarter, and on a
comparative basis figures for the corresponding period of the immediately
preceding fiscal year, all in reasonable detail, each such statement to be
certified in a certificate of a Responsible Officer of the Borrower, as fairly
presenting in all material respects the financial position and the results of
operations of the Borrower as at such date and for such quarter and as having
been prepared in accordance with GAAP (subject to customary year-end audit
adjustments and the absence of footnotes). Such financial statement and the
financial statement provided under clause (a) above shall (so long as the
Borrower has not received a clean audit with respect to the Year 2000 Problem on
or after the end of the first fiscal quarter of the Borrower in 2000): (i)
include, or be accompanied by, a progress report as to the Year 2000 remediation
efforts of the Borrower and its Subsidiaries; and (ii) indicate whether an
auditor, regulator, or third party consultant has issued a management letter or
other communication indicating the Borrower's and/or its Subsidiaries inability
to remedy the Year 2000 Problem (to the extent not included in the Borrower's
financial statements).
(c) Quarterly Compliance Certificates. The Borrower shall deliver to the
Administrative Agent, with a copy for each Lender, a Quarterly Compliance
Certificate in substantially the form set forth as Exhibit F hereto, duly
completed and signed by a Responsible Officer of the Borrower concurrently with
the delivery of the financial statements referred to in subsections (a) and (b)
of this Section 5.01. Each such Quarterly Compliance Certificate shall in
addition include a listing, as of the end of the most recently completed fiscal
quarter, showing the respective amounts of Indebtedness for borrowed money of
each Subsidiary (other than any Special Purpose Subsidiary) of the Borrower
which is organized under the laws of a jurisdiction outside the United States.
To the extent such information is not included in the financial statements
delivered pursuant to Section 5.01(a) hereof, each Quarterly Compliance
Certificate with respect to the last quarter of a fiscal year shall in addition
include a listing, as of the end of such quarter, of the respective amounts of
Indebtedness for borrowed money of each Special Purpose Subsidiary of the
Borrower which is organized under the laws of a jurisdiction outside the United
States.
(d) Certain Other Reports and Information. Promptly upon their becoming
available to the Borrower, the Borrower shall deliver to the Administrative
Agent, with a copy for each Lender, a copy of (i) all regular or special
reports, registration statements and amendments to the foregoing which the
Borrower or any Subsidiary shall file with the Securities and Exchange
Commission (or any successor thereto) or any securities exchange, and (ii) all
reports, proxy statements, financial statements and other information
distributed by the Borrower to its stockholders or bondholders.
(e) Further Information. The Borrower will promptly furnish to the
Administrative Agent, with a copy for each Lender that has requested the same,
such other information and in such form as any Agent or any Lender may
reasonably request from time to time.
(f) Notice of Certain Events. Promptly upon becoming aware of any of the
following, the Borrower shall give the Administrative Agent notice thereof,
together with a written statement of a Responsible Officer of the Borrower
setting forth the details thereof and any action with respect thereto taken or
proposed to be taken by the Borrower:
(i) Any Event of Default or Potential Default; provided, however,that
the Borrower shall not be required to deliver notice of any violation of
any covenant contained in Article V hereof (other than Section 5.01 hereof)
during the 30 days immediately following the first occurrence of such
violation if the Borrower reasonably believes that such violation will be
cured within such 30-day period; and provided, further, that the Borrower
shall not be required to deliver notice of any violation of any covenant
contained in Section 5.01 hereof (other than subparagraph (f)(i) thereof)
during the first 10 days after the first occurrence of such violation if
the Borrower reasonably believes that such violation will be cured within
such 10-day period.
40
46
(ii) Any change in the business, operations or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole which
could reasonably be expected to have a Material Adverse Effect.
(iii) Any pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against the Borrower
or any Subsidiary, except for matters that, if adversely decided,
individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
(iv) Any violation, breach or default by the Borrower or any
Subsidiary of the Borrower of or under any agreement or instrument material
to the business, operations or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole which could in the
reasonable judgment of the Borrower have a Material Adverse Effect.
(v) Any material correspondence with the PBGC, the Secretary of Labor
or any representative of the IRS with respect to any Benefit Plan or
Pension Plan, relating to an actual or threatened change or development
which would materially and adversely affect the financial condition of the
Borrower and its Subsidiaries taken as a whole; and copies of any notices
from the PBGC to the Borrower with respect to the intent of the PBGC to
institute involuntary proceedings.
(vi) Any Environmental Claim pending or threatened against the
Borrower or any Significant Subsidiary of the Borrower, or any past or
present acts, omissions, events or circumstances (including but not limited
to any dumping, leaching, deposition, removal, abandonment, escape,
emission, discharge or release of any Hazardous Material at, on or under
any facility or property now or previously owned, operated or leased by the
Borrower or any Significant Subsidiary of the Borrower) that could form the
basis of such Environmental Claim, which Environmental Claim, individually
or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
(vii) Any discovery or determination by the Borrower or its Subsidiary
that any computer application (including those of its suppliers and
vendors) that is material to the Borrower or any of its Subsidiaries'
business and operations will not be Year 2000 compliant on a timely basis,
except to the extent that such failure could not reasonably be expected to
have a Material Adverse Effect.
(g) Visitation; Verification. The Borrower shall, and shall cause each of
its Subsidiaries to, permit the Lenders to make or cause to be made, at their
own expense (and with respect to the Administrative Agent on behalf of the
Lenders, after the occurrence of and during the continuance of an Event of
Default, at the Borrower's expense), inspections and audits of any of its books,
records and papers and to make extracts therefrom and copies thereof, or to make
inspections and examinations of any of its properties and facilities (including,
without limitation, any Project sites), on reasonable notice, at all such
reasonable times and as often as any Lender may reasonably require, in order to
assure that the Borrower and its Subsidiaries are and will be in compliance with
their respective obligations under the Loan Documents or to evaluate the
Lenders' investment in the then outstanding Notes. The Borrower shall have the
right to have an authorized representative present during the inspection and
examination of any of the Borrower's or any of its Subsidiaries' properties and
facilities; provided, however, that the exercise of such right shall not delay
or hinder the Lenders' right to such inspection and examination.
The Administrative Agent shall promptly deliver to each Lender copies of
all notices received pursuant to this Section 5.01.
Section 5.02. Insurance. The Borrower shall, and shall cause each of its
Subsidiaries to, maintain, at its expense, and keep in effect with responsible
insurance companies, such liability insurance for bodily injury and third party
property damage as is customary in the case of corporations engaged in the same
or similar business or having similar properties, similarly situated, provided,
however, that the Borrower may maintain a system of self-insurance in accordance
with sound business practice as is customary for corporations having a similar
net worth as the Borrower. The Borrower shall, and shall cause each of its
Subsidiaries to, keep and maintain, at its expense, its material real and
personal property insured against loss or damage by fire, theft, explosion,
spoilage, and all other risks ordinarily insured against by other owners or
users of such properties in similar businesses in an amount equal to the full
replacement or cash value thereof, subject to deductible
41
47
amounts which the Borrower, in its reasonable judgment, deems prudent. The
Borrower shall, and shall cause each of its Subsidiaries to, carry all insurance
required by Law to cover its obligations to the PBGC.
Section 5.03. Payment of Taxes and Other Potential Charges and Priority
Claims. The Borrower shall, and shall cause each Subsidiary to, pay or
discharge
(a) on or prior to the date on which penalties are imposed by a taxing
authority with respect thereto, all material taxes, assessments and other
governmental charges imposed upon it or any of its properties;
(b) on or prior to the date when due, all material lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other like
Persons which, if unpaid, might result in the creation of a Lien upon any
such property; and
(c) on or prior to the date when due, all other material lawful claims
which, if unpaid, might result in the creation of a Lien upon any such
property or which, if unpaid, might give rise to a claim entitled to
priority over general creditors of the Borrower or such Subsidiary in a
case under Title 11 (Bankruptcy) of the United States Code, as amended;
provided, that unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced the Borrower or such Subsidiary need not
pay or discharge any such tax, assessment, charge or claim so long as (x) the
validity thereof is contested in good faith and by appropriate proceedings
diligently conducted and (y) such reserves or other appropriate provisions as
may be required by GAAP shall have been made therefor.
Section 5.04. Preservation of Corporate Status. The Borrower shall, and
shall cause each of its Significant Subsidiaries to, do, or cause to be done,
all things necessary to preserve and keep in full force and effect its corporate
existence and all permits, rights and privileges necessary for the proper
conduct of its business; provided, however, that nothing in this Section 5.04
shall prevent the withdrawal by the Borrower or any of its Significant
Subsidiaries of its qualification as a foreign corporation in any jurisdiction
where such withdrawal could not reasonably be expected to have a Material
Adverse Effect; and provided further,that nothing in this Section 5.04 shall
prevent the Borrower or any of its Significant Subsidiaries from failing to
maintain or terminating any right, privilege or permit, if such failure or
termination, is not in violation of or will not cause an Event of Default under,
any provision of this Agreement and does not have a Material Adverse Effect.
Section 5.05. Governmental Approvals and Filings. The Borrower shall, and
shall cause each Subsidiary to, keep and maintain in full force and effect all
Governmental Actions necessary in connection with execution and delivery of any
Loan Document, consummation of the transactions hereon or therein contemplated,
performance of or compliance with the terms and conditions hereof or thereof or
to ensure the legality, validity, binding effect, enforceability or
admissibility in evidence hereof or thereof.
Section 5.06. Maintenance of Properties. The Borrower shall, and shall
cause each Subsidiary to, maintain or cause to be maintained in good repair,
working order and condition the properties now or hereafter owned, leased or
otherwise possessed by it and shall make or cause to be made all needful and
proper repairs, renewals, replacements and improvements thereto so that they are
able to serve the functions for which they are currently being used, except to
the extent that the failure to do so would not have a Material Adverse Effect.
Section 5.07. Avoidance of Other Conflicts. The Borrower shall not, and
shall not permit any of its Subsidiaries to, violate or conflict with, be in
violation of or conflict with, or be or remain subject to any liability
(contingent or otherwise) on account of any violation or conflict with:
(a) any Law,
(b) its articles of incorporation or by-laws (or other constituent
documents), or
(c) any agreement or instrument to which it is party or by which any
of them or any of their respective Subsidiaries is a party or by which any
of them or any of their respective properties (now owned or hereafter
acquired) may be subject or bound),
42
48
except for matters which, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
Section 5.08. Financial Accounting Practices. The Borrower shall, and
shall cause each of its Subsidiaries to, keep proper books of record and account
in accordance with normal business practice in which full and appropriate
entries shall be made of all dealings or transactions in relation to its
business and activities.
Section 5.09. Use of Proceeds. The Borrower shall apply the proceeds of
Loans hereunder for payment of all obligations of the Borrower under the
Existing Credit Agreements, and for the general corporate purposes of the
Borrower and its Subsidiaries. The Borrower shall not use the proceeds of any
Loans hereunder directly or indirectly for any unlawful purpose or in any manner
inconsistent with any other provision of any Loan Document.
Section 5.10. Continuation of or Change in Business. The Borrower and
each of its Significant Subsidiaries shall continue to engage in substantially
the same lines of business conducted and operated during the present and
preceding fiscal year and reasonably related extensions thereof, and the
Borrower shall not, and shall not permit any Significant Subsidiary to,
substantially engage in any other unrelated businesses.
Section 5.11. Consolidated Tax Return. The Borrower shall not, and shall
not suffer any of its Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person other than the Borrower and its
Subsidiaries.
Section 5.12. Fiscal Year. The Borrower shall not, and shall not suffer
any of its Subsidiaries to, change its fiscal year or fiscal quarter except in
accordance with GAAP.
Section 5.13. ERISA. The Borrower shall, and shall cause each of its
Subsidiaries to, as soon as possible and, in any event, within 10 days after the
Borrower knows or has reason to know that a Reportable Event has occurred with
respect to a Pension Plan, that a transaction prohibited under ERISA, the Code
or a foreign law of similar nature has occurred resulting in a material
liability to a Benefit Plan, the Borrower or any of its Subsidiaries (or any
entity which they have an obligation to indemnify), that an accumulated funding
deficiency has been incurred or an application is to be or has been made to the
Secretary of the Treasury for a waiver of the minimum funding standard with
respect to an accumulation funding deficiency of $1,000,000 or more, that a
failure to make timely contributions to a Pension Plan may give or has given
rise to a lien in a material amount, that an amendment to a Pension Plan may
require or requires the granting of a security interest in a material amount,
that proceedings are likely to be or have been instituted to terminate a Pension
Plan, or that the Borrower, any of its Significant Subsidiaries or a member of
their respective Controlled Group will or may incur any material liability under
Section 502(g) or any analogous provision relating to Section 515 or Title IV of
ERISA, the Borrower will deliver to the Administrative Agent a certificate of a
Responsible Officer setting forth details as to such occurrence and action, if
any, which the Borrower, such Subsidiary or the respective member of their
Controlled Group is required or proposes to take, together with any notices
required or proposed to be filed with or by the Borrower, such Subsidiary or the
member of their respective Controlled Group, the PBGC or the plan administrator
with respect thereto. For purposes of this Section, an item is material if alone
or taken with any other item in this Section, it results in a liability of
$1,000,000 or more. Copies of any notices required to be delivered to the
Administrative Agent hereunder shall be delivered not later than 10 days after
the later of the date such notice has been filed with the IRS or the PBGC or
received by the Borrower, any of its Subsidiaries or members of their respective
Controlled Group. Upon the request of the Administrative Agent or any of the
Lenders made from time to time, the Borrower will deliver a copy of the most
recent actuarial report and annual report completed with respect to any Benefit
Plan and any other financial information the Borrower has with respect to the
Benefit Plan.
Section 5.14. Ratings. In the event that the Borrower has no rated senior
unsecured long-term debt outstanding, the Borrower will request Xxxxx'x to
assign the Borrower a "hypothetical senior long-term debt rating" and will
request S&P to assign the Borrower an "issuer credit rating," such request to be
made (i) not later than thirty days after delivery to the Administrative Agent
of the financial statements called for by Section 5.01(a) hereof and, in
addition, (ii) not later than thirty days after instructions by the Required
43
49
Lenders to make such request, which instructions may be given no more frequently
than once during any six-month period.
Section 5.15. Subsidiary Guaranty. Obligations hereunder shall at all
times be guaranteed by Xxxxxx Xxxxxxx USA Corporation, Xxxxxx Xxxxxxx Energy
International, Inc. and Xxxxxx Xxxxxxx Energy Corporation by the execution and
delivery of this Agreement by such Subsidiaries. If at the end of any fiscal
quarter of the Borrower, (i) the assets of the Guarantors constitute less than
90% of the consolidated domestic total assets of the Borrower and its
consolidated Subsidiaries or (ii) the net income for such fiscal quarter of the
Guarantors constitute less than 90% of the consolidated domestic net income of
the Borrower and its consolidated Subsidiaries for such quarter, then the
Borrower shall designate (x) one or more Material Domestic Subsidiaries and (y)
to the extent the designation provided in clause (x) does not make up the
short-fall in clause (i) or (ii) above, one or more other domestic Subsidiaries,
so that assets and net income of such one or more Material Domestic Subsidiaries
and such one or more other domestic Subsidiaries, together with such item of the
existing Guarantors, constitute 90% of the consolidated domestic total assets
and net income, respectively of the Borrower and its consolidated Subsidiaries.
The Borrower shall deliver to the Administrative Agent, together with the
Quarterly Compliance Certificate required under Section 5.01(c), a schedule
setting forth the assets and net income of each Guarantor and the consolidated
domestic assets and the consolidated domestic net income of the Borrower and its
consolidated Subsidiaries. If a Material Domestic Subsidiary or any other
domestic Subsidiary is required to become a Guarantor, unless the Required
Lenders otherwise agree, the Borrower shall, promptly (i) cause such Subsidiary
to execute a Subsidiary Guaranty Agreement, (ii) cause such Subsidiary to
deliver documentation similar to that described in Sections 4.01(b) and (d)
relating to the authorization for, execution and delivery of, and validity of
such Subsidiary's obligations as a Guarantor under the Guaranty in form and
substance satisfactory to the Administrative Agent. Except as otherwise required
or permitted by the Indenture, the Guarantors' obligations under the Guaranty
shall at all times be secured by the pledge of the "Collateral" (as defined in
the Pledge Agreement) pursuant to the Pledge Agreement. Without limiting the
restrictions set forth in Section 6.07, a merger of a Guarantor into the
Borrower or into another Guarantor shall not constitute a violation of this
Section 5.15 so long as the Guaranty of the surviving entity, in the case of a
merger into another Guarantor, remains in effect.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower hereby covenants to each Agent and each Lender as follows:
Section 6.01. Financial Covenants. (a) Consolidated Fixed Charges
Coverage Ratio. The Consolidated Fixed Charges Coverage Ratio shall be greater
than (i) 2.25 to 1 for each period of four consecutive fiscal quarters of the
Borrower ending after the Closing Date and prior to January 1, 2001 and (ii)
thereafter 2.40 to 1. For the purpose of this Section 6.01(a) only, calculations
of such Ratio shall exclude the $47,014,000 charges to the Borrower's earnings
taken in the third fiscal quarter of the Borrower in 1998.
(b) Consolidated Leverage Ratio. The Consolidated Leverage Ratio shall not
at the end of any fiscal quarter of the Borrower ending after the Closing Date
exceed 0.50 to 1.00 provided, however, that in the calculation of Indebtedness
solely for purposes of this Section 6.01(b), (i) Consolidated Indebtedness shall
not include (to the extent otherwise included therein) indebtedness for money
borrowed incurred solely for the purpose of hedging foreign currency exchange
risk for which the sole source of repayment is a cash collateral deposit, (ii)
Consolidated Indebtedness shall not include Indebtedness of any Special Purpose
Subsidiary, (iii) with respect to Guarantees of obligations of any Special
Purpose Subsidiary other than Guarantees solely for completion or operation of
the related Project, an amount shall be included in Consolidated Indebtedness of
the Borrower equal to the lesser of the Indebtedness of such Special Purpose
Subsidiary so Guaranteed and the amount of such Guarantee, (iv) with respect to
Guarantees of completion or operation obligations of any Special Purpose
Subsidiary, an amount shall be included in Consolidated Indebtedness of the
Borrower equal to 25% of the lesser of the outstanding amount of the
Indebtedness of such Special Purpose Subsidiary so Guaranteed and the maximum
amount payable by the Borrower pursuant to
44
50
such Guarantee (after giving effect to (and without duplication of) any
Guarantee of obligations of such Special Purpose Subsidiaries included in clause
(iii) above) until completion of the Project and operation thereof in accord
with the operating standards required under the terms of the financing agreement
of the Indebtedness of such Special Purpose Subsidiary, after which time no
amount shall be included in such calculation, except that if at any time such
Special Purpose Subsidiary is in default of its obligations (until such default
is remedied or cured) under the financing agreement of such Indebtedness and the
Borrower is obligated to make payments pursuant to such Guarantee, the amount to
be included shall be 25% of the outstanding amount of the Indebtedness of such
Special Purpose Subsidiary, and (v) Consolidated Indebtedness shall be
calculated as if the Trust Preferred was not outstanding; and provided, further,
that in the calculation of Consolidated Indebtedness of the Borrower solely for
the purposes of this Section 6.01(b), an amount shall be included on account of
letters of credit equal to monetary damages, if any, which are due but unpaid
according to the terms of any Project documents to which the beneficiary of such
letter of credit is entitled.
Section 6.02. Liens. The Borrower shall not and shall not permit any of
its Subsidiaries to create, or assume or permit to exist, any Lien on any of the
properties or assets of the Borrower or any of its Subsidiaries (other than any
Special Purpose Subsidiary), whether now owned or hereafter acquired except:
(a) ERISA Liens and Liens not otherwise permitted under this Section
6.02 securing Indebtedness and other obligations of the Borrower or any of
its Subsidiaries which Indebtedness and other obligations and, in the case
of ERISA Liens, the amount of the ERISA Liens, in the aggregate at any time
outstanding, does not exceed 15% of the Consolidated Net Worth of the
Borrower;
(b) Liens by the Borrower or a Subsidiary thereof on property or
assets securing all or part of the purchase price or construction cost
thereof (hereinafter referred to individually as a "Purchase Money Security
Interest"); provided, however, that:
(i) Such Purchase Money Security Interest is created before or
within 180 days after the purchase of, or the completion of construction
of, such property or assets by the Borrower or such Subsidiary;
(ii) The transaction in which any Purchase Money Security Interest
is proposed to be created is not then prohibited by this Agreement;
(iii) Any Purchase Money Security Interest shall attach only to the
property or asset so acquired or constructed in such transaction (and
the proceeds thereof) or any addition thereto or replacement thereof and
shall not extend to or cover any other assets or properties of the
Borrower or any of its Subsidiaries; and
(iv) The Indebtedness secured or covered by any Purchase Money
Security Interest together with any other Indebtedness secured by the
property or asset acquired shall not exceed 100% of the lesser of the
cost or fair market value of the property or asset acquired or
constructed and shall not be renewed, extended or prepaid from the
proceeds of any borrowing by the Borrower or any of its Subsidiaries;
(c) Liens on the property or assets of the Borrower and its
Subsidiaries in existence immediately prior to the Closing Date as listed
on Schedule 6.02 hereto, provided that no such Lien is spread to cover any
additional property after the Closing Date and the amount of Indebtedness
secured thereby is not increased, provided that the maturity of such
Indebtedness may be extended or renewed;
(d) Liens on all or any part of the property or the assets of any
Subsidiary in favor of the Borrower or any other Subsidiary (other than a
Special Purpose Subsidiary) as security for the Indebtedness owing to the
Borrower or such other Subsidiary;
(e) Liens (whether or not assumed) existing on property or assets at
the time of purchase thereof by the Borrower or any Subsidiary, provided
that: (i) such Lien is not created in contemplation of the purchase of such
property by the Borrower or such Subsidiary, (ii) such Lien is confined
solely to the
45
51
property so purchased, improvements thereto and proceeds thereof and (iii)
the aggregate amount secured by all Liens permitted by this Section 6.02(e)
shall not at any time exceed $10,000,000; and
(f) Permitted Liens.
Section 6.03. Indebtedness. The Borrower shall not, and shall not permit
any Subsidiary to, at any time create, incur, assume or suffer to exist or have
outstanding any Indebtedness if, immediately after giving effect to such
Indebtedness and the receipt and application of any proceeds thereof, there
would exist an Event of Default or Potential Default hereunder, or any
Indebtedness of any domestic Subsidiary (other than a Special Purpose
Subsidiary) other than (i) Indebtedness set forth on Schedule 3.07 hereof and
refinancings and renewals thereof (provided that the amount of such Indebtedness
so refinanced or renewed shall not exceed the lesser of (x) the amount of such
Indebtedness as of the date hereof or (y) the amount of such Indebtedness at the
time of refinancing or renewal), (ii) intercompany Indebtedness between or among
the Borrower and its Subsidiaries, (iii) Indebtedness of domestic Subsidiaries
(other than Special Purpose Subsidiaries) not otherwise permitted under clauses
(i) or (ii) above which in the aggregate at any time does not exceed $20,000,000
and (iv) the Guaranty hereunder, the "Guaranty" under the Other Credit Agreement
and the Guarantee of the Borrower's obligations in connection with securities
issued under the Indenture.
Section 6.04. Loans, Advances and Certain Investments. The Borrower shall
not, and shall not permit any Subsidiary to, at any time make or suffer to exist
or remain outstanding any Investment in any Special Purpose Subsidiary other
than Investments by the Borrower and its Subsidiaries in Special Purpose
Subsidiaries which do not exceed, in the aggregate at any time, 50% of the
Borrower's Consolidated Net Worth. For the purposes of this Section 6.04, the
Borrower's Consolidated Net Worth shall not include any amount on account of the
Borrower's Trust Preferred.
Section 6.05. Changes in Business. The Borrower shall not, and shall not
permit any Significant Subsidiary to, (a) liquidate or dissolve itself (or
suffer any liquidation or dissolution) (other than into the Borrower or any
other Significant Subsidiary), or (b) convey, sell, assign, transfer or
otherwise dispose of any capital stock of or other ownership interest in any
Significant Subsidiaries (other than Special Purpose Subsidiaries) held by it
(other than to the Borrower or any other Significant Subsidiary), provided that,
so long as no Default or Event of Default has occurred and is continuing or
would result therefrom, the Borrower may in any fiscal year convey, sell,
assign, transfer or otherwise dispose of capital stock or other ownership
interest in one or more Significant Subsidiaries which did not account for an
aggregate of 10% of the consolidated assets of the Borrower at the end of the
prior fiscal year.
Section 6.06. Amendment of Certain Documents. The Borrower shall not, and
shall not permit any Significant Subsidiary to, modify, amend, supplement or
terminate, or agree to modify, amend, supplement or terminate its certificate of
incorporation or by-laws or any other constituent documents, in any manner which
would materially and adversely affect the interests of any of the Lenders
hereunder.
Section 6.07. Mergers; Acquisitions. The Borrower shall not, and shall
not permit any of its Significant Subsidiaries to, merge or consolidate with any
Person; provided, however, that the Borrower or any Significant Subsidiary
thereof may merge with another Person if (i) in the case of a merger involving
the Borrower, the Borrower is the surviving corporation, (ii) in the case of a
merger involving a Significant Subsidiary, a Subsidiary of the Borrower or, if
the Borrower is also party to such merger, the Borrower, is the surviving
corporation, and (iii) after giving effect to such merger no Potential Default
or Event of Default would then exist.
Section 6.08. ERISA Obligations. The Borrower shall not, and shall not
permit any of its Subsidiaries to, engage in a transaction in connection with
which the Benefit Plans, the Borrower, any of its Subsidiaries or any entity
which they have an obligation to indemnify could be subject to liability for
either a civil penalty assessed pursuant to Section 502(i) or 502(1) of ERISA or
a tax imposed by Section 4975 of the Code or any other material liability Plan
or Benefit Plan, take any other action with respect to any such Pension Plan or
Benefit Plan if such termination or other action could result in liability, or
take any action or fail to take any action which could result in withdrawal
liabilities under Title IV of ERISA or liability under Section 502(g) of ERISA
or any analogous provision relating to Section 515 of ERISA; fail to make any
payments on a
46
52
timely basis which are required under applicable Law (including Section 412 of
the Code) to be paid as contributions to Pension Plans; incur an accumulated
funding deficiency (as defined in Section 302 of ERISA and Section 412 of the
Code), whether or not waived, with respect to any Pension Plan; amend any
Pension Plan in a manner which would require the granting of a security interest
to maintain the continued qualification of such Pension Plan under Section
401(a)(29) of the Code, if, in any case described herein, or together with any
other event described herein, such action, failure to act, event or transaction
would (i) result in an ERISA Lien exceeding the percentage limitations of
Section 6.02(a) or (ii) have a Material Adverse Effect.
Section 6.09. Principal Foreign Affiliates. The Borrower shall not permit
any of its Principal Foreign Affiliates to create, assume or permit to exist any
Indebtedness the terms of which, prior to a payment default thereunder, would
restrict dividends to be paid with respect to the consolidated net income of
such Affiliate for any fiscal year by more than 40% of the consolidated net
income of such Affiliate for such fiscal year. For purposes of this Section,
"Principal Foreign Affiliates" shall mean Xxxxxx Xxxxxxx Limited (Reading),
Xxxxxx Xxxxxxx France, S.A., Xxxxxx Xxxxxxx Italiana, S.p.A., Xxxxxx Xxxxxxx
Iberia, S.A., Xxxxxx Xxxxxxx Energia, S.A. and their respective successors and
any other foreign Affiliate of the Borrower which in the most recent fiscal year
of the Borrower accounted for more than 10% of the consolidated assets of the
Borrower and its Subsidiaries or which accounted for more than 5% of the
consolidated income of the Borrower and its Subsidiaries for the most recent
fiscal year of the Borrower; provided, however, that with respect to such
foreign Affiliate created or acquired after the date hereof, if thereafter such
entity, in a fiscal year, accounts for more than 10% of the consolidated assets
of the Borrower and its Subsidiaries or accounts for more than 5% of the
consolidated income of the Borrower and its Subsidiaries in such fiscal year, it
shall be deemed to be a Principal Foreign Affiliate for such fiscal year.
Section 6.10. Certain Agreements. The Borrower will not become or be a
party to any agreement or instrument relating to Indebtedness for borrowed money
(other than agreements and instruments relating to Indebtedness for borrowed
money in an aggregate principal amount not exceeding $15,000,000 (individually
or in the aggregate with respect to such agreements and instruments) at any time
outstanding and other than (with respect to debt securities offered and sold in
a public offering in a principal amount not exceeding $500,000,000 ($175,000,000
of which is outstanding under the Borrower's Trust Preferred)) the Indenture
between the Borrower and Xxxxxx Trust and Savings Bank, as Trustee, as amended
and supplemented from time to time (the "Indenture"), filed as an exhibit to the
Borrower's Registration Statement on Form S-3 (registration no. 33-61809)) which
contains any covenant or event of default which could result in such
Indebtedness becoming or being declared to be due and payable prior to its
stated maturity (including by a requirement for purchase or prepayment) upon the
occurrence of an event or condition which is not an event or condition the
occurrence of which could cause the Loans to become or be declared to be (other
than pursuant to Section 7.01(f) hereto) due and payable prior to their stated
maturity, unless the Borrower shall make an "Amendment Offer" (as hereinafter
defined); provided that this covenant shall not be violated by (i) an agreement
to pay the principal of and interest on such Indebtedness in accordance with its
terms or to provide to the holders of such Indebtedness or an agent or trustee
for such holders any information which the Borrower is obligated to provide to
the Lender or an Agent hereunder or (ii) any agreement or instrument relating to
Indebtedness on account of Capitalized Lease or secured by Purchase Money
Security Interest, any covenant or event of default of which principally relates
to the use, condition or disposition of the property financed or acquired or
constructed with such Indebtedness. As used herein, an "Amendment Offer" is an
effective offer by the Borrower to the Administrative Agent to amend this
Agreement, which offer shall be made no later than ten days after the Borrower
becoming party to an agreement or instrument referred to in the first sentence
of this Section 6.10, to amend this Agreement (without deleting or overriding
any term or provision of this Section 6.10) in a way that the first sentence of
this Section would not otherwise be applicable to such agreement or instrument.
The Administrative Agent, if so instructed by the Required Lenders, shall accept
or decline such Amendment Offer within thirty days thereof, and a failure to so
respond shall be deemed a declination of such Amendment Offer.
Section 6.11. Restricted Payments. The Borrower shall not, and shall not
suffer or permit any Subsidiary to, declare or make any Stock Payment; except
that (i) any wholly-owned Subsidiary may declare
47
53
and make dividend payments or other distributions to the Borrower or to another
wholly-owned Subsidiary; (ii) any non-wholly-owned Subsidiary may declare and
make dividend payments or other distribution to its shareholders or other equity
holders generally so long as the Borrower or its respective Subsidiary which
owns the equity interest in the Subsidiary paying such dividends or other
distributions receives at least its proportionate share thereof (based upon its
relative holdings of the equity interest in the Subsidiary paying such dividends
or other distributions and taking into account the relative preferences, if any,
of the various classes of equity interest of such Subsidiary); (iii) the
Borrower and any Subsidiary may declare and make dividend payments or other
distributions, in each case, payable solely in its stock; and (iv) the Borrower
and any Subsidiary may declare, pay or make cash Stock Payments so long as no
Event of Default then exist or would result therefrom.
Section 6.12. Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any transaction or series
of related transactions, whether or not in the ordinary course of business, with
any Affiliate of the Borrower or any of its Subsidiaries, other than on terms
and conditions substantially as favorable to the Borrower or such Subsidiary as
would be obtainable by the Borrower or such Subsidiary at the time in a
comparable arm's-length transaction with a Person other than an Affiliate.
Notwithstanding the foregoing, the provisions of this Section 6.12 shall not
prohibit (i) Stock Payments permitted under Section 6.11 hereof, (ii) loans and
other advances that may from time to time be made to directors, officers and/or
employees of the Borrower or any of its Subsidiaries in the ordinary course of
business, (iii) customary fees paid to directors of the Borrower and its
Subsidiaries, (iv) the entering into, and making payments under, employment
agreements, employee benefit plans, indemnification provisions and other similar
compensatory arrangements with directors, officers and/or employees of the
Borrower and its Subsidiaries in the ordinary course of business and (v)
transactions between or among the Borrower and its Subsidiaries to the extent
that such transactions are not otherwise prohibited by the terms of this
Agreement.
Section 6.13. Capital Expenditures. The Borrower shall not, and shall not
permit any of its Subsidiaries (other than Special Purpose Subsidiaries) to,
make any Capital Expenditures, except that during any fiscal year of the
Borrower, the Borrower and its Subsidiaries (other than Special Purpose
Subsidiaries) may make Capital Expenditures so long as the aggregate amount of
such Capital Expenditures does not exceed $75,000,000 in such fiscal year.
"Capital Expenditures" shall mean any expenditure for fixed or capital assets
(including, without limitation, expenditures for maintenance and repairs which
are capitalized in accordance with GAAP and Capitalized Lease Obligations).
ARTICLE VII
DEFAULTS
Section 7.01. Events of Default. An Event of Default shall mean the
occurrence or existence of one or more of the following events or conditions
(for any reason, whether voluntary, involuntary or effected or required by Law):
(a) The Borrower shall fail to pay when due principal of any Loan.
(b) The Borrower shall fail to pay when due interest on any Loan, any fees,
indemnity or expenses, or any other amount due hereunder or under any other Loan
Document and such failure shall have continued for a period of five Business
Days.
(c) Any representation or warranty made or deemed made by the Borrower or
any Subsidiary of the Borrower in or pursuant to any Loan Document or in any
certificate delivered thereunder, or any statement made by the Borrower or any
Subsidiary of the Borrower in any financial statement, certificate, report,
exhibit or document furnished by the Borrower or any Subsidiary of the Borrower
to any Agent or any Lender pursuant to or in connection with any Loan Document,
shall prove to have been false or misleading in any material respect as of the
time when made or deemed made (including by omission of material information
necessary to make such representation, warranty or statement not misleading).
48
54
(d) The Borrower shall default in the performance or observance of any
covenant contained in Article VI hereof which shall remain unremedied for a
period of five days after the occurrence thereof or the Borrower shall default
in the observance of any covenant contained in Section 5.01(f) hereof.
(e) The Borrower shall default in the performance or observance of any
other covenant, agreement or duty under this Agreement or any other Loan
Document and such default shall have continued for a period of 30 days after
notice of such default from the Administrative Agent to the Borrower.
(f) (i) The Borrower or any Guarantor (other than a Special Purpose
Subsidiary) or any Significant Subsidiary (other than a Special Purpose
Subsidiary) of the Borrower shall fail to perform or observe any term, condition
or covenant of any bond, note, debenture, loan or letter of credit agreement,
indenture, guaranty, trust agreement, mortgage or similar instrument to which
the Borrower or any such Guarantor (other than Special Purpose Subsidiary) or
any such Significant Subsidiary (other than a Special Purpose Subsidiary) is a
party or by which it is bound, or by which any of its properties or assets may
be affected (a "Debt Instrument"), so that, as a result of any such failure to
perform, the Indebtedness included therein or secured or covered thereby may at
the time be declared due and payable prior to the date on which such
Indebtedness would otherwise become due and payable; or (ii) any event or
condition referred to in any Debt Instrument shall occur or fail to occur, so
that, as a result thereof, the Indebtedness included therein or secured or
covered thereby may at such time be declared due and payable prior to the date
on which such Indebtedness would otherwise become due and payable; or (iii) the
Borrower or any Guarantor (other than Special Purpose Subsidiary) or any
Significant Subsidiary of the Borrower (other than any Special Purpose
Subsidiary) shall fail to pay any Indebtedness when due, pursuant to demand
under any Debt Instrument or otherwise, subject to any applicable grace period;
provided, however, that the provisions of this Section 7.01(f) shall not be
applicable to Indebtedness or any Debt Instrument or Debt Instruments which
relate to or evidence Indebtedness which, on the date this Section 7.01(f) would
otherwise be applicable thereto, is in the principal amount of less than
$10,000,000 (or its equivalent in any foreign currencies) in the aggregate.
(g) One or more final, non-appealable judgments for the payment of money
shall have been entered against the Borrower or any Significant Subsidiary
(other than a Special Purpose Subsidiary), which judgment or judgments exceed
$15,000,000 (or its equivalent in any foreign currencies) in the aggregate, and
such judgment or judgments shall have remained unpaid, undischarged and unstayed
for a period of sixty consecutive days.
(h) One or more final, non-appealable writs or warrants of attachment,
garnishment, execution, distraint or similar process exceeding in value the
aggregate amount of $15,000,000 (or its equivalent in any foreign currencies)
shall have been issued against the Borrower or any Significant Subsidiary (other
than a Special Purpose Subsidiary) or any of their respective properties and
shall have remained undischarged and unstayed for a period of sixty consecutive
days.
(i) This Agreement or any term or provision hereof shall cease to be in
full force and effect, or any Credit Party shall, or shall purport to,
terminate, repudiate, declare voidable or void or otherwise contest, this
Agreement or any term or provision thereof or any obligation or liability of the
Credit Parties hereunder.
(j) (i) Any Pension Plan is terminated pursuant to Section 4041 or 4042 of
ERISA and the benefit liabilities exceed the assets based upon the assumptions
used by the PBGC on plan termination by an amount such that the termination of
such Pension Plan would have a Material Adverse Effect; (ii) the Borrower or any
of its Subsidiaries (or a member of their respective Controlled Group) incur a
liability under Section 4062, 4063 or 4064 of ERISA for an amount that such
liability would materially and adversely affect the financial condition of the
Borrower and its Subsidiaries taken as a whole; or (iii) any other event or
events shall occur with respect to any employee benefit plan whether or not
subject to ERISA which individually or in the aggregate results in a Material
Adverse Effect.
(k) A proceeding shall have been instituted in respect of the Borrower or
any Significant Subsidiary (other than a Special Purpose Subsidiary)
(i) seeking to have an order for relief entered in respect of such
Person, or seeking a declaration or entailing a finding that such Person
is insolvent or a similar declaration or finding, or
49
55
seeking dissolution, winding-up, charter revocation or forfeiture,
liquidation, reorganization, arrangement, adjustment, composition or
other similar relief with respect to such Person, its assets or its
debts under any Law relating to bankruptcy, insolvency, relief of
debtors or protection of creditors, termination of legal entities or any
other similar Law now or hereafter in effect, or
(ii) seeking appointment of a receiver, trustee, liquidator,
assignee, sequestrator or other custodian for such Person or for all or
any substantial part of its property
and such proceeding shall result in the entry, making or grant of any such order
for relief, declaration, finding, relief or appointment, or such proceeding
shall remain undismissed and unstayed for a period of 60 consecutive days.
(1) The Borrower or any Significant Subsidiary (other than a Special
Purpose Subsidiary) shall voluntarily suspend transaction of its business;
shall make a general assignment for the benefit of creditors; shall
institute (or fail to controvert in a timely and appropriate manner) a
proceeding described in Section 7.01(k)(i) hereof, or (whether or not any
such proceeding has been instituted) shall consent to or acquiesce in any
such order for relief, declaration, finding or relief described therein;
shall institute (or fail to controvert in a timely and appropriate manner)
a proceeding described in Section 7.01(k)(ii) hereof, or (whether or not
any such proceeding has been instituted) shall consent to or acquiesce in
any such appointment or to the taking of possession by any such custodian
of all or any substantial part of its or his property; shall dissolve,
wind-up, revoke or forfeit its charter (or other constituent documents) or
liquidate itself or any substantial part of its property; or shall take any
corporate or similar action in furtherance of any of the foregoing.
Section 7.02. Consequences of an Event of Default. (a) If an Event of
Default specified in subsections (a) through (j) of Section 7.01 hereof, or in
subsections (k) and (l) with respect to a Significant Subsidiary, shall occur
and be continuing or shall exist, then, in addition to all other rights and
remedies which any Agent or any Lender may have hereunder or under any other
Loan Document, at law, in equity or otherwise, the Lenders shall be under no
further obligation to make Loans hereunder, and the Administrative Agent may,
and upon the written request of the Required Lenders shall, by notice to the
Borrower, from time to time do any or all of the following:
(i) Declare the Commitments terminated, whereupon the Commitments will
terminate and any fees hereunder shall be immediately due and payable
without presentment, demand, protest or further notice of any kind, all of
which are hereby waived, and an action therefor shall immediately accrue.
(ii) Declare the unpaid principal amount of the Loans, interest
accrued thereon and all other Obligations to be immediately due and payable
without presentment, demand, protest or further notice of any kind, all of
which are hereby waived, and an action therefor shall immediately accrue.
(b) If an Event of Default specified in subsection (k) or (1) of Section
7.01 hereof shall occur or exist with respect to the Borrower, then, in addition
to all other rights and remedies which any Agent or any Lender may have
hereunder or under any other Loan Document, at law, in equity or otherwise, the
Commitments shall automatically terminate and the Lenders shall be under no
further obligation to make Loans, and the unpaid principal amount of the Loans,
interest accrued thereon and all other Obligations shall become immediately due
and payable, without presentment, demand, protest or notice of any kind, all of
which are hereby waived, and an action therefor shall immediately accrue.
ARTICLE VIII
THE AGENTS
Section 8.01. Appointment. Each Lender hereby irrevocably appoints Bank
of America National Trust and Savings Association to act as Administrative Agent
for such Lender under this Agreement and the other Loan Documents. Each Lender
hereby irrevocably authorizes the Administrative Agent to take such action on
behalf of such Lender under the provisions of this Agreement and the other Loan
Documents, and to exercise such powers and to perform such duties, as are
expressly delegated to or required of the Administrative Agent
50
56
by the terms hereof or thereof, together with such powers as are reasonably
incidental thereto. Bank of America National Trust and Savings Association
hereby agrees to act as Administrative Agent on behalf of the Lenders on the
terms and conditions set forth in this Agreement and the other Loan Documents,
subject to its right to resign as provided in Section 8.10 hereof. Each Lender
hereby irrevocably authorizes the Administrative Agent to execute and deliver
each of the Loan Documents and to accept delivery of such of the other Loan
Documents as may not require execution by the Administrative Agent. Each Lender
agrees that the rights and remedies granted to the Administrative Agent under
the Loan Documents shall be exercised exclusively by the Administrative Agent,
and that no Lender shall have any right individually to exercise any such right
or remedy, except to the extent expressly provided herein or therein.
Section 8.02. General Nature of Agents' Duties. Notwithstanding anything
to the contrary elsewhere in this Agreement or in any other Loan Document:
(a) No Agent shall have duties or responsibilities except those
expressly set forth in this Agreement and the other Loan Documents, and no
implied duties or responsibilities on the part of any Agent shall be read
into this Agreement or any Loan Document or shall otherwise exist.
(b) The duties and responsibilities of each Agent under this Agreement
and the other Loan Documents shall be mechanical and administrative in
nature, and no Agent shall have a fiduciary relationship in respect of any
Lender.
(c) Each Agent is and shall be solely the agent of the Lenders. No
Agent assumes, and shall not at any time be deemed to have, any
relationship of agency or trust with or for, or any other duty or
responsibility to, the Borrower, any Subsidiary of the Borrower or any
other Person (except only for its relationship as agent for, and its
express duties and responsibilities to, the Lenders as provided in this
Agreement and the other Loan Documents).
(d) No Agent shall be under any obligation to take any action
hereunder or under any other Loan Document if such Agent believes in good
faith after consultation with counsel that taking such action may conflict
with any Law or any provision of this Agreement or any other Loan Document,
or may require such Agent to qualify to do business in any jurisdiction
where it is not then so qualified.
Section 8.03. Exercise of Powers. Each Agent shall take any action of the
type specified in this Agreement or any other Loan Document as being within such
Agent's rights, powers or discretion in accordance with directions from the
Required Lenders (or, to the extent this Agreement or such Loan Document
expressly requires the direction or consent of some other Person or set of
Persons, then instead in accordance with the directions of such other Person or
set of Persons). In the absence of such directions, each Agent shall have the
authority (but under no circumstances shall be obligated), in its sole
discretion, to take any such action, except to the extent this Agreement or such
Loan Document expressly requires the direction or consent of the Required
Lenders (or some other Person or set of Persons), in which case such Agent shall
not take such action absent such direction or consent. Any action or inaction
pursuant to such direction, discretion or consent shall be binding on all the
Lenders. No Agent shall have any liability to any Person as a result of (x) any
Agent acting or refraining from acting in accordance with the directions of the
Required Lenders (or other applicable Person or set of Persons), (y) any Agent
refraining from acting in the absence of instructions to act from the Required
Lenders (or other applicable Person or set of Persons), whether or not such
Agent has discretionary power to take such action, or (z) any Agent taking
discretionary action it is authorized to take under this Section.
Section 8.04. Certain Provisions. Notwithstanding anything to the
contrary elsewhere in this Agreement or any other Loan Document:
(a) No Agent shall be liable for any action taken or omitted to be
taken by it under or in connection with this Agreement or any other Loan
Document, unless caused by its own gross negligence or willful misconduct.
(b) No Agent shall be responsible for (i) the execution, delivery,
effectiveness, enforceability, genuineness, validity or adequacy of this
Agreement or any other Loan Document, (ii) any recital,
51
57
representation, warranty, document, certificate, report or statement in,
provided for in, or received under or in connection with, this Agreement or
any other Loan Document or (iii) any failure of the Borrower or any
Subsidiary of the Borrower or Lender to perform any of their respective
obligations under this Agreement or any other Loan Document.
(c) No Agent shall be under any obligation to ascertain, inquire or
give any notice relating to (i) the performance or observance of any of the
terms or conditions of this Agreement or any other Loan Document on the
part of the Borrower or any Subsidiary of the Borrower, (ii) the business,
operations, condition (financial or otherwise) or prospects of the Borrower
or any other Person, or (iii) except to the extent set forth in Section
8.05(f) hereof, the existence of any Event of Default or Potential Default.
(d) No Agent shall be under any obligation, either initially or on a
continuing basis, to provide any Lender with any notices, reports or
information of any nature, whether in its possession presently or
hereafter, except for such notices, reports and other information expressly
required by this Agreement or any other Loan Document to be furnished by
such Agent to such Lender.
Section 8.05. Administration by the Agents. (a) Any Agent may rely in
good faith upon any notice or other communication of any nature (written or
oral, including but not limited to telephone conversations, whether or not such
notice or other communication is made in a manner permitted or required by this
Agreement or any Loan Document) purportedly made by or on behalf of the proper
party or parties, and no Agent shall have any duty to verify the identity or
authority of any Person giving such notice or other communication.
(b) Each Agent may consult with legal counsel (including, without
limitation, in-house counsel for such Agent or in-house or other counsel for the
Borrower), independent public accountants and any other experts selected by it
from time to time, and such Agent 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.
(c) Each Agent may conclusively rely upon the truth of the statements and
the correctness of the opinions expressed in any certificates or opinions
furnished to such Agent in accordance with the requirements of this Agreement or
any other Loan Document. Whenever any Agent shall deem it necessary or desirable
that a matter be proved or established with respect to the Borrower or any
Lender, such matter may be established by a certificate of the Borrower or
Lender, as the case may be, and such Agent may conclusively rely upon such
certificate (unless other evidence with respect to such matter is specifically
prescribed in this Agreement or another Loan Document).
(d) Any Agent may fail or refuse to take any action unless it shall be
indemnified to its reasonable satisfaction from time to time against any and all
amounts, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature which
may be imposed on, incurred by or asserted against such Agent by reason of
taking or continuing to take any such action.
(e) Any Agent may perform any of its duties under this Agreement or any
other Loan Document by or through agents or attorneys-in-fact. No Agent shall be
responsible for the negligence or misconduct of any agents or attorneys-in fact
selected by it with reasonable care.
(f) No Agent shall be deemed to have any knowledge or notice of the
occurrence of any Event of Default or Potential Default unless such Agent has
actual knowledge or has received notice from a Lender or the Borrower referring
to this Agreement, describing such Event of Default or Potential Default, and
stating that such notice is a "notice of default." If any Agent receives such a
notice, such Agent shall give prompt notice thereof to the other Agent and each
Lender.
Section 8.06. Lender Not Relying on Agents or Other Lenders. Each Lender
acknowledges as follows:
(a) No Agent nor any other Lender has made any representations or
warranties to it, and no act taken hereafter by any Agent or any other
Lender shall be deemed to constitute any representation or warranty by such
Agent or such other Lender to it.
52
58
(b) It has, independently and without reliance upon any Agent or any
other Lender, and based upon such documents and information as it has
deemed appropriate, made its own credit and legal analysis and decision to
enter into this Agreement and the other Loan Documents.
(c) It will, independently and without reliance upon any Agent or any
other Lender, and based upon such documents and information as it shall
deem appropriate at the time, make its own decisions to take or not take
action under or in connection with this Agreement and the other Loan
Documents.
Section 8.07. Indemnification. Each Lender agrees to reimburse and
indemnify each Agent and its directors, officers, employees and agents (to the
extent not reimbursed by the Borrower and without limitation of the obligations
of the Borrower to do so), Pro Rata, from and against any and all amounts,
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature (including,
without limitation, the fees and disbursements of counsel for such Agent or such
other Person in connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not such Agent or such other
Person shall be designated a party thereto) that may at any time be imposed on,
incurred by or asserted against such Agent or such other Person as a result of,
or arising out of, or in any way related to or by reason of, this Agreement, any
other Loan Document, any transaction from time to time contemplated hereby or
thereby, or any transaction financed in whole or in part or directly or
indirectly with the proceeds of any Loan, provided that no Lender shall be
liable for any portion of such amounts, losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements resulting solely from the gross negligence or willful misconduct
of such Agent or such other Person, as finally determined by a court of
competent jurisdiction.
Section 8.08. Agents In Their Individual Capacities. With respect to its
Commitments and the obligations owing to it, each Agent shall have the same
rights and powers under this Agreement and each other Loan Document as any other
Lender and may exercise the same as though it were not an Agent, and the terms
"Lenders," "holders of Notes" and like terms shall include each Agent in its
individual capacity as such. Each Agent and its affiliates may, without
liability to account, make loans to, accept deposits from, acquire debt or
equity interests in, act as trustee under indentures of, and engage in any other
business with, the Borrower and any stockholder, Subsidiary or Affiliate of the
Borrower, as though such Agent were not an Agent hereunder.
Section 8.09. Holders of Notes. Each Agent may deem and treat the Lender
which is payee of a Note as the owner and holder of such Note for all purposes
hereof unless and until a Transfer Supplement with respect to the assignment or
transfer thereof shall have been filed with the Administrative Agent in
accordance with Section 10.14 hereof. Any authority, direction or consent of any
Person who at the time of giving such authority, direction or consent is shown
in the Register as being a Lender shall be conclusive and binding on each
present and subsequent holder, transferee or assignee of any Note or Notes
payable to such Lender or of any Note or Notes issued in exchange therefor.
Section 8.10. Successor Agents. Any Agent may resign at any time by
giving 30 days' written notice thereof to the Lenders and the Borrower. Any
Agent may be removed by the Required Lenders at any time by giving 10 days'
prior written notice thereof to such Agent, the other Lenders and the Borrower.
Upon any such resignation or removal, the Borrower shall have the right to
appoint a successor Agent; provided, that the Required Lenders or the remaining
Agents shall have the right, acting reasonably, to disapprove such successor
Agent. If no successor Agent shall have been so appointed and consented to, and
shall have accepted such appointment, within 30 days after such notice of
resignation or removal, then any of the remaining Agents shall succeed to the
obligations of such Agent hereunder. Each successor Agent shall be a commercial
bank or trust company organized or licensed under the laws of the United States
of America or any State thereof and having a combined capital and surplus of at
least $1,000,000,000. Upon the acceptance by a successor Agent of its
appointment as Agent hereunder, such successor Agent shall thereupon succeed to
and become vested with all the properties, rights, powers, privileges and duties
of the former Agent, without further act, deed or conveyance. Upon the effective
date of resignation or removal of a retiring Agent, such Agent shall be
discharged from its duties under this Agreement and the other Loan Documents,
but the provisions of this Agreement shall inure to its benefit as to any
actions taken or omitted by it while it was
53
59
Agent under this Agreement. If and so long as no successor Agent shall have been
appointed, then any notice or other communication required or permitted to be
given by the retiring Agent shall be sufficiently given if given by the Required
Lenders, all notices or other communications required or permitted to be given
to the Agent shall be given to each Lender, and all payments to be made to the
retiring Agent shall be made directly to the Borrower or Lender for whose
account such payment is made.
Section 8.11. Calculations. No Agent shall be liable for any calculation,
apportionment or distribution of payments made by it in good faith. If such
calculation, apportionment or distribution is subsequently determined to have
been made in error, the sole recourse of any Lender to whom payment was due but
not made shall be to recover from the other Lenders any payment in excess of the
amount to which they are determined to be entitled or, if the amount due was not
paid by the Borrower, to recover such amount from the Borrower.
Section 8.12. Funding by Administrative Agent. Unless the Administrative
Agent shall have been notified in writing by any Lender not later than the close
of business on the day before the day on which Loans are requested by the
Borrower to be made that such Lender will not make its ratable share of such
Loans, the Administrative Agent may assume that such Lender will make its
ratable share of the Loans, and in reliance upon such assumption the
Administrative Agent may (but in no circumstances shall be required to) make
available to the Borrower a corresponding amount. If and to the extent that any
Lender fails to make such payment to the Administrative Agent on such date, such
Lender shall pay such amount on demand (or, if such Lender fails to pay such
amount on demand, the Borrower shall pay such amount on demand), together with
interest, for the Administrative Agent's own account, for each day from and
including the date of the Administrative Agent's payment to and including the
date of repayment to the Administrative Agent (before and after judgment) at the
Federal Funds Effective Rate for the first day and thereafter at the rate or
rates per annum applicable to such Loans. All payments to the Administrative
Agent under this Section shall be made to the Administrative Agent at its Office
in Dollars in funds immediately available at such Office, without set-off,
withholding, counterclaim or other deduction of any nature.
Section 8.13. Syndication Agent and Documentation Agent. Nothing in this
Agreement shall impose upon the Syndication Agent or the Documentation Agent, in
their respective capacities as such, any duty or responsibility whatsoever.
ARTICLE IX
GUARANTY
Section 9.01. The Guaranty. In order to induce the Lenders to enter into
this Agreement and to extend credit hereunder to the Borrower and in recognition
of the direct benefits to be received by the Borrower and each Guarantor from
the proceeds of the Loans to the Borrower, each Guarantor hereby agrees with the
Lenders as follows: each Guarantor hereby unconditionally and irrevocably
guarantees as primary obligor and not merely as surety the full and prompt
payment when due, whether upon maturity, by acceleration or otherwise, of any
and all of the Guaranteed Obligations to the Creditors. If any or all of the
Guaranteed Obligations to the Creditors becomes due and payable hereunder, each
Guarantor unconditionally promises to pay such Guaranteed Obligations to the
Creditors in the same currency in which such Guaranteed Obligations are
denominated, or order, on demand, together with any and all reasonable expenses
which may be incurred by the Administrative Agent or the Creditors in collecting
any of the Guaranteed Obligations.
Section 9.02. Bankruptcy. Additionally, each Guarantor unconditionally
and irrevocably guarantees the payment of any and all of the Guaranteed
Obligations to the Creditors whether or not then due or payable by the Borrower
upon the occurrence in respect of the Borrower of any of the events specified in
Section 7.01(k) or (l), and unconditionally and irrevocably promises to pay such
Guaranteed Obligations to the Creditors, or order, on demand, in the same
currency in which such Guaranteed Obligations are denominated.
Section 9.03. Nature of Liability. The liability of each Guarantor
hereunder is exclusive and independent of any security for or other guaranty of
the Guaranteed Obligations whether executed by such
54
60
Guarantor, any other guarantor or by any other party, and the liability of each
Guarantor hereunder shall not be affected or impaired by (a) any direction as to
application of payment by the Borrower or by any other party, or (b) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other party as to the Guaranteed Obligations of the Borrower, or (c) any
payment on or in reduction of any such other guaranty or undertaking, or (d) any
dissolution, termination or increase, decrease or change in personnel by any
Borrower, or (e) any payment made to the Administrative Agent or the other
Creditors on the indebtedness which the Administrative Agent or such other
Creditors repay the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding (the
Guaranty shall be reinstated in the case of any such disgorgement), and each
Guarantor waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding.
Section 9.04. Independent Obligation. The obligations of each Guarantor
hereunder are independent of the obligations of any other guarantor or the
Borrower, and a separate action or actions may be brought and prosecuted against
each Guarantor whether or not action is brought against any other guarantor or
the Borrower and whether or not any other Guarantor or the Borrower be joined in
any such action or actions. Each Guarantor waives, to the fullest extent
permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the enforcement thereof. Any payment by the Borrower or
other circumstance which operates to toll any statute of limitations as to the
Borrower shall operate to toll the statute of limitations as to each Guarantor.
Section 9.05. Authorization. Each Guarantor authorizes the Creditors
without notice or demand (except as shall be required by applicable law and
cannot be waived), and without affecting or impairing its liability hereunder,
from time to time to:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter, any of
the Guaranteed Obligations (including any increase or decrease in the rate
of interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the guaranty herein made
shall apply to the Guaranteed Obligations as so changed, extended, renewed
or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset there against;
(c) exercise or refrain from exercising any rights against the
Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, the
Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to its creditors other than
the Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Creditors regardless of
what liability or liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, this Agreement or any of the instruments or agreements referred to
herein, or otherwise amend, modify or supplement this Agreement or any of
such other instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of
such Guarantor from its liabilities under this Section 9.
Section 9.06. Reliance. It is not necessary for the Creditors to inquire
into the capacity or powers of the Borrower or the officers, directors, partners
or agents acting or purporting to act on its behalf, and any
55
61
Guaranteed Obligations made or created in reliance upon the professed exercise
of such powers shall be guaranteed hereunder.
Section 9.07. Subordination. Any of the indebtedness of the Borrower now
or hereafter owing to a Guarantor is hereby subordinated to the Guaranteed
Obligations of the Borrower owing to the Creditors; and if the Administrative
Agent so requests at a time when an Event of Default exists, all such
indebtedness of the Borrower to a Guarantor shall be collected, enforced and
received by the Borrower for the benefit of the Creditors and be paid over to
the Administrative Agent on behalf of the Creditors on account of the Guaranteed
Obligations of the Borrower to the Creditors, but without affecting or impairing
in any manner the liability of such Guarantor under the other provisions of this
Guaranty. Prior to the transfer by any Guarantor of any note or negotiable
instrument evidencing any of the indebtedness of the Borrower to such Guarantor,
such Guarantor shall xxxx such note or negotiable instrument with a legend that
the same is subject to this subordination. Without limiting the generality of
the foregoing, each Guarantor hereby agrees with the Creditors that it will not
exercise any right of subrogation or contribution which it may at any time
otherwise have as a result of this Guaranty (whether contractual, under Section
509 of the Bankruptcy Code or otherwise) against the Borrower or any other
Guarantor until all Guaranteed Obligations have been irrevocably paid in full in
cash. The Guaranteed Obligations shall not be deemed to be paid in full unless
the Creditors shall have received all amounts set forth in the definition of
"Guaranteed Obligations", including, in the event of a bankruptcy proceeding,
all interest, fees and expenses accruing and arising after the filing of the
bankruptcy petition.
Section 9.08. Waiver. (a) Each Guarantor waives any right (except as
shall be required by applicable law and cannot be waived) to require the
Creditors to (i) proceed against the Borrower or any other party, (ii) proceed
against or exhaust any security held from the Borrower or any other party or
(iii) pursue any other remedy in the Administrative Agent's or any other
Creditors' power whatsoever. Each Guarantor waives any defense based on or
arising out of any defense of the Borrower or any other party, other than
payment in full of the Guaranteed Obligations, based on or arising out of the
disability of the Borrower, any other guarantor or any other party, or the
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the Borrower other
than payment in full of the Guaranteed Obligations. To the greatest extent
permitted by law the Creditors may, at their election, foreclose on any security
held by the Administrative Agent or any other Creditors by one or more judicial
or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Administrative Agent and any
other Creditors may have against the Borrower or any other party, or any
security, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid. Each Guarantor waives any defense arising out of any such election by the
Creditors, even though such election operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrower or any other Guarantor or any other party or any security.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices (except as otherwise expressly provided for herein),
including without limitation notices of nonperformance, notices of protest,
notices of dishonor, notices of acceptance of this Guaranty, and notices of the
existence, creation or incurring of new or additional Guaranteed Obligations.
Each Guarantor assumes all responsibility for being and keeping itself informed
of the Borrower's financial condition and assets, and of all circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations and the
nature, scope and extent of the risks which each Guarantor assumes and incurs
hereunder, and agrees that the Creditors shall have no duty to advise any
Guarantor of information known to them regarding such circumstances or risks.
Section 9.09. Nature of Liability. It is the desire and intent of the
Guarantors and the Creditors that this Guaranty shall be enforced against each
Guarantor to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. If, however, and to
the extent that, the obligations of any Guarantor under this Guaranty shall be
adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers), then the amount of the Guaranteed
Obligations of such Guarantor shall be deemed
56
62
to be reduced and such Guarantor shall pay the maximum amount of the Guaranteed
Obligations which would be permissible under applicable law.
Section 9.10. Judgments Binding. If claim is ever made upon any Creditor
or any subsequent holder of a Note of the Borrower for repayment or recovery of
any amount or amounts received in payment or on account of any of the Guaranteed
Obligations and any of the aforesaid payees repays all or part of said amount by
reason of (a) any judgment, decree or order of any court or administrative body
having jurisdiction over such payee or any of its property, or (b) any
settlement or compromise of any such claim effected by such payee with any such
claimant, then and in such event each Guarantor agrees that any such judgment,
decree, order, settlement or compromise shall be binding upon each Guarantor,
notwithstanding any revocation hereof or the cancellation of any Note or other
instrument evidencing any liability of any Borrower, and each Guarantor shall be
and remain liable to the aforesaid payees hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by any such payee.
ARTICLE X
MISCELLANEOUS
Section 10.01. Holidays. Whenever any payment or action to be made or
taken hereunder or under any other Loan Document shall be stated to be due on a
day which is not a Business Day, such payment or action shall be made or taken
on the next following Business Day and such extension of time shall be included
in computing interest or fees, if any, in connection with such payment or
action.
Section 10.02. Records. The unpaid principal amount of the Loans owing to
each Lender, the unpaid interest accrued thereon, the interest rate or rates
applicable to such unpaid principal amount, the duration of such applicability,
each Lender's Revolving Credit Committed Amount shall at all times be
ascertained from the records of the Administrative Agent, which shall be
conclusive absent manifest error.
Section 10.03. Amendments and Waivers. Neither this Agreement nor any
other Loan Document may be amended, modified or supplemented except in
accordance with the provisions of this Section. The Required Lenders and the
Borrower may from time to time amend, modify or supplement the provisions of
this Agreement or any other Loan Document for the purpose of amending, adding
to, or waiving any provisions or changing in any manner the rights and duties of
the Borrower, any Agent or any Lender. Any such amendment, modification or
supplement made by the Borrower and the Required Lenders, in accordance with the
provisions of this Section shall be binding upon the Borrower, each Lender and
each Agent. The Agents shall enter into such amendments, modifications,
supplements or waivers from time to time as directed by the Required Lenders,
and only as so directed, provided, that no such amendment, modification, waiver
or supplement may be made which will:
(a) Increase the Revolving Credit Committed Amount of any Lender over
the amount thereof then in effect, or extend the Revolving Credit Maturity
Date or the Competitive Bid Loan Expiration Date without the written
consent of each Lender affected thereby, or increase the Total Revolving
Commitment Amount to exceed $100,000,000;
(b) Reduce the principal amount of or extend the time for any payment
of any Loan, or reduce the amount of or rate of interest or extend the time
for payment of interest borne by any Loan or extend the time for payment of
or reduce the amount of any Facility Fee or reduce or postpone the date for
payment of any other fees, expenses, indemnities or amounts payable under
any Loan Document, without the written consent of each Lender affected
thereby;
(c) Change the definition of "Required Lenders" or amend this Section
10.03, Section 10.13 hereof or any provision of this Agreement that states
a requirement for the consent of all the Lenders, without the written
consent of all the Lenders;
(d) Release any of the Guarantors without the written consent of all
the Lenders; or
57
63
(e) Amend or waive any of the provisions of Article VIII hereof, or
impose additional duties upon any Agent or otherwise adversely affect the
rights, interests or obligations of any Agent, without the written consent
of such Agent,
and provided further, that Transfer Supplements may be entered into in the
manner provided in Section 10.14 hereof. Any such amendment, modification or
supplement must be in writing and shall be effective only to the extent set
forth in such writing. Any Event of Default or Potential Default waived or
consented to in any such amendment, modification or supplement shall be deemed
to be cured and not continuing to the extent and for the period set forth in
such waiver or consent, but no such waiver or consent shall extend to any other
or subsequent Event of Default or Potential Default or impair any right
consequent thereto.
Section 10.04. No Implied Waiver; Cumulative Remedies. No course of
dealing and no delay or failure of any Agent or any Lender in exercising any
right, power or privilege under this Agreement or any other Loan Document shall
affect any other or future exercise thereof or exercise of any other right,
power or privilege; nor shall any single or partial exercise of any such right,
power or privilege or any abandonment or discontinuance of steps to enforce such
a right, power or privilege preclude any further exercise thereof or of any
other right, power or privilege. The rights and remedies of the Agents and the
Lenders under this Agreement and any other Loan Document are cumulative and not
exclusive of any rights or remedies which any Agent or any Lender would
otherwise have hereunder or thereunder, at law, in equity or otherwise.
Section 10.05. Notices. (a) Except to the extent otherwise expressly
permitted hereunder or thereunder, all notices, requests, demands, directions
and other communications (collectively "notices") under this Agreement or any
other Loan Document shall be in writing (including telexed and telecopied
communication) and shall be sent by first-class mail, or by
nationally-recognized overnight courier, or by telex or telecopier (with
confirmation in writing mailed first-class or sent by such an overnight
courier), or by personal delivery. All notices shall be sent to the applicable
party at the address stated on the signature pages hereof or in accordance with
the last unrevoked written direction from such party to the other parties
hereto, in all cases with postage or other charges prepaid. Any such properly
given notice shall be effective on the earliest to occur of receipt, telephone
confirmation of receipt of telex or telecopy communication, one Business Day
after delivery to a nationally-recognized overnight courier, or three Business
Days after deposit in the mail.
(b) Any Lender giving any notice to the Borrower shall simultaneously send
a copy thereof to each Agent, and each Agent shall promptly notify the other
Lenders of the receipt by it of any such notice.
(c) Each Agent and each Lender may rely on any notice (whether or not such
notice is made in a manner permitted or required by this Agreement or any Loan
Document) purportedly made by or on behalf of the Borrower, and neither Agent
nor any Lender shall have any duty to verify the identity or authority of any
Person giving such notice.
Section 10.06. Expenses; Taxes; Indemnity. (a) The Borrower agrees to pay
or cause to be paid and to save each Agent and, in the case of clause (iii)
below, each of the Lenders harmless against liability for the payment of all
reasonable out-of-pocket costs and expenses (including but not limited to
reasonable fees and expenses of one counsel to the Agents and auditors,
consulting engineers, appraisers, and all other professional, accounting,
evaluation and consulting costs approved by the Borrower and, with respect to
costs incurred by the Agents or any Lender pursuant to clause (iii) below,
reasonable fees and expenses of counsel (including allocated costs of in-house
counsel to the extent that outside counsel has not been retained by such
Lender)) incurred by the Agents or, in the case of clause (iii) below any Lender
from time to time arising from or relating to (i) the negotiation, preparation,
execution, delivery, administration and performance of this Agreement and the
other Loan Documents, (ii) any requested amendments, modifications, supplements,
waivers or consents (whether or not ultimately entered into or granted) to this
Agreement or any other Loan Document, and (iii) following the occurrence of an
Event of Default, the enforcement or preservation of rights under this Agreement
or any other Loan Document (including but not limited to any such costs or
expenses arising from or relating to (A) collection or enforcement of an
outstanding Loan or any other amount owing hereunder or thereunder by any Agent
or any Lender, and (B) any litigation, proceeding, dispute, work-out,
restructuring or rescheduling related in any way to this Agreement or the other
Loan Documents).
58
64
(b) The Borrower hereby agrees to pay all stamp, document, transfer,
recording, filing, registration, search, sales and excise fees and taxes and all
similar impositions now or hereafter determined by any Agent or any Lender to be
payable in connection with this Agreement or any other Loan Documents or any
other documents, instruments or transactions pursuant to or in connection
herewith or therewith, and the Borrower agrees to save each Agent and each
Lender harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any such fees, taxes or impositions.
(c) The Borrower hereby agrees to reimburse and indemnify each of the
Indemnified Parties from and against any and all losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel (including, without
duplication, allocated costs of in-house counsel) for such Indemnified Party in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnified Party shall be
designated a party thereto) that may at any time be imposed on, asserted against
or incurred by such Indemnified Party as a result of, or arising out of, or in
any way related to or by reason of, this Agreement or any other Loan Document,
any transaction from time to time contemplated hereby or thereby, or any
transaction financed in whole or in part or directly or indirectly with the
proceeds of any Loan (and without in any way limiting the generality of the
foregoing, including any violation or breach of any Requirement of Law or any
other Law by the Borrower or any Subsidiary); or any exercise by any Agent or
any Lender of any of its rights or remedies under this Agreement or any other
Loan Document); but excluding any such losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements resulting primarily from the gross negligence or willful
misconduct of such Indemnified Party. If and to the extent that the foregoing
obligations of the Borrower under this subsection (c), or any other
indemnification obligation of the Borrower hereunder or under any other Loan
Document, are unenforceable for any reason, the Borrower hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable Law.
Section 10.07. Severability. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
Section 10.08. Prior Understandings. This Agreement and the other Loan
Documents supersede all prior and contemporaneous understandings and agreements
other than with regard to any upfront fees, whether written or oral, among the
parties hereto relating to the transactions provided for herein and therein.
Section 10.09. Duration; Survival. All representations and warranties of
the Borrower contained herein or in any other Loan Document or made in
connection herewith shall survive the making of, and shall not be waived by the
execution and delivery, of this Agreement or any other Loan Document, any
investigation by or knowledge of any Agent or any Lender, the making of any
Loan, or any other event or condition whatever. All covenants and agreements of
the Credit Parties contained herein or in any other Loan Document shall continue
in full force and effect from and after the date hereof so long as the Borrower
may borrow hereunder and until payment in full of all Obligations other than
indemnity obligations not yet due and payable. Without limitation, all
obligations of the Borrower hereunder or under any other Loan Document to make
payments to or indemnify each Agent or any Lender shall survive the payment in
full of all other obligations, termination of the Borrower's right to borrow
hereunder, and all other events and conditions whatever. In addition, all
obligations of each Lender to make payments to or indemnify the Agents shall
survive the payment in full by the Borrower of all Obligations, termination of
the Borrower's right to borrow hereunder, and all other events or conditions
whatever.
Section 10.10. Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
59
65
Section 10.11. Limitation on Payments. The parties hereto intend to
conform to all applicable Laws in effect from time to time limiting the maximum
rate of interest that may be charged or collected. Accordingly, notwithstanding
any other provision hereof or of any other Loan Document, the Borrower shall not
be required to make any payment to or for the account of any Lender, and each
Lender shall refund any payment made by the Borrower, to the extent that such
requirement or such failure to refund would violate or conflict with nonwaivable
provisions of applicable Laws limiting the maximum amount of interest which may
be charged or collected by such Lender.
Section 10.12. Set-Off. Each Credit Party hereby agrees that, to the
fullest extent permitted by law, if any Obligation of the Borrower shall be due
and payable (by acceleration or otherwise), each Lender shall have the right,
without notice to the Borrower, such Credit Party or any other Person, to
set-off against and to appropriate and apply to the Obligation any indebtedness,
liability or obligation of any nature owing to such Credit Party by such Lender,
including but not limited to all deposits (whether time or demand, general or
special, provisionally credited or finally credited, whether or not evidenced by
a certificate of deposit and in whatever currency denominated) now or hereafter
maintained by such Credit Party with such Lender. Such right shall be absolute
and unconditional in all circumstances and, without limitation, shall exist
whether or not such Lender or any other Person shall have given notice or made
any demand to the Borrower, such other Credit Party or any other Person, whether
such indebtedness, obligation or liability owed to such Credit Party is
contingent, absolute, matured or unmatured (it being agreed that such Lender may
deem such indebtedness, obligation or liability to be then due and payable at
the time of such setoff), and regardless of the existence or adequacy of any
collateral, guaranty or any other security, right or remedy available to any
Lender or any other Person. Each Credit Party hereby agrees that, to the fullest
extent permitted by law, any Participant and any branch, subsidiary or affiliate
of any Lender or any Participant shall have the same rights of set-off as a
Lender as provided in this Section (regardless of whether such Participant,
branch, subsidiary or affiliate would otherwise be deemed in privity with or a
direct creditor of the Borrower). The rights provided by this Section are in
addition to all other rights of set-off and banker's lien and all other rights
and remedies which any Lender (or any such Participant, branch, subsidiary or
affiliate) may otherwise have under this Agreement, any other Loan Document, at
law or in equity, or otherwise, and nothing in this Agreement or any Loan
Document shall be deemed a waiver or prohibition of or restriction on the rights
of set-off or bankers' lien of any such Person.
Section 10.13. Sharing of Collections. The Lenders hereby agree among
themselves that if any Lender shall receive (by voluntary payment, realization
upon security, set-off or from any other source) any amount on account of the
Loans, interest thereon, or any other Obligation contemplated by this Agreement
or the other Loan Documents to be made by the Borrower pro rata to all Lenders
in greater proportion than any such amount received by any other Lender, then
the Lender receiving such proportionately greater payment shall notify each
other Lender and the Agents of such receipt, and equitable adjustment will be
made in the manner stated in this Section so that, in effect, all such excess
amounts will be shared ratably among all of the Lenders. The Lender receiving
such excess amount shall purchase (which it shall be deemed to have done
simultaneously upon the receipt of such excess amount) for cash from the other
Lenders a participation in the applicable Obligations owed to such other Lenders
in such amount as shall result in a ratable sharing by all Lenders of such
excess amount (and to such extent the receiving Lender shall be a Participant).
If all or any portion of such excess amount is thereafter recovered from the
Lender making such purchase, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, together with interest or other
amounts, if any, required by Law to be paid by the Lender making such purchase.
The Borrower hereby consents to and confirms the foregoing arrangements. Each
Participant shall be bound by this Section as fully as if it were a Lender
hereunder.
Section 10.14. Successors and Assigns; Participations;
Assignments. (a) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Borrower, the Lenders, all future holders of the
Notes, each Agent and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights hereunder or interests
herein without the prior written consent of all the Lenders and each Agent, and
any purported assignment without such consent shall be void.
60
66
(b) Participations. Any Lender may, in accordance with applicable Law, at
any time sell participations to one or more commercial banks or other Persons
(each a "Participant") in all or a portion of its rights and obligations under
this Agreement and the other Loan Documents (including, without limitation, all
or a portion of its Commitments and the Loans owing to it and any Note held by
it); provided, that
(i) any such Lender's obligations under this Agreement and the other
Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations,
(iii) the parties hereto shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations
under this Agreement and each of the other Loan Documents,
(iv) such Participant shall be bound by the provisions of Sections
10.13 and 10.16 hereof, and the Lender selling such participation shall
obtain from such Participant a written confirmation of its agreement to be
so bound,
(v) no Participant (unless such Participant is an affiliate of such
Lender, or is itself a Lender) shall be entitled to require such Lender to
take or refrain from taking action under this Agreement or under any other
Loan Document, except that such Lender may agree with such Participant that
such Lender will not, without such Participant's consent, take action of
the type described in subsections (a), (b), (c) or (d) of Section 10.03
hereof to the extent relating to such Participant's participation;
notwithstanding the foregoing, in no event shall any participation by any
Lender have the effect of releasing such Lenders from its obligations
hereunder, and
(vi) no Participant shall be an Affiliate of any Credit Party.
The Borrower agrees that any such Participant shall be entitled to the benefits
of Sections 2.14, 2.16 and 10.06 with respect to its participation in the
Commitments and the Loans outstanding from time to time but only to the extent
such Participant sustains such losses; provided, that no such Participant shall
be entitled to receive any greater amount pursuant to such Sections than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred to such Participant had no such transfer
occurred and nothing in this Section shall relieve such transferor Lender from
its obligations under Section 2.17 hereof.
(c) Assignments. Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable Law, at any time assign all
or a portion of its rights and obligations under this Agreement and the other
Loan Documents (including, without limitation, all or any portion of its
Commitments and Loans owing to it and any Note held by it) to any Eligible
Assignee (each a "Purchasing Lender"); provided, that
(i) any such assignment to a Purchasing Lender which is not a Lender
shall be made only with the consent of the Borrower (provided that such
consent of the Borrower shall not be required during the occurrence of and
continuation of an Event of Default) and each Agent which with respect to
each Agent shall not be unreasonably withheld,
(ii) if a Lender makes such an assignment of less than all of its then
remaining rights and obligations under this Agreement and the other Loan
Documents, such transferor Lender shall retain, after such assignment, a
minimum principal amount of $5,000,000 of the Commitments and Loans then
outstanding, and such assignment shall be in a minimum aggregate principal
amount of $5,000,000 of the Commitments and Loans then outstanding,
(iii) each such assignment shall be of a constant, and not a varying,
percentage of each Commitment of the transferor Lender and of all of the
transferor Lender's rights and obligations under this Agreement and the
other Loan Documents,
(iv) each such assignment shall be made pursuant to a Transfer
Supplement in substantially the form of Exhibit G to this Agreement, duly
completed (a "Transfer Supplement"); and
61
67
(v) to the extent the Other Credit Agreement is in effect, the
assigning Lender shall assign the same percentage of its "Commitment" under
the Other Credit Agreement concurrently with such assignment.
In order to effect any such assignment, the transferor Lender and the Purchasing
Lender shall execute and deliver to the Administrative Agent a duly completed
Transfer Supplement (including the consents required by clause (i) of the
preceding sentence) with respect to such assignment, together with any Note or
Notes subject to such assignment (the "Transferor Lender Notes") and (except in
the case of a transfer required by the Borrower under Section 10.17 hereof) a
processing and recording fee of $3,500; and, upon receipt thereof, the
Administrative Agent shall accept such Transfer Supplement. Notwithstanding the
foregoing, no such processing and recording fee shall be payable in the case of
a replacement of a Lender pursuant to Section 2.18 or 10.17. Upon receipt of the
Purchase Price Receipt Notice pursuant to such Transfer Supplement, the
Administrative Agent shall record such acceptance in the Register. Upon such
execution, delivery, acceptance and recording, from and after the Transfer
Effective Date specified in such Transfer Supplement
(x) the Purchasing Lender shall be a party hereto and, to the extent
provided in such Transfer Supplement, shall have the rights and obligations
of a Lender hereunder, and
(y) the transferor Lender thereunder shall be released from its
obligations under this Agreement to the extent so transferred (and, in the
case of an Transfer Supplement covering all or the remaining portion of a
transferor Lender's rights and obligations under this Agreement, such
transferor Lender shall cease to be a party to this Agreement) from and
after the Transfer Effective Date.
To the extent requested by the Purchasing Lender, on or prior to the Transfer
Effective Date specified in an Transfer Supplement, the Borrower, at its
expense, shall execute and deliver to the Administrative Agent (for delivery to
the Purchasing Lender) new Notes evidencing such Purchasing Lender's assigned
Commitments or Loans and (for delivery to the transferor Lender) replacement
Notes in the principal amount of the Loans or Commitments retained by the
transferor Lender (such Notes to be in exchange for, but not in payment of,
those Notes then held by such transferor Lender). Each such Note shall be dated
the date and be substantially in the form of the predecessor Note. The
Administrative Agent shall xxxx the predecessor Notes, if any, "exchanged" and
deliver them to the Borrower. Accrued interest and accrued fees shall be paid to
the Purchasing Lender at the same time or times provided in the predecessor
Notes and this Agreement.
A transfer by a Lender of its rights under this Agreement from one of such
Lender's branches to another of its branches shall not be considered to be an
assignment for the purposes of this Section 10.14 and shall be permitted without
the consent of the Borrower or of the Agents, provided that to the extent such
transfer would, at the time of such transfer, result in increased costs under
Section 2.14 or 2.16 from those being charged by the transferring branch, the
Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer). The foregoing proviso shall also apply to such transfer from a Lender
to another Lender or any affiliate thereof or of an affiliate of such transferor
Lender or to a Person which will become a Lender.
(d) Register. The Administrative Agent shall maintain at its office a copy
of each Transfer Supplement delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the Commitment of,
and principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive absent manifest error and the
Borrower, the Agents and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of the
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) Financial and Other Information. The Borrower authorizes each Agent
and each Lender to disclose to any Participant or Purchasing Lender (each, a
"transferee") and any prospective transferee any and all financial and other
information in such Person's possession concerning the Borrower and its
Subsidiaries and Affiliates which has been or may be delivered to such Person by
or on behalf of the Borrower
62
68
in connection with this Agreement or any other Loan Document or such Person's
credit evaluation of the Borrower and its Subsidiaries and Affiliates; subject,
however, to the provisions of Section 10.16 hereof.
(f) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC")
of such Granting Lender, identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to
make any Loan, (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof and (iii) no SPC or
Granting Lender shall be entitled to receive any greater amount pursuant to
Section 2.14 or 2.16 than the Granting Lender would have been entitled to
receive had the Granting Lender not otherwise granted such SPC the option to
provide any Loan to the Borrower. The making of any Revolving Credit Loan by an
SPC hereunder shall utilize the Revolving Credit Commitment of the Granting
Lender (and, if such Loan is a Competitive Bid Loan, shall be deemed to utilize
the Total Revolving Credit Commitment of all the Lenders) to the same extent,
and as if, such Loan were made by the Granting Lender. Each party hereto hereby
agrees that no SPC shall be liable for any obligation of any kind with respect
to this Agreement under any circumstances whatsoever, including without
limitation whether or not the related Granting Lender makes such payment. The
foregoing shall not release the Granting Lender from any obligation hereunder;
and the Granting Lender's liability shall be determined as if no grant to an SPC
had been made by it. Each party hereto hereby acknowledges and agrees that no
SPC shall have any voting rights hereunder and that the voting rights
attributable to any extensions of credit made by an SPC shall be exercised only
by the relevant Granting Lender. Each Granting Lender shall serve as the
administrative agent and attorney-in-fact for its SPC and shall on behalf of its
SPC: (i) receive any and all payments made for the benefit of such SPC and (ii)
give and receive all communications and notices and take all actions hereunder
to the extent, if any, such SPC shall have any rights hereunder. To the extent
an SPC shall have the right to receive or give any such notice or take any such
action in writing, it shall be signed by its Granting Lender as administrative
agent and attorney-in-fact for such SPC and need not be signed by such SPC on
its own behalf. The Borrower, the Guarantors, the Administrative Agent and the
Lenders may rely thereon without any requirement that the SPC sign or
acknowledge the same. In addition, notwithstanding anything to the contrary
contained in this Section 10.14, any SPC may (i) with notice to, but without the
prior written consent of, the Borrower or the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Loans to its Granting Lender or to any financial institutions providing
liquidity and/or credit facilities to or for the account of such SPC to fund the
Loans made by such SPC or to support the securities (if any) issued by such SPC
to fund such Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider or a surety, guarantee or credit or liquidity enhancement to such
SPC. In the event that an SPC extends a Loan to the Borrower as contemplated
above, the Borrower shall repay such Loan to the SPC through the Administrative
Agent in full on the maturity date thereof, notwithstanding any provision for
repayments being affected on a basis of re-borrowings. The foregoing shall not
release the Granting Lender from any obligation hereunder, the Granting Lender's
liability to be determined as if no grant to an SPC had been made by it.
Each party hereto agrees that until the 369th day following the maturity of
the last maturing commercial paper note issued or to be issued by an SPC, it
will not institute, or join with others in instituting, against the SPC any
involuntary bankruptcy or insolvency proceeding under any applicable bankruptcy
reorganization, insolvency or similar law, as now or hereafter in effect.
In the event that an SPC makes a Loan hereunder, the Borrower shall repay
the full amount of such Loan to the SPC through the Administrative Agent on the
maturity date thereof, notwithstanding any provision contained in this Agreement
with respect to netting of amounts payable by the Borrower against amounts being
borrowed by the Borrower on the same day.
Section 10.15. Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial. (a) Governing Law. THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS (EXCEPT
TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN DOCUMENTS)
SHALL BE
63
69
GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES.
(b) Certain Waivers. THE BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON ARISING
FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY
STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING IN
CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED LITIGATION") MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING
IN XXX XXXX XXX XXXXXX XX XXX XXXX, XXX XXXX, SUBMITS TO THE JURISDICTION
OF SUCH COURTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW AGREES THAT IT
WILL NOT BRING ANY RELATED LITIGATION IN ANY OTHER FORUM (BUT NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING ANY
ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM);
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING
OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, WAIVES ANY
CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO ANY RELATED
LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES NOT HAVE
JURISDICTION OVER THE BORROWER;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR CERTIFIED
U.S. MAIL, POSTAGE PREPAID, TO THE BORROWER AT THE ADDRESS FOR NOTICES
DESCRIBED IN SECTION 10.05 HEREOF, AND CONSENTS AND AGREES THAT SUCH
SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT
NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED
IN ANY OTHER MANNER PERMITTED BY LAW); AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED LITIGATION.
Section 10.16. Confidentiality. Except as may be required by Law, each
Lender and each Agent covenants and agrees to use its best efforts not to permit
any data or information relating to the Borrower or any of its Subsidiaries or
the business of the Borrower or any of its Subsidiaries (other than any data or
information which is otherwise publicly available or which is received by any
such party in a capacity in which such party is not bound by any restriction of
a nature similar to that imposed by this Section 10.16), which data or
information such Lender or any Agent possesses due to such party's relation to
the transactions contemplated by the Loan Documents, to be out of such party's
possession or the contents thereof to be divulged to any other Person; provided,
however, that such data or information may be disclosed to the lawyers or
accountants of such Lender or any Agent and to any Person empowered by Law to
examine the records of any such Person and to any potential participant in, or
assignee or transferee of, its rights under any Loan Documents which potential
participant, assignee or transferee shall have, in each case, agreed with such
party to comply with the terms of this Section 10.16.
Section 10.17. Replacement of Lenders. If (a) the Borrower is required to
make a payment to a particular Lender pursuant to Sections 2.14 or 2.16 hereof
(or pursuant to a comparable provision in any agreement with respect to the
Borrower's Indebtedness for borrowed money between the Borrower, such Lender and
at least five other lenders) or (b) the Borrower is precluded from requesting
Loans of any type from a particular Lender pursuant to Section 2.08(e) hereof,
the Borrower may, upon not less than 15 Business Days' notice to the
Administrative Agent, either (x) immediately terminate the Commitments of such
Lender, prepay (subject to Section 2.14(b) hereof) such Lender's Loans, together
with interest accrued thereon and all other amounts payable with respect
thereto, and pay all other amounts then due and owing to such Lender (in which
event the Total Revolving Credit Commitment shall be reduced by the amount of
such
64
70
Lender's Revolving Credit Committed Amount) or (y) cause a Replacement Lender
reasonably satisfactory to the Administrative Agent (which may be one of the
other Lenders) to purchase all of such Lender's interests in accordance with the
provisions of Section 10.14(c) hereof. In such event, to the extent the Other
Credit Agreement is in effect, the Borrower must also terminate such Lender's
"Commitment" under the Other Credit Agreement and such Replacement Lender must
purchase such Lender's interest under the Other Credit Agreement.
Section 10.18. Judgment Currency. (a) The Borrower's obligation hereunder
and under the other Loan Documents to make payments in Dollars or any other
currency (the "Obligation Currency") shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into any
currency other than the Obligation Currency, except to the extent that such
tender or recovery results in the effective receipt by the Administrative Agent
or the respective Lender of the full amount of the Obligation Currency expressed
to be payable to the Administrative Agent or such Lender under this Agreement or
the other Loan Documents. If for the purpose of obtaining or enforcing judgment
against the Borrower in any court or in any jurisdiction, it becomes necessary
to convert into or from any currency other than the Obligation Currency (such
other currency being hereinafter referred to as the "Judgment Currency") an
amount due in the Obligation Currency, the conversion shall be made, at the rate
of exchange (as quoted by the Administrative Agent or if the Administrative
Agent does not quote a rate of exchange on such currency, by a known dealer in
such currency designated by the Administrative Agent) determined, in each case,
as of the day immediately preceding the day on which the judgment is given (such
Business Day being hereinafter referred to as the "Judgment Currency Conversion
Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Borrower covenants and agrees to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate or exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining any rate of exchange for this Section
10.18, such amounts shall include any premium and costs payable in connection
with the purchase of the Obligation Currency.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed and delivered this Agreement as of the date first
above written.
ATTEST: XXXXXX XXXXXXX CORPORATION
By By
------------------------------------------ --------------------------------------------
Title: Title:
Address For Notices:
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Vice President And Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
65
71
EXHIBIT J
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of February 12, 1999 (as amended, modified or
supplemented from time to time, this "Agreement"), made by each of the
undersigned pledgors (each a "Pledgor", and together with any entity that
becomes a party hereto pursuant to Section 19 hereof, the "Pledgors"), in favor
of BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as collateral agent,
for the benefit of the Secured Creditors (as defined below) (in such capacity
and together with any successor thereto, the "Pledgee"). Except as otherwise
defined herein, terms used herein and defined in the Credit Agreements (as
defined below) shall be used herein as therein defined.
W I T N E S S E T H:
WHEREAS, Xxxxxx Xxxxxxx Corporation (the "Borrower"), the Guarantors from
time to time party thereto, various lenders from time to time party thereto (the
"Banks"), ABN AMRO Bank N.V. and First Union National Bank, as Documentation
Agent and Syndication Agent, respectively (in such capacity, the "Documentation
Agent" and the "Syndication Agent", respectively), and Bank of America National
Trust and Savings Association, as Administrative Agent (in such capacity and
together with any successor thereto, the "Administrative Agent" and, together
with the Pledgee, the Documentation Agent, the Syndication Agent and the Banks
and their respective successors and assigns, the "Bank Creditors"), have entered
into a Revolving Credit Agreement and a Short Term Revolving Credit Agreement,
each dated as of February 12, 1999, providing for the extensions of credit to
the Borrower as contemplated therein (as used herein, the term "Credit
Agreements" means the Credit Agreements described above in this paragraph, as
the same may be amended, modified, extended, renewed, replaced, restated,
supplemented or refinanced from time to time, and including any agreement
extending the maturity of, or refinancing or restructuring (including, but not
limited to, the inclusion of additional borrowers or guarantors thereunder or
any increase in the amount borrowed) all or any portion of, the indebtedness
under such agreement or any successor agreement, whether or not with the same
agent, trustee, representative, lenders or holders;
WHEREAS, pursuant to the Guaranty, the Guarantors have jointly and
severally guaranteed to the Bank Creditors the payment when due of all
obligations and liabilities of the Borrower under or with respect to the Loan
Documents;
WHEREAS, the Borrower on November 15, 1995 issued $200,000,000 in aggregate
principal amount of its 6 3/4% Notes due November 15, 2005 (the "6 3/4% Notes")
(with the holders from time to time of such 6 3/4% Notes being herein called the
"Noteholders") pursuant to an Indenture, dated as of November 15, 1995, by and
between the Borrower and Xxxxxx Trust and Savings Bank, as trustee (together
with any successor thereto, the "Trustee") on behalf of the Noteholders (as
amended, modified or supplemented from time to time, the "Indenture");
WHEREAS, the Pledgors have issued guarantees of the payment when due of all
of the obligations and liabilities of the Borrower under or with respect to the
6 3/4% Notes and the Indenture (with any such guarantees, together with the
6 3/4% Notes and Indenture being herein collectively called the "Note
Documents");
WHEREAS, it is a condition precedent to the extensions of credit under the
Credit Agreements, and the Indenture requires, concurrently with the execution
and delivery of the Credit Agreements by the Guarantors, that each Pledgor shall
have executed and delivered to the Pledgee this Agreement;
WHEREAS, it is contemplated that the Pledged Instruments (as defined below)
will be pledged to secure the "Credit Document Obligations" and the "Note
Obligations" and all other amounts comprising "Obligations" (as each such term
is hereinafter defined) on an equal and ratable basis, as contemplated hereby,
and that in connection therewith, the Pledgee, as collateral agent hereunder,
shall act as the
72
"Collateral Agent" for the benefit of the Bank Creditors, the Noteholders and
the other Secured Creditors; and
WHEREAS, each Pledgor desires to execute this Agreement to satisfy the
conditions described in the second preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to each Pledgor,
the receipt and sufficiency of which are hereby acknowledged, each Pledgor
hereby makes the following representations and warranties to the Pledgee and
hereby covenants and agrees with the Pledgee as follows:
SECTION 1. Security For Obligations; Definitions.
(a) This Agreement is made by each Pledgor in favor of the Pledgee for the
benefit of the Bank Creditors, the Noteholders and the Trustee (collectively,
together with the Pledgee, the "Secured Creditors"), to secure on an equal and
ratable basis:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due (the "Bankruptcy Code" as used herein
shall mean Title 11 of the United States Code entitled "Bankruptcy" as now
or hereafter in effect, or any successor thereto) and liabilities
(including, without limitation, indemnities, fees and interest thereon) of
such Pledgor to the Bank Creditors, whether now existing or hereafter
incurred under, arising out of or in connection with the Credit Agreements
and all other Loan Documents to which it is at any time a party (including,
without limitation, all such obligations and liabilities of such Pledgor
under the Credit Agreements (if a party thereto) and under any guaranty by
it of the obligations under the Credit Agreements) and the due performance
and compliance by such Pledgor with the terms of each such Loan Document
(all such obligations and liabilities under this clause (i) being herein
collectively called the "Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities (including, without
limitation, indemnities, fees and interest thereon) of such Pledgor to the
Noteholders and the Trustee, whether now existing or hereafter incurred
under, arising out of or in connection with the Note Documents to which
such Pledgor is at any time a party (including, without limitation, all
such obligations and liabilities of such Pledgor under the Indenture or any
guaranty by it of the obligations under the Indenture) and the due
performance and compliance by such Pledgor with all of the terms,
conditions and agreements on its part contained in each such Note Document
(all such obligations and liabilities under this clause (ii) being herein
collectively called the "Note Obligations");
(iii) any and all sums advanced by the Pledgee in order to preserve
the Collateral (as hereinafter defined) or preserve its security interest
in the Collateral;
(iv) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations, or liabilities referred to in clauses (i)
through (iii) above, after an Event of Default (such term, as used in this
Agreement, shall mean (a) any "Event of Default" at any time under, and as
defined in, either of the Credit Agreements, and (b) any payment default
(after the expiration of any applicable grace period) on any of the
Obligations secured hereunder at such time) shall have occurred and be
continuing, the reasonable expenses of retaking, holding, preparing for
sale or otherwise disposing or realizing on the Collateral, or of any
exercise by the Pledgee of its rights hereunder, together with reasonable
attorneys' fees and court costs; and
(v) all amounts paid by any Secured Creditor as to which such Secured
Creditor has the right to reimbursement under Section 9 of this Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (v) of this Section 1, being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
2
73
include extensions of credit of the type described above, whether outstanding on
the date of this Agreement or extended from time to time after the date of this
Agreement.
(b) As used herein, the term "Instruments" shall mean (i) a promissory note
dated February 10, 1999 of Xxxxxx Xxxxxxx Constructors, Inc. ("Constructors") in
the amount of $10,000,000 payable to the order of Xxxxxx Xxxxxxx USA
Corporation; (ii) a promissory note dated February 10, 1999 of Constructors in
the amount of $10,000,000 payable to the order of Xxxxxx Xxxxxxx Energy
International, Inc. and (iii) a promissory note dated February 10, 1999 of
Constructors in the amount of $10,000,000 payable to the order of Xxxxxx Xxxxxxx
Energy Corporation.
(c) All Instruments at any time pledged or required to be pledged hereunder
is hereinafter called the "Pledged Instruments," which together with (i) all
proceeds thereof, including any instruments, securities and moneys received and
at the time held by the Pledgee hereunder, and (ii) all principal, interest,
cash, rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Instruments are hereinafter called the "Collateral".
SECTION 2. Pledge of Instruments.
To secure all Obligations of such Pledgor and for the purposes set forth in
Section 1 hereof, each Pledgor hereby: (i) grants to the Pledgee a first
priority security interest in all of the Collateral owned by such Pledgor; (ii)
pledges and deposits as security with the Pledgee the Pledged Instruments owned
by such Pledgor on the date hereof, and delivers to the Pledgee such Pledged
Instruments, duly endorsed in blank by such Pledgor, or such other instruments
of transfer as are reasonably acceptable to the Pledgee; and (iii) assigns,
transfers, hypothecates, mortgages, charges and sets over to the Pledgee all of
such Pledgor's right, title and interest in and to such Pledged Instrument, to
be held by the Pledgee, upon the terms and conditions set forth in this
Agreement.
SECTION 3. Rights, Etc., While no Event of Default.
Unless and until an Event of Default shall have occurred and be continuing,
each Pledgor shall be entitled to exercise any and all rights pertaining to the
Pledged Instruments; provided, that no action shall be taken which would violate
or be inconsistent with any of the terms of this Agreement or any other Secured
Debt Agreement (as hereinafter defined). All such rights of such Pledgor shall
cease in case an Event of Default shall occur and be continuing, and Section 5
hereof shall become applicable.
SECTION 4. Interest and Other Distributions.
Except as provided in Section 5 hereof, all payments in respect of the
Pledged Instruments shall be paid to the respective Pledgor.
SECTION 5. Remedies in Case of Event of Default.
In case an Event of Default shall have occurred and be continuing, the
Pledgee shall be entitled to exercise all of its rights, powers and remedies
(whether vested in it by this Agreement, by any other Loan Document, or by any
Note Document (with all of the Documents listed above being herein collectively
called the "Secured Debt Agreements") or by law) for the protection and
enforcement of its rights in respect of the Collateral, and the Pledgee shall be
entitled to exercise all the rights and remedies of a secured party under the
Uniform Commercial Code and also shall be entitled, without limitation, to
exercise the following rights, which each Pledgor hereby agrees to be
commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
otherwise payable to such Pledgor under Section 4 hereof;
(ii) to instruct makers of the Pledged Instruments to make any and all
payments in respect of the Pledged Instruments directly to the Pledgee;
3
74
(iii) to transfer all or any part of the Pledged Instruments into the
Pledgee's name or the name of its nominee or nominees;
(iv) to take any action in respect of the Collateral and otherwise act
with respect thereto as though it were the outright owner thereof; and
(v) at any time or from time to time to sell, assign and deliver, or
grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby waived by each Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of credit
risk, and for such price or prices and on such terms as the Pledgee in its
absolute discretion may determine; provided, that at least 10 Business
Days' notice of the time and place of any such sale shall be given to such
Pledgor. Each Pledgor hereby waives and releases to the fullest extent
permitted by law any right or equity of redemption with respect to the
Collateral, whether before or after sale hereunder, and all rights, if any,
of marshalling the Collateral and any other security for the Obligations or
otherwise. At any such sale, unless prohibited by applicable law, the
Pledgee on behalf of the Secured Creditors may bid for and purchase all or
any part of the Collateral so sold free from any such right or equity of
redemption. Each purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of any Pledgor, and
each Pledgor hereby waives (to the extent permitted by law) all rights of
redemption, stay and/or appraisal which it now has or may at any time in
the future have under any rule of law or statute now existing or hereafter
enacted. The Pledgee may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was
so adjourned. Each Pledgor hereby waives any claims against the Pledgee
arising by reason of the fact that the price at which any Collateral may
have been sold at such a private sale was less than the price which might
have been obtained at a public sale, even if the Pledgee accepts the first
offer received and does not offer such Collateral to more than one offeree.
If the proceeds of any sale or other disposition of the Collateral are
insufficient to pay all the Obligations, the Pledgors shall be liable for
the deficiency and the fees of any attorneys employed by the Pledgee to
collect such deficiency. Neither the Pledgee nor any other Secured Creditor
shall be liable for failure to collect or realize upon any or all of the
Collateral or for any delay in so doing nor shall any of them be under any
obligation to take any action whatsoever with regard thereto.
SECTION 6. Remedies, Etc., Cumulative.
Each right, power and remedy of the Pledgee provided for in this Agreement
or in any other Secured Debt Agreement or now or hereafter existing at law or in
equity or by statute shall be cumulative and concurrent and shall be in addition
to every other such right, power or remedy.
The exercise or beginning of the exercise by the Pledgee or any other
Secured Creditor of any one or more of the rights, powers or remedies provided
for in this Agreement or in any other Secured Debt Agreement or now or hereafter
existing at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by the Pledgee or any other Secured Creditor of
all such other rights, powers or remedies, and no failure or delay on the part
of the Pledgee or any other Secured Creditor to exercise any such right, power
or remedy shall operate as a waiver thereof. The Secured Creditors agree that
this Agreement may be enforced only by the Pledgee acting upon the instructions
of the Required Secured Creditors (as defined in Annex A hereto) and that no
other Secured Creditor shall have any right individually to seek to enforce or
to enforce this Agreement or to realize upon the security to be granted hereby,
it being understood and agreed that such rights and remedies may be exercised by
the Pledgee for the benefit of the Secured Creditors upon the terms of this
Agreement.
4
75
SECTION 7. Application of Proceeds.
(a) All moneys collected by the Pledgee upon any sale or other disposition
of the Collateral of each Pledgor, together with all other moneys received by
the Pledgee hereunder, shall be applied as follows:
(i) first, to the payment of all Obligations owing to the Pledgee of
the type provided in clauses (iii), (iv) and (v) of the definition of
Obligations in Section 1 hereof;
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), an amount equal to the outstanding
Obligations shall be paid to the Secured Creditors as provided in Section
7(d) hereof, with each Secured Creditor receiving an amount equal to its
outstanding Obligations of such Pledgor or, if the proceeds are
insufficient to pay in full all such Obligations, its Pro Rata Share (as
hereinafter defined) of the amount remaining to be distributed; and
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), inclusive, and following
the termination of this Agreement pursuant to Section 15 hereof, to the
relevant Pledgor or to whomever may be lawfully entitled to receive such
surplus.
(b) For purposes of this Agreement, "Pro Rata Share" shall mean, when
calculating a Secured Creditor's portion of any distribution or amount, that
amount (expressed as a percentage) equal to a fraction the numerator of which is
the then unpaid amount of such Secured Creditor's Obligations and the
denominator of which is the then outstanding amount of all Obligations.
(c) If the Bank Creditors are to receive a distribution in accordance with
the procedures set forth above in this Section 7 on account of undrawn amounts
with respect to letters of credit issued under the Credit Agreements, such
amounts shall be paid to the Administrative Agent under the Credit Agreements
and held by it, for the equal and ratable benefit of the Bank Creditors as such.
If any amounts are held as cash security pursuant to the immediately preceding
sentence, then upon the termination of all outstanding letters of credit, and
after the application of all such cash security to the repayment of all
Obligations owing to the Bank Creditors after giving effect to the termination
of all such letters of credit, if there remains any excess cash, such excess
cash shall be returned by the Administrative Agent to the Pledgee for
distribution in accordance with Section 7(a) hereof.
(d) Except as set forth in Section 7(c) hereof, all payments required to be
made hereunder shall be made (i) if to the Bank Creditors, to the Administrative
Agent under the Credit Agreements for the account of the Bank Creditors, and
(ii) if to any other Secured Creditors (other than the Pledgee), to the Trustee
or paying agent (each a "Representative") for such Secured Creditors or, in the
absence of such a Representative, directly to the other Secured Creditors.
(e) For purposes of applying payments received in accordance with this
Section 7, the Pledgee shall be entitled to rely upon (i) the Administrative
Agent under the Credit Agreements and (ii) the Representative for any other
Secured Creditors or, in the absence of such a Representative, upon the
respective Secured Creditors for a determination (which the Administrative
Agent, each Representative for any other Secured Creditors and the Secured
Creditors agree (or shall agree) to provide upon request of the Pledgee) of the
outstanding Primary Obligations and Secondary Obligations owed to the Secured
Creditors.
(f) It is understood and agreed that each Pledgor shall remain liable to
the extent of any deficiency between the amount of the proceeds of the
Collateral pledged by it hereunder and the aggregate amount of the Obligations
of such Pledgor.
SECTION 8. Purchasers of Collateral.
Upon any sale of the Collateral by the Pledgee hereunder (whether by virtue
of the power of sale herein granted, pursuant to judicial process or otherwise),
the receipt of the Pledgee or the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold, and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Pledgee or such officer or be
answerable in any way for the misapplication or nonapplication thereof.
5
76
SECTION 9. Indemnity.
Each Pledgor jointly and severally agrees (i) to indemnify and hold
harmless the Pledgee in such capacity and each Representative of a Secured
Creditor in its capacity as such from and against any and all claims, demands,
losses, judgments and liabilities of whatsoever kind or nature, and (ii) to
reimburse the Pledgee in such capacity and each Representative of a Secured
Creditor in its capacity as such for all reasonable costs and expenses,
including reasonable attorneys' fees, in each case to the extent growing out of
or resulting from the exercise by the Pledgee of any right or remedy granted to
it hereunder except, with respect to clauses (i) and (ii) above, to the extent
arising from the Pledgee's or such other Secured Creditor's gross negligence or
willful misconduct. In no event shall the Pledgee be liable, in the absence of
gross negligence or willful misconduct on its part, for any matter or thing in
connection with this Agreement other than to account for moneys actually
received by it in accordance with the terms hereof. If and to the extent that
the obligations of the Pledgors under this Section 9 are unenforceable for any
reason, each Pledgor hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable law.
SECTION 10. Further Assurances; Power of Attorney.
(a) Each Pledgor agrees that it will join with the Pledgee in executing
and, at such Pledgor's own expense, file and refile under the applicable Uniform
Commercial Code or such other law such financing statements, continuation
statements and other documents in such offices as the Pledgee may reasonably
deem necessary or appropriate and wherever required or permitted by law in order
to perfect and preserve the Pledgee's security interest in the Collateral and
hereby authorizes the Pledgee to file financing statements and amendments
thereto relative to all or any part of the Collateral without the signature of
such Pledgor where permitted by law, and agrees to do such further acts and
things and to execute and deliver to the Pledgee such additional conveyances,
assignments, agreements and instruments as the Pledgee may reasonably deem
necessary or advisable to carry into effect the purposes of this Agreement or to
further assure and confirm unto the Pledgee its rights, powers and remedies
hereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, to act from time to time after the
occurrence and during the continuance of an Event of Default in the Pledgee's
reasonable discretion to take any action and to execute any instrument which the
Pledgee may deem necessary or advisable to accomplish the purposes of this
Section 10.
SECTION 11. The Pledgee as Agent.
The Pledgee will hold in accordance with this Agreement all items of the
Collateral at any time received under this Agreement. It is expressly understood
and agreed that the obligations of the Pledgee as holder of the Collateral and
interests therein and with respect to the disposition thereof, and otherwise
under this Agreement, are only those expressly set forth in this Agreement. The
Pledgee shall act hereunder on the terms and conditions set forth herein and in
Annex A hereto, the terms of which shall be deemed incorporated herein by
reference as fully as if same were set forth herein in their entirety.
SECTION 12. Transfer by Pledgors.
No Pledgor will sell or otherwise dispose of, grant any option with respect
to, or mortgage, pledge or otherwise encumber any of the Collateral or any
interest therein (except in accordance with the terms of this Agreement and as
permitted by the terms of the Secured Debt Agreements).
SECTION 13. Representations, Warranties and Covenants of Pledgors.
(a) Each Pledgor represents, warrants and covenants that:
(i) it is the legal, record and beneficial owner of, and has good
title to, all Pledged Instruments purported to be owned by such Pledgor,
subject to no Lien, except the Liens created by this Agreement;
6
77
(ii) it has full power, authority and legal right to pledge all the
Pledged Instruments;
(iii) this Agreement has been duly authorized, executed and delivered
by such Pledgor and constitutes the legal, valid and binding obligation of
such Pledgor enforceable in accordance with its terms, except to the extent
that the enforceability hereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by equitable principles (regardless of
whether enforcement is sought in equity or at law);
(iv) no consent of any other party (including, without limitation, any
stockholder or creditor of such Pledgor or any of its Subsidiaries) and no
consent, license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
governmental authority is required to be obtained by such Pledgor in
connection with the execution, delivery or performance of this Agreement,
or in connection with the exercise of its rights and remedies pursuant to
this Agreement, in each case except those which have been obtained or made
or as may be required by laws affecting the offer and sale of securities
generally in connection with the exercise by the Pledgee of certain of its
remedies hereunder;
(v) the execution, delivery and performance of this Agreement by such
Pledgor does not violate any provision of any applicable law or regulation
or of any order, judgment, writ, award or decree of any court, arbitrator
or governmental authority, domestic or foreign, or of the certificate of
incorporation or by-laws (or analogous organizational documents) of such
Pledgor or of any securities issued by such Pledgor or any of its
Subsidiaries, or of any mortgage, indenture, lease, deed of trust, credit
agreement or loan agreement, or any other material agreement, contract or
instrument to which such Pledgor or any of its Subsidiaries is a party or
which purports to be binding upon such Pledgor or any of its Subsidiaries
or upon any of their respective assets and will not result in the creation
or imposition (or the obligation to create or impose) of any lien or
encumbrance on any of the assets of such Pledgor or any of its Subsidiaries
except as contemplated by this Agreement;
(vi) all Pledged Instruments have been duly and validly issued; and
(vii) the pledge, assignment and delivery (which delivery has been
made) to the Pledgee of the Pledged Instruments creates a valid and
perfected first priority security interest in such Pledged Instruments,
subject to no prior lien or encumbrance or to any agreement purporting to
grant to any third party (except the Secured Creditors) a lien or
encumbrance on the property or assets of such Pledgor which would include
the Instruments.
Each Pledgor covenants and agrees that it will defend the Pledgee's right,
title and security interest in and to the Collateral and the proceeds thereof
against the claims and demands of all persons whomsoever; and such Pledgor
covenants and agrees that it will have like title to and right to pledge any
other property at any time hereafter pledged to the Pledgee as Collateral
hereunder and will likewise defend the right thereto and security interest
therein of the Pledgee and the other Secured Creditors.
(b) The Pledgors hereby agree that the rights created by the subordinated
provisions of the guarantees executed by the Pledgors related to the Note
Documents and the subordination provisions of the Guaranty which each provide
for the subordination of the indebtedness of the Borrower owing to any Pledgor
to the Obligations of the Borrower owing to the Secured Creditors shall be on a
parity basis for the equal and ratable benefit of the Secured Creditors.
SECTION 14. Pledgors' Obligations Absolute, Etc.
The obligations of each Pledgor under this Agreement shall be absolute and
unconditional and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever, including, without limitation:
(i) any renewal, extension, amendment or modification of or addition or
supplement to or deletion from any Secured Debt Agreement or any other
instrument or agreement referred to therein, or any assignment or transfer of
any thereof; (ii) any waiver, consent, extension, indulgence or other action or
inaction under or in respect of any such agreement or instrument or this
Agreement; (iii) any furnishing of any additional security to the Pledgee
7
78
or its assignee or any acceptance thereof or any release of any security by the
Pledgee or its assignee; (iv) any limitation on any party's liability or
obligations under any such instrument or agreement or any invalidity or
unenforceability, in whole or in part, of any such instrument or agreement or
any term thereof; (v) any limitation on any other Pledgor's liability or
obligations under this Agreement or under any other Secured Debt Agreement or
any invalidity or unenforceability, in whole or in part, of this Agreement or
any other Secured Debt Agreement or any term thereof; or (vi) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation or
other like proceeding relating to such Pledgor or any Subsidiary of such
Pledgor, or any action taken with respect to this Agreement by any trustee or
receiver, or by any court, in any such proceeding, whether or not such Pledgor
shall have notice or knowledge of any of the foregoing.
SECTION 15. Termination, Release.
(a) After the Termination Date (as defined below), this Agreement shall
terminate (provided that all indemnities set forth herein including, without
limitation, in Section 9 hereof shall survive any such termination) and the
Pledgee, at the request and expense of the respective Pledgor, will promptly
execute and deliver to such Pledgor a proper instrument or instruments
acknowledging the satisfaction and termination of this Agreement, and will duly
assign, transfer and deliver to such Pledgor (without recourse and without any
representation or warranty) such of the Collateral as may be in the possession
of the Pledgee and as has not theretofore been sold or otherwise applied or
released pursuant to this Agreement. As used in this Agreement, "Termination
Date" shall mean the earliest of (i) the date upon which the Total Revolving
Credit Commitment has been terminated, no Note under the Credit Agreements is
outstanding and all other Credit Document Obligations (excluding normal
continuing indemnity obligations which survive in accordance with their terms,
so long as no amounts are then due and payable in respect thereof) have been
indefeasibly paid in full, (ii) the date upon which the Credit Documents are
amended to release all Collateral subject to this Agreement and (iii) the date
on which the Indenture no longer requires equal and ratable security or the
6 3/4% Notes have been paid in full.
(b) In the event that any part of the Collateral is sold (other than to any
Credit Party) in connection with a sale permitted by the Secured Debt Agreements
or is otherwise released at the direction of the Required Secured Creditors, the
Pledgee, at the request and expense of such Pledgor will promptly execute and
deliver to such Pledgor a proper instrument or instruments acknowledging such
release, and will duly assign, transfer and deliver to such Pledgor (without
recourse and without any representation or warranty) such of the Collateral as
is then being (or has been) so sold, distributed or released and as may be in
possession of the Pledgee and has not theretofore been released pursuant to this
Agreement.
(c) At any time that a Pledgor desires that Collateral be released as
provided in the foregoing Section 15(a) or (b), it shall deliver to the Pledgee
a certificate signed by an authorized officer of such Pledgor stating that the
release of the respective Collateral is permitted pursuant to Section 15(a) or
(b), and the Pledgee shall be entitled (but not required) to conclusively rely
thereon.
SECTION 16. Notices, Etc.
Except as otherwise specified herein, all notices, requests, demands or
other communications to or upon the respective parties hereto shall be deemed to
have been given or made when delivered to the party to which such notice,
request, demand or other communication is required or permitted to be given or
made under this Agreement, addressed as follows:
(a) if to any Pledgor, at:
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Vice President and Treasurer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
8
79
(b) if to the Pledgee, at:
Bank of America National Trust and Savings Association
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(c) if to any Bank Creditor (other than the Pledgee), (x) to the
Administrative Agent, at the address of the Administrative Agent specified in
the Credit Agreements or (y) at such address as such Bank Creditor shall have
specified in the Credit Agreements;
(d) if to any other Secured Creditor, (x) to the Representative for such
Secured Creditor or (y) if there is no such Representative, at such address as
such Secured Creditor shall have specified in writing to each Pledgor and the
Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
SECTION 17. Waiver; Amendment.
None of the terms and conditions of this Agreement may be changed, waived,
modified or varied in any manner whatsoever unless in writing duly signed by
each Pledgor directly affected thereby (it being understood that additional
Pledgors may be added as parties hereto from time to time in accordance with
Section 19 hereof and Pledgors may be released as parties hereto in accordance
with Sections 15 and 18 hereof and that no consent of any other Pledgor or of
the Secured Creditors shall be required in connection therewith) and the Pledgee
(with the written consent of the Required Lenders (or all the Lenders if
required by Section 10.03 of the Credit Agreements); provided, that the Borrower
certifies that any such change, waiver, modification or variance is otherwise
permitted by the terms of the respective Secured Debt Agreements or, if not so
permitted, that the requisite consents therefor have been obtained.
Notwithstanding anything to the contrary contained above, it is understood and
agreed that the Required Lenders may agree to modifications to this Agreement
for the purpose, among other things, of securing additional extensions of credit
(including, without limitation, pursuant to the Credit Agreements or any
refinancing or extension thereof), with such changes not being subject to the
proviso to the immediately preceding sentence. Furthermore, the proviso to the
second preceding sentence shall not apply to any release of Collateral effected
in accordance with the requirements of Section 18 of this Agreement, or any
other release of Collateral or termination of this Agreement so long as the
Borrower certifies that such actions will not violate the terms of any Secured
Debt Agreement then in effect.
SECTION 18. Release of Guarantors.
In the event any Pledgor party to the Guaranty is released from the
Guaranty, such Pledgor shall be released from this Agreement and this Agreement
shall, as to such Pledgor only, have no further force or effect.
SECTION 19. Additional Pledgors.
Pursuant to Section 5.15 of the Credit Agreements, certain Subsidiaries of
the Borrower may after the date hereof be required to enter into this Agreement
as a Pledgor. Upon execution and delivery, after the date hereof, by the Pledgee
and such Subsidiary of an instrument in the form of Exhibit A-2, such Subsidiary
shall become a Pledgor hereunder with the same force and effect as if originally
named as a Pledgor hereunder. Each Subsidiary which is required to become a
party to this Agreement shall so execute and deliver a copy of Exhibit A-2 to
the Pledgee and, at such time, shall execute a Pledge and Security Agreement
Supplement in the form of Exhibit A-1 to this Agreement with respect to all
Collateral of such Pledgor required to be pledged hereunder, which Supplement
shall be completed in accordance with Exhibit A-1. The execution and delivery
9
80
of any such instrument shall not require the consent of any other Pledgor
hereunder. Upon the execution and delivery by the Pledgee and such Subsidiary of
an instrument in the form of Exhibit A-2 as provided above, it is understood and
agreed that the pledge and security interests hereunder shall apply to all
Collateral of such additional Pledgor as provided in Section 2 hereof regardless
of any failure of any additional Pledgor to deliver, or any inaccurate
information stated in, the Pledge and Security Agreement Supplement.
SECTION 20. Recourse.
This Agreement is made with full recourse to the Pledgors and pursuant to
and upon all representations, warranties, covenants and agreements on the part
of the Pledgors contained herein and otherwise in writing in connection
herewith.
SECTION 21. Pledgee Not Bound.
(a) The Pledgee shall not be obligated to perform or discharge any
obligation of any Pledgor as a result of the collateral assignment hereby
effected.
(b) The acceptance by the Pledgee of this Agreement, with all the rights,
powers, privileges and authority so created, shall not at any time or in any
event obligate the Pledgee to appear in or defend any action or proceeding
relating to the Collateral to which it is not a party, or to take any action
hereunder or thereunder, or to expend any money or incur any expenses or perform
or discharge any obligation, duty or liability under the Collateral.
SECTION 22. Continuing Pledgors.
The rights and obligations of each Pledgor (other than the respective
released Pledgor in the case of following clause (y)) hereunder shall remain in
full force and effect notwithstanding (x) the addition of any new Pledgor as a
party to this Agreement as contemplated by Section 19 hereof or otherwise and/or
(y) the release of any Pledgor under this Agreement as contemplated by Section
18 hereof or otherwise.
SECTION 23. No Fraudulent Conveyance.
Each Pledgor hereby confirms that it is its intention that this Agreement
not constitute a fraudulent transfer or conveyance for purposes of any
bankruptcy, insolvency or similar law, the Uniform Fraudulent Conveyance Act or
any similar Federal, state or foreign law. To effectuate the foregoing
intention, each Pledgor hereby irrevocably agrees that its obligations and
liabilities hereunder shall be limited to the maximum amount as will, after
giving effect to such maximum amount and all other (contingent or otherwise)
liabilities of such Pledgor that are relevant under such laws, result in the
obligations and liabilities of such Pledgor hereunder in respect of such maximum
amount not constituting a fraudulent transfer or conveyance.
SECTION 24. Miscellaneous.
This Agreement shall be binding upon the successors and assigns of each
Pledgor and shall inure to the benefit of and be enforceable by the Pledgee and
its successors and assigns; provided that no Pledgor may assign any of its
rights or obligations hereunder without the prior written consent of the Pledgee
(with the consent of the Required Lenders and, if required by Section 10.03 of
the Credit Agreement, all Lenders). THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK
(WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS). The headings in this
Agreement are for purposes of reference only and shall not limit or define the
meaning hereof. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which shall constitute one
instrument.
10
81
IN WITNESS WHEREOF, each Pledgor has caused this Agreement to be duly
executed and delivered by its duly authorized officer on the date first above
written.
XXXXXX XXXXXXX USA CORPORATION
BY:
------------------------------------
TITLE:
XXXXXX XXXXXXX ENERGY INTERNATIONAL,
INC.
BY:
------------------------------------
TITLE:
XXXXXX XXXXXXX ENERGY CORPORATION
BY:
------------------------------------
TITLE:
ACCEPTED AND AGREED TO:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Collateral
Agent and Pledgee
BY:
------------------------------------
TITLE:
11
82
ANNEX A
TO
PLEDGE AND SECURITY AGREEMENT
THE PLEDGEE
1. Appointment. The Secured Creditors, by their acceptance of the
benefits of the Pledge Agreement to which this Annex A is attached (the "Pledge
Agreement") hereby irrevocably designate Bank of America National Trust and
Savings Association (and any successor Pledgee) to act as specified herein and
therein. Unless otherwise defined herein, all capitalized terms used herein (x)
and defined in the Pledge Agreement, are used herein as therein defined and (y)
not defined in the Pledge Agreement, are used herein as defined in the Credit
Agreements referenced in the Pledge Agreement. Each Secured Creditor hereby
irrevocably authorizes, and each holder of any Obligation by the acceptance of
such Obligation and by the acceptance of the benefits of the Pledge Agreement
shall be deemed irrevocably to authorize, the Pledgee to take such action on its
behalf under the provisions of the Pledge Agreement and any instruments and
agreements referred to therein and to exercise such powers and to perform such
duties thereunder as are specifically delegated to or required of the Pledge
Agreement by the terms thereof and such other powers as are reasonably
incidental thereto. The Pledgee may perform any of its duties hereunder or
thereunder by or through its authorized agents, sub-agents or employees.
2. Nature of Duties. (a) The Pledgee shall have no duties or
responsibilities except those expressly set forth herein or in the Pledge
Agreement. The duties of the Pledgee shall be mechanical and administrative in
nature; the Pledgee shall not have by reason of the Pledge Agreement or any
other Secured Debt Agreement a fiduciary relationship in respect of any Secured
Creditor; and nothing in the Pledge Agreement or any other Secured Debt
Agreement, expressed or implied, is intended to or shall be so construed as to
impose upon the Pledgee any obligations in respect of the Pledge Agreement
except as expressly set forth herein and therein.
(b) The Pledgee shall not be responsible for insuring the Collateral or for
the payment of taxes, charges or assessments or discharging of Liens upon the
Collateral or otherwise as to the maintenance of the Collateral.
(c) The Pledgee shall not be required to ascertain or inquire as to the
performance by any Pledgor of any of the covenants or agreements contained in
the Pledge Agreement or any other Secured Debt Agreement.
(d) The Pledgee shall be under no obligation or duty to take any action
under, or with respect to, the Pledge Agreement if taking such action (i) would
subject the Pledgee to a tax in any jurisdiction where it is not then subject to
a tax or (ii) would require the Pledgee to qualify to do business, or obtain any
license, in any jurisdiction where it is not then so qualified or licensed or
(iii) would subject the Pledgee to in personam jurisdiction in any locations
where it is not then so subject.
(e) Notwithstanding any other provision of this Annex A, neither the
Pledgee nor any of its officers, directors, employees, affiliates or agents
shall, in its individual capacity, be personally liable for any action taken or
omitted to be taken by it in accordance with, or pursuant to this Annex A or the
Pledge Agreement except for its own gross negligence or willful misconduct.
3. Lack of Reliance on the Pledgee. Independently and without reliance
upon the Pledgee, each Secured Creditor, to the extent it deems appropriate, has
made and shall continue to make (i) its own independent investigation of the
financial condition and affairs of each Pledgor and its Subsidiaries in
connection with the making and the continuance of the Obligations and the taking
or not taking of any action in connection therewith, and (ii) its own appraisal
of the creditworthiness of each Pledgor and its Subsidiaries, and the Pledgee
shall have no duty or responsibility, either initially or on a continuing basis,
to provide any Secured Creditor with any credit or other information with
respect thereto, whether coming into its possession before the extension of any
Obligations or the purchase of any notes or at any time or times thereafter. The
Pledgee shall not be responsible in any manner whatsoever to any Secured
Creditor for the correctness of any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceabil-
83
ity, perfection, collectibility, priority or sufficiency of the Pledge Agreement
or the security interests granted hereunder or the financial condition of any
Pledgor or any Subsidiary of any Pledgor or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of the Pledge Agreement, or the financial condition of any Pledgor
or any Subsidiary of any Pledgor, or the existence or possible existence of any
default or Event of Default. The Pledgee makes no representations as to the
value or condition of the Collateral or any part thereof, or as to the title of
any Pledgor thereto or as to the security afforded by the Pledge Agreement.
4. Certain Rights of the Pledgee. (a) No Secured Creditor shall have the
right to cause the Pledgee to take any action with respect to the Collateral,
with only the Required Secured Creditors having the right to direct the Pledgee
to take any such action. If the Pledgee shall request instructions from the
Required Secured Creditors, with respect to any act or action (including failure
to act) in connection with the Pledge Agreement, the Pledgee shall be entitled
to refrain from such act or taking such action unless and until it shall have
received instructions from the Required Secured Creditors and to the extent
requested, appropriate indemnification in respect of actions to be taken, and
the Pledgee shall not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Secured Creditor shall have any right of
action whatsoever against the Pledgee as a result of the Pledgee acting or
refraining from acting hereunder in accordance with the instructions of the
Required Secured Creditors. As used herein, the term "Required Secured
Creditors" shall mean the holders of at least a majority of the then outstanding
Credit Document Obligations.
(b) Notwithstanding anything to the contrary contained herein, the Pledgee
is authorized, but not obligated, (i) to take any action reasonably required to
perfect or continue the perfection of the liens on the Collateral for the
benefit of the Secured Creditors and (ii) when instructions from the Required
Secured Creditors have been requested by the Pledgee but have not yet been
received, to take any action which the Pledgee, in good faith, believes to be
reasonably required to promote and protect the interests of the Secured
Creditors in the Collateral; provided that once instructions have been received,
the actions of the Pledgee shall be governed thereby and the Pledgee shall not
take any further action which would be contrary thereto.
(c) Notwithstanding anything to the contrary contained herein or in the
Pledge Agreement, the Pledgee shall not be required to take any action that
exposes or, in the good faith judgment of the Pledgee may expose, the Pledgee or
its officers, directors, agents or employees to personal liability, unless the
Pledgee shall be adequately indemnified as provided herein, or that is, or in
the good faith judgment of the Pledgee may be, contrary to the Pledge Agreement,
any Secured Debt Agreement or applicable law.
5. Reliance. The Pledgee shall be entitled to rely, and shall be fully
protected in relying, upon, any note, writing, resolution, notice, statement,
certificate, telex, teletype or telescopes message, cablegram, radiogram, order
or other document or telephone message signed, sent or made by the proper Person
or entity, and, with respect to all legal matters pertaining hereto or to the
Pledge Agreement and its duties thereunder and hereunder, upon advice of counsel
selected by it.
6. Indemnification. To the extent the Pledgee is not reimbursed and
indemnified by the Pledgors under the Pledge Agreement, the Bank Creditors will
reimburse and indemnify the Pledgee, in proportion to their respective
outstanding principal amounts of Obligations, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Pledgee in performing its duties
hereunder, or in any way relating to or arising out of its actions as Pledgee in
respect of the Pledge Agreement except for those resulting solely from the
Pledgee's own gross negligence or willful misconduct. The indemnities set forth
in this Section 6 shall survive the repayment of all Obligations, with the
respective indemnification at such time to be based upon the outstanding
principal amounts (determined as described above) of Obligations at the time of
the respective occurrence upon which the claim against the Pledgee is based or,
if same is not reasonably determinable, based upon the outstanding principal
amounts (determined as described above) of Obligations as in effect immediately
prior to the termination of the Pledge Agreement. The indemnities set forth in
this Section 6 are in addition to any indemnities provided by the Banks to the
Pledgee pursuant to the Credit Agreements.
2
84
7. The Pledgee in its Individual Capacity. With respect to its
obligations as a lender under the Credit Agreements and any other Loan Documents
to which the Pledgee is a party, and to act as agent under one or more of such
Loan Documents, the Pledgee shall have the rights and powers specified therein
and herein for a "Lender", or the "Administrative Agent", as the case may be,
and may exercise the same rights and powers as though it were not performing the
duties specified herein; and the terms "Banks," "Required Lenders," "holders of
Notes," or any similar terms shall, unless the context clearly otherwise
indicates, include the Pledgee in its individual capacity. The Pledgee and its
affiliates may accept deposits from, lend money to, and generally engage in any
kind of banking, investment banking, trust or other business with any Pledgor or
any Affiliate or Subsidiary of any Pledgor as if it were not performing the
duties specified herein or in the other Loan Documents, and may accept fees and
other consideration from the Pledgors for services in connection with the Credit
Agreements, the other Loan Documents and otherwise without having to account for
the same to the Secured Creditors.
8. Holders. The Pledgee may deem and treat the payee of any note as the
owner thereof for all purposes hereof unless and until written notice of the
assignment, transfer or endorsement thereof, as the case may be, shall have been
filed with the Pledgee. Any request, authority or consent of any person or
entity who, at the time of making such request or giving such authority or
consent, is the holder of any note, shall be final and conclusive and binding on
any subsequent holder, transferee, assignee or endorsee, as the case may be, of
such note or of any note or notes issued in exchange therefor.
9. Resignation by the Pledgee. (a) The Pledgee may resign from the
performance of all of its functions and duties hereunder and under the Pledge
Agreement at any time by giving 15 Business Days' prior or written notice to the
Borrower, the Banks and Representatives for the other Secured Creditors or, if
there is no such Representative, directly to such Secured Creditors. Such
resignation shall take effect upon the appointment of a successor Pledgee
pursuant to clause (b) or (c) below.
(b) If a successor Pledgee shall not have been appointed within said 15
Business Day period by the Required Secured Creditors, the Pledgee, with the
consent of the Borrower, which consent shall not be unreasonably withheld or
delayed, shall then appoint a successor Pledgee who shall serve as Pledgee
hereunder or thereunder until such time, if any, as the Required Secured
Creditors appoint a successor Pledgee as provided above.
(c) If no successor Pledgee has been appointed pursuant to clause (b) above
by the 20th Business Day after the date of such notice of resignation was given
by the Pledgee, as a result of a failure by the Borrower to consent to the
appointment of such a successor Pledgee, the Required Secured Creditors shall
then appoint a successor Pledgee who shall serve as Pledgee hereunder or
thereunder until such time, if any, as the Required Secured Creditors appoint a
successor Pledgee as provided above.
3
85
EXHIBIT A-1
TO
PLEDGE AND SECURITY AGREEMENT
FORM OF
PLEDGE AND SECURITY AGREEMENT SUPPLEMENT
PLEDGE AND SECURITY SUPPLEMENT, dated as of (this
"Supplement"), made by , a (the "Pledgor"), in
favor of BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Pledgee and
as collateral agent (in such capacities, the "Pledgee") for the Secured
Creditors (such term and each other capitalized term used but not defined having
the meaning given in the Pledge Agreement referred to below).
1. Reference is hereby made to that certain Pledge Agreement, dated as
of February 12, 1999 (as amended, supplemented or otherwise modified as of
the date hereof, the "Pledge Agreement"), made by the Pledgors party
thereto in favor of the Pledgee for the benefit of the Secured Creditors
described therein.
2. The Pledgor hereby confirms and reaffirms the security interest in
the Collateral granted to the Pledgee for the benefit of the Secured
Creditors under the Pledge Agreement, and, as additional collateral
security for the prompt and complete payment when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations and in order to
induce the Secured Creditors to make loans and other extensions of credit
constituting Obligations, the Pledgor hereby delivers to the Pledgee, for
the benefit of the Secured Creditors, all of the property listed in
Schedule I hereto (the "Additional Collateral"; as used in the Pledge
Agreement as supplemented by this Supplement, "Collateral" shall be deemed
to include the Additional Collateral), and hereby grants to the Pledgee,
for the benefit of the Secured Creditors, a first priority security
interest in the Additional Collateral and all proceeds thereof.
3. The Pledgor hereby represents and warrants that the representations
and warranties contained in Section 13 of the Pledge Agreement are true and
correct on the date of this Supplement with references therein to the
"Collateral" to include the Additional Collateral and with references
therein to the "Pledge Agreement" to mean the Pledge Agreement as
supplemented by this Supplement.
4. This Supplement is supplemental to the Pledge Agreement, forms a
part thereof and is subject to the terms thereof and the Pledge Agreement
is hereby supplemented as provided herein. Without limiting the foregoing,
"Collateral" subject to the Pledge Agreement shall hereby be deemed to
include each item listed on Schedule I to this Supplement.
IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused this Supplement
to be duly executed and delivered on the date first set forth above.
[PLEDGOR]
By:
------------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Pledgee
By:
------------------------------------
Name:
Title:
2
86
SCHEDULE I
TO
PLEDGE AND SECURITY AGREEMENT SUPPLEMENT
ADDITIONAL COLLATERAL
3
87
EXHIBIT A-2
TO
PLEDGE AGREEMENT
SUPPLEMENT NO. dated as of , to the Pledge Agreement
dated as of February 12, 1999 (the "Pledge Agreement"), among the Pledgors
party thereto (immediately before giving effect to this Supplement) and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION as collateral agent
and as pledgee (in such capacities, the "Pledgee") for the Secured
Creditors (such term and each other capitalized term used but not defined
having the meaning given it in the Pledge Agreement referred to below).
A. The Pledgors have entered into the Pledge Agreement in order to induce
the Secured Creditors to make loans and other extensions of credit constituting
Obligations as defined in the Pledge Agreement. Pursuant to Section 5.15 of the
Credit Agreements, certain Subsidiaries of the Borrower are, after the date of
the Pledge Agreement, required to enter into the Pledge Agreement as a Pledgor.
Section 19 of the Pledge Agreement provides that additional Subsidiaries may
become Pledgors under the Pledge Agreement by execution and delivery of an
instrument in the form of this Supplement. The undersigned (the "New Pledgor")
is a Subsidiary of the Borrower and is executing this Supplement in accordance
with the requirements of the Credit Agreements and/or the Pledge Agreement to
become a Pledgor under the Pledge Agreement in order to induce the Secured
Creditors to extend, or maintain, Obligations.
Accordingly, the Pledgee and the New Pledgor agree as follows:
Section 1. The New Pledgor by its signature below becomes a Pledgor under
the Pledge Agreement with the same force and effect as if originally named
therein as a Pledgor and the New Pledgor hereby agrees to all the terms and
provisions of the Pledge Agreement applicable to it as a Pledgor thereunder.
Each reference to a "Pledgor" in the Pledge Agreement shall be deemed to include
the New Pledgor. The Pledge Agreement is hereby incorporated herein by
reference.
Section 2. The New Pledgor represents and warrants to the Secured
Creditors that this Supplement has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, subject to the effects of applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
equitable principles of general applicability.
Section 3. This Supplement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument. This Supplement shall become
effective when the Pledgee shall have received counterparts of this Supplement
that, when taken together, bear the signatures of the New Pledgor and the
Pledgee.
Section 4. Except as expressly supplemented hereby, the Pledge Agreement
shall remain in full force and effect.
Section 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Pledge Agreement shall not in any way be affected or impaired.
The parties hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
Section 7. All communications and notices hereunder shall be in writing
and given as provided in the Pledge Agreement. All communications and notices
hereunder to the New Pledgor shall be given to it at the address set forth under
its signature, with a copy to the Borrower.
88
IN WITNESS WHEREOF, the New Pledgor and the Pledgee have duly executed this
Supplement to the Pledge Agreement as of the day and year first above written.
[NAME OF NEW PLEDGOR]
By:
------------------------------------
Name:
Title:
Address:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Pledgee
By:
------------------------------------
Name:
Title:
2
89
IN WITNESS WHEREOF, each Pledgor has caused this Agreement to be duly
executed and delivered by its duly authorized officer on the date first above
written.
XXXXXX XXXXXXX USA CORPORATION
By
------------------------------------
Title:
XXXXXX XXXXXXX ENERGY INTERNATIONAL,
INC.
By
------------------------------------
Title:
XXXXXX XXXXXXX ENERGY CORPORATION
By
------------------------------------
Title:
S- 1
(Pledge Agreement)
90
ACCEPTED AND AGREED TO:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Collateral
Agent
and Pledgee
By
------------------------------------
Title:
S- 2
(Pledge Agreement)
