EXHIBIT 10.2
364-DAY CREDIT AGREEMENT
Dated as of April 18, 0000
XXXXXXX XXXXX XXXXXXX INC., a Maryland corporation (the
"Company"), the Significant Subsidiaries of the Company listed on the
signature pages hereof (the Company and each such Significant Subsidiary, an
"Initial Borrower" and collectively, the "Initial Borrowers"), the banks,
financial institutions and other institutional lenders (the "Initial Lenders")
listed on the signature pages hereof, WACHOVIA BANK, NATIONAL ASSOCIATION, as
syndication agent, XXXXXXX XXXXX XXXXXX INC. and FIRST UNION SECURITIES, INC,
as joint lead arrangers and joint bookrunners, and CITIBANK, N.A.
("Citibank"), as administrative agent (the "Agent") for the Lenders (as
hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means the account of the Agent maintained by
the Agent at Citibank at its office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Account No. 00000000, Attention: Bank Loan
Syndications.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate
Advance and such Lender's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance and, in the case of a Competitive Bid Advance,
the office of such Lender notified by such Lender to the Agent as its
Applicable Lending Office with respect to such Competitive Bid
Advance.
"Applicable Margin" means (a) for Base Rate Advances, 0% per
annum and (b) for Eurodollar Rate Advances, as of any date, a
percentage per annum determined by reference to the Public Debt Rating
in effect on such date as set forth below:
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Applicable Margin for Applicable Margin for
Eurodollar Rate Eurodollar Rate
Advances Prior to the Advances On and After
Public Debt Rating Term Loan Conversion the Term Loan
S&P/Xxxxx'x Date Conversion Date
-----------------------------------------------------------------------
Level 1
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A- or A3 or above 0.445% 1.000%
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Level 2
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BBB+ or Baa1 0.525% 1.000%
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Level 3
-------
Less than Xxxxx 0 0.750% 1.000%
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"Applicable Percentage" means, as of any date prior to the Term
Loan Conversion Date, a percentage per annum determined by reference
to the Public Debt Rating in effect on such date as set forth below:
--------------------------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
--------------------------------------------------
Level 1
-------
A- or A3 or above 0.080%
--------------------------------------------------
Level 2
-------
BBB+ or Baa1 0.100%
--------------------------------------------------
Level 3
-------
Less than Xxxxx 0 0.125%
--------------------------------------------------
"Applicable Utilization Fee" means, as of any date prior to the
Term Loan Conversion Date that the aggregate Advances exceed 25% of
the aggregate Commitments, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set
forth below:
--------------------------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Utilization Fee
--------------------------------------------------
Level 1
-------
A- or A3 or above 0.100%
--------------------------------------------------
Level 2
-------
BBB+ or Baa1 0.125%
--------------------------------------------------
Level 3
-------
Less than Xxxxx 0 0.125%
--------------------------------------------------
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of
(i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted to
the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on
the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing
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selected by Citibank, by (B) a percentage equal to 100% minus
the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment
rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S.
dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(i).
"Borrower" means each Initial Borrower and each Designated
Subsidiary that shall become a party to this Agreement pursuant to
Section 9.08.
"Borrowing" means a Revolving Credit Borrowing or a Competitive
Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances or
LIBO Rate Advances, on which dealings are carried on in the London
interbank market.
"Commitment" means as to any Lender (a) the amount set forth
opposite such Lender's name on the signature pages hereof, or (b) if
such Lender has entered into any Assignment and Acceptance, the amount
set forth for such Lender in the Register maintained by the Agent
pursuant to Section 9.07(d), as such amount may be reduced pursuant to
Section 2.05.
"Competitive Bid Advance" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to
a Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"Competitive Bid Note" means a promissory note of a Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of such Borrower to
such Lender resulting from a Competitive Bid Advance made by such
Lender.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means confidential or proprietary
information that any Borrower furnishes to the Agent or any Lender,
but does not include any such information that is or becomes generally
available to the public or that is or becomes available to the Agent
or such Lender from a source other than any Borrower that, to the
knowledge of the Agent or such Lender, is subject to a confidentiality
arrangement with such Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
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"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables incurred in the ordinary course of such
Person's business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases, (e)
all obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (f)
all Synthetic Lease Liabilities of such Person, (g) all Invested
Amounts, (h) all Debt of others referred to in clauses (a) through (f)
above or clause (h) below guaranteed by such Person, or in effect
guaranteed by such Person and (i) all Debt referred to in clauses (a)
through (h) above secured by (or for which the holder of such Debt has
an existing right, contingent or otherwise, to be secured by) any Lien
on property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Debt, which Debt, in the case
of this clause (i) shall be deemed not to exceed the fair market value
of such encumbered property.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Subsidiary" means any Subsidiary designated after
the date of this Agreement for borrowing privileges hereunder pursuant
to Section 9.08.
"Designation Letter" means a letter entered into by a
Designated Subsidiary, the Company and the Agent, in substantially the
form of Exhibit E hereto, pursuant to which such Designated Subsidiary
shall become a Borrower hereunder in accordance with Section 9.08.
"Disclosed Litigation" has the meaning specified in Section
3.01(b).
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Company and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus
the sum of (a) interest expense net of interest income, (b) income tax
expense, (c) depreciation expense, (d) depletion expense and (e)
amortization expense, in each case determined in accordance with GAAP
for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless
an Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 9.07, the Company,
such approval not to be unreasonably withheld or delayed; provided,
however, that neither any Borrower nor an Affiliate of any Borrower
shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to
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pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Company's controlled group, or under
common control with the Company, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to
any Plan unless the 30-day notice requirement with respect to such
event has been waived by the PBGC, or (ii) the requirements of
subsection (1) of Section 4043(b) of ERISA (without regard to
subsection (2) of such Section) are met with a contributing sponsor,
as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section
4043(c) of ERISA is reasonably expected to occur with respect to such
Plan within the following 30 days; (b) the application for a minimum
funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan
pursuant to Section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the cessation of operations at a facility of the Company
or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by the Company or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (f) the conditions for the imposition of a lien under Section
302(f) of ERISA shall have been met with respect to any Plan; (g) the
adoption of an amendment to a Plan requiring the provision of security
to such Plan pursuant to Section 307 of ERISA; or (h) the institution
by the PBGC of proceedings to terminate a Plan pursuant to Section
4042 of ERISA, or the occurrence of any event or condition described
in Section 4042 of ERISA that constitutes grounds for the termination
of, or the appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Company and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum) appearing on Telerate
Markets Page 3750 (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period or, if
for any reason such rate is not available, the average (rounded upward
to the nearest whole multiple of 1/16 of 1% per annum, if such average
is not such a multiple) of the rate per annum at which deposits in
U.S. dollars are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount substantially equal
to such Reference Bank's Eurodollar Rate Advance comprising part of
such Revolving Credit Borrowing to be outstanding during such Interest
Period and for
5
a period equal to such Interest Period by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period. If the Telerate Markets Page 3750 (or any successor page) is
unavailable, the Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing shall be determined by the Agent on the basis of applicable
rates furnished to and received by the Agent from the Reference Banks
two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances or LIBO Rate Advances comprising part
of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on
Eurodollar Rate Advances or LIBO Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is
a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodity future or
option contracts and other similar agreements.
"Information Memorandum" means the information memorandum dated
January 29, 2002 used by the Agent in connection with the syndication
of the Commitments.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing,
the period commencing on the date of such Eurodollar Rate Advance or
LIBO Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance and ending on the last day
of the period selected by the applicable Borrower pursuant to the
provisions below and, thereafter, with respect to Eurodollar Rate
Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of
the period selected by the applicable Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two,
6
three or six months, as the applicable Borrower may, upon notice
received by the Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(i) a Borrower may not select any Interest Period
that ends after the Termination Date or, if the Revolving
Credit Advances have been converted to a term loan pursuant to
Section 2.06 prior to such selection, that ends after the
Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of
the same Competitive Bid Borrowing shall be of the same
duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest Period
to occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding Business
Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there is
no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"Invested Amounts" means the amounts invested by investors that
are not Affiliates of the Borrowers in connection with a receivables
securitization program and paid to the Company or any of its
Subsidiaries, as reduced by the aggregate amounts received by such
investors from the payment of receivables and applied to reduce such
invested amounts.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) appearing on Dow Xxxxx Markets
Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period or, if
for any reason such rate is not available, the average (rounded upward
to the nearest whole multiple of 1/16 of 1% per annum, if such average
is not such a multiple) of the rate per annum at which deposits in
U.S. dollars offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank market
at 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to the amount
that would be the Reference Banks' respective ratable shares of such
Borrowing if such Borrowing were to be a Revolving Credit Borrowing to
be outstanding during such Interest Period and for a period equal to
such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period. If the
Dow Xxxxx Markets Telerate Page 3750 (or any successor page) is
unavailable, the LIBO Rate for any Interest Period for each LIBO Rate
Advance comprising part of the same Competitive Bid Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
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"LIBO Rate Advances" means a Competitive Bid Advance bearing
interest based on the LIBO Rate.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential
arrangement, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of way
or other encumbrance on title to real property.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), results of
operations, performance, properties or prospects of the Company and
its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), results of
operations, performance, properties or prospects of the Company and
its Subsidiaries taken as a whole, (b) the rights and remedies of the
Agent or any Lender under this Agreement or any Note or (c) the
ability of any Borrower to perform its obligations under this
Agreement or any Note.
"Maturity Date" means the earlier of (a) the first anniversary
of the Termination Date and (b) the date of termination in whole of
the aggregate Commitments pursuant to Section 2.05 or 6.01.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA
Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Company or any ERISA Affiliate and at least one
Person other than the Company and the ERISA Affiliates or (b) was so
maintained and in respect of which the Company or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified
in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"Obligations" has the meaning specified in Section 7.01.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced unless being contested in good faith and for
which appropriate reserves are being maintained: (a) Liens for taxes,
assessments and governmental charges or levies to the extent not
required to be paid under Section 5.01(b) hereof; (b) Liens imposed by
law, such as materialmen's, mechanics', carriers', workmen's and
repairmen's Liens and other similar Liens arising in the ordinary
course of business securing obligations that are not overdue for a
period of more than 60 days; (c) pledges or deposits to secure
obligations under workers' compensation laws or similar legislation or
to secure public or statutory obligations; and (d) easements, rights
of way and other encumbrances on title to real property that do not
render title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its present
purposes.
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"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company
or other entity, or a government or any political subdivision or
agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Public Debt Rating" means, as of any date, the lowest rating
that has been most recently announced by either S&P or Moody's, as the
case may be, for any class of non-credit enhanced long-term senior
unsecured debt issued by the Company. For purposes of the foregoing,
(a) if only one of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be determined by reference to the
available rating; (b) if neither S&P nor Moody's shall have in effect
a Public Debt Rating, the Applicable Margin, the Applicable Percentage
and the Applicable Utilization Fee will be set in accordance with
Level 3 under the definition of "Applicable Margin", "Applicable
Percentage" or "Applicable Utilization Fee", as the case may be; (c)
if the ratings established by S&P and Moody's shall fall within
different levels, the Applicable Margin, the Applicable Percentage and
the Applicable Utilization Fee shall be based upon the higher rating,
except that if the lower of such ratings is more than one level below
the higher of such ratings, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee shall be based upon the
level that is one level above the lower rating; (d) if any rating
established by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (e) if S&P or
Moody's shall change the basis on which ratings are established, each
reference to the Public Debt Rating announced by S&P or Moody's, as
the case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be.
"Reference Banks" means Citibank, Wachovia Bank, National
Association and Bank One, NA.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means (a) at any time prior to an
acceleration of the Advances pursuant to Section 6.01, Lenders owed at
least a majority in interest of the then aggregate unpaid principal
amount of the Revolving Credit Advances owing to Lenders, or, if no
such principal amount is then outstanding, Lenders having at least a
majority in interest of the Commitments or (b) at any time after an
acceleration of the Advances pursuant to Section 6.01, Lenders owed at
least a majority in interest of the then aggregate unpaid principal
amount of the Advances owing to Lenders, or, if no such principal
amount is then outstanding, Lenders having at least a majority in
interest of the Commitments.
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each
of the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the
Borrowers payable to the order of any Lender, delivered pursuant to a
request made under Section 2.16 in substantially the form of Exhibit
A-1 hereto, evidencing the aggregate indebtedness of the Borrowers to
such Lender resulting from the Revolving Credit Advances made by such
Lender.
"Significant Subsidiary" means any Subsidiary of the Company or
group of Subsidiaries of the Company which, in either case, holds or
owns total assets with a book value in excess of $50,000,000 or has
annual revenues in excess of $50,000,000.
"Single Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees
of the Company or any ERISA Affiliate and no Person other
9
than the Company and the ERISA Affiliates or (b) was so maintained and
in respect of which the Company or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital
stock having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest
in such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Synthetic Lease Liabilities" of a Person means any liability
under any tax retention operating lease or so-called "synthetic" lease
transaction, or any obligations arising with respect to any other
similar transaction which the functional equivalent of or takes the
place of borrowing but which does not constitute a liability on the
Consolidated balance sheets of such Person and its Subsidiaries (other
than leases which do not have an attributable interest component that
are not leases that have been, or should be, in accordance with GAAP,
recorded as capital leases).
"Term Loan Conversion Date" means the Termination Date on which
all Revolving Credit Advances outstanding on such date are converted
into a term loan pursuant to Section 2.06.
"Term Loan Election" has the meaning specified in Section 2.06.
"Termination Date" means the earlier of April 17, 2003 and the
date of termination in whole of the Commitments pursuant to Section
2.05 or 6.01.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of
such Person, even if the right so to vote has been suspended by the
happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the
preparation of the financial statements referred to in Section 4.01(e)
("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to the Borrowers from time to time on any Business
Day during the period from the Effective Date until the Termination Date in an
aggregate amount not to exceed at any time outstanding such Lender's
Commitment provided that the aggregate amount of the Commitments of the
Lenders shall be deemed used from time to time to the extent of the aggregate
amount of the Competitive Bid Advances then outstanding and such deemed use of
the aggregate amount of the Commitments shall be allocated among the Lenders
ratably according to their respective Commitments (such deemed use of the
aggregate amount of
10
the Commitments being a "Competitive Bid Reduction"). Each Revolving Credit
Borrowing shall be in an aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and shall consist of Revolving Credit
Advances of the same Type made on the same day by the Lenders ratably
according to their respective Commitments. Within the limits of each Lender's
Commitment, the Borrowers may borrow under this Section 2.01, prepay pursuant
to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than (x)
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurodollar Rate Advances or (y) 11:00 A.M. (New York
City time) on the date of the proposed Revolving Credit Borrowing in the case
of a Revolving Credit Borrowing consisting of Base Rate Advances, by the
applicable Borrower to the Agent, which shall give to each Lender prompt
notice thereof by telecopier. Each such notice of a Revolving Credit Borrowing
(a "Notice of Revolving Credit Borrowing") shall be by telephone, confirmed
immediately in writing, or telecopier in substantially the form of Exhibit B-1
hereto, specifying therein the requested (i) date of such Revolving Credit
Borrowing, (ii) Type of Advances comprising such Revolving Credit Borrowing,
(iii) aggregate amount of such Revolving Credit Borrowing, and (iv) in the
case of a Revolving Credit Borrowing consisting of Eurodollar Rate Advances,
initial Interest Period for each such Revolving Credit Advance. Each Lender
shall, before 1:00 P.M. (New York City time) on the date of such Revolving
Credit Borrowing make available for the account of its Applicable Lending
Office to the Agent at the Agent's Account, in same day funds, such Lender's
ratable portion of such Revolving Credit Borrowing. After the Agent's receipt
of such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Agent will make such funds available to the applicable
Borrower at the Agent's address referred to in Section 9.02. Each Borrower
hereby authorizes the Company to deliver each Notice of Borrowing on behalf of
such Borrower.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) a Borrower may not select Eurodollar Rate Advances for
any Revolving Credit Borrowing if the aggregate amount of such Revolving
Credit Borrowing is less than $10,000,000 or if the obligation of the Lenders
to make Eurodollar Rate Advances shall then be suspended pursuant to Section
2.08 or 2.12 and (ii) the Eurodollar Rate Advances may not be outstanding as
part of more than six separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the applicable Borrower. In the case of any
Revolving Credit Borrowing that the related Notice of Revolving Credit
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
Borrowers shall jointly and severally indemnify each Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to fulfill
on or before the date specified in such Notice of Revolving Credit Borrowing
for such Revolving Credit Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result of such
failure, is not made on such date.
(d) Unless the Agent shall have received notice from a
Lender prior to the date of any Revolving Credit Borrowing that such Lender
will not make available to the Agent such Lender's ratable portion of such
Revolving Credit Borrowing, the Agent may assume that such Lender has made
such portion available to the Agent on the date of such Revolving Credit
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the applicable
Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the Agent,
such Lender and the Borrowers severally agree to repay (and all the Borrowers
jointly and severally agree to repay) to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to the applicable Borrower until the date
such amount is repaid to the Agent, at (i) in the case of the Borrowers, the
interest rate applicable at the time to Revolving Credit Advances comprising
such Revolving Credit Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender's Revolving Credit
Advance as part of such Revolving Credit Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Revolving Credit Borrowing shall not
relieve any other Lender of its obligation, if any, hereunder to make its
11
Revolving Credit Advance on the date of such Revolving Credit Borrowing, but
no Lender shall be responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the date of any
Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrowers may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the Commitments of the
Lenders (computed without regard to any Competitive Bid Reduction).
(i) The Company may request on behalf of one or more
Borrowers a Competitive Bid Borrowing under this Section 2.03 by
delivering to the Agent, by telecopier, a notice of a Competitive Bid
Borrowing (a "Notice of Competitive Bid Borrowing"), in substantially
the form of Exhibit B-2 hereto, specifying therein the requested (v)
date of such proposed Competitive Bid Borrowing, (w) aggregate amount
of such proposed Competitive Bid Borrowing, (x) in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances, Interest
Period, or in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances, maturity date for repayment of each Fixed Rate
Advance to be made as part of such Competitive Bid Borrowing (which
maturity date may not be earlier than the date occurring 30 days after
the date of such Competitive Bid Borrowing or later than the
Termination Date), (y) interest payment date or dates relating
thereto, and (z) other terms (if any) to be applicable to such
Competitive Bid Borrowing, not later than 10:00 A.M. (New York City
time) (A) at least one Business Day prior to the date of the proposed
Competitive Bid Borrowing, if the Company shall specify in the Notice
of Competitive Bid Borrowing that the rates of interest to be offered
by the Lenders shall be fixed rates per annum (the Advances comprising
any such Competitive Bid Borrowing being referred to herein as "Fixed
Rate Advances") and (B) at least four Business Days prior to the date
of the proposed Competitive Bid Borrowing, if the Company shall
instead specify in the Notice of Competitive Bid Borrowing that the
Advances comprising such Competitive Bid Borrowing shall be LIBO Rate
Advances. Each Notice of Competitive Bid Borrowing shall be
irrevocable and binding on the Borrowers. The Agent shall in turn
promptly notify each Lender of each request for a Competitive Bid
Borrowing received by it from the Company by sending such Lender a
copy of the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects
to do so, irrevocably offer to make one or more Competitive Bid
Advances to the Borrowers as part of such proposed Competitive Bid
Borrowing at a rate or rates of interest specified by such Lender in
its sole discretion, by notifying the Agent (which shall give prompt
notice thereof to the Company), (A) before 9:30 A.M. (New York City
time) on the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances
and (B) before 10:00 A.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances
of the minimum amount and maximum amount of each Competitive Bid
Advance which such Lender would be willing to make as part of such
proposed Competitive Bid Borrowing (which amounts of such proposed
Competitive Bid may, subject to the proviso to the first sentence of
this Section 2.03(a), exceed such Lender's Commitment, if any), the
rate or rates of interest therefor and such Lender's Applicable
Lending Office with respect to such Competitive Bid Advance; provided
that if the Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify the Company
of such offer at least 30 minutes before the time and on the date on
which notice of such election is to be given to the Agent, by the
other Lenders. If any Lender shall elect not to make such an offer,
such Lender shall so notify the Agent before 10:00 A.M. (New York City
time), and such Lender shall not be obligated to, and shall not, make
any Competitive Bid Advance as part of such Competitive Bid Borrowing;
provided that the failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Bid Advance
as part of such proposed Competitive Bid Borrowing.
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(iii) The Company shall, in turn, (A) before 10:30 A.M. (New
York City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances and (B) before 11:00 A.M. (New York City time)
three Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving
the Agent notice to that effect, or
(y) accept for itself or on behalf of one or more
Borrowers one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole
discretion, by giving notice to the Agent of the amount of each
Competitive Bid Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the
maximum amount, notified to the Company by the Agent on behalf
of such Lender for such Competitive Bid Advance pursuant to
paragraph (ii) above) to be made by each Lender as part of such
Competitive Bid Borrowing, and reject any remaining offers made
by Lenders pursuant to paragraph (ii) above by giving the Agent
notice to that effect. The Company shall accept the offers made
by any Lender or Lenders to make Competitive Bid Advances in
order of the lowest to the highest rates of interest offered by
such Lenders. If two or more Lenders have offered the same
interest rate, the amount to be borrowed at such interest rate
will be allocated among such Lenders in proportion to the
amount that each such Lender offered at such interest rate.
(iv) If the Company notifies the Agent that such Competitive
Bid Borrowing is cancelled pursuant to paragraph (iii)(x) above, the
Agent shall give prompt notice thereof to the Lenders and such
Competitive Bid Borrowing shall not be made.
(v) If the Company accepts for itself or on behalf of one or
more Borrowers one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, the Agent shall in turn promptly
notify (A) each Lender that has made an offer as described in
paragraph (ii) above, of the date and aggregate amount of such
Competitive Bid Borrowing and whether or not any offer or offers made
by such Lender pursuant to paragraph (ii) above have been accepted by
the Company, (B) each Lender that is to make a Competitive Bid Advance
as part of such Competitive Bid Borrowing, of the amount of each
Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing,
upon receipt, that the Agent has received forms of documents appearing
to fulfill the applicable conditions set forth in Article III. Each
Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing shall, before 11:00 A.M. (New York City
time) on the date of such Competitive Bid Borrowing specified in the
notice received from the Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice
from the Agent pursuant to clause (C) of the preceding sentence, make
available for the account of its Applicable Lending Office to the
Agent at its address referred to in Section 8.02, in same day funds,
such Lender's portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in Article III and
promptly after receipt by the Agent of such funds, the Agent will make
such funds available to the Borrowers at the location specified by the
Company in its Notice of Competitive Bid Borrowing. Promptly after
each Competitive Bid Borrowing the Agent will notify each Lender of
the amount of the Competitive Bid Borrowing, the consequent
Competitive Bid Reduction and the dates upon which such Competitive
Bid Reduction commenced and will terminate.
(vi) If the Company notifies the Agent that it accepts for
itself or on behalf of one or more Borrowers one or more of the offers
made by any Lender or Lenders pursuant to paragraph (iii)(y) above,
such notice of acceptance shall be irrevocable and binding on the
Borrowers. The Borrowers shall jointly and severally indemnify each
Lender against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified in
the related Notice of Competitive Bid Borrowing for such Competitive
Bid Borrowing the applicable conditions set forth in Article III,
including, without
13
limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the
Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing when such Competitive Bid Advance, as a
result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrowers
shall be in compliance with the limitation set forth in the proviso to the
first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in
this Section 2.03, the Borrowers may from time to time borrow under this
Section 2.03, repay or prepay pursuant to subsection (d) below, and reborrow
under this Section 2.03, provided that a Competitive Bid Borrowing shall not
be made within three Business Days of the date of any other Competitive Bid
Borrowing.
(d) The Borrowers jointly and severally agree to repay to
the Agent for the account of each Lender that has made a Competitive Bid
Advance, on the maturity date of each Competitive Bid Advance (such maturity
date being that specified by the Company for repayment of such Competitive Bid
Advance in the related Notice of Competitive Bid Borrowing delivered pursuant
to subsection (a)(i) above and provided in the Competitive Bid Note evidencing
such Competitive Bid Advance), the then unpaid principal amount of such
Competitive Bid Advance. The Borrowers shall have no right to prepay any
principal amount of any Competitive Bid Advance unless, and then only on the
terms, specified by the Company for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and set forth in the Competitive Bid Note evidencing such
Competitive Bid Advance.
(e) The Borrowers jointly and severally agree to pay
interest on the unpaid principal amount of each Competitive Bid Advance from
the date of such Competitive Bid Advance to the date the principal amount of
such Competitive Bid Advance is repaid in full, at the rate of interest for
such Competitive Bid Advance specified by the Lender making such Competitive
Bid Advance in its notice with respect thereto delivered pursuant to
subsection (a)(ii) above, payable on the interest payment date or dates
specified by the Company for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such Competitive Bid
Advance. Upon the occurrence and during the continuance of an Event of
Default, the Borrowers jointly and severally agree to pay interest on the
amount of unpaid principal of and interest on each Competitive Bid Advance
owing to a Lender, payable in arrears on the date or dates interest is payable
thereon, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Competitive Bid Advance under the terms
of the Competitive Bid Note evidencing such Competitive Bid Advance unless
otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of the Borrowers resulting from each
Competitive Bid Advance made to any Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note payable to the
order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrowers jointly
and severally agree to pay to the Agent for the account of each Lender a
facility fee on the aggregate amount of such Lender's Commitment from the
Effective Date in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination Date at a rate
per annum equal to the Applicable Percentage in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September
and December, commencing June 30, 2002, and on the Termination Date.
(b) Agent's Fees. The Borrowers jointly and severally agree
to pay to the Agent for its own account such fees as may from time to time be
agreed between the Company and the Agent.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Company shall have the right, upon at least three Business Days'
notice to the Agent, to terminate in whole or permanently
14
reduce ratably in part the unused portions of the respective Commitments of
the Lenders, provided that each partial reduction shall be in the aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and provided further that the aggregate amount of the Commitments of the
Lenders shall not be reduced to an amount that is less than the aggregate
principal amount of the Competitive Bid Advances then outstanding.
(b) Mandatory. On the Termination Date, if the Borrowers
have made the Term Loan Election in accordance with Section 2.06 prior to such
date, and from time to time thereafter upon each prepayment of the Revolving
Credit Advances, the Commitments of the Lenders shall be automatically and
permanently reduced on a pro rata basis by an amount equal to the amount by
which (i) the aggregate Commitments immediately prior to such reduction
exceeds (ii) the aggregate unpaid principal amount of all Revolving Credit
Advances outstanding at such time.
SECTION 2.06. Repayment of Revolving Credit Advances. The
Borrowers jointly and severally agree, subject to the next succeeding
sentence, to repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Revolving Credit
Advances then outstanding. The Company may, upon not less than 15 days' notice
to the Agent, elect (the "Term Loan Election") to convert all of the Revolving
Credit Advances outstanding on the Termination Date in effect at such time
into a term loan which the Borrowers jointly and severally agree to repay in
full ratably to the Lenders on the Maturity Date; provided that the Term Loan
Election may not be exercised if a Default has occurred and is continuing on
the date of notice of the Term Loan Election or on the date on which the Term
Loan Election is to be effected. All Revolving Credit Advances converted into
a term loan pursuant to this Section 2.06 shall continue to constitute
Revolving Credit Advances except that the Borrowers may not reborrow pursuant
to Section 2.01 after all or any portion of such Revolving Credit Advances
have been prepaid pursuant to Section 2.10.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. The Borrowers jointly and severally agree to pay interest
on the unpaid principal amount of each Revolving Credit Advance owing to each
Lender from the date of such Revolving Credit Advance until such principal
amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Revolving Credit Advance is a Base Rate Advance, a rate per annum
equal at all times to the sum of (x) the Base Rate in effect from time
to time plus (y) the Applicable Margin in effect from time to time
plus (z) the Applicable Utilization Fee in effect from time to time,
payable in arrears quarterly on the last day of each March, June,
September and December during such periods and on the date such Base
Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per
annum equal at all times during each Interest Period for such
Revolving Credit Advance to the sum of (x) the Eurodollar Rate for
such Interest Period for such Revolving Credit Advance plus (y) the
Applicable Margin in effect from time to time plus (z) the Applicable
Utilization Fee in effect from time to time, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during
such Interest Period every three months from the first day of such
Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Borrowers jointly and severally agree
to pay interest on (i) the unpaid principal amount of each Revolving Credit
Advance owing to each Lender, payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2%
per annum above the rate per annum required to be paid on such Revolving
Credit Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the
fullest extent permitted by law, the amount of any interest, fee or other
amount payable hereunder that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on
the date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be
paid on Base Rate Advances pursuant to clause (a)(i) above.
15
SECTION 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Agent timely information for the purpose of
determining each Eurodollar Rate and each LIBO Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Company and the
Lenders of the applicable interest rate determined by the Agent for purposes
of Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each
Reference Bank for the purpose of determining the interest rate under Section
2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Agent that the Eurodollar Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Agent shall forthwith so notify the
Company and the Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Revolving Credit Advances into, Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Company and the Lenders
that the circumstances causing such suspension no longer exist.
(c) If the applicable Borrower shall fail to select the
duration of any Interest Period for any Eurodollar Rate Advances in accordance
with the provisions contained in the definition of "Interest Period" in
Section 1.01, the Agent will forthwith so notify such Borrower and the Lenders
and such Advances will automatically, on the last day of the then existing
Interest Period therefor, be Converted into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced,
by payment or prepayment or otherwise, to less than $10,000,000, such Advances
shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default, (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended.
(f) If Telerate Markets Page 3750 is unavailable and fewer
than two Reference Banks furnish timely information to the Agent for
determining the Eurodollar Rate or LIBO Rate for any Eurodollar Rate Advances
or LIBO Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the Company and the
Lenders that the interest rate cannot be determined for such
Eurodollar Rate Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, be prepaid by the Borrowers or, at the
applicable Borrower's option, be automatically Converted into a Base
Rate Advance (or if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances
into Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Company and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances.
Any Borrower may on any Business Day, upon notice given to the Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the
date of the proposed Conversion and subject to the provisions of Sections 2.08
and 2.12, Convert all Revolving Credit Advances made to it of one Type
comprising the same Borrowing into Revolving Credit Advances of the other
Type; provided, however, that any Conversion of Eurodollar Rate Advances into
Base Rate Advances shall be made only on the last day of an Interest Period
for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum
amount specified in
16
Section 2.02(b) and no Conversion of any Revolving Credit Advances shall
result in more separate Revolving Credit Borrowings than permitted under
Section 2.02(b). Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii)
the Revolving Credit Advances to be Converted, and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
each such Advance. Each notice of Conversion shall be irrevocable and binding
on the applicable Borrower.
SECTION 2.10. Prepayments of Revolving Credit Advances. The
applicable Borrower may, upon notice at least three Business Days' prior to
the date of such prepayment, in the case of Eurodollar Rate Advances, and not
later than 11:00 A.M. (New York City time) on the date of such prepayment, in
the case of Base Rate Advances, to the Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Borrowers jointly and severally agree to, prepay the outstanding principal
amount of the Revolving Credit Advances comprising part of the same Revolving
Credit Borrowing in whole or ratably in part, together with accrued interest
to the date of such prepayment on the principal amount prepaid; provided,
however, that (x) each partial prepayment shall be in an aggregate principal
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and (y) in the event of any such prepayment of a Eurodollar Rate Advance, the
Borrowers shall be obligated, jointly and severally, to reimburse the Lenders
in respect thereof pursuant to Section 9.04(c).
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost to any Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances or LIBO Rate
Advances (excluding for purposes of this Section 2.11 any such increased costs
resulting from (i) Taxes or Other Taxes (as to which Section 2.14 shall
govern) and (ii) changes in the basis of taxation of overall net income or
overall gross income by the United States or by the foreign jurisdiction or
state under the laws of which such Lender is organized or has its Applicable
Lending Office or any political subdivision thereof), then the Borrowers shall
from time to time, upon demand by such Lender (with a copy of such demand to
the Agent), pay to the Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A certificate as
to the amount of such increased cost, submitted to the Borrowers and the Agent
by such Lender, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and that the amount of
such capital is increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then, upon
demand by such Lender (with a copy of such demand to the Agent), the Borrowers
shall pay to the Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such circumstances, to the extent
that such Lender reasonably determines such increase in capital to be
allocable to the existence of such Lender's commitment to lend hereunder. A
certificate as to such amounts submitted to the Borrowers and the Agent by
such Lender shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.12. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the introduction
of or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it
is unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (b) the
obligation of the Lenders to make Eurodollar Rate Advances or LIBO Rate
Advances or to Convert Revolving Credit Advances into Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Company and the Lenders
that the circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The Borrowers
shall make each payment hereunder not later than 11:00 A.M. (New York City
time) on the day when due to the Agent at the Agent's Account in same day
funds. The Agent will promptly thereafter cause to be distributed like funds
relating to the payment of
17
principal or interest or facility fees ratably (other than amounts payable
pursuant to Section 2.03, 2.11, 2.14 or 9.04(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained
therein in the Register pursuant to Section 8.07(c), from and after the
effective date specified in such Assignment and Acceptance, the Agent shall
make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) The Borrowers hereby authorize each Lender, if and to
the extent payment owed to such Lender is not made when due hereunder or under
the Note held by such Lender, to charge from time to time against any or all
of the Borrowers' accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate
shall be made by the Agent on the basis of a year of 365 or 366 days, as the
case may be, all computations of interest based on the Eurodollar Rate, the
LIBO Rate or the Federal Funds Rate or in respect of Fixed Rate Advances and
of facility fees shall be made by the Agent on the basis of a year of 360
days, in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or
facility fees are payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder or under the Notes shall
be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or facility
fee, as the case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances or LIBO
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(e) Unless the Agent shall have received notice from the
applicable Borrower prior to the date on which any payment is due to the
Lenders hereunder that such Borrower will not make such payment in full, the
Agent may assume that such Borrower has made such payment in full to the Agent
on such date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent such Borrower shall not have so made
such payment in full to the Agent, each Lender shall repay to the Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the Agent, at the
Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrowers
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and
the Agent, taxes imposed on its overall net income, and franchise taxes
imposed on it in lieu of net income taxes, by the jurisdiction under the laws
of which such Lender or the Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed
on its overall net income, and franchise taxes imposed on it in lieu of net
income taxes, by the jurisdiction of such Lender's Applicable Lending Office
or any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as
"Taxes"). If any Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder or under any Note to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.14) such Lender or the Agent (as
the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the applicable Borrower shall make such
deductions and (iii) the applicable Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
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(b) In addition, the Borrowers shall pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or under
the Notes or from the execution, delivery or registration of, performing
under, or otherwise with respect to, this Agreement or the Notes (hereinafter
referred to as "Other Taxes").
(c) The Borrowers shall jointly and severally indemnify each
Lender and the Agent for and hold it harmless against the full amount of Taxes
or Other Taxes (including, without limitation, taxes of any kind imposed by
any jurisdiction on amounts payable under this Section 2.14) imposed on or
paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date such
Lender or the Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
the applicable Borrower shall furnish to the Agent, at its address referred to
in Section 9.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on
behalf of such Borrower through an account or branch outside the United States
or by or on behalf of such Borrower by a payor that is not a United States
person, if such Borrower determines that no Taxes are payable in respect
thereof, such Borrower shall furnish, or shall cause such payor to furnish, to
the Agent, at such address, an opinion of counsel acceptable to the Agent
stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United
States person" shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender and on the date
of the Assumption Agreement or the Assignment and Acceptance pursuant to which
it becomes a Lender in the case of each other Lender, and from time to time
thereafter as requested in writing by the Company (but only so long as such
Lender remains lawfully able to do so), shall provide each of the Agent and
the Company with two original Internal Revenue Service forms W-8BEN or W-8ECI,
as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Lender is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the form provided by a Lender at the time such
Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from
Taxes for periods governed by such form; provided, however, that, if at the
date of the Assignment and Acceptance pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States
withholding tax, if any, applicable with respect to the Lender assignee on
such date. If any form or document referred to in this subsection (e) requires
the disclosure of information, other than information necessary to compute the
tax payable and information required on the date hereof by Internal Revenue
Service form W-8BEN or W-8ECI, that the Lender reasonably considers to be
confidential, the Lender shall give notice thereof to the Company and shall
not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender has failed
to provide the Company with the appropriate form described in Section 2.14(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such
form otherwise is not required under subsection (e) above), such Lender shall
not be entitled to indemnification under Section 2.14(a) or (c) with respect
to Taxes imposed by the United States by reason of such failure; provided,
however, that should a Lender become subject to Taxes because of its failure
to deliver a form required hereunder, the Borrowers shall take such steps as
the Lender shall reasonably request to assist the Lender to recover such
Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the
19
amount of, any such additional amounts that may thereafter accrue and would
not, in the reasonable judgment of such Lender, be otherwise disadvantageous
to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) on account of the Revolving Credit
Advances owing to it (other than pursuant to Section 2.11, 2.14 or 9.04(c)) in
excess of its ratable share of payments on account of the Revolving Credit
Advances obtained by all the Lenders, such Lender shall forthwith purchase
from the other Lenders such participations in the Revolving Credit Advances
owing to them as shall be necessary to cause such purchasing Lender to share
the excess payment ratably with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent
of such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrowers agree that any Lender
so purchasing a participation from another Lender pursuant to this Section
2.15 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrowers in the
amount of such participation.
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrowers to such Lender resulting from each Revolving
Credit Advance owing to such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. The Borrowers agree that
upon notice by any Lender to the Borrowers (with a copy of such notice to the
Agent) to the effect that a Revolving Credit Note is required or appropriate
in order for such Lender to evidence (whether for purposes of pledge,
enforcement or otherwise) the Revolving Credit Advances owing to, or to be
made by, such Lender, the Borrowers shall promptly execute and deliver to such
Lender a Revolving Credit Note payable to the order of such Lender in a
principal amount up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section
9.07(d) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, the Type of Advances comprising such
Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the terms of each Assignment and Acceptance delivered to and accepted by it,
(iii) the amount of any principal or interest due and payable or to become due
and payable from each Borrower to each Lender hereunder and (iv) the amount of
any sum received by the Agent from each Borrower hereunder and each Lender's
share thereof.
(c) Entries made in good faith by the Agent in the Register
pursuant to subsection (b) above, and by each Lender in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of
the amount of principal and interest due and payable or to become due and
payable from the Borrowers to, in the case of the Register, each Lender and,
in the case of such account or accounts, such Lender, under this Agreement,
absent manifest error; provided, however, that the failure of the Agent or
such Lender to make an entry, or any finding that an entry is incorrect, in
the Register or such account or accounts shall not limit or otherwise affect
the obligations of the Borrowers under this Agreement.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrowers agree that they shall use such proceeds)
solely for general corporate purposes of the Borrowers.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections
2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective
on and as of the first date (the "Effective Date") on which the following
conditions precedent have been satisfied:
20
(a) There shall have occurred no Material Adverse Change
since December 31, 2001.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Company or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect other than the matters described on Schedule
3.01(b) hereto (the "Disclosed Litigation") or (ii) purports to affect
the legality, validity or enforceability of this Agreement or any Note
or the consummation of the transactions contemplated hereby, and there
shall have been no adverse change in the status, or financial effect
on the Company or any of its Subsidiaries, of the Disclosed Litigation
from that described on Schedule 3.01(b) hereto.
(c) Nothing shall have come to the attention of the Lenders
during the course of their due diligence investigation to lead them
reasonably to believe that the Information Memorandum was or has
become misleading, incorrect or incomplete in any material respect;
without limiting the generality of the foregoing, the Lenders shall
have been given such access to the management, records, books of
account, contracts and properties of the Company and its Subsidiaries
as they shall have reasonably requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby
shall have been obtained (without the imposition of any conditions
that are not reasonably acceptable to the Lenders) and shall remain in
effect, and no law or regulation shall be applicable in the reasonable
judgment of the Lenders that restrains, prevents or imposes materially
adverse conditions upon the transactions contemplated hereby.
(e) The Initial Borrowers shall have notified each Lender
and the Agent in writing as to the proposed Effective Date.
(f) The Initial Borrowers shall have paid all accrued fees
and expenses of the Agent and the Lenders (including the accrued fees
and expenses of counsel to the Agent).
(g) On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender
a certificate signed by a duly authorized officer of each Initial
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(h) The Agent shall have received on or before the Effective
Date the following, each dated such day, in form and substance
satisfactory to the Agent and (except for the Revolving Credit Notes)
in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of the
Lenders to the extent requested by any Lender pursuant to
Section 2.16.
(ii) Certified copies of the resolutions of the Board
of Directors of each Initial Borrower approving this Agreement
and the Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of each Initial Borrower certifying the names and
true signatures of the officers of such Borrower authorized to
sign this Agreement and the Notes and the other documents to be
delivered hereunder.
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(iv) A favorable opinion of Xxxxxxx Xxxxx, Assistant
General Counsel for the Company, substantially in the form of
Exhibit D hereto and as to such other matters as any Lender
through the Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling,
counsel for the Agent, in form and substance satisfactory to
the Agent.
(i) The Borrower shall have terminated the commitments, and
paid in full all Debt, interest, fees and other amounts outstanding,
under the Credit Agreement dated as March 5, 2001, as amended, among
the Company, the lenders parties thereto and Citibank, as agent, and
under the Credit Agreement dated as of December 8, 1998, as amended,
among the Company, the lenders parties thereto and The First National
Bank of Chicago, as administrative agent, and each of the Lenders that
is a party to such credit facility hereby waives, upon execution of
this Agreement, the any notice required by said Credit Agreements
relating to the termination of commitments thereunder.
SECTION 3.02. Conditions Precedent to the Initial Borrowing of
Each Designated Subsidiary. The obligation of each Lender to make an initial
Revolving Credit Advance to each Designated Subsidiary following its
designation as a Borrower hereunder pursuant to Section 9.08 on the occasion
of the initial Borrowing thereby is subject to the Agent's receipt on or
before the date of such initial Borrowing of each of the following, in form
and substance satisfactory to the Agent and dated such date:
(a) The Designation Letter of such Designated Subsidiary, in
substantially the form of Exhibit E hereto.
(b) A Revolving Credit Note of such Designated Subsidiary to
the extent requested by any Lender pursuant to Section 2.16.
(c) A certificate of the Secretary or an Assistant Secretary
(or person performing similar functions) of such Designated Subsidiary
certifying (A) appropriate resolutions of the board of directors (or
persons performing similar functions) of such Designated Subsidiary
approving this Agreement and its Notes, and all documents evidencing
other necessary corporate (or equivalent) action and governmental
approvals, if any, with respect to this Agreement and its Notes
(copies of which shall be attached thereto), and (B) the names and
true signatures of the officers of such Designated Subsidiary
authorized to sign the Designation Letter of such Designated
Subsidiary and its Notes and the other documents to be delivered by
such Designated Subsidiary hereunder.
(d) A favorable opinion of counsel for such Designated
Subsidiary reasonably acceptable to the Agent, in substantially the
form of Exhibit D hereto with modifications appropriate to such
Designated Subsidiary, and addressing such other matters as any Lender
through the Agent may reasonably request.
(e) Such other documents, opinions and other information as
any Lender, through the Agent, may reasonably request.
SECTION 3.03. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance on
the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the
date of such Revolving Credit Borrowing (a) the following statements shall be
true (and each of the giving of the applicable Notice of Revolving Credit
Borrowing and the acceptance by the applicable Borrower of the proceeds of
such Revolving Credit Borrowing shall constitute a representation and warranty
by such Borrower that on the date of such Borrowing such statements are true):
(i) the representations and warranties contained in Section
4.01 (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f)(i) thereof) are correct
on and as
22
of such date, before and after giving effect to such Revolving Credit
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date, and
(ii) no event has occurred and is continuing, or would result
from such Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.04. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such
Competitive Bid Advance as part of such Competitive Bid Borrowing is subject
to the conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Agent shall have received a Competitive Bid
Note payable to the order of such Lender for each of the one or more
Competitive Bid Advances to be made by such Lender as part of such Competitive
Bid Borrowing, in a principal amount equal to the principal amount of the
Competitive Bid Advance to be evidenced thereby and otherwise on such terms as
were agreed to for such Competitive Bid Advance in accordance with Section
2.03, and (iii) on the date of such Competitive Bid Borrowing the following
statements shall be true (and each of the giving of the applicable Notice of
Competitive Bid Borrowing and the acceptance by the applicable Borrower of the
proceeds of such Competitive Bid Borrowing shall constitute a representation
and warranty by such Borrower that on the date of such Competitive Bid
Borrowing such statements are true):
(a) the representations and warranties contained in Section
4.01 are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date,
(b) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a
result of which the information concerning the Borrowers that has been
provided to the Agent and each Lender by the Borrowers in connection
herewith would include an untrue statement of a material fact or omit
to state any material fact or any fact necessary to make the
statements contained therein, in the light of the circumstances under
which they were made, not misleading.
SECTION 3.05. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders
unless an officer of the Agent responsible for the transactions contemplated
by this Agreement shall have received notice from such Lender prior to the
date that the Borrowers, by notice to the Lenders, designate as the proposed
Effective Date, specifying its objection thereto. The Agent shall promptly
notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers.
Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the state of its
organization.
23
(b) The execution, delivery and performance by such Borrower
of this Agreement and the Notes to be delivered by it, and the
consummation of the transactions contemplated hereby, are within such
Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) such Borrower's
charter or by-laws or (ii) law or any contractual restriction binding
on or affecting such Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body or any other third party is required for the due execution,
delivery and performance by such Borrower of this Agreement or the
Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be
delivered by it when delivered hereunder will have been, duly executed
and delivered by such Borrower. This Agreement is, and each of the
Notes when delivered hereunder will be, the legal, valid and binding
obligation of such Borrower enforceable against such Borrower in
accordance with their respective terms, except as enforceability may
be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles.
(e) The Consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 2001, and the related Consolidated
statements of income and cash flows of the Company and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Xxxxxx Xxxxxxxx LLP, independent public accountants, copies of
which have been furnished to each Lender, fairly present the
Consolidated financial condition of the Company and its Subsidiaries
as at such date and the Consolidated results of the operations of the
Company and its Subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles consistently
applied. Since December 31, 2001, there has been no Material Adverse
Change.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without
limitation, any Environmental Action, affecting the Company or any of
its Subsidiaries before any court, governmental agency or arbitrator
that (i) would be reasonably likely to have a Material Adverse Effect
(other than the Disclosed Litigation) or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any Note or
the consummation of the transactions contemplated hereby, and there
has been no adverse change in the status, or financial effect on the
Company or any of its Subsidiaries, of the Disclosed Litigation from
that described on Schedule 3.01(b) hereto.
(g) No information, exhibit or report furnished by the
Company or any of its Subsidiaries to the Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or omitted to
state a material fact or any fact necessary to make the statements
contained therein not misleading.
(h) Each Borrower and its Subsidiaries are in compliance
with Regulations T, U and X. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the
Borrowers and their Subsidiaries which are subject to any limitation
on sale, pledge, or other restriction hereunder.
(i) Neither any Borrower nor any of its Subsidiaries is a
party to any agreement or instrument or subject to any charter or
other corporate restriction which could reasonably be expected to have
a Material Adverse Effect. Neither any Borrower nor any of its
Subsidiaries is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement to which it is a party, which default could
reasonably be expected to have a Material Adverse Effect.
(j) The Borrowers and their Subsidiaries have complied with
all applicable statutes, rules, regulations, orders and restrictions
of any domestic or foreign government or any instrumentality or agency
thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their
24
respective property, except for any failure to comply with any of the
foregoing which could not reasonably be expected to have a Material
Adverse Effect.
(k) On the date of this Agreement, the Borrowers and their
Subsidiaries have good title, free of all Liens other than those
permitted by Section 5.02(a) to all of the property and assets
reflected in the Company's most recent consolidated financial
statements provided to the Agent as owned by the Borrowers and their
Subsidiaries.
(l) Each Borrower and each of its Subsidiaries owns or
possesses all material patents, trademarks, trade names, service
marks, copyright, licenses and rights with respect to the foregoing
necessary for the future conduct of its business, without any known
material conflict with the rights of others.
(m) In the ordinary course of its business, the officers of
the Company consider the effect of Environmental Laws on the business
of the Borrowers, in the course of which they identify and evaluate
potential risks and liabilities accruing to the Borrowers and their
Subsidiaries due to Environmental Laws. On the basis of this
consideration, the Company has concluded that Environmental laws
cannot reasonably be expected to have a Material Adverse Effect.
Except as disclosed on Schedule 3.01(b) hereto, neither any Borrower
nor any of its Subsidiaries has received any notice to the effect that
its operations are not in material compliance with any of the
requirements of applicable Environmental Laws or are the subject of
any foreign or domestic, federal, state or local investigation
evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the
environment, which non-compliance or remedial action could reasonably
be expected to have a Material Adverse Effect.
(n) Neither any Borrower nor any of its Subsidiaries is an
"investment company" or a company "controlled" by and "investment
company" or an "affiliated person" thereof or an "affiliated person"
of such affiliated person, in each case within the meaning of the
Investment Company Act of 1940, as amended.
(o) Neither any Borrower nor any of its Subsidiaries is a
"holding company" or a "subsidiary company" of a "holding company", or
an "affiliate" of a "holding company" or of a "subsidiary company" of
a "holding company", within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, each
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and Environmental Laws,
which, if violated, could reasonably be expected to have a Material
Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither such Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
25
(c) Maintenance of Insurance. Maintain, and cause each of
its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which such
Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and
franchises; provided, however, that such Borrower and its Subsidiaries
may consummate any merger or consolidation permitted under Section
5.02(b) and provided further that neither such Borrower nor any of its
Subsidiaries shall be required to preserve any right or franchise if
the Board of Directors of such Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of such Borrower or such Subsidiary, as the
case may be, and that the loss thereof is not disadvantageous in any
material respect to such Borrower, such Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time
to time, permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
such Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of such Borrower and any of its Subsidiaries
with any of their officers or directors and with their independent
certified public accountants.
(f) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which
full and correct entries shall be made of all financial transactions
and the assets and business of such Borrower and each such Subsidiary
in accordance with generally accepted accounting principles in effect
from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve,
and cause each of its Subsidiaries to maintain and preserve, all of
its properties that are used or useful in the conduct of its business
in good working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted
under this Agreement with any of their Affiliates on terms that are
fair and reasonable and no less favorable to such Borrower or such
Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate.
(i) Conduct of Business. Carry on and conduct its business,
and cause each of its Subsidiaries to carry on and conduct its
business, in substantially the same manner and in substantially the
same fields of enterprise as it is presently conducted or lines of
business reasonably related thereto.
(j) Reporting Requirements. The Company shall furnish to
the Lenders:
(i) as soon as available and in any event within 45
days after the end of each of the first three quarters of each
fiscal year of the Company, the Consolidated balance sheet of
the Company and its Subsidiaries as of the end of such quarter
and Consolidated statements of income and cash flows of the
Company and its Subsidiaries for the period commencing at the
end of the previous fiscal year and ending with the end of such
quarter, duly certified (subject to year-end audit adjustments)
by the chief financial officer of the Company as having been
prepared in accordance with generally accepted accounting
principles and certificates of the chief financial officer of
the Company as to compliance with the terms of this Agreement
and setting forth in reasonable detail the calculations
necessary to demonstrate compliance with Section 5.03, provided
that in the event of any change in GAAP used in the preparation
of such financial statements, the Company shall also provide,
if necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial
statements to GAAP;
26
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Company, a copy
of the annual audit report for such year for the Company and
its Subsidiaries, containing the Consolidated balance sheet of
the Company and its Subsidiaries as of the end of such fiscal
year and Consolidated statements of income and cash flows of
the Company and its Subsidiaries for such fiscal year, in each
case accompanied by an opinion acceptable to the Required
Lenders by Xxxxxx Xxxxxxxx LLP or other independent public
accountants acceptable to the Required Lenders, provided that
in the event of any change in GAAP used in the preparation of
such financial statements, the Company shall also provide, if
necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial
statements to GAAP;
(iii) as soon as possible and in any event within five
days after the occurrence of each Default continuing on the
date of such statement, a statement of the chief financial
officer of the Company setting forth details of such Default
and the action that the Borrowers have taken and propose to
take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports that any Borrower sends to any of its
securityholders, and copies of all reports and registration
statements that any Borrower or any Subsidiary files with the
Securities and Exchange Commission or any national securities
exchange;
(v) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting the Company or any of its
Subsidiaries of the type described in Section 4.01(f);
(vi) not later than August 31 of each year, notice of
all Significant Subsidiaries of the Company determined by
reference to the Company's financial position as of December 31
of the immediately preceding calendar year; and
(vii) such other information respecting the Company or
any of its Subsidiaries as any Lender through the Agent may
from time to time reasonably request.
Reports and financial statements required to be delivered by Company
pursuant to clauses (i), (ii) and (iv) of this subsection (j) shall be
deemed to have been delivered on the date on which the Company posts
such reports, or reports containing such financial statements, on its
website on the Internet at xxx.xxxxxxx-xx.xxx, at xxx.xxx.xxx or at
such other website identified by the Company in a notice to the Agent
and the Lenders and that is accessible by the Lenders without charge;
provided that the Company shall deliver paper copies of such
information to any Lender promptly upon request of such Lender through
the Agent and provided further that the Lenders shall be deemed to
have received the information specified in clauses (i), (ii) and (iv)
of this subsection (j) on the date (x) such information is posted at
the website of the Agent identified from time to time by the Agent to
the Lenders and the Company and (y) such posting is notified to the
Lenders (it being understood that the Company shall have satisfied the
timing obligations imposed by those clauses as of the date such
information is delivered to the Agent).
(k) Additional Borrowers. Not later than 30 days after the
delivery of the notice required to be delivered pursuant to Section
5.01(j)(vi), designate each Significant Subsidiary that is organized
under the laws of a jurisdiction in the United States and is not prior
to such date a Borrower under this Agreement to become a Designated
Subsidiary in accordance with Section 9.08; provided that Sierra Bay
Receivables, Inc., a Nevada corporation, shall not be required to
become a Borrower under this Agreement.
SECTION 5.02. Negative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, no
Borrower will:
27
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties, whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any assets
acquired or held by such Borrower or any Subsidiary in the
ordinary course of business to secure the purchase price of
such assets or to secure Debt incurred solely for the purpose
of financing the acquisition of such assets, or Liens existing
on such assets at the time of its acquisition (other than any
such Liens created in contemplation of such acquisition that
were not incurred to finance the acquisition of such assets) or
extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount, provided, however, that no
such Lien shall extend to or cover any assets of any character
other than the assets being acquired, and no such extension,
renewal or replacement shall extend to or cover any assets not
theretofore subject to the Lien being extended, renewed or
replaced,
(iii) the Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the
time such Person is merged into or consolidated with such
Borrower or any Subsidiary of such Borrower or becomes a
Subsidiary of such Borrower; provided that such Liens were not
created in contemplation of such merger, consolidation or
acquisition and do not extend to any assets other than those of
the Person so merged into or consolidated with such Borrower or
such Subsidiary or acquired by such Borrower or such
Subsidiary,
(v) Liens on cash and cash equivalents securing
obligations under Hedge Agreements, provided that the aggregate
amount of cash and cash equivalents subject to such Liens shall
not exceed $5,000,000 at any time outstanding,
(vi) without duplication of clause (ii) above, Liens,
if any, arising in connection with receivables securitization
programs, in any aggregate principal amount not to exceed
$300,000,000 at any time outstanding (for purposes of this
clause (vi), the "principal amount" of a receivables
securitization program shall mean the amounts invested by
investors that are not Affiliates of the Company in connection
with a receivables securitization program and paid to the
Company or any of its Subsidiaries, as reduced by the aggregate
amounts received by such investors from the payment of
receivables and applied to reduce such invested amounts),
(vii) other Liens securing Debt in an aggregate
principal amount not to exceed $50,000,000 at any time
outstanding, and
(viii) the replacement, extension or renewal of any Lien
permitted by clause (ii), (iii) or (iv) above upon or in the
same property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured
thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to, any Person, or permit
any of its Subsidiaries to do so, except that any Subsidiary of the
Company may merge or consolidate with or into, or dispose of assets
to, any other Subsidiary of the Company, and except that any
Subsidiary of the Company may merge into or dispose of assets to the
Company, provided, in each case, that no Default shall have occurred
and be continuing at the time of such proposed transaction or would
result therefrom.
28
(c) Subsidiary Debt. The Company shall not permit any of
its Subsidiaries to incur or at any time be liable with respect to any
Debt or to issue or have outstanding any preferred stock, except:
(i) Debt under this Agreement or any Notes;
(ii) Debt or preferred stock outstanding on the date
hereof,
(iii) Debt or preferred stock of a Subsidiary issued to
and held by the Company or a wholly-owned Subsidiary of the
Company,
(iv) Debt or preferred stock of any corporation
existing at the time such corporation becomes a Subsidiary of
the Company and not created in contemplation of such event,
(v) Invested Amounts not to exceed $250,000,000 at
any time outstanding,
(vi) refinancing, extension, renewal or refunding of
any Debt or preferred stock permitted by the foregoing clauses
(ii) though (iv), and
(vii) other Debt or preferred stock in an aggregate
principal amount not to exceed $250,000,000 at any time
outstanding.
(d) Hedge Agreements. Enter into, or permit any of its
Subsidiaries to enter into, any Hedge Agreements other than Hedge
Agreements pursuant to which such Borrower or any Subsidiary has
hedged its reasonably estimated interest rate, foreign currency or
commodity exposure.
SECTION 5.03. Financial Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Company will:
(a) Leverage Ratio. Maintain a ratio of Consolidated Debt
to Consolidated Debt plus shareholders' equity of not greater than
0.50 : 1.00:
(b) Fixed Charge Coverage Ratio. Maintain, as of the last
day of each fiscal quarter, a ratio of Consolidated EBITDA of the
Company and its Subsidiaries for the period of four fiscal quarters
then ended to interest payable on, and amortization of debt discount
in respect of, all Debt during such period by the Company and its
Subsidiaries of not less than 3.0 : 1.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable; or any Borrower shall
fail to pay any interest on any Advance or make any other payment of
fees or other amounts payable under this Agreement or any Note within
three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Borrower
herein or by any Borrower (or any of its officers) in connection with
this Agreement shall prove to have been incorrect in any material
respect when made; or
29
(c) (i) Any Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(d), (e), (h) or
(j), 5.02 or 5.03 on its part to be performed or observed, or (ii) any
Borrower shall fail to perform or observe any other term, covenant or
agreement contained in this Agreement on its part to be performed or
observed if such failure shall remain unremedied for 30 days after
written notice thereof shall have been given to such Borrower by the
Agent or any Lender; or
(d) Any Borrower or any of its Subsidiaries shall fail to
pay any principal of or premium or interest on any Debt that is
outstanding in a principal or notional amount of at least $15,000,000
in the aggregate (but excluding Debt outstanding hereunder) of such
Borrower or such Subsidiary (as the case may be), when the same
becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event
shall occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate, or to permit
the acceleration of, the maturity of such Debt; or any such Debt shall
be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof; or
(e) The Company or any of its Significant Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit
in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Company or any of its
Significant Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, custodian or
other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Company or any
of its Significant Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (e);
or
(f) Judgments or orders for the payment of money in excess
of $15,000,000 in the aggregate shall be rendered against any Borrower
or any of its Subsidiaries and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order
or (ii) there shall be any period of 30 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(g) Lafarge S.A. shall own directly or indirectly 50% or
less of the outstanding shares of Voting Stock of the Company on a
fully diluted basis; or the Company shall own directly or indirectly
50% or less of the outstanding shares of Voting Stock of any Borrower
on a fully diluted basis; or
(h) The Company or any of its ERISA Affiliates shall incur,
or shall be reasonably likely to incur liability as a result of one or
more of the following that, individually or in the aggregate, could
reasonably be likely to have a Material Adverse Effect: (i) the
occurrence of any ERISA Event; (ii) the partial or complete withdrawal
of the Company or any of its ERISA Affiliates from a Multiemployer
Plan; or (iii) the reorganization or termination of a Multiemployer
Plan;
then, and in any such event, the Agent (i) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrowers, declare the
obligation of each Lender to make Advances to be terminated, whereupon the
same shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the
Advances, all interest thereon and all other amounts payable under this
30
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by each Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to
any Borrower under the Federal Bankruptcy Code, (A) the obligation of each
Lender to make Advances shall automatically be terminated and (B) the
Advances, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by each Borrower.
ARTICLE VII
JOINT AND SEVERAL OBLIGATIONS
SECTION 7.01. Obligations Joint and Several. (a) Each Borrower
hereby absolutely, unconditionally and irrevocably agrees that all obligations
of any Borrower hereunder, now or hereafter existing under or in respect of
this Agreement and the Notes (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing obligations), whether direct or indirect, absolute or contingent,
and whether for principal, interest, premiums, fees, indemnities, contract
causes of action, costs, expenses or otherwise (all such obligations, the
"Obligations"), shall be joint and several obligations of all the Borrowers,
and agrees to pay any and all expenses (including, without limitation, fees
and expenses of counsel) incurred by the Agent or any Lender in enforcing any
rights under this Agreement or any Note. Without limiting the generality of
the foregoing, each Borrower's liability shall extend to all amounts that
constitute part of the Obligations and would be owed by any other Borrower to
the Agent or any Lender under or in respect of this Agreement or the Notes but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other
Borrower.
(b) Each Borrower, and by its acceptance of this Agreement,
the Agent and each Lender, hereby confirms that it is the intention of all
such Persons that this Article VII and the Obligations of each Borrower
hereunder not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or
state law to the extent applicable to this Article VII and the Obligations of
each Borrower hereunder. To effectuate the foregoing intention, the Agent, the
Lenders and the Borrowers hereby irrevocably agree that the Obligations of
each Borrower under this Article VII at any time shall be limited to the
maximum amount as will result in the Obligations of such Borrower under this
Article VII not constituting a fraudulent transfer or conveyance. For purposes
hereof, "Bankruptcy Law" means any proceeding of the type referred to in
Section 6.01(e) of this Agreement or Title 11, U.S. Code, or any similar
foreign, federal or state law for the relief of debtors.
(c) Each Borrower hereby unconditionally and irrevocably
agrees that in the event any payment shall be required to be made to any
Lender under this Agreement or any Note, such Borrower will contribute, to the
maximum extent permitted by law, such amounts to each other Borrower so as to
maximize the aggregate amount paid to the Lenders under or in respect of this
Agreement and the Notes.
SECTION 7.02. Joint and Several Nature of Obligations Absolute.
Each Borrower agrees that this Article VII will be observed strictly in
accordance with its terms, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of the terms of this
Article VII or the rights of any Lender with respect thereto. The Obligations
of each Borrower under or in respect of this Agreement are independent of the
Obligations of any other Borrower under or in respect of this Agreement or the
Notes, and a separate action or actions may be brought and prosecuted against
each Borrower to enforce this Agreement, irrespective of whether any action is
brought against any other Borrower or whether any other Borrower is joined in
any such action or actions. The liability of each Borrower under this Article
VII shall be irrevocable, absolute and unconditional irrespective of, and each
Borrower hereby irrevocably waives, to the fullest extent permitted by law,
any defenses it may now have or hereafter acquire in any way relating to, any
or all of the following:
(a) any lack of validity or enforceability of this Agreement
or any Note or any agreement or instrument relating thereto;
31
(b) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations or any other
obligations of any Borrower under or in respect of this Agreement or the
Notes, or any other amendment or waiver of or any consent to departure from
this Agreement or any Note, including, without limitation, any increase in the
Obligations resulting from the extension of additional credit to any Borrower
or any of its Subsidiaries or otherwise;
(c) any change, restructuring or termination of the
corporate structure or existence of any Borrower or any of its Subsidiaries;
(d) any failure of any Lender to disclose to any Borrower
any information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Borrower now or
hereafter known to such Lender (each Borrower waiving any duty on the part of
the Lenders to disclose such information);
(e) the failure of any other Person to execute or deliver
this Agreement, any Credit Agreement Supplement (as hereinafter defined) or
any other guaranty or agreement or the release or reduction of liability of
any Borrower with respect to the Obligations; or
(f) any other circumstance (including, without limitation,
any statute of limitations) or any existence of or reliance on any
representation by any Lender that might otherwise constitute a defense
available to, or a discharge of, any Borrower.
This Article VII shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Obligations is rescinded or
must otherwise be returned by any Lender or any other Person upon the
insolvency, bankruptcy or reorganization of any Borrower or otherwise, all as
though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) Each Borrower
hereby unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect
to any of the Obligations and this Article VII and any requirement that any
Lender exhaust any right or take any action against any other Borrower or any
other Person.
(b) Each Borrower hereby unconditionally and irrevocably
waives any right to revoke this Article VII and acknowledges that this Article
VII is continuing in nature and applies to all Obligations, whether existing
now or in the future.
(c) Each Borrower hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based upon an
election of remedies by any Lender that in any manner impairs, reduces,
releases of otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of such Borrower or other
rights of such Borrower to proceed against any of the other Borrowers or any
other Person and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the Obligations of such Borrower
hereunder.
(d) Each Borrower hereby unconditionally and irrevocably
waives any duty on the part of any Lender to disclose to such Borrower any
matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other
Borrower now or hereafter known by such Lender.
(e) Each Borrower acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by this Agreement and the Notes and that the waivers set forth in
this Article VII are knowingly made in contemplation of such benefits. Each
Borrower further acknowledges that it has, independently and without reliance
upon any Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement, including the provisions of this Article VII, and the Notes to
which it is or is to be a party, and such Borrower has established adequate
means of
32
obtaining from each other Borrower on a continuing basis information
pertaining to, and is now and on a continuing basis will be completely
familiar with, the business, condition (financial or otherwise), operations,
performance, properties and prospects of such other Borrower.
SECTION 7.04. Subrogation. Each Borrower hereby unconditionally
and irrevocably agrees not to exercise any rights that it may now have or
hereafter acquire against any other Borrower that arise from the existence,
payment, performance or enforcement of such Borrower's Obligations under or in
respect of this Agreement or the Notes, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of any
Lender against any other Borrower, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from any other Borrower, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and
until all of the Obligations and all other amounts payable under this
Agreement and the Notes shall have been paid in full and the Commitments shall
have expired or been terminated. If any amount shall be paid to any Borrower
in violation of the immediately preceding sentence at any time prior to the
later of (a) the payment in full in cash of all the Obligations and all other
amounts payable under this Agreement and the Notes and (b) the Termination
Date, such amount shall be received and held in trust for the benefit of the
Lenders, shall be segregated from other property and funds of such Borrower
and shall forthwith be paid or delivered to the Agent in the same form as so
received (with any necessary endorsement or assignment) to be credited and
applied to the Obligations and all other amounts payable under this Agreement
and the Notes, whether matured or unmatured, in accordance with the terms of
this Agreement. If (i) any Borrower shall make payment to any Lender of all or
any part of the Obligations, (ii) all of the Obligations and all other amounts
payable under this Agreement and the Notes shall have been paid in full in
cash and (iii) the Termination Date shall have occurred, the Lenders will, at
such Borrower's request and expense, execute and deliver to such Borrower
appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to such Borrower
of an interest in the Obligations resulting from such payment made by such
Borrower pursuant to this Agreement.
SECTION 7.05. Continuing Obligations. Without prejudice to the
survival of any of the other agreements of any Borrower under this Agreement
or any Note, the agreements and obligations of each Borrower contained in
Section 7.01 (with respect to enforcement expenses), the last sentence of
Section 7.02 and this Section 7.05 shall survive the payment in full of the
Obligations and all of the other amounts payable under this Agreement and the
Notes.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement (including, without limitation,
enforcement or collection of the Notes), the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Agent shall not be required to take any action
that exposes the Agent to personal liability or that is contrary to this
Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by any Borrower pursuant to the terms of
this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may
treat the Lender that made any Advance as the holder of the Debt resulting
therefrom until the Agent receives and accepts an Assignment and Acceptance
entered into by such Lender, as
33
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
(ii) may consult with legal counsel (including counsel for the Borrowers),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether
written or oral) made in or in connection with this Agreement; (iv) shall not
have any duty to ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of this Agreement on the part of
any Borrower or to inspect the property (including the books and records) of
any Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or other instrument
or writing (which may be by telecopier) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and
may exercise the same as though it were not the Agent; and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include Citibank in
its individual capacity. Citibank and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, any
Borrower, any Subsidiary of any Borrower and any Person who may do business
with or own securities of any Borrower or any such Subsidiary, all as if
Citibank were not the Agent and without any duty to account therefor to the
Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to indemnify
the Agent (to the extent not reimbursed by the Borrowers), ratably according
to the respective principal amounts of the Revolving Credit Advances then owed
to each of them (or if no Revolving Credit Advances are at the time
outstanding, ratably according to the respective amounts of their
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement (collectively, the "Indemnified Costs"), provided that no Lender
shall be liable for any portion of the Indemnified Costs resulting from the
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including reasonable counsel
fees) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent
that the Agent is not reimbursed for such expenses by the Borrowers. In the
case of any investigation, litigation or proceeding giving rise to any
Indemnified Costs, this Section 8.05 applies whether any such investigation,
litigation or proceeding is brought by the Agent, any Lender or a third party.
SECTION 8.06. Successor Agent. The Agent may resign at any time
by giving written notice thereof to the Lenders and the Borrowers and may be
removed at any time with or without cause by the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Agent, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent, which shall be a
commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all
34
the rights, powers, discretion, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
SECTION 8.07. Other Agents. Each Lender hereby acknowledges
that neither the documentation agent nor any other Lender designated as any
"Agent" on the signature pages hereof has any liability hereunder other than
in its capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders, do any of
the following: (a) waive any of the conditions specified in Section 3.01, (b)
increase the Commitments of the Lenders or subject the Lenders to any
additional obligations, (c) reduce or subordinate the principal of, or
interest on, the Revolving Credit Advances or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any payment of principal
of, or interest on, the Revolving Credit Advances or any fees or other amounts
payable hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Revolving Credit Advances that shall
be required for the Lenders or any of them to take any action hereunder or (f)
amend this Section 9.01; and provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Agent under this Agreement or any Note.
SECTION 9.02. Notices, Etc. (a) All notices and other
communications provided for hereunder shall be in writing (including
telecopier communication) and mailed, telecopied or delivered, if to any
Borrower, c/o the Company at its address at 00000 Xxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: Treasurer; if to any Initial Lender, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Agent, at its address at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000, Attention:
Bank Loan Syndications Department; or, as to any Borrower or the Agent, at
such other address as shall be designated by such party in a written notice to
the other parties and, as to each other party, at such other address as shall
be designated by such party in a written notice to the Borrowers and the
Agent. All such notices and communications shall, when mailed or telecopied,
be effective when deposited in the mails or telecopied, respectively, except
that notices and communications to the Agent pursuant to Article II, III or
VII shall not be effective until received by the Agent. Delivery by telecopier
of an executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
(b) Notwithstanding anything to the contrary contained in
this Agreement or any Note, (i) any notice to the Borrowers or to any one of
them required under this Agreement or any such Note that is delivered to the
Company shall constitute effective notice to the Borrowers or to any such
Borrower, including the Company and (ii) any Notice of Borrowing or any notice
of Conversion delivered pursuant to Section 2.08 may be delivered by any
Borrower or by the Company, on behalf of any other Borrower. Each Initial
Borrower (other than the Company) and each Designated Subsidiary hereby
irrevocably appoints the Company as its authorized agent to receive and
deliver notices in accordance with this Section 9.02, and hereby irrevocably
agrees that (A) in the case of clause (i) of the immediately preceding
sentence, the failure of the Company to give any notice referred to therein to
any such Initial Borrower or any such Designated Subsidiary, as the case may
be, to which such notice applies shall not impair or affect the validity of
such notice with respect thereto and (B) in the case of clause (ii) of the
immediately preceding sentence, the delivery of any such notice by the
Company, on behalf of any other Borrower, shall be binding on such other
Borrower to the same extent as if such notice had been executed and delivered
directly by such Borrower.
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SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrowers agree
jointly and severally to pay on demand all costs and expenses of the Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other
documents to be delivered hereunder, including, without limitation, (A) all
due diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal, consultant, and
audit expenses and (B) the reasonable fees and expenses of counsel for the
Agent with respect thereto and with respect to advising the Agent as to its
rights and responsibilities under this Agreement. The Borrowers further agree
jointly and severally to pay on demand all costs and expenses of the Agent and
the Lenders, if any (including, without limitation, reasonable counsel fees
and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 9.04(a).
(b) The Borrowers agree jointly and severally to indemnify
and hold harmless the Agent and each Lender and each of their Affiliates and
their officers, directors, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances or (ii) the actual or alleged presence of Hazardous Materials on any
property of the Company or any of its Subsidiaries or any Environmental Action
relating in any way to the Company or any of its Subsidiaries, except to the
extent such claim, damage, loss, liability or expense is found in a judgment
by a court of competent jurisdiction to have resulted from such Indemnified
Party's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 9.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other
Person or any Indemnified Party is otherwise a party thereto and whether or
not the transactions contemplated hereby are consummated. Each Borrower also
agrees not to assert any claim for special, indirect, consequential or
punitive damages against the Agent, any Lender, any of their Affiliates, or
any of their respective directors, officers, employees, attorneys and agents,
on any theory of liability, arising out of or otherwise relating to the Notes,
this Agreement, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance, LIBO Rate Advance is made by any Borrower to or for
the account of a Lender other than on the last day of the Interest Period for
such Advance, as a result of a payment or Conversion pursuant to Section
2.08(d) or (e), 2.10 or 2.12, acceleration of the maturity of the Notes
pursuant to Section 6.01 or for any other reason, or by an Eligible Assignee
to a Lender other than on the last day of the Interest Period for such Advance
upon an assignment of rights and obligations under this Agreement pursuant to
Section 9.07 as a result of a demand by any Borrower pursuant to Section
9.07(a), such Borrower shall, upon demand by such Lender (with a copy of such
demand to the Agent), pay to the Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(d) The Borrowers acknowledge that the distribution of
material through an electronic medium is not necessarily secure and that there
are confidentiality and other risks associated with such distribution. All
notices, financial statements, financial and other reports, certificates,
requests and other information materials (the "Communications") and the
website of the Agent (the "Platform") are provided "as is" and "as available".
The Agent does not warrant the accuracy, adequacy or completeness of the
Communications or the Platform and expressly disclaims liability for errors or
omissions in the Communications or the Platform. No warranty of any
36
kind, express, implied or statutory, including, without limitation, any
warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code
defects, is made by the Agent in connection with the Communications or the
Platform.
(e) Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in Sections 2.11, 2.14 and 9.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the
Notes.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Notes due and payable pursuant to the provisions of
Section 6.01, each Lender and each of its Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time
owing by such Lender or such Affiliate to or for the credit or the account of
any Borrower against any and all of the obligations of any Borrower now or
hereafter existing under this Agreement and the Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the applicable Borrower after any such set-off and
application, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Lender and
its Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become
effective upon satisfaction of the conditions precedent set forth in Section
3.01) when it shall have been executed by the Borrowers and the Agent and when
the Agent shall have been notified by each Initial Lender that such Initial
Lender has executed it and thereafter shall be binding upon and inure to the
benefit of each Borrower, the Agent and each Lender and their respective
successors and assigns, except that no Borrower shall have the right to assign
its rights hereunder or any interest herein without the prior written consent
of all of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender
may and, if demanded by the Company (following a demand by such Lender
pursuant to Section 2.11 or 2.14 or upon a reasonable determination by the
Company that a change in law or circumstances has created a reasonable
likelihood that such Lender will make a demand pursuant to Section 2.11 or
2.14 and only if no Event of Default has occurred and is continuing) upon at
least five Business Days' notice to such Lender and the Agent, will assign to
one or more Persons all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Revolving Credit Advances owing to it and the Revolving Credit Note or
Notes held by it); provided, however, that (i) each such assignment shall be
of a constant, and not a varying, percentage of all rights and obligations
under this Agreement (other than any right to make Competitive Bid Advances,
Competitive Bid Advances owing to it and Competitive Bid Notes), (ii) except
in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment (determined
as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $5,000,000 or an integral multiple
of $1,000,000 in excess thereof, (iii) each such assignment shall be to an
Eligible Assignee, (iv) each such assignment made as a result of a demand by
the Company pursuant to this Section 9.07(a) shall be arranged by the Company
after consultation with the Agent and shall be either an assignment of all of
the rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of
the rights and obligations of the assigning Lender under this Agreement, (v)
no Lender shall be obligated to make any such assignment as a result of a
demand by the Company pursuant to this Section 9.07(a) unless and until such
Lender shall have received one or more payments from either the Borrowers or
one or more Eligible Assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Advances owing to such Lender,
together with accrued interest thereon to the date of payment of such
principal amount and all other amounts payable to such Lender under this
Agreement, and (vi) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Revolving Credit Note subject to
such assignment and a processing
37
and recordation fee of $3,500 payable by the parties to each such assignment,
provided, however, that in the case of each assignment made as a result of a
demand by the Company, such recordation fee shall be payable by the Borrowers
except that no such recordation fee shall be payable in the case of an
assignment made at the request of the Company to an Eligible Assignee that is
an existing Lender, and (vii) each such assignment shall be made with the
consent, not to be unreasonably withheld, of the Agent and the Company,
provided that any Lender may, without the approval of the Borrowers and the
Agent, assign all or a portion of its rights to any of its Affiliates so long
as such assignment does not result in any increased cost to, or obligation of,
the Borrowers. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment and Acceptance, (x)
the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender hereunder and (y)
the Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Section 2.11,
2.14 and 9.04 to the extent any claim thereunder relates to an event arising
prior such assignment) and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrowers or the performance or
observance by the Borrowers of any of its obligations under this Agreement or
any other instrument or document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the
terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that it is an
Eligible Assignee, together with any Revolving Credit Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein
in the Register and (iii) give prompt notice thereof to the Borrowers.
(d) The Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses
of the Lenders and the Commitment of, and principal amount of the Advances
owing to, each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrowers, the Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes
of this Agreement. The Register shall be available for inspection by any
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each Lender may sell participations to one or more banks
or other entities (other than any Borrower or any Affiliate of any Borrower)
in or to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Advances owing to it and any Note or Notes held by it); provided, however,
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrowers hereunder) shall remain unchanged,
(ii) such Lender shall remain
38
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for
all purposes of this Agreement, (iv) the Borrowers, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to
approve any amendment or waiver of any provision of this Agreement or any
Note, or any consent to any departure by any Borrower therefrom, except to the
extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees
or other amounts payable hereunder, in each case to the extent subject to such
participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to any Borrower furnished to such Lender
by or on behalf of such Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to such
Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and any Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 9.08. Designated Subsidiaries. (a) Designation. The
Company may at any time and from time to time by delivery to the Agent of a
Designation Letter, duly executed by the Company and a wholly owned Subsidiary
organized under the laws of a jurisdiction in the United States and in
substantially the form of Exhibit F hereto, designate such Subsidiary as a
"Designated Subsidiary" for all purposes of this Agreement, and, upon
fulfillment of the applicable conditions set forth in Article III and after
such Designation Letter is accepted by the Agent, such Subsidiary shall
thereupon become a Designated Subsidiary for all purposes of this Agreement
and, as such, shall have all of the rights and obligations of a Borrower
hereunder. The Agent shall promptly notify each Lender of each such
designation by the Company and the identity of each such Designated
Subsidiary.
(b) Termination. Upon the payment and performance in full of
all of the indebtedness, liabilities and obligations of any Borrower (other
than the Company or any Borrower that is a Significant Subsidiary that is
organized under the laws of a jurisdiction in the United States) under this
Agreement and the Notes issued by it, then, so long as at such time such
Borrower has not submitted a Notice of Revolving Credit Borrowing, such
Borrower's status as a Borrower shall terminate upon notice to such effect
from the Agent to the Lenders (which notice the Agent shall promptly deliver
to the Lenders following its receipt of such a request from the Company).
Thereafter, the Lenders shall be under no further obligation to make any
Revolving Credit Advances to such Borrower.
SECTION 9.09. Confidentiality. Neither the Agent nor any Lender
shall disclose any Confidential Information to any other Person without the
consent of the Company, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and,
as contemplated by Section 9.07(f), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any
law, rule or regulation or judicial process and (d) as requested or required
by any state, federal or foreign authority or examiner regulating banks or
banking.
SECTION 9.10. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State
of New York.
SECTION 9.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
39
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any New York State court or federal court
of the United States of America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or the Notes, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each Borrower hereby
agrees that service of process in any such action or proceeding brought in the
any such New York State court or in such federal court may be made upon The
Xxxxxxxx-Xxxx Corporation System, Inc. at its offices at 00 Xxxxx Xxxxxx,
Xxxxxx, Xxx Xxxx 00000-0000 (the "Process Agent") and each Borrower hereby
irrevocably appoints the Process Agent its authorized agent to accept such
service of process, and agrees that the failure of the Process Agent to give
any notice of any such service shall not impair or affect the validity of such
service or of any judgment rendered in any action or proceeding based thereon.
Each Borrower hereby further irrevocably consents to the service of process in
any action or proceeding in such courts by the mailing thereof by any parties
hereto by registered or certified mail, postage prepaid, to such Borrower at
its address specified pursuant to Section 9.02, with a copy addressed to the
Law Department. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or the Notes
in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection that it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or the Notes in any New York State or federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 9.13. Waiver of Jury Trial. Each of the Borrowers, the
Agent and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
LAFARGE NORTH AMERICA INC.
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Vice President & Treasurer
LAFARGE FLORIDA, INC.
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Treasurer
LAFARGE MIDWEST, INC.
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Treasurer
40
LAFARGE SOUTHWEST, INC.
By /s/ Xxxxxx Xxxxxx
-------------------
Title: Vice President & Treasurer
LAFARGE WEST, INC.
By /s/ Xxxxxx Xxxxxx
-------------------
Title: Vice President & Treasurer
MINERAL SOLUTIONS, INC.
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Treasurer
PRESQUE ISLE CORPORATION
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Treasurer
REDLAND GENSTAR, INC.
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Vice President & Treasurer
REDLAND QUARRIES NY, INC.
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Vice President & Treasurer
WMI FINANCE CORPORATION
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Vice President
CITIBANK, N.A.,
as Agent
By /s/ Brigitte Vvong
-------------------
Title: Vice President
41
Initial Lenders
Commitment
----------
Administrative Agent
--------------------
$40,000,000 CITIBANK, N.A.
By /s/ Brigitte Vvong
-------------------
Title: Vice President
Syndication Agent
-----------------
$40,000,000 WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Xxxxx Xxxxx
----------------
Title: Vice President
Lenders
-------
$30,000,000 BANK ONE, NA
By /s/ Xxxxx Xxxxx
----------------
Title: Director
$30,000,000 BNP PARIBAS
By /s/ Xxxxxx Xxxxxx du Xxxxxx
---------------------------
Title: Vice President
By /s/ Xxxxxx d Humieres
---------------------
Title: Vice President
$30,000,000 SUNTRUST BANK
By /s/ Xxxxxx Xxxxx
-----------------
Title: Director
$25,000,000 BANK OF AMERICA, N.A.
By /s/ Xxxxxxxxx Xxxx
------------------
Title: Managing Director
$25,000,000 BANK OF MONTREAL
By /s/ Xxx Xxxxx
-------------
Title: Vice President
42
$25,000,000 BAYERISCHE LANDESBANK GIROZENTRALE
By /s/ Herewald Xxxxxxxx
---------------------
Title: Senior Vice President
By /s/ Xxxxx X. Xxxxx
------------------
Title: Vice President
$22,500,000 FIRSTAR BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxxx Xxxx
----------------
Title: Vice President
By /s/ Xxxxxxx Xxxxxxx
-------------------
Title: AVP
$20,000,000 THE BANK OF NOVA SCOTIA
By /s/ Xxxx Xxxxxx
---------------
Title: Managing Director
$12,500,000 XXXXX FARGO BANK, N.A.
By /s/ Xxxx Xxxx
-------------
Title: Vice President
$300,000,000 Total of the Commitments
43
