CREDIT AGREEMENT
among
AMERICAN HOME PRODUCTS CORPORATION,
THE LENDERS PARTIES HERETO
X.X. XXXXXX SECURITIES INC.,
as Bookrunner and Lead Arranger
CITIBANK, N.A.
and
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES,
as Co-Syndication Agents,
THE DAI ICHI KANGYO BANK, LTD.
and
THE BANK OF NOVA SCOTIA,
as Co-Documentation Agents
and
JPMORGAN CHASE BANK
(f/k/a The Chase Manhattan Bank),
as Administrative Agent
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Dated as of March 4, 2002
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$3,000,000,000
CREDIT AGREEMENT, dated as of March 4, 2002, among AMERICAN HOME PRODUCTS
CORPORATION, a Delaware corporation (the "Company"), the several banks and other
financial institutions from time to time parties to this Agreement
(collectively, the "Lenders"; individually, a "Lender"), CITIBANK, N.A. and
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as co-syndication agents (in
such capacity, the "Co-Syndication Agents"), THE DAI ICHI KANGYO BANK, LTD. and
THE BANK OF NOVA SCOTIA, as co-documentation agents (in such capacity, the
"Co-Documentation Agents") and JPMORGAN CHASE BANK (f/k/a The Chase Manhattan
Bank), a New York banking corporation, as administrative agent for the Lenders
hereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company has requested the Lenders to make loans to it in an
amount up to $3,000,000,000 as more particularly described herein;
WHEREAS, the Lenders are willing to make such loans on the terms and
conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, terms defined in the preamble
to this Agreement have the meanings therein indicated, and the following terms
have the following meanings:
"Absolute Rate Bid Loan Request": any Bid Loan Request requesting the
Bid Loan Lenders to offer to make Bid Loans at an absolute rate (as opposed
to a rate composed of the Applicable Index Rate plus (or minus) a margin).
"Adjusted Capitalization": at any time, the sum of Consolidated
Adjusted Indebtedness plus Consolidated Net Worth.
"Administrative Agent": as defined in the first paragraph of this
Agreement.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, a Person shall be
deemed to be "controlled by" a Person if such Person possesses, directly or
indirectly, power either (a) to vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or (b)
to direct or cause the direction of the management and policies of such
Person whether by contract or otherwise.
"Aggregate Commitments": at any time the sum of the Commitments then
in effect hereunder.
"Aggregate Loans": at a particular time, the sum of the then aggregate
outstanding principal amount of Committed Rate Loans and Bid Loans.
"Agreement": this Credit Agreement, as amended, supplemented or
modified from time to time in accordance with its terms.
"Alternate Base Rate": for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base C/D Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall
mean the rate of interest per annum publicly announced from time to time by
JPMCB as its prime rate in effect at its principal office in New York City
(each change in the Prime Rate to be effective on the date such change is
publicly announced); "Base C/D Rate" shall mean the sum (rounded upwards,
if necessary, to the next 1/16 of 1%) of (a) the product of (i) the
Three-Month Secondary C/D Rate and (ii) a fraction, the numerator of which
is one and the denominator of which is one minus the C/D Reserve Percentage
and (b) the C/D Assessment Rate; "Three-Month Secondary C/D Rate" shall
mean, for any day, the secondary market rate for three-month certificates
of deposit reported as being in effect on such day (or, if such day shall
not be a Business Day, the immediately preceding Business Day) by the Board
of Governors of the Federal Reserve System (the "Board") through the public
information telephone line of the Federal Reserve Bank of New York (which
rate will, under the current practices of the Board of Governors of the
Federal Reserve System, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such rate shall not
be so reported on such day or such immediately preceding Business Day, the
average of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at
approximately 10:00 A.M., New York City time, on such day (or, if such day
shall not be a Business Day, on the immediately preceding Business Day) by
the Administrative Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it; and "Federal Funds
Effective Rate" shall mean, for any day, the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published on the next succeeding Business Day, the
average of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it. If for any reason the Administrative Agent shall
have determined (which determination shall be conclusive in the absence of
manifest error) that it is unable to ascertain the Base C/D Rate or the
Federal Funds Effective Rate, or both, for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate Base Rate
shall be determined without regard to clause (b) or (c), or both, of the
first sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate
Base Rate due to a change in the Prime Rate, the Three-Month Secondary C/D
Rate or the Federal Funds Effective Rate shall be effective on the opening
of business on the date of such change.
"Alternate Base Rate Loans": Committed Rate Loans that bear interest
at an interest rate based on the Alternate Base Rate.
"Applicable Index Rate": in respect of any Bid Loan requested pursuant
to an Index Rate Bid Loan Request, the Eurodollar Rate applicable to the
Interest Period for such Bid Loan.
"Applicable Margin": for any day, (x) in the case of Alternate Base
Rate Loans, 0% and (y) in the case of Eurodollar Loans, the rate per annum
set forth below opposite the Rating Period then in effect, provided that
during a Significant Usage Period, the Applicable Margin for all such Loans
shall be increased by (i) .125% during a Category A Period, a Category B
Period and/or a Category C Period and (ii) .250% during a Category D
Period:
Eurodollar
Rating Rate
Period Margin
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Category A Period .305%
Category B Period .42%
Category C Period .65%
Category D Period .875%
"Base C/D Rate": as defined in the definition of Alternate Base Rate.
"Bid Loan": each Bid Loan made pursuant to subsection 2.2.
"Bid Loan Confirmation": each confirmation by the Company of its
acceptance of Bid Loan Offers, which Bid Loan Confirmation shall be
substantially in the form of Exhibit F and shall be delivered to the
Administrative Agent by facsimile transmission.
"Bid Loan Date": in respect of a Bid Loan, the day on which a Bid Loan
Lender makes such Bid Loan pursuant to subsection 2.2.
"Bid Loan Lenders": Lenders from time to time designated as Bid Loan
Lenders by the Company by written notice to the Administrative Agent (which
notice the Administrative Agent shall transmit to each such Bid Loan
Lender).
"Bid Loan Offer": each offer by a Bid Loan Lender to make Bid Loans
pursuant to a Bid Loan Request, which Bid Loan Offer shall contain the
information specified in Exhibit D, in the case of an Absolute Rate Bid
Loan Request, or Exhibit E, in the case of an Index Rate Bid Loan Request,
and shall be delivered to the Administrative Agent by facsimile
transmission or by telephone immediately confirmed by facsimile
transmission.
"Bid Loan Request": each request by the Company for Bid Loan Lenders
to submit bids to make Bid Loans, which shall contain the information in
respect of such requested Bid Loans specified in Exhibit B and shall be
delivered to the Administrative Agent by facsimile transmission or by
telephone, immediately confirmed by facsimile transmission.
"Borrowing Date": in respect of any Committed Rate Loan, the date such
Committed Rate Loan is made.
"Business": as defined in subsection 3.10(b).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or required by
law to close; provided, however, that when used in connection with a rate
determination, borrowing or payment in respect of a Eurodollar Loan or an
Index Rate Bid Loan, the term "Business Day" shall also exclude any day on
which commercial banks are not open for dealings in Dollar deposits in the
London interbank market.
"Category A Period": subject to the Category Rules, at any time that
either (i) the S&P Credit Rating is A or better and the Short-Term Ratings
are Tier I or (ii) the Xxxxx'x Credit Rating is A2 or better and the
Short-Term Ratings are Tier I.
"Category B Period": subject to the Category Rules, at any time that
either (i) the S&P Credit Rating is A- or better or (ii) the Xxxxx'x Credit
Rating is A3 or better and in either case a Category A Period is not then
in effect.
"Category C Period": subject to the Category Rules, at any time that
either (i) the S&P Credit Rating is BBB+ or (ii) the Xxxxx'x Credit Rating
is Baa1.
"Category D Period": subject to the Category Rules, at any time that
either (i) the S&P Credit Rating is BBB or lower or (ii) the Xxxxx'x Credit
Rating is Baa2 or lower.
"Category Rules": the Rating Period applicable at any time shall be:
(a) except as provided in clause (b), (c) and (d) below, the highest Rating
Period for which the Company meets either of the criteria set forth for
such Rating Period, (b) except as provided in clauses (c) and (d) below, if
the Credit Ratings differ by two or more Rating Period levels, the Rating
Period which is one Rating Period above the Rating Period in which the
lower Credit Ratings falls, (c) if one of the Credit Ratings falls in a
Category D Period and the other Credit Rating falls in a higher Rating
Period, a Category D Period and (d) if either S&P or Xxxxx'x fails to have
outstanding at the time a Credit Rating due to the failure by the Company
to provide requested information to, or otherwise to fully cooperate with,
such rating agency in establishing a Credit Rating, a Category D Period. If
the rating system of Xxxxx'x, S&P and/or Fitch shall change, or if any such
rating agency shall cease to be in the business of rating corporate debt
obligations, or if both Xxxxx'x and S&P shall fail to have outstanding a
Credit Rating (other than by reason of the circumstances referred to in
clause (d) of the preceding sentence), the Company and the Lenders shall
negotiate in good faith to amend this definition to reflect such changed
rating system or the unavailability of ratings from such rating agency and,
pending the effectiveness of any such amendment, the applicable Rating
Period shall be determined by reference to the ratings most recently in
effect prior to such change or cessation.
"C/D Assessment Rate": for any day, the net annual assessment rate
(rounded upward to the nearest 1/100th of 1%) determined by JPMCB to be
payable on such day to the Federal Deposit Insurance Corporation or any
successor ("FDIC") for FDIC's insuring time deposits made in Dollars at
offices of JPMCB in the United States.
"C/D Reserve Percentage": for any day that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor), for determining
the maximum reserve requirement for a member bank of the Federal Reserve
System in New York City with deposits exceeding one billion Dollars in
respect of new non-personal time deposits in Dollars in New York City
having a three month maturity and in an amount of $100,000 or more.
"Co-Documentation Agents": as defined in the first paragraph of this
Agreement.
"Co-Syndication Agents": as defined in the first paragraph of this
Agreement.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment": as to any Lender, the obligation of such Lender to make
Committed Rate Loans to the Company hereunder in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule I hereof, as such amount may from
time to time be reduced in accordance with this Agreement; collectively, as
to all the Lenders, the "Commitments".
"Commitment Percentage": as to any Lender at any time, the percentage
which such Lender's Commitment then constitutes of the Aggregate
Commitments (or (x) at any time after the Termination Date, (y) at any time
after the Commitments shall have expired or terminated and (z) for the
purposes of declaring the Loans to be due and payable pursuant to Section
6, the percentage which the aggregate principal amount of such Lender's
Loans then outstanding constitutes of the aggregate principal amount of the
Loans then outstanding).
"Commitment Period": the period from and including the Effective Date
to, but not including, the Termination Date or such earlier date on which
the Commitments shall terminate as provided herein.
"Commitment Transfer Supplement": a Commitment Transfer Supplement,
substantially in the form of Exhibit G.
"Committed Rate Loans": Loans made pursuant to subsection 2.1(a).
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Company within the meaning of
Section 4001 of ERISA or is part of a group which includes the Company and
which is treated as a single employer under Section 414 of the Code.
"Company": as defined in the first paragraph of this Agreement.
"Consolidated Adjusted Indebtedness": at any date of determination,
(i) Consolidated Indebtedness at such date minus (ii) all cash, cash
equivalents and marketable securities held by the Company and its
Subsidiaries at such date free of liens, restrictions and other
encumbrances (other than as arising by operation of law in the ordinary
course of business).
"Consolidated Indebtedness": at any date of determination, the
principal amount of all Indebtedness of the Company and its Subsidiaries
required in accordance with GAAP to be accounted for as debt, determined on
a consolidated basis in accordance with GAAP, provided that there shall be
excluded from Consolidated Indebtedness up to $500,000,000 in respect of
Financing Leases arising as a result of sale-leaseback transactions and
which would otherwise be included in the calculation of Consolidated
Indebtedness.
"Consolidated Net Worth": at any date of determination, the
stockholders' equity of the Company and its Subsidiaries determined in
accordance with GAAP and as would be reflected on a consolidated balance
sheet of the Company and its Subsidiaries plus the minority interests
reflected on such consolidated balance sheet; provided that there shall be
excluded from determining Consolidated Net Worth of the Company and its
Subsidiaries (i) any foreign currency translation adjustment which
otherwise would be included therein, (ii) the non-cash effects of any
accounting standards adopted or issued by the Financial Accounting
Standards Board after September 9, 1994 and (iii) the non-cash effects of
any unusual charges or restructuring charges.
"Consolidated Tangible Assets": at the time of determination thereof,
the aggregate amount of all assets (as reflected on a consolidated balance
sheet of the Company and its Subsidiaries) after deducting therefrom all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expenses (to the extent included in said aggregate amount of assets) and
other like intangibles, as set forth on the most recent consolidated
balance sheet of the Company and its Subsidiaries and computed in
accordance with GAAP.
"Continuing Director": as defined in subsection 6(h).
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Ratings": at any time, the then Xxxxx'x Credit Rating and the
then S&P Credit Rating.
"Default": any of the events specified in Section 6, whether or not
any requirement for the giving of notice or the lapse of time, or both, or
any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Effective Date": the date on which each of the conditions specified
in subsection 4.1 are satisfied in full or waived in accordance with this
Agreement.
"Eligible Transferee": shall mean and include a commercial bank,
financial institution or other "accredited investor" (as defined in
Regulation D of the Securities Act of 1933, as amended).
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability
or standards of conduct concerning protection of human health or the
environment, as now or may at any time be in effect during the term of this
Agreement.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Loans": Committed Rate Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan or an Index Rate Bid Loan, the rate
per annum equal to the rate of interest determined on the basis of the rate
for deposits in Dollars for a period equal to such Interest Period
commencing on the first day of such Interest Period appearing on Page 3750
of the Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate Service (or otherwise on such
service), the "Eurodollar Rate" shall be determined by reference to such
other publicly available service for displaying eurodollar rates as may be
agreed upon by the Administrative Agent and Company or, in the absence of
such agreement, the "Eurodollar Rate" shall instead be the rate per annum
equal to the average (rounded upward to the nearest 1/16 of 1%) of the
respective rates notified to the Administrative Agent by each of the
Reference Lenders as the rate at which such Reference Lender is offered
Dollar deposits at or about 10:00 A.M., New York City time, two Business
Days prior to the beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency and exchange
operations of such Reference Lender are then being conducted for delivery
on the first day of such Interest Period for the number of days comprised
therein and in an amount (i) in the case of Eurodollar Loans, comparable to
the amount of the Eurodollar Loan of such Reference Lender to be
outstanding during such Interest Period and (ii) in the case of an Index
Rate Bid Loan by a Bid Loan Lender, equal to the amount of the Index Rate
Bid Loan or Loans of such Bid Loan Lender to which such Interest Period
applies.
"Event of Default": any of the events specified in Section 6;
provided, however, that any requirement for the giving of notice or the
lapse of time, or both, or any other condition, has been satisfied.
"Existing 364-Day Credit Agreement": the Credit Agreement, dated as of
March 5, 2001, among the Company, the lenders party thereto and JPMCB, as
administrative agent, as in effect immediately prior to the occurrence of
the Effective Date.
"Existing 5-Year Credit Agreement": the Credit Agreement, dated as of
September 9, 1994, among the Company, various of its subsidiaries, the
financial institutions from time to time party thereto and JPMCB, as
administrative agent, as the same has been amended, restated, modified
and/or otherwise supplemented through the Effective Date.
"Facility Fee": as defined in subsection 2.4.
"Facility Fee Percentage": a percentage equal to at any time (i)
during a Category A Period, .07%, (ii) during a Category B Period, .08%,
(iii) during a Category C Period, .10% and (iv) during a Category D Period,
.125%.
"Federal Funds Effective Rate": as defined in the definition of
"Alternate Base Rate".
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Fitch": Fitch, Inc.
"GAAP": generally accepted accounting principles in effect in the
United States of America from time to time.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Company in
good faith.
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is evidenced by
a note, bond, debenture or similar instrument, (c) all obligations of such
Person under Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of such Person and
(e) all liabilities secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise become liable
for the payment thereof.
"Index Rate Bid Loan": any Bid Loan made at an interest rate based
upon the Applicable Index Rate (as opposed to an absolute rate).
"Index Rate Bid Loan Request": any Bid Loan Request requesting the Bid
Loan Lenders to offer to make Index Rate Bid Loans at an interest rate
equal to the Applicable Index Rate plus (or minus) a margin.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of such term as used in
Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan, the
last day of each March, June, September and December to occur while such
Loan is outstanding and the Maturity Date, (b) as to any Eurodollar Loan
having an Interest Period of three months or less, the last day of such
Interest Period, and (c) as to any Eurodollar Loan having an Interest
Period longer than three months, each day which is three months after the
first day of such Interest Period and the last day of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar Loan,
(i) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected
by the Company in the notice of borrowing or notice of conversion
given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected
by the Company by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of the then
current Interest Period with respect thereto; and
(b) with respect to any Bid Loan, the period commencing on the Bid
Loan Date with respect to such Bid Loan and ending on the date not less
than 7 nor more than 180 days thereafter, as specified by the Company in
such Bid Loan Request;
provided that the foregoing provisions are subject to the following:
(A) if any Interest Period pertaining to a Eurodollar Loan or an
Index Rate Bid Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(B) any Interest Period pertaining to a Eurodollar Loan or an
Index Rate Bid Loan that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the relevant calendar month;
(C) if any Interest Period pertaining to a Bid Loan made pursuant
to an Absolute Rate Bid Loan Request would otherwise end on a day
which is not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day;
(D) if the Company shall fail to give notice as provided above,
the Company shall be deemed to have selected an Alternate Base Rate
Loan to replace the affected Eurodollar Loan;
(E) any Interest Period in respect of (x) any Eurodollar Loan
made at a time when a Term Out Notice has not been given or (y) any
Bid Loan which, in each case, would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(F) any Interest Period in respect of any Loan that would
otherwise extend beyond the Maturity Date shall end on the Maturity
Date.
"JPMCB": JPMorgan Chase Bank (f/k/a The Chase Manhattan Bank).
"Lender": as defined in the first paragraph of this Agreement.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
and any Financing Lease having substantially the same economic effect as
any of the foregoing).
"Loans": the collective reference to the Committed Rate Loans and the
Bid Loans.
"Majority Lenders": at any time, the Lenders whose Commitment
Percentages hereunder aggregate in excess of 50%.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole, (b) the ability of the
Company to perform its obligations under this Agreement or (c) the validity
or enforceability of this Agreement or the rights or remedies of the
Administrative Agent or the Lenders hereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date": the Termination Date, provided that if the Company
has delivered to the Administrative Agent a Term Out Notice, then the
Maturity Date shall be the date which is the first anniversary of the
Termination Date.
"Moody's": Xxxxx'x Investors Service, Inc.
"Moody's Credit Rating": at any time, the rating level (it being
understood that numerical modifiers and (+) (-) modifiers shall constitute
rating levels) then assigned by Moody's to the Company's senior unsecured
long-term debt.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Participant": as defined in subsection 8.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Permitted Liens":
1. Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Company or its
Subsidiaries, as the case may be, in conformity with GAAP (or, in the case
of Subsidiaries with significant operations outside of the United States of
America, generally accepted accounting principles in effect from time to
time in their respective jurisdictions of organization);
2. carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings;
3. pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
4. deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business; and
5. any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred to in
the foregoing clauses; provided that the principal amount of Indebtedness
secured thereby shall not exceed the principal amount of Indebtedness so
secured at the time of such extension, renewal or replacement, and that
such extension, renewal or replacement Lien shall be limited to all or a
part of the property which secured the Lien so extended, renewed or
replaced (plus improvements on such property).
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at any particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate" as defined in the definition of Alternate Base Rate.
"Properties": as defined in subsection 3.10(a).
"Purchasing Lenders": as defined in subsection 8.6(c).
"Rating Period": at any time, any of the Category A Period, the
Category B Period, the Category C Period or the Category D Period as then
in effect.
"Reference Lenders": initially, JPMCB, Citibank, N.A. and Commerzbank
AG, New York and Grand Cayman Branches.
"Register": as defined in subsection 8.6(d).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of such
term as used in Section 4241 of ERISA.
"Replaced Lender" and "Replacement Lender": each as defined in
subsection 2.18.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty-day notice period is
waived under subsections .22, .23, .25, .27, or .28 of PBGC Reg. Section
4043.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-laws or other organizational or governing documents of
such Person, and each law, treaty, rule or regulation or determination of
an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": the Executive Vice President, the Senior Vice
President and CFO, the Treasurer, the Comptroller, the Assistant
Comptroller or the Assistant Treasurer of the Company.
"S&P": Standard & Poor's Ratings Services, a division of XxXxxx-Xxxx,
Inc.
"S&P Credit Rating": at any time, the rating level (it being
understood that numerical modifiers and (+) (-) modifiers shall constitute
rating levels) then assigned by S&P to the Company's senior unsecured
long-term debt.
"Short-Term Ratings": at any time, the rating level then assigned by
each of S&P, Xxxxx'x and Fitch to the Company's senior unsecured short-term
debt.
"SEC": the Securities and Exchange Commission.
"Significant Subsidiary": any Subsidiary that satisfies the
requirements of Rule 1-02(w) of Regulation S-X as adopted by the Securities
and Exchange Commission under the provisions of the Securities Act of 1933
and the Securities Exchange Act of 1934 as in force on the date of this
Agreement.
"Significant Usage Period": any date (i) on which the Aggregate Loans
exceed 25% of the Aggregate Commitments or (ii) occurring after the
Termination Date on which Loans are outstanding.
"Single Employer Plan": any Plan which is subject to Title IV of
ERISA, but is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Company.
Notwithstanding the foregoing, Unrestricted Subsidiaries shall not be
considered Subsidiaries of the Company for purposes of this Agreement,
except that any Unrestricted Subsidiary shall be treated as a consolidated
Subsidiary of the Company for purposes of calculating compliance with
subsection 5.9 (and the definitions required to make such calculations)
until such time as the Company certifies to the Administrative Agent that
with respect to such Unrestricted Subsidiary, (x) the Company no longer
desires to treat such Person as a consolidated Subsidiary for such purpose
and (y) no creditor of such Person has recourse (whether pursuant to a
guaranty or similar arrangement, or otherwise) to the Company or any of its
Significant Subsidiaries with respect to any material obligations of such
Person.
"Taxes": as defined in subsection 2.17(a).
"Termination Date": the earlier of (a) the Business Day immediately
preceding the first anniversary of the Effective Date and (b) the date on
which the Commitments shall terminate in accordance with the provisions of
this Agreement.
"Term Out Notice": a written notice given by the Company to the
Administrative Agent (which will promptly transmit same to all the Lenders)
given no more than 30 days and no less than one Business Day prior to the
Termination Date stating that the Company has elected to extend the
maturity of all Committed Rate Loans outstanding on the Termination Date to
the date which is the first anniversary of the Termination Date (it being
understood and agreed that the one Business Day notice requirement referred
to above is not intended to limit or otherwise modify any other notice
requirements provided in this Agreement).
"Three-Month Secondary C/D Rate": as defined in the definition of
Alternate Base Rate.
"Tier I": at any time when at least two of the Short-Term Ratings are
at or above the A-1, P-1 or F-1 levels.
"Tranche": the collective reference to Eurodollar Loans whose Interest
Periods begin and end on the same day.
"Transferee": as defined in subsection 8.6(f).
"Transfer Effective Date": as defined in each Commitment Transfer
Supplement.
"2.17 Certificate": as defined in subsection 2.17(b).
"Type": as to any Loan, its nature as an Alternate Base Rate Loan or
Eurodollar Loan, as the case may be.
"Unrestricted Subsidiary": Any Person designated by the Company, in
each case so long as (i) a majority of the equity interests are owned by
the Company and its Subsidiaries and (ii) the Company and its Subsidiaries
are unable to exercise control over such Person without material
restriction.
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when used in
any certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the Company and its
Subsidiaries not defined in subsection 1.1 and accounting terms partly
defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. THE COMMITTED RATE LOANS; THE BID LOANS; AMOUNT AND TERMS
2.1 The Committed Rate Loans. (a) During the Commitment Period, subject to
the terms and conditions hereof, each Lender severally agrees to make loans
(individually, a "Committed Rate Loan") to the Company from time to time in an
aggregate principal amount at any one time outstanding not to exceed (after
giving effect to the simultaneous use of the proceeds thereof to repay Loans)
such Lender's Commitment, provided that no Committed Rate Loan shall be made
hereunder which would result in the Aggregate Loans (after giving effect to the
simultaneous use of the proceeds thereof to repay Loans) being in excess of the
Aggregate Commitments then in effect. The Company may use the Commitments to
borrow, repay and reborrow Committed Rate Loans from time to time during the
Commitment Period, all in accordance with the terms and conditions hereof.
(b) The Committed Rate Loans may be (i) Eurodollar Loans, (ii)
Alternate Base Rate Loans or (iii) a combination thereof.
(c) The Company may borrow Committed Rate Loans on any Business Day;
provided, however, that the Company, shall give the Administrative Agent
irrevocable notice thereof (which notice must be received by the
Administrative Agent (i) prior to 12:00 Noon, New York City time, three
Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans and (ii) prior to 11:00 A.M., New York City time, on the
requested Borrowing Date, in the case of Alternate Base Rate Loans). Each
such notice shall be given by facsimile transmission substantially in the
form of Exhibit A (with appropriate insertions) or shall be given by
telephone (specifying the information set forth in Exhibit A) promptly
confirmed by notice given by facsimile transmission substantially in the
form of Exhibit A (with appropriate insertions). On the day of receipt of
any such notice from the Company, the Administrative Agent shall promptly
notify each Lender thereof. Each Lender will make the amount of its share
of each borrowing available to the Administrative Agent for the account of
the Company at the office of the Administrative Agent set forth in
subsection 8.2 by 11:00 A.M. (or 3:00 P.M., in the case of Alternate Base
Rate Loans), New York City time, on the Borrowing Date requested by the
Company in funds immediately available to the Administrative Agent as the
Administrative Agent may direct. The proceeds of all such Committed Rate
Loans will then be promptly made available to the Company by the
Administrative Agent at the office of the Administrative Agent specified in
subsection 8.2 by crediting the account of the Company on the books of such
office of the Administrative Agent with the aggregate of the amount made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
(d) All Committed Rate Loans shall be due and payable upon the
Maturity Date.
2.2 The Bid Loans. (a) The Company may borrow Bid Loans from time to time
on any Business Day during the Commitment Period in the manner set forth in this
subsection and in amounts such that the Aggregate Loans at any time outstanding
shall not exceed (after giving effect to the simultaneous use of the proceeds
thereof to repay Loans) the Aggregate Commitments at such time, provided,
however, that the aggregate principal amount of the outstanding Bid Loans of a
Bid Loan Lender may (but shall not be required to) exceed its Commitment.
(b) (i) The Company, shall request Bid Loans by delivering a Bid Loan
Request to the Administrative Agent, not later than 12:00 Noon (New York
City time) four Business Days prior to the proposed Bid Loan Date (in the
case of an Index Rate Bid Loan Request), and not later than 10:00 A.M. (New
York City time) one Business Day prior to the proposed Bid Loan Date (in
the case of an Absolute Rate Bid Loan Request). Each Bid Loan Request may
solicit bids for Bid Loans in an aggregate principal amount of $50,000,000
or an integral multiple of $5,000,000 in excess thereof and for not more
than three alternative Interest Periods for such Bid Loans. The Interest
Period for each Bid Loan shall end not less than 7 days (one month in the
case of Index Rate Bid Loans) nor more than 180 days (six months in the
case of Index Rate Bid Loans) after the Bid Loan Date therefor (and in any
event subject to the proviso to the definition of "Interest Period" in
subsection 1.1). The Administrative Agent shall promptly notify each Bid
Loan Lender by facsimile transmission of the contents of each Bid Loan
Request received by it.
(ii) In the case of an Index Rate Bid Loan Request, upon receipt of
notice from the Administrative Agent of the contents of such Bid Loan
Request, any Bid Loan Lender that elects, in its sole discretion, to do so,
shall irrevocably offer to make one or more Bid Loans to the Company at the
Applicable Index Rate plus or minus a margin for each such Bid Loan
determined by such Bid Loan Lender, in its sole discretion. Any such
irrevocable offer shall be made by delivering a Bid Loan Offer to the
Administrative Agent before 10:30 A.M. (New York City time) three Business
Days before the proposed Bid Loan Date, setting forth the maximum amount of
Bid Loans for each Interest Period, and the aggregate maximum amount for
all Interest Periods, which such Lender would be willing to make (which
amount may, subject to subsection 2.2(a), exceed such Lender's Commitment)
and the margin above or below the Applicable Index Rate at which such Bid
Loan Lender is willing to make each such Bid Loan; the Administrative Agent
shall advise the Company before 11:15 A.M. (New York City time) three
Business Days before the proposed Bid Loan Date of the contents of each
such Bid Loan Offer received by it. If the Administrative Agent in its
capacity as a Bid Loan Lender shall, in its sole discretion, elect to make
any such offer, it shall advise the Company of the contents of its Bid Loan
Offer before 10:15 A.M. (New York City time) three Business Days before the
proposed Bid Loan Date.
(iii) In the case of an Absolute Rate Bid Loan Request, upon receipt
of notice from the Administrative Agent of the contents of such Bid Loan
Request, any Bid Loan Lender that elects, in its sole discretion, to do so,
shall irrevocably offer to make one or more Bid Loans to the Company at a
rate or rates of interest for each such Bid Loan determined by such Bid
Loan Lender in its sole discretion. Any such irrevocable offer shall be
made by delivering a Bid Loan Offer to the Administrative Agent before 9:30
A.M. (New York City time) on the proposed Bid Loan Date, setting forth the
maximum amount of Bid Loans for each Interest Period, and the aggregate
maximum amount for all Interest Periods, which such Bid Loan Lender would
be willing to make (which amount may, subject to subsection 2.2(a), exceed
such Bid Loan Lender's Commitment) and the rate or rates of interest at
which such Bid Loan Lender is willing to make each such Bid Loan; the
Administrative Agent shall advise the Company before 10:15 A.M. (New York
City time) on the proposed Bid Loan Date of the contents of each such Bid
Loan Offer received by it. If the Administrative Agent in its capacity as a
Bid Loan Lender shall, in its sole discretion, elect to make any such
offer, it shall advise the Company of the contents of its Bid Loan Offer
before 9:15 A.M. (New York City time) on the proposed Bid Loan Date.
(iv) The Company shall before 11:45 A.M. (New York City time) three
Business Days before the proposed Bid Loan Date (in the case of Bid Loans
requested by an Index Rate Bid Loan Request) and before 10:45 A.M. (New
York City time) on the proposed Bid Loan Date (in the case of Bid Loans
requested by an Absolute Rate Bid Loan Request) either, in its absolute
discretion:
(A) cancel such Bid Loan Request by giving the Administrative
Agent telephone notice to that effect, or
(B) accept one or more of the offers made by any Bid Loan Lender
or Bid Loan Lenders pursuant to clause (ii) or clause (iii) above, as
the case may be, by giving telephone notice to the Administrative
Agent (immediately confirmed by delivery to the Administrative Agent
of a Bid Loan Confirmation) of the amount of Bid Loans for each
relevant Interest Period to be made by each Bid Loan Lender (which
amount shall be equal to or less than the maximum amount for such
Interest Period specified in the Bid Loan Offer of such Bid Loan
Lender, and for all Interest Periods included in such Bid Loan Offer
shall be equal to or less than the aggregate maximum amount specified
in such Bid Loan Offer for all such Interest Periods) and reject any
remaining offers made by Bid Loan Lenders pursuant to clause (ii) or
clause (iii) above, as the case may be; provided, however, that (x)
the Company may not accept offers for Bid Loans for any Interest
Period in an aggregate principal amount in excess of the maximum
principal amount requested for such Interest Period in the related Bid
Loan Request, (y) if the Company accepts any of such offers, it must
accept offers strictly based upon pricing for such relevant Interest
Period and no other criteria whatsoever and (z) if two or more Bid
Loan Lenders submit offers for any Interest Period at identical
pricing and the Company accepts any of such offers but does not wish
to borrow the total amount offered by such Bid Loan Lenders with such
identical pricing, the Company shall accept offers from all of such
Bid Loan Lenders in amounts allocated among them pro rata according to
the amounts offered by such Bid Loan Lenders (or as nearly pro rata as
shall be practicable, after giving effect to the requirement that Bid
Loans made by a Bid Loan Lender on a Bid Loan Date for each relevant
Interest Period shall be in a principal amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof).
(v) If the Company notifies the Administrative Agent that a Bid Loan
Request is cancelled pursuant to clause (iv)(A) above, the Administrative
Agent shall give prompt telephone notice thereof to the Bid Loan Lenders,
and the Bid Loans requested thereby shall not be made.
(vi) If the Company accepts pursuant to clause (iv)(B) above one or
more of the offers made by any Bid Loan Lender or Bid Loan Lenders, the
Administrative Agent shall promptly notify by telephone each Bid Loan
Lender which has made such an offer of the aggregate amount of such Bid
Loans to be made on such Bid Loan Date for each Interest Period and of the
acceptance or rejection of any offers to make such Bid Loans made by such
Bid Loan Lender. Each Bid Loan Lender which is to make a Bid Loan shall,
before 12:00 Noon (New York City time) on the Bid Loan Date specified in
the Bid Loan Request applicable thereto, make available to the
Administrative Agent at its office set forth in subsection 8.2 the amount
of Bid Loans to be made by such Bid Loan Lender, in immediately available
funds. The Administrative Agent will make such funds available to the
Company promptly on such date at the Administrative Agent's aforesaid
address. As soon as practicable after each Bid Loan Date, the
Administrative Agent shall notify each Lender of the aggregate amount of
Bid Loans advanced on such Bid Loan Date and the respective Interest
Periods therefor.
(c) Within the limits and on the conditions set forth in this
subsection, the Company may from time to time borrow under this subsection,
repay pursuant to paragraph (d) below, and reborrow under this subsection.
(d) The Company shall repay to the Administrative Agent for the
account of each Bid Loan Lender which has made a Bid Loan to it on the last
day of the Interest Period for such Bid Loan (such Interest Period being
that specified by the Company for repayment of such Bid Loan in the related
Bid Loan Request) the then unpaid principal amount of such Bid Loan. The
Company shall not have the right to prepay any principal amount of any Bid
Loan without the prior consent of the Bid Loan Lender with respect thereto.
(e) The Company shall pay interest on the unpaid principal amount of
each Bid Loan made to it from the applicable Bid Loan Date to the stated
maturity date thereof, at the rate of interest determined pursuant to
paragraph (b) above (calculated on the basis of a 360 day year for actual
days elapsed), payable on the interest payment date or dates specified by
the Company for such Bid Loan in the related Bid Loan Request. If all or a
portion of the principal amount of any Bid Loan or any interest payable
thereon shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall, without limiting any
rights of any Lender under this Agreement, bear interest at a rate per
annum which is (x) in the case of overdue principal, 2% above the rate
which would otherwise be applicable to such Bid Loan until the scheduled
maturity date with respect thereto and for each day thereafter at a rate
per annum which is 2% above the Alternate Base Rate or (y) in the case of
overdue interest, 2% above the Alternate Base Rate plus the Applicable
Margin, in each case from the date of such non-payment until such amount is
paid in full (as well after as before judgment).
2.3 Denomination of Committed Rate Loans. Each borrowing of Committed Rate
Loans shall be in an aggregate principal amount of $50,000,000 or a whole
multiple of $5,000,000 in excess thereof.
2.4 Fees. The Company agrees to pay to the Administrative Agent, for the
ratable benefit of the Lenders, a facility fee (the "Facility Fee") in an amount
equal to the Facility Fee Percentage, of (x) the Aggregate Commitments from and
including the Effective Date to but excluding the Termination Date and (y) if an
Extension Notice has been given by the Company, the Aggregate Loans from and
including the Termination Date to but excluding the Maturity Date, in each case
payable quarterly in arrears on the last day of each March, June, September and
December, on the Termination Date and on the Maturity Date (or such earlier date
after the Termination Date on which all Loans have been repaid). Such quarterly
payment made hereunder shall be a payment in consideration for holding open the
availability of the Commitments or making the Loans for the quarterly period
completed on the date payment is due.
2.5 Changes of Commitments. (a) The Company shall have the right to
terminate or reduce the unused portion of the Commitments at any time or from
time to time upon not less than three Business Days' prior notice to the
Administrative Agent (which shall notify the Lenders thereof as soon as
practicable) of each such termination or reduction, which notice shall specify
the effective date thereof and the amount of any such reduction (which shall be
in a minimum amount of $50,000,000 or a whole multiple of $5,000,000 in excess
thereof) and shall be irrevocable and effective only upon receipt by the
Administrative Agent, provided that no such reduction or termination shall be
permitted if after giving effect thereto, and to any prepayments of the
Committed Rate Loans made on the effective date thereof, the then outstanding
principal amount of the Aggregate Loans would exceed the Aggregate Commitments
then in effect.
(b) The Commitments once terminated or reduced pursuant to this
subsection may not be reinstated.
2.6 Optional Prepayments. The Company may prepay Committed Rate Loans or
(with the consent of the Bid Loan Lender in respect thereof) Bid Loans upon
receipt by the Administrative Agent (which shall notify the Lenders thereof as
soon as practicable) of irrevocable notice from the Company prior to 11:30 A.M.
(New York City time) on the date of such prepayment. If any Eurodollar Loan
shall be prepaid on any day other than the last day of the Interest Period
applicable thereto, or prior to the conversion thereof if a notice of conversion
has been delivered with respect thereto pursuant to Section 2.9, the Company
shall, on the date of such payment, also pay all interest accrued on such
Eurodollar Loan to the date of such payment and all amounts payable pursuant to
subsection 2.16 in connection therewith.
2.7 Minimum Principal Amount of Tranches. All borrowings, payments and
prepayments in respect of Committed Rate Loans shall be in such amounts and be
made pursuant to such elections so that after giving effect thereto the
aggregate principal amount of the Committed Rate Loans comprising any Tranche
shall not be less than $50,000,000 or a whole multiple of $5,000,000 in excess
thereof.
2.8 Committed Rate Loan Interest Rates and Payment Dates. (a) Each
Committed Rate Loan comprising each Eurodollar Tranche shall bear interest for
each day during each Interest Period with respect thereto at a rate per annum
equal to the Eurodollar Rate determined for such day plus the Applicable Margin.
(b) The Alternate Base Rate Loans shall bear interest at a rate per
annum equal to the Alternate Base Rate plus the Applicable Margin.
(c) If all or a portion of the principal amount of any Committed Rate
Loan which is a Eurodollar Loan shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue principal
amount of such Committed Rate Loan shall be converted to an Alternate Base
Rate Loan at the end of the Interest Period applicable thereto.
(d) If all or a portion of (i) the principal amount of any Committed
Rate Loan, (ii) any interest payable thereon or (iii) any fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is (x) in the case of overdue principal,
the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this subsection plus 2% or (y) in the case of
overdue interest, fees or other amounts, the rate described in paragraph
(b) of this subsection plus 2%, in each case from the date of such
non-payment until such amount is paid in full (after as well as before
judgment).
(e) Interest on each Committed Rate Loan shall be payable in arrears
on each Interest Payment Date, provided that interest accruing pursuant to
paragraph (d) of this subsection shall be payable from time to time on
demand.
2.9 Conversion Options. (a) The Company may elect from time to time to
convert Alternate Base Rate Loans to Eurodollar Loans by giving the
Administrative Agent prior irrevocable written notice of such election received
by the Administrative Agent prior to 12:00 Noon, New York City time, three
Business Days prior to the proposed conversion date. The Company may elect from
time to time to convert Eurodollar Loans to Alternate Base Rate Loans by giving
the Administrative Agent prior irrevocable notice of such election received by
the Administrative Agent prior to 12:00 Noon, New York City time, one Business
Day prior to the proposed conversion date. If the date upon which an Alternative
Base Rate Loan is to be converted to a Eurodollar Loan is not a Business Day in
London, then such conversion shall be made on the next succeeding Business Day
in London and during the period from such last day of an Interest Period to such
succeeding Business Day such Loan shall bear interest as if it were an Alternate
Base Rate Loan. All or any part of outstanding Eurodollar Loans and Alternate
Base Rate Loans may be converted as provided herein, provided that (i) no Loan
may be converted into a Eurodollar Loan when any Default or Event of Default has
occurred and is continuing and the Administrative Agent or the Majority Lenders
have determined that such conversion is not appropriate and (ii) partial
conversions shall be in an aggregate principal amount of $50,000,000 or a whole
multiple of $5,000,000 in excess thereof.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of an Interest Period with respect thereto by compliance by the Company
with the notice provisions contained in subsection 2.9(a); provided, that
no Eurodollar Loan may be continued as such when any Default or Event of
Default has occurred and is continuing, and the Administrative Agent or the
Majority Lenders have determined that such a continuation is not
appropriate, in which case such Loan shall be automatically converted to an
Alternate Base Rate Loan on the last day of the then current Interest
Period with respect thereto.
2.10 Computation of Interest and Fees. (a) Interest payable hereunder with
respect to Alternate Base Rate Loans shall be calculated on the basis of a year
of 365/6 days for the actual days elapsed. All other fees, interest and all
other amounts payable hereunder shall be calculated on the basis of a 360 day
year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Company and the Lenders of each determination of a
Eurodollar Rate on the Business Day of the determination thereof. Any change in
the interest rate on a Committed Rate Loan resulting from a change in the
Alternate Base Rate shall become effective as of the opening of business on the
day on which such change in the Alternate Base Rate shall become effective. The
Administrative Agent shall as soon as practicable notify the Company and the
Lenders of the effective date and the amount of each such change.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding
on the Company and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Company, deliver to the
Company a statement showing the quotations and the computations used by the
Administrative Agent in determining any interest rate.
(c) If any Reference Lender's Commitment shall terminate for any
reason whatsoever (otherwise than with termination of all the Commitments),
such Reference Lender shall thereupon cease to be a Reference Lender, and
if for any reason there shall cease to be at least three Reference Lenders,
then the Administrative Agent (after consultation with the Company and the
Lenders) shall, by notice to the Company and the Lenders, designate another
Lender as a Reference Lender (who shall be reasonably acceptable to the
Company) so that there shall at all times be at least three Reference
Lenders.
(d) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent when and as contemplated
hereby. If any of the Reference Lenders shall be unable or otherwise fails
to supply such rates to the Administrative Agent upon its request, the rate
of interest shall, subject to the provisions of subsection 2.13, be
determined on the basis of the quotations of the remaining Reference
Lenders or Reference Lender.
2.11 Pro Rata Treatment, Payments and Evidence of Debt. (a) Each borrowing
of Committed Rate Loans and any reduction of the Commitments shall be made pro
rata according to the respective Commitment Percentages of the Lenders. Each
payment by the Company under this Agreement shall be applied, first, to any fees
then due and owing by the Company pursuant to subsection 2.4, second, to
interest then due and owing in respect of the Loans and, third, to principal
then due and owing in respect of the Loans. Each payment by the Company on
account of any fees pursuant to subsection 2.4 shall be made pro rata in
accordance with the respective amounts due and owing. Each payment (other than
prepayments) by the Company on account of principal of and interest on the
Committed Rate Loans shall be made pro rata according to the respective amounts
due and owing. Each prepayment on account of principal of the Loans (except to
the extent designated to be applied to Bid Loans) shall be applied, first, to
such of the Committed Rate Loans as the Company may designate (to be applied pro
rata among the Lenders), and, second, after all Committed Rate Loans shall have
been paid in full, to Bid Loans, pro rata according to the respective amounts
outstanding; provided, that prepayments made pursuant to subsection 2.14 shall
be applied in accordance with such subsection; and provided further that nothing
herein shall be deemed to permit optional prepayments on account of Bid Loans
without the prior consent of the Bid Loan Lender with respect thereto.
(b) All payments (including prepayments) to be made by the Company on
account of principal, interest and fees shall be made without defense,
set-off or counterclaim (except as provided in subsection 2.17(b)) and
shall be made to the Administrative Agent for the account of the Lenders at
the Administrative Agent's office specified in subsection 8.2 in Dollars
and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders entitled thereto promptly upon
receipt in like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans or Index Rate Bid Loans payable on the
next preceding Business Day as a result of the following sentence) becomes
due and payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurodollar Loan or an Index Rate
Bid Loan becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day
unless the result of such extension would be to extend such payment into
another calendar month, in which event such payment shall be made on the
immediately preceding Business Day.
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Company to such
Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder. The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Type thereof
and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Company to each Lender hereunder and (iii) the amount of any sum received
by the Administrative Agent hereunder for the account of the Lenders and
each Lender's share thereof. The entries made in the accounts maintained
pursuant to the two preceding sentences shall be prima facie evidence of
the existence and amounts of the obligations recorded therein; provided
that the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation
of the Company to repay the Loans in accordance with the terms of this
Agreement.
(d) Any Lender (including any Replacement Lender) may request that
Loans made by it be evidenced by a promissory note. In such event, the
Company shall prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such Lender, to
such Lender and its registered assigns) and in a form reasonably
satisfactory to the Administrative Agent. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 8.6) be represented by one or more
promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).
2.12 Non-Receipt of Funds by the Administrative Agent. (a) Unless the
Administrative Agent shall have been notified by a Lender prior to the time a
Committed Rate Loan is to be made by such Lender (which notice shall be
effective upon receipt) that such Lender does not intend to make the proceeds of
such Committed Rate Loan available to the Administrative Agent, the
Administrative Agent may assume that such Lender has made such proceeds
available to the Administrative Agent at such time, and the Administrative Agent
may in reliance upon such assumption (but shall not be required to) make
available to the Company a corresponding amount. If such amount is made
available to the Administrative Agent on a date after such Borrowing Date, such
Lender shall pay to the Administrative Agent on demand an amount equal to the
product of (i) the daily average Federal Funds Effective Rate during such
period, times (ii) the amount of such Lender's Commitment Percentage of such
borrowing, times (iii) a fraction, the numerator of which is the number of days
that elapse from and including such Borrowing Date to the date on which such
Lender's Commitment Percentage of such borrowing shall have become immediately
available to the Administrative Agent and the denominator of which is 360. If
such Lender's Commitment Percentage is not in fact made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall be entitled to recover such amount with
interest thereon at the rate per annum applicable to Alternate Base Rate Loans
hereunder, on demand, from the Company.
(b) Unless the Administrative Agent shall have been notified by the
Company prior to the date on which any payment is due from it hereunder
(which notice shall be effective upon receipt) that the Company does not
intend to make such payment, the Administrative Agent may assume that the
Company has made such payment when due, and the Administrative Agent may in
reliance upon such assumption (but shall not be required to) make available
to each Lender on such payment date an amount equal to the portion of such
assumed payment to which such Lender is entitled hereunder, and if the
Company has not in fact made such payment to the Administrative Agent, such
Lender shall, on demand, repay to the Administrative Agent the amount made
available to such Lender. If such amount is repaid to the Administrative
Agent on a date after the date such amount was made available to such
Lender, such Lender shall pay to the Administrative Agent on demand an
amount equal to the product of (i) the daily average Federal Funds
Effective Rate during such period, times (ii) the amount made available to
such Lender by the Administrative Agent pursuant to this paragraph (b),
times (iii) a fraction, the numerator of which is the number of days that
elapse from and including the date on which such amount was made available
to such Lender to the date on which such amount shall have been repaid to
the Administrative Agent by such Lender and become immediately available to
the Administrative Agent and the denominator of which is 360.
(c) A certificate of the Administrative Agent submitted to the Company
or any Lender with respect to any amount owing under this subsection shall
be conclusive in the absence of manifest error.
2.13 Inability to Determine Interest Rate. (a) Notwithstanding any other
provision of this Agreement, if (i) the Administrative Agent reasonably
determines that, for any reason whatsoever, a rate for Eurodollar Loans cannot
be determined as provided in the definition of Eurodollar Rate for any Interest
Period or (ii) the Majority Lenders shall determine (which determination shall
be conclusive) that the rates for the purpose of computing the Eurodollar Rate
do not adequately and fairly reflect the cost to such Lenders of funding
Eurodollar Loans that the Company has requested be outstanding as a Eurodollar
Tranche during such Interest Period, the Administrative Agent shall forthwith
give telephone notice of such determination, confirmed in writing, to the
Company and the Lenders at least two Business Days prior to the first day of
such Interest Period. Unless the Company shall have notified the Administrative
Agent upon receipt of such telephone notice that it wishes to rescind or modify
its request regarding such Eurodollar Loans, any Loans that were requested to be
made as Eurodollar Loans shall be made as Alternate Base Rate Loans and any
Loans that were requested to be converted into or continued as Eurodollar Loans
shall be converted into Alternate Base Rate Loans. Until any such notice has
been withdrawn by the Administrative Agent, no further Loans shall be made as,
continued as, or converted into, Eurodollar Loans.
(b) In the event that the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the Company) that
by reason of circumstances affecting the interbank eurodollar market,
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for any Interest Period with respect to a proposed Bid Loan to be made
pursuant to an Index Rate Bid Loan Request, the Administrative Agent shall
forthwith give telephone notice of such determination, confirmed in
writing, to the Company and the Bid Loan Lenders at least two Business Days
prior to the proposed Bid Loan Date, and such Bid Loans shall not be made
on such Bid Loan Date. Until any such notice has been withdrawn by the
Administrative Agent, no further Index Rate Bid Loan Requests shall be
submitted by the Company.
2.14 Illegality. Notwithstanding any other provision of this Agreement, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof by any relevant Governmental Authority to any Lender
shall make it unlawful for such Lender to make or maintain Eurodollar Loans as
contemplated by this Agreement or to obtain in the interbank eurodollar market
the funds with which to make such Loans, (a) such Lender shall promptly notify
the Administrative Agent and the Company thereof, (b) the commitment of such
Lender hereunder to make Eurodollar Loans or continue Eurodollar Loans as such
shall forthwith be cancelled and (c) such Lender's Committed Rate Loans then
outstanding as Eurodollar Loans, if any, shall be converted on the last day of
the Interest Period for such Loans or within such earlier period as required by
law into Alternate Base Rate Loans. The Company hereby agrees promptly to pay
any Lender, upon its demand, any additional amounts necessary to compensate such
Lender for actual and direct costs reasonably incurred by such Lender in making
any repayment in accordance with this subsection including, but not limited to,
any interest or fees payable by such Lender to lenders of funds obtained by it
in order to make or maintain its Eurodollar Loans hereunder. A certificate as to
any additional amounts payable pursuant to this subsection submitted by such
Lender, through the Administrative Agent, to the Company shall be conclusive in
the absence of manifest error. Each Lender agrees to use reasonable efforts to
avoid or to minimize any amounts which may otherwise be payable pursuant to this
subsection; provided, however, that such efforts shall not cause the imposition
on such Lender of any additional costs or legal or regulatory burdens deemed by
such Lender to be material.
2.15 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) does or shall subject such Lender to any tax of any kind
whatsoever with respect to this Agreement or any Eurodollar Loan made by
it, or change the basis of taxation of payments to such Lender of
principal, facility fee, interest or any other amount payable hereunder
(except for changes in the rate of tax on the overall net income of such
Lender);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, or deposits or other liabilities in or for the account of, advances or
loans by, or other credit extended by, or any other acquisition of funds
by, any office of such Lender which are not otherwise covered by subsection
2.15(b);
(iii) does or shall impose on such Lender any other condition; and the
result of any of the foregoing is to increase the cost to such Lender of
making or maintaining Loans or to reduce any amount receivable hereunder,
then, in any such case, the Company shall promptly pay such Lender, upon
its demand, any additional amounts necessary to compensate such Lender for
such additional cost or reduced amount receivable which such Lender
reasonably deems to be material as determined by such Lender with respect
to its Eurodollar Loans. A certificate as to any additional amounts payable
pursuant to this subsection submitted by such Lender, through the
Administrative Agent, to the Company shall be conclusive in the absence of
manifest error. Each Lender agrees to use reasonable efforts to avoid or to
minimize any amounts which might otherwise be payable pursuant to this
paragraph of this subsection; provided, however, that such efforts shall
not cause the imposition on such Lender of any additional costs or legal or
regulatory burdens deemed by such Lender to be material.
(b) In addition to amounts which may become payable from time to time
pursuant to paragraph (a) of this subsection, the Company agrees to pay to
each Lender which requests compensation under this paragraph (b) (by notice
to the Company), on the last day of each Interest Period with respect to
any Eurodollar Loan made by such Lender, so long as such Lender shall be
required to maintain reserves against "Eurocurrency liabilities" under
Regulation D of the Board of Governors of the Federal Reserve System (or,
so long as such Lender may be required by such Board of Governors or by any
other Governmental Authority to maintain reserves against any other
category of liabilities which includes deposits by reference to which the
interest rate on Eurodollar Loans is determined as provided in this
Agreement or against any category of extensions of credit or other assets
of such Lender which includes any Eurodollar Loans), an additional amount
(determined by such Lender and notified to the Company) representing such
Lender's calculation or, if an accurate calculation is impracticable,
reasonable estimate (using such reasonable means of allocation as such
Lender shall determine) of the actual costs, if any, incurred by such
Lender during such Interest Period as a result of the applicability of the
foregoing reserves to such Eurodollar Loans, which amount in any event
shall not exceed the product of the following for each day of such Interest
Period:
(i) the principal amount of the Eurodollar Loans made by such Lender
to which such Interest Period relates outstanding on such day; and
(ii) the difference between (x) a fraction (expressed as a decimal)
the numerator of which is the Eurodollar Rate (expressed as a decimal)
applicable to such Eurodollar Loan and the denominator of which is one
minus the maximum rate (expressed as a decimal) at which such reserve
requirements are imposed by such Board of Governors or other Governmental
Authority on such date minus (y) such numerator; and
(iii) a fraction the numerator of which is one and the denominator of
which is 360.
(c) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any central
bank or Governmental Authority made subsequent to the date hereof does or
shall have the effect of reducing the rate of return on such Lender's or
such corporation's capital as a consequence of its obligations hereunder to
a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then
from time to time, within 15 days after demand by such Lender, the Company
shall pay to such Lender such additional amount as shall be certified by
such Lender as being required to compensate it for such reduction.
(d) Notwithstanding anything to the contrary contained herein, the
Company shall not have any obligation to pay to any Lender amounts owing
under this subsection 2.15 for any period which is more than 60 days prior
to the date upon which the request for payment therefor is delivered to the
Company; provided that in no event shall the Company have any obligation to
pay to any Lender amounts owing under subsection 2.15(b) for any period
which is prior to the commencement of the Interest Period in effect at the
time a demand for payment is made by such Lender.
(e) The agreements in this subsection shall survive the termination of
this Agreement and payment of the Loans and all other amounts payable
hereunder.
2.16 Indemnity. The Company hereby agrees to indemnify each Lender and to
hold such Lender harmless from any funding loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Company in payment of
the principal amount of or interest on any Loan by such Lender in accordance
with the terms of subsections 2.1(d), 2.2(d), 2.2(e) and 2.8(e), as the case may
be, (b) default by the Company in making a borrowing after the Company has given
a notice in accordance with subsection 2.1 or 2.2, (c) default by the Company in
making any prepayment after the Company has given a notice in accordance with
subsection 2.6 and/or (d) the making by the Company of a prepayment of a
Committed Rate Loan (including without limitation, any prepayment of an
Alternate Base Rate Loan after notice of conversion to a Eurodollar Loan has
been delivered with respect thereto pursuant to Section 2.9), or the conversion
thereof, on a day which is not the last day of the Interest Period with respect
thereto, in each case including, but not limited to, any such loss or expense
arising from interest or fees payable by such Lender to lenders of funds
obtained by it in order to maintain its Loans hereunder. A certificate as to any
additional amounts payable pursuant to this subsection submitted by any Lender,
through the Administrative Agent, to the Company (which certificate must be
delivered to the Administrative Agent within thirty days following such default,
prepayment or conversion) shall be conclusive in the absence of manifest error.
The agreements in this subsection shall survive termination of this Agreement
and payment of the Loans and all other amounts payable hereunder.
2.17 Taxes. (a) All payments made by the Company hereunder will be, except
as provided in subsection 2.17(b), made free and clear of, and without deduction
or withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
Governmental Authority or by any political subdivision or taxing authority
thereof or therein with respect to such payments (but excluding any tax imposed
on or measured by the net income or profits of a Lender pursuant to the laws of
the jurisdiction in which it is organized or the jurisdiction in which the
principal office or applicable lending office of such Lender is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect thereto (all such non-excluded taxes, levies, imposts,
duties, fees, assessments or other charges being referred to collectively as
"Taxes"). If any Taxes are so levied or imposed, the Company agrees to pay the
full amount of such Taxes, and such additional amounts as may be necessary so
that every payment of all amounts due under this Agreement, after withholding or
deduction for or on account of any Taxes, will not be less than the amount
provided for herein. The Company will furnish to the Administrative Agent as
soon as practicable after the date the payment of any Taxes is due pursuant to
applicable law certified copies (to the extent reasonably available and required
by law) of tax receipts evidencing such payment by the Company. The Company
agrees to indemnify and hold harmless each Lender, and reimburse such Lender
upon its written request, for the amount of any Taxes so levied or imposed and
paid by such Lender.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for United States income tax
purposes agrees to deliver to the Company and the Administrative Agent on
or prior to the Effective Date, or in the case of a Lender that is an
assignee or transferee of an interest under this Agreement pursuant to
subsection 8.6(c) (unless the respective Lender was already a Lender
hereunder immediately prior to such assignment or transfer), on the date of
such assignment or transfer to such Lender, (i) two accurate and complete
original signed copies of Internal Revenue Service Form W-8ECI or W-8BEN
with respect to the benefit of any income tax treaty (or successor forms)
certifying to such Lender's entitlement to a complete exemption from United
States withholding tax with respect to payments to be made under this
Agreement, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, either Internal Revenue Service Form
W-8ECI or W-8BEN with respect to the benefit of any income tax treaty
pursuant to clause (i) above, or (x) a certificate substantially in the
form of Exhibit C (any such certificate, a "2.17 Certificate") and (y) two
accurate and complete original signed copies of Internal Revenue Service
Form W-8BEN (with respect to the portfolio interest exception) (or
successor form) certifying to such Lender's entitlement to an exemption
from United States withholding tax with respect to payments of interest to
be made under this Agreement. In addition, each Lender agrees that it will
deliver upon the Company's request updated versions of the foregoing, as
applicable, whenever the previous certification has become obsolete or
inaccurate in any material respect, together with such other forms as may
be required in order to confirm or establish the entitlement of such Lender
to a continued exemption from or reduction in United States withholding tax
with respect to payments under this Agreement, or it shall immediately
notify the Company and the Administrative Agent of its inability to deliver
any such Form or Certificate, in which case such Lender shall not be
required to deliver any such Form or Certificate pursuant to this
subsection 2.17(b). Notwithstanding anything to the contrary contained in
subsection 2.17(a), but subject to the immediately succeeding sentence,
(x) the Company shall be entitled, to the extent it is required to do so by
law, to deduct or withhold Taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from
interest, fees or other amounts payable hereunder for the account of any
Lender which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to
the extent that such Lender has not provided to the Company U.S. Internal
Revenue Service Forms that establish a complete exemption from such
deduction or withholding and (y) the Company shall not be obligated
pursuant to subsection 2.17(a) hereof to gross-up payments to be made to a
Lender in respect of Taxes imposed by the United States if (I) such Lender
has not provided to the Company the Internal Revenue Service Forms required
to be provided to the Company pursuant to this subsection 2.17(b) or (II)
in the case of a payment, other than interest, to a Lender described in
clause (ii) above, to the extent that such Forms do not establish a
complete exemption from withholding of such Taxes. Notwithstanding anything
to the contrary contained in the preceding sentence or elsewhere in this
subsection 2.17, the Company agrees to pay additional amounts and to
indemnify each Lender in the manner set forth in subsection 2.17(a)
(without regard to the identity of the jurisdiction requiring the deduction
or withholding) in respect of any Taxes deducted or withheld by it as
described in the immediately preceding sentence as a result of any changes
after the Effective Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating
to the deducting or withholding of Taxes.
(c) Each Lender agrees to use reasonable efforts (including reasonable
efforts to change its lending office) to avoid or to minimize any amounts
which might otherwise be payable pursuant to this subsection; provided,
however, that such efforts shall not cause the imposition on such Lender of
any additional costs or legal or regulatory burdens deemed by such Lender
to be material.
(d) If the Company pays any additional amount pursuant to this
subsection 2.17 with respect to a Lender, such Lender shall use reasonable
efforts to obtain a refund of tax or credit against its tax liabilities on
account of such payment; provided that such Lender shall have no obligation
to use such reasonable efforts if either (i) it is in an excess foreign tax
credit position or (ii) it believes in good faith, in its sole discretion,
that claiming a refund or credit would cause adverse tax consequences to
it. In the event that such Lender receives such a refund or credit, such
Lender shall pay to the Company an amount that such Lender reasonably
determines is equal to the net tax benefit obtained by such Lender as a
result of such payment by the Company. In the event that no refund or
credit is obtained with respect to the Company's payments to such Lender
pursuant to this subsection 2.17, then such Lender shall provide a
certification that such Lender has not received a refund or credit for such
payments. Nothing contained in this subsection 2.17 shall require a Lender
to disclose or detail the basis of its calculation of the amount of any tax
benefit or any other amount or the basis of its determination referred to
in the proviso to the first sentence of this subsection 2.17 to the Company
or any other party.
(e) The agreements in this subsection shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.18 Replacement of Lenders. In the event that any Lender shall submit a
request for additional reimbursement under subsection 2.15(a),(b) or (c) or
subsection 2.17, the Company shall have the right to replace such Lender (the
"Replaced Lender") with one or more other Eligible Transferee or Transferees,
(collectively, the "Replacement Lender") reasonably acceptable to the
Administrative Agent, provided that:
(i) at the time of any replacement pursuant to this subsection 2.18,
the Replacement Lender shall enter into one or more Commitment Transfer
Supplements pursuant to subsection 8.6(c) (and with all fees payable
pursuant to subsection 8.6(e) to be paid by the Replacement Lender)
pursuant to which the Replacement Lender shall acquire all of the
Commitments and outstanding Committed Rate Loans of the Replaced Lender
hereunder and, in connection therewith, shall pay to the Replaced Lender in
respect thereof an amount equal to the sum of (x) an amount equal to the
principal of, and all accrued but unpaid interest on, all outstanding
Committed Rate Loans of the Replaced Lender hereunder, and (y) an amount
equal to all accrued but unpaid Facility Fees (if any) owing to the
Replaced Lender pursuant to subsection 2.4 hereof; and
(ii) all obligations of the Company owing to the Replaced Lender
hereunder (including the aforesaid increased fees but other than (x) those
specifically described in clause (i) above in respect of which the
assignment purchase price has been, or is concurrently being, paid and (y)
accrued but not due interest on, and the principal of, all Bid Loans of the
Replaced Bank then outstanding (which will be paid when and as due by the
Company)) shall be paid in full to such Replaced Lender by the Company
concurrently with such replacement; provided, that, no such payment shall
be required in respect of periods commencing (x) prior to the commencement
of the Interest Period in respect of which such payment is sought, in the
case of any payment pursuant to subsection 2.15(b), or (y) prior to the
date which is 60 days prior to the date of such payment request, in all
other cases.
The Company will also be required to provide reimbursement to such Replaced
Lender for any additional amounts owing pursuant to subsection 2.15(a), (b) or
(c) or subsection 2.17 for the period subsequent to such request through the
date of such replacement. Upon the execution of the respective Commitment
Transfer Supplement and the payment of amounts referred to in clauses (i) and
(ii) above, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder, except with
respect to indemnification provisions under this Agreement (and the obligation,
if any, owed it in respect of any outstanding Bid Loan), which shall survive as
to such Replaced Lender. The Administrative Agent agrees with the Company to use
diligent efforts to assist the Company in locating any necessary Replacement
Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the Loans
herein provided for, the Company hereby represents and warrants to the
Administrative Agent and to each Lender that:
3.1 Financial Condition. The consolidated balance sheet of the Company and
its consolidated Subsidiaries as at December 31, 2000 and as at September 30,
2001 and the related consolidated statements of income and of cash flows for the
fiscal year or nine-month period ended on such date, reported on (in the case of
such annual statements) by Xxxxxx Xxxxxxxx LLP, copies of which have heretofore
been furnished to each Lender, are complete and correct and present fairly the
consolidated financial condition of the Company and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal year or nine-month period then
ended, subject in the case of the September 30, 2001 statements to normal year
end adjustments. All such financial statements, including the related schedules
and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as disclosed therein).
Neither the Company nor any of its consolidated Subsidiaries had, at the date of
the balance sheets referred to above, any material Guarantee Obligation,
contingent liabilities or liability for taxes, long-term lease or unusual
forward or long-term commitment, including, without limitation, any material
interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto or in the
Confidential Information Memorandum, dated February 2002.
3.2 No Change. Since December 31, 2000, there has been no development or
event which has had a Material Adverse Effect.
3.3 Existence; Compliance with Law. Each of the Company and its Significant
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has the corporate or
partnership power and authority and the legal right to own and operate all its
material property, to lease the material property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation or partnership and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification except to the extent that the
failure to so qualify or be in good standing would not, in the aggregate, have a
Material Adverse Effect and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations. The Company has full
power and authority and the legal right to make, deliver and perform this
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement. No consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery or performance of this Agreement by
the Company or with the validity or enforceability of this Agreement against the
Company. This Agreement has been duly executed and delivered on behalf of the
Company. This Agreement constitutes a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law). 3.5 No Legal Bar; No
Default. The execution, delivery and performance of this Agreement, the
borrowings thereunder and the use of the proceeds of the Loans will not violate
any Requirement of Law or any Contractual Obligation of the Company or its
Significant Subsidiaries, and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or revenues
pursuant to any Requirement of Law or Contractual Obligation. Neither the
Company nor any of its Subsidiaries is in default under or with respect to any
of its Contractual Obligations in any respect which would reasonably be expected
to have a Material Adverse Effect. No Default or Event of Default has occurred
and is continuing.
3.6 No Material Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the best
knowledge of the Company, threatened by or against the Company or any of its
Subsidiaries or against any of its or their respective properties or revenues
(a) with respect to this Agreement or any Loan or any of the transactions
contemplated hereby or (b) which would reasonably be expected to have a Material
Adverse Effect.
3.7 Investment Company Act. The Company is not an "investment company", or
a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
3.8 Federal Regulations. No part of the proceeds of any Loan hereunder will
be used directly or indirectly for any purpose which violates, or which would be
inconsistent with, the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect. No part of any such proceeds shall be used to purchase or carry any
"Margin Stock", as that term is defined in said Regulation U.
3.9 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code, except to the extent that any such occurrence or failure to comply
would not reasonably be expected to have a Material Adverse Effect. No
termination of a Single Employer Plan has occurred resulting in any liability
that has remained underfunded, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period which would reasonably be expected to have
a Material Adverse Effect. Except for the Company's Supplemental Executive
Retirement Plan, the present value of all accrued benefits under each Single
Employer Plan (based on those assumptions used to fund such Plans) did not, as
of the last annual valuation date prior to the date on which this representation
is made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits by an amount which would reasonably be expected to have a
Material Adverse Effect. Neither the Company nor any Commonly Controlled Entity
is currently subject to any liability for a complete or partial withdrawal from
a Multiemployer Plan which would reasonably be expected to have a Material
Adverse Effect.
3.10 Environmental Matters. Except to the extent that all of the following,
in the aggregate, would not reasonably be expected to have a Material Adverse
Effect:
(a) To the best knowledge of the Company, the facilities and
properties owned, leased or operated by the Company or any of its
Subsidiaries (the "Properties") do not contain any Materials of
Environmental Concern in amounts or concentrations which (i) constitute a
violation of, or (ii) could give rise to liability under, any Environmental
Law.
(b) To the best knowledge of the Company, the Properties and all
operations at the Properties are in compliance, and have in the last five
years been in compliance, in all material respects with all applicable
Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any Environmental Law with respect to the
Properties or the business operated by the Company or any of its
Subsidiaries (the "Business").
(c) Neither the Company nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business,
nor does the Company have knowledge or reason to believe that any such
notice will be received or is being threatened.
(d) To the best knowledge of the Company, Materials of Environmental
Concern have not been transported or disposed of from the Properties in
violation of, or in a manner or to a location which could give rise to
liability under, any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at, on
or under any of the Properties in violation of, or in a manner that could
give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Company, threatened, under any
Environmental Law to which the Company or any Subsidiary is or will be
named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or
the Business.
(f) To the best knowledge of the Company, there has been no release or
threat of release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations of the Company or
any Subsidiary in connection with the Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner that could
give rise to liability under Environmental Laws.
3.11 Purpose of Loans. The proceeds of the Loans will be used (i) to
back-up commercial paper, (ii) to finance payments to plaintiffs with tort
claims relating to the Company's previously marketed diet drug products and
(iii) for the Company's general corporate and working capital purposes.
3.12 Restrictions on Subsidiaries. There are no restrictions on the Company
or any of its Subsidiaries which prohibit or otherwise restrict the transfer of
cash or other assets (x) between the Company and any of its Subsidiaries or (y)
between any Subsidiaries of the Company, other than (i) applicable restrictions
of law imposed on Subsidiaries by the jurisdictions in which such Subsidiaries
are incorporated or do business or (ii) other restrictions which, in the
aggregate, do not encumber a material amount of cash or other assets.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effective Date. This Agreement shall become effective
upon the satisfaction of the following conditions precedent:
(a) Execution of Agreement. The Administrative Agent shall have
received one or more counterparts of this Agreement, executed by a duly
authorized officer of each party hereto.
(b) Officer's Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of a duly
authorized officer of the Company dated the Effective Date, substantially
in the form of Exhibit H with appropriate insertions and attachments.
(c) Legal Opinion of Counsel. The Administrative Agent shall have
received, with a copy for each Lender, an opinion of Xxxxx X. Xxxxxx, Xx.,
Executive Vice President and General Counsel of the Company, dated the
Effective Date and addressed to the Administrative Agent and the Lenders,
substantially in the form of Exhibit I. Such opinion shall also cover such
other matters incident to the transactions contemplated by this Agreement
as the Administrative Agent shall reasonably require.
(d) Fees. The Administrative Agent shall have received all fees due
and payable on or prior to the Effective Date, and, to the extent invoiced
at least two Business Days prior to the Effective Date, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid by
the Company hereunder.
(e) Existing 364-Day Credit Agreement. All commitments under the
Existing 364-Day Credit Agreement shall have terminated, and Loans under,
and as defined in, the Existing 364-Day Credit Agreement (if any) shall
have been repaid in full, together with all fees and other amounts owing
thereunder.
(f) Subsection 4.2 Conditions. The conditions specified in subsections
4.2(a) and (b) shall be satisfied on the Effective Date as if Loans were to
be made on such date.
(g) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to the Administrative Agent
and its counsel.
(h) Commitment Reductions under Existing 5-Year Credit Agreement. The
Company shall have permanently reduced the aggregate commitments under its
Existing 5-Year Credit Agreement from $2.0 billion to $1.0 billion in
accordance with the terms thereof and, concurrently therewith, repaid any
outstanding loans thereunder required as a result of such reduction.
4.2 Conditions to All Loans. The obligation of each Lender to make any Loan
to be made by it hereunder (including the initial Loan to be made by it
hereunder) is subject to the satisfaction of the following conditions precedent
on the date of making such Loan:
(a) Representations and Warranties. The representations and warranties
made by the Company herein (except for, in the case of any Loan made after
the Effective Date, the representations and warranties set forth in
Sections 3.2 and 3.6) or which are contained in any certificate furnished
at any time under or in connection herewith shall be true and correct in
all material respects on and as of the date of such Loan as if made on and
as of such date.
(b) No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing on such date or after giving effect
to the Loan to be made on such date unless such Default or Event of Default
shall have been waived in accordance with this Agreement.
(c) Additional Conditions to Bid Loans. If such Loan is made pursuant
to subsection 2.2 all conditions set forth in such subsection shall have
been satisfied.
(d) Additional Conditions to Committed Rate Loans. If such Loan is
made pursuant to subsection 2.1, all conditions set forth in such
subsection shall have been satisfied.
Each acceptance by the Company of a Loan shall be deemed to constitute a
representation and warranty by the Company as of the date of such Loan that the
applicable conditions in paragraphs (a), (b), (c) and/or (d) of this subsection
have been satisfied.
SECTION 5. COVENANTS
The Company hereby covenants and agrees that on the Effective Date, and
thereafter for so long as this Agreement is in effect and until the Commitments
have terminated and the Loans, together with interest, Facility Fees and all
other amounts owing to the Administrative Agent or any Lender hereunder, are
paid in full, the Company shall and, in the case of subsections 5.3, 5.4, 5.5
and 5.6, shall cause each of its Significant Subsidiaries to, and in the case of
subsections 5.7, 5.8 and 5.10 shall cause each of its Subsidiaries to:
5.1 Financial Statements. Furnish to the Administrative Agent (with a
sufficient number of copies for each Lender, which the Administrative Agent
shall promptly furnish to each Lender):
(a) as soon as available, but in any event within 120 days after the
end of each fiscal year of the Company, a copy of the consolidated balance
sheet of the Company and its consolidated Subsidiaries as at the end of
such year and the related consolidated statements of income and retained
earnings and of cash flows of the Company and its consolidated Subsidiaries
for such year, setting forth in each case in comparative form the figures
for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification indicating that the scope of
the audit was inadequate to permit such independent certified public
accountants to certify such financial statements without such
qualification, by Xxxxxx Xxxxxxxx LLP or another firm of independent
certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal
year of the Company, a copy of the Company's Report on Form 10-Q for such
quarter, as filed with the Securities Exchange Commission;
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein (except as
approved by such accountants or a Responsible Officer, as the case may be, and
disclosed therein).
5.2 Certificates; Other Information. Furnish to the Administrative Agent
(with a sufficient number of copies for each Lender, which the Administrative
Agent shall promptly furnish to each Lender):
(a) concurrently with the delivery of the financial statements
referred to in subsection 5.1(a) above, a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsection 5.1(a) above and the Report on Form 10-Q for the
Company's fiscal quarters referred to in subsection 5.1(b) above, a
certificate of a Responsible Officer of the Company stating that, to the
best of such Responsible Officer's knowledge, the Company during such
period observed or performed all of its covenants and other agreements, and
satisfied every material condition, contained in this Agreement to be
observed, performed or satisfied by it, and that such Responsible Officer
has obtained no knowledge of any Default or Event of Default except as
specified in such certificate and such certificate shall include the
calculation required to indicate compliance with subsection 5.9;
(c) within thirty days after the same are sent, copies of all reports
(other than those otherwise provided pursuant to subsection 5.1 and those
which are of a promotional nature) and other financial information which
the Company sends to its stockholders, and within thirty days after the
same are filed, copies of all financial statements and non-confidential
reports which the Company may make to, or file with, the Securities and
Exchange Commission or any successor or analogous Governmental Authority;
and
(d) promptly, such additional financial and other information as the
Administrative Agent, on behalf of any Lender, may from time to time
reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature and any additional costs that are
imposed as a result of any failure to so pay, discharge or otherwise satisfy
such obligations, except when the amount or validity of such obligations and
costs is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on the
books of the Company or its Subsidiaries, as the case may be.
5.4 Conduct of Business and Maintenance of Existence. Preserve, renew and
keep in full force and effect its corporate existence and take all reasonable
action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of its businesses; comply with all Contractual Obligations
and Requirements of Law applicable to it except to the extent that failure to
comply therewith would not, in the aggregate, have a Material Adverse Effect;
not enter into any business which is material to the Company and its
Subsidiaries taken as a whole, other than business in which the Company and its
Subsidiaries are engaged on the date hereof and businesses directly related to
such existing businesses.
5.5 Maintenance of Property; Insurance. Keep all material property useful
and necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in the same or a
similar business; and furnish to the Administrative Agent, upon written request,
full information as to the insurance carried; provided, however, that the
Company and its Subsidiaries may maintain self insurance plans to the extent
companies of similar size and in similar businesses do so.
5.6 Inspection of Property; Books and Records; Discussions. Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its businesses and activities; and permit,
during regular business hours and upon reasonable notice by the Administrative
Agent, the Administrative Agent to visit and inspect any of its properties and
examine and make abstracts from any of its books and records (other than
materials protected by the attorney-client privilege and materials which the
Company may not disclose without violation of a confidentiality obligation
binding upon it) at any reasonable time and as often as may reasonably be
desired, and to discuss the business, operations, properties and financial and
other condition of the Company and its Significant Subsidiaries with officers
and employees of the Company and its Significant Subsidiaries and with its
independent certified public accountants.
5.7 Notices. Give notice to the Administrative Agent (which shall promptly
transmit such notice to each Lender) of:
(a) within five Business Days after the Company knows or has reason to
know thereof, the occurrence of any material Default or Event of Default;
(b) promptly, any default or event of default under any Contractual
Obligation of the Company or any of its Significant Subsidiaries which
would reasonably be expected to have a Material Adverse Effect;
(c) promptly, any litigation, or any investigation or proceeding known
to the Company, affecting the Company or any of its Significant
Subsidiaries which would reasonably be expected to have a Material Adverse
Effect;
(d) as soon as possible and in any event within 30 days after the
Company knows or has reason to know thereof: (i) the occurrence or expected
occurrence of any Reportable Event with respect to any Plan, a failure to
make any required contribution to a Plan, the creation of any Lien in favor
of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC or
the Company or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the terminating, Reorganization or
Insolvency of, any Plan; and
(e) promptly, any other development or event which would reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer of the Company setting forth details of the occurrence
referred to therein and stating what action the Company proposes to take with
respect thereto.
5.8 Environmental Laws. (a) Comply with, and ensure compliance by all
tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply in all material respects with and maintain, and ensure that
all tenants and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws except to the extent that
failure to do so would not reasonably be expected to have a Material Adverse
Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being contested
in good faith by appropriate proceedings and the pendency of such
proceedings would not reasonably be expected to have a Material Adverse
Effect; and
(c) Defend, indemnify and hold harmless the Administrative Agent and
the Lenders, and their respective employees, agents, officers and
directors, from and against any and all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in any
way relating to the violation of, noncompliance with or liability under,
any Environmental Law applicable to the operations of the Company, any of
its Significant Subsidiaries or the Properties, or any orders, requirements
or demands of Governmental Authorities related thereto, including, without
limitation, attorney's and consultant's fees, investigation and laboratory
fees, response costs, court costs and litigation expenses, except to the
extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor. The
agreements in this paragraph shall survive repayment of the Loans and all
other amounts payable hereunder.
5.9 Consolidated Adjusted Indebtedness to Adjusted Capitalization. Not
permit the ratio of (i) Consolidated Adjusted Indebtedness to (ii) Adjusted
Capitalization at any time to exceed .65 to 1:00.
5.10 Liens, Etc. Not create or suffer to exist any Lien upon or with
respect to any of its properties, whether now owned or hereafter acquired, or
assign, or assign any right to receive income, in each case to secure or provide
for the payment of any Indebtedness of any Person, other than (i) purchase money
Liens or purchase money security interests upon or in any property acquired or
held by it or any Subsidiary in the ordinary course of business to secure the
purchase price of such property or to secure indebtedness incurred solely for
the purpose of financing the acquisition of such property, (ii) Liens or
security interests existing on such property at the time of its acquisition
(other than any such Lien or security interest created in contemplation of such
acquisition), (iii) Liens or security interests existing on the Effective Date
hereof, (iv) Liens or security interests on property financed through the
issuance of industrial revenue bonds in favor of the holders of such bonds or
any agent or trustee therefor, (v) Liens or security interests securing
Indebtedness in an aggregate amount not in excess of 15% of the Company's
Consolidated Tangible Assets or (vi) Permitted Liens.
SECTION 6. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) The Company shall fail to pay any principal on any Loan when due
in accordance with the terms thereof or hereof on the maturity date
thereof; or the Company shall fail to pay any interest on any Loan or any
fee or other amount payable hereunder when due in accordance with the terms
thereof or hereof and such failure shall continue unremedied for five
Business Days (or in the case of any other amount that is not interest or a
fee, three Business Days after the Company has received from the
Administrative Agent notice of said default); or
(b) Any representation or warranty made or deemed made by the Company
herein or which is contained in any certificate, document or financial or
other statement furnished at any time under or in connection with this
Agreement shall prove to have been incorrect, false or misleading in any
material respect on or as of the date made or deemed made; or
(c) The Company shall (i) default in the due performance or observance
of subsection 5.9 (provided that no Default or Event of Default shall arise
or exist under this subsection 6(c)(i) in respect of such a breach if prior
to the time the Company is required to give notice to the Lenders under
subsection 5.7(a) of such breach, such breach has been cured (determined on
a pro forma basis)), or (ii) default in any material respect in the
observance or performance of any other term, covenant or agreement
contained in this Agreement (other than as described in subsections 6(a) or
6(c)(i) above), and such default shall continue unremedied for a period of
30 days or more; or
(d) The Company or any of its Significant Subsidiaries shall (i)
default in any payment of principal of or interest on any Indebtedness
(other than the Loans) in a principal amount outstanding of at least
$100,000,000 in the aggregate for the Company and its Significant
Subsidiaries or in the payment of any matured Guarantee Obligation in a
principal amount outstanding of at least $100,000,000 in the aggregate for
the Company and its Significant Subsidiaries beyond the period of grace
(not to exceed 30 days), if any, provided in the instrument or agreement
under which such Indebtedness or Guarantee Obligation was created; or (ii)
default in the observance or performance of any other agreement or
condition relating to any such Indebtedness in a principal amount
outstanding of at least $100,000,000 in the aggregate for the Company and
its Significant Subsidiaries or Guarantee Obligation in a principal amount
outstanding of at least $100,000,000 in the aggregate for the Company and
its Significant Subsidiaries or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is
to cause, or to permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or such Guarantee Obligation to
become payable;
(e) (i) The Company or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the Company or
any such Significant Subsidiary shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the
Company or any such Significant Subsidiary any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in the
entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or
(iii) there shall be commenced against the Company or any such Significant
Subsidiary any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or
(iv) the Company or any such Significant Subsidiary shall take any action
in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) the Company or any such Significant Subsidiary shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(f) One or more judgments or decrees shall be entered against the
Company or any of its Significant Subsidiaries involving in the aggregate a
liability (not paid when due or covered by insurance) of $100,000,000 or
more and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the entry
thereof; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Company or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Majority Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Company, any of its
Significant Subsidiaries or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Majority Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, any Multiemployer Plan or (vi) any other similar event
or condition shall occur or exist with respect to a Plan; and in each case
in clauses (i) through (vi) above, such event or condition, together with
all other such events or conditions, if any, could have a Material Adverse
Effect; or
(h) Either (i) a "person" or a "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934) of more than 25% of the then outstanding voting stock of the
Company or (ii) a majority of the Board of Directors of the Company shall
consist of individuals who are not Continuing Directors; "Continuing
Director" means, as of any date of determination, (i) an individual who on
the date two years prior to such determination date was a member of the
Company's Board of Directors and (ii) any new Director whose nomination for
election by the Company's shareholders was approved by a vote of at least
75% of the Directors then still in office who either were Directors on the
date two years prior to such determination date or whose nomination for
election was previously so approved;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (e) above in respect of the Company,
automatically the Commitments shall immediately terminate and the Loans (with
accrued interest thereon), and all other amounts owing under this Agreement
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i) with
the consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Company declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Majority Lenders, the Administrative Agent may, or upon the request of the
Majority Lenders, the Administrative Agent shall, by notice of default to the
Company, declare the Loans (with accrued interest thereon) and all other amounts
owing under this Agreement to be due and payable forthwith, whereupon the same
shall immediately become due and payable. Except as expressly provided above in
this Section 6, presentment, demand, protest and all other notices of any kind
are hereby expressly waived.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Appointment. Each Lender hereby irrevocably designates and appoints
JPMCB as the Administrative Agent of such Lender under this Agreement, and each
such Lender irrevocably authorizes JPMCB, as the Administrative Agent for such
Lender, to take such action on its behalf under the provisions of this Agreement
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement, together with such
other powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent. Neither the
Co-Syndication Agents nor the Co-Documentation Agents shall have any duties
under this Agreement.
7.2 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
7.3 Exculpatory Provisions. Neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement (except for its or such
Person's own gross negligence or willful misconduct) or (ii) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by the Company or any officer thereof contained in this
Agreement or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or for any failure
of the Company to perform its obligations hereunder. The Administrative Agent
shall not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance by the Company of any of the agreements contained
in, or conditions of, this Agreement (other than the receipt by the
Administrative Agent of the documents specified in subsection 4.1), or to
inspect the properties, books or records of the Company.
7.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation reasonably believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to the Company), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Loan as the owner thereof for all purposes unless (a) a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent and (b) the Administrative Agent shall have received the
written agreement of such assignee to be bound hereby as fully and to the same
extent as if such assignee were an original Lender party hereto, in each case in
form satisfactory to the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
unless it shall first receive such advice or concurrence of the Majority Lenders
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the Majority
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans.
7.5 Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Majority Lenders; provided, however, that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
7.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representation or warranty to it and that no act by the Administrative Agent
hereinafter taken, including any review of the affairs of the Company shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Company and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement, and to make such investigation as it
deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Company. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Company which may
come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
7.7 Indemnification. The Lenders agree to indemnify the Administrative
Agent (to the extent not reimbursed by the Company and without limiting the
obligation of the Company to do so), ratably according to their respective
Commitment Percentages in effect on the date on which indemnification is sought
under this subsection, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection with
any of the foregoing; provided, however, that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from the Administrative Agent's gross negligence or willful misconduct.
The agreements in this subsection shall survive the termination of this
Agreement and payment of the Loans and all other amounts payable hereunder.
7.8 Administrative Agent in Its Individual Capacity. The Administrative
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Company as though the Administrative
Agent were not the Administrative Agent hereunder. With respect to its Loans
made or renewed by it, the Administrative Agent shall have the same rights and
powers under this Agreement as any Lender and may exercise the same as though it
were not the Administrative Agent, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
7.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 15 days' notice to the Company and the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement,
then the Majority Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor shall be approved by the
Company, whereupon such successor shall succeed to the rights, powers and duties
of the Administrative Agent, and the term "Administrative Agent" shall mean such
successor effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement. After any
retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this subsection shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement.
SECTION 8. MISCELLANEOUS
8.1 Amendments and Waivers. Neither this Agreement nor any terms hereof may
be amended, supplemented or modified except in accordance with the provisions of
this subsection. The Majority Lenders may, or, with the written consent of the
Majority Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Company written amendments, supplements or modifications hereto
for the purpose of adding any provisions to this Agreement or changing in any
manner the rights of the Lenders or of the Company hereunder or (b) waive, on
such terms and conditions as the Majority Lenders or the Administrative Agent,
as the case may be, may specify in such instrument, any of the requirements of
this Agreement or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (i) reduce the amount or extend the scheduled date of
maturity of any Loan, or reduce the stated rate of any interest or fee payable
hereunder (other than interest at the increased post-default rate) or extend the
scheduled date of any payment thereof or increase the amount or extend the
expiration date of any Lender's Commitment, in each case without the consent of
each Lender directly affected thereby, or (ii) amend, modify or waive any
provision of this subsection or reduce the percentage specified in the
definition of Majority Lenders, or consent to the assignment or transfer by the
Company of any of its rights and obligations under this Agreement, in each case
without the written consent of all the Lenders, or (iii) amend, modify or waive
any provision of Section 7 without the written consent of the then
Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Company, the Lenders and the Administrative Agent. In the case of any
waiver, the Company, the Lenders and the Administrative Agent shall be restored
to their former position and rights hereunder and under the outstanding Loans,
and any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
8.2 Notices. Except as otherwise provided in Section 2, all notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when received
by the respective party to whom sent, addressed as follows in the case of the
Company and the Administrative Agent, and as set forth on Schedule II hereof in
the case of the Lenders, or to such other address as may be hereafter notified
by the respective parties hereto and any future holders of the Loans:
The Company: American Home Products Corporation
Five Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Vice President and Treasurer
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: Executive Vice President and General Counsel
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
he Administrative Agent: JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx Xxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
and
JPMorgan Chase Bank
One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
8.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
8.4 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the Loans and the making of the Loans,
provided that all such representations and warranties shall terminate on the
date upon which the Commitments have been terminated and all amounts owing
hereunder and under any Loans have been paid in full.
8.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation, printing
and execution of, and any amendment, supplement or modification to, this
Agreement and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, together with the reasonable fees and disbursements of counsel to
the Administrative Agent, (b) to pay or reimburse each Lender and the
Administrative Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement and any such
other documents, including, without limitation, the fees and disbursements of a
single counsel to the Administrative Agent and to the several Lenders (or, to
the extent that such counsel determines that the interests of the Administrative
Agent and the Lenders materially differ, or that such representation would
reasonably be expected to be unadvisable from any party's point of view, a
single counsel to the Administrative Agent and a single counsel to the several
Lenders), and (c) on demand, to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement and any such other documents, and (d) to pay,
indemnify, and hold each Lender and the Administrative Agent (each, an
"indemnified party") harmless from and against, any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement and any such other documents and the use, or proposed use, of proceeds
of the Loans (all the foregoing, collectively, the "indemnified liabilities");
provided, however, that the Company shall have no obligation hereunder to any
indemnified party with respect to indemnified liabilities arising from (i) the
gross negligence or willful misconduct of such indemnified party, (ii) legal
proceedings commenced against such indemnified party by any security holder or
creditor thereof arising out of and based upon rights afforded such security
holder or creditor solely in its capacity as such or (iii) legal proceedings
commenced against any Lender by any other Lender or the Administrative Agent.
The agreements in this subsection shall survive repayment of the Loans and all
other amounts payable hereunder.
8.6 Successors and Assigns; Participations; Purchasing Lenders. (a) This
Agreement shall be binding upon and inure to the benefit of the Company, the
Lenders, the Administrative Agent and their respective successors and assigns,
except that the Company may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or
more banks or other entities ("Participants") participating interests in
any Loan owing to such Lender, any Commitment of such Lender, or any other
interest of such Lender hereunder. In the event of any such sale by a
Lender of participating interests to a Participant, such Lender's
obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof and the Company and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. No Lender shall
transfer or grant any participation under which the Participant shall have
rights to approve any amendment to or waiver of this Agreement except to
the extent such amendment or waiver would (i) extend the scheduled maturity
of any Loan in which such Participant is participating, or reduce the
stated rate or extend the time of payment of interest or Facility Fees
thereon (except in connection with a waiver of interest at the increased
post-default rate) or reduce the principal amount thereof, or increase the
amount of the Participant's participation over the amount thereof then in
effect (it being understood that a waiver of any Default or Event of
Default shall not constitute a change in the terms of such participation,
and that an increase in any Commitment or Loan shall be permitted without
consent of any Participant if the Participant's participation is not
increased as a result thereof) or (ii) consent to the assignment or
transfer by the Company of any of its rights and obligations under this
Agreement. In the case of any such participation, the Participant shall not
have any rights under this Agreement (the Participant's rights against such
Lender in respect of such participation to be those set forth in the
agreement executed by such Lender in favor of the Participant relating
thereto) and all amounts payable by the Company hereunder shall be
determined as if such Lender had not sold such participation, provided that
each Participant shall be entitled to the benefits of subsections 2.15,
2.16, 2.17 and 8.5 with respect to its participation in the Commitments and
the Loans outstanding from time to time; provided that no Participant shall
be entitled to receive any greater amount pursuant to such subsections than
the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell, pursuant
to a Commitment Transfer Supplement, to (i) any Lender or any affiliate
thereof all or any part of its rights and obligations under this Agreement,
and (ii) with the consent of the Administrative Agent and, so long as no
Default or Event of Default under Section 6(a) or (e) is then in existence,
the Company (in each case, which consent shall not be unreasonably withheld
or delayed), to one or more additional banks or financial institutions
("Purchasing Lenders"), all or any part of its rights and obligations under
this Agreement, in the case of the aforementioned clause (ii), in minimum
amounts of $10,000,000 (or, if less, the entire amount of such Lender's
obligations) so long as, in the case of each of the aforementioned clauses
(i) and (ii) hereof, after giving effect thereto, the remaining Commitment
of such selling Lender shall not be less than $10,000,000, unless such
selling Lender has not retained any Commitment hereunder, and a Commitment
Transfer Supplement has been executed by such Purchasing Lender, such
transferor Lender (and, in the case of a Purchasing Lender that is not then
a Lender or an affiliate thereof, by the Company and the Administrative
Agent), and delivered to the Administrative Agent for its acceptance and
recording in the Register. Upon such execution, delivery, acceptance and
recording, from and after the Transfer Effective Date specified in such
Commitment Transfer Supplement, (x) the Purchasing Lender thereunder shall
be a party hereto and, to the extent provided in such Commitment Transfer
Supplement, have the rights and obligations of a Lender hereunder with a
Commitment as set forth therein, and (y) the transferor Lender thereunder
shall, to the extent provided in such Commitment Transfer Supplement, be
released from its obligations under this Agreement (and, in the case of a
Commitment Transfer Supplement covering all or the remaining portion of a
transferor Lender's rights and obligations under this Agreement, such
transferor Lender shall cease to be a party hereto). Such Commitment
Transfer Supplement shall be deemed to amend this Agreement to the extent,
and only to the extent, necessary to reflect the addition of such
Purchasing Lender and the resulting adjustment of Commitment Percentages
arising from the purchase by such Purchasing Lender of all or a portion of
the rights and obligations of such transferor Lender under this Agreement.
(d) The Administrative Agent shall maintain at its address referred to
in subsection 8.2 a copy of each Commitment Transfer Supplement delivered
to it and a register (the "Register") for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and the Company, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded therein for all
purposes of this Agreement. The Register shall be available for inspection
by the Company or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed by a
transferor Lender and a Purchasing Lender (and, in the case of a Purchasing
Lender that is not then a Lender or an affiliate thereof, by the Company
and the Administrative Agent) together with payment to the Administrative
Agent (by the transferor Lender or the Purchasing Lender, as agreed between
them) of a registration and processing fee of $3,500 for each Purchasing
Lender listed in such Commitment Transfer Supplement, the Administrative
Agent shall (i) accept such Commitment Transfer Supplement, (ii) record the
information contained therein in the Register and (iii) give prompt notice
of such acceptance and recordation to the Lenders and the Company.
(f) The Company authorizes each Lender to disclose to any Participant
or Purchasing Lender (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning
the Company and its Affiliates which has been delivered to such Lender by
or on behalf of the Company pursuant to this Agreement or which has been
delivered to such Lender by or on behalf of the Company in connection with
such Lender's credit evaluation of the Company and its Affiliates prior to
becoming a party to this Agreement; in each case subject to subsection
8.14.
(g) At the time of each assignment pursuant to this subsection 8.6 to
a Person which is not already a Lender hereunder and which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code)
for Federal income tax purposes, the respective assignee Lender shall
provide to the Company and the Administrative Agent the appropriate
Internal Revenue Service Forms (and, if applicable, a 2.17 Certificate)
described in subsection 2.17.
(h) Nothing herein shall prohibit any Lender from pledging or
assigning any of its rights under this Agreement (including, without
limitation, any right to payment of principal and interest under any Loan)
to any Federal Reserve Bank in accordance with applicable laws.
8.7 Adjustments; Set-off. (a) Each Lender agrees that if any Lender (a
"benefited Lender") shall at any time receive any payment of all or part of its
Committed Rate Loans, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in clause (e) of Section 6, or otherwise)
in a greater proportion than any such payment to or collateral received by any
other Lender, if any, in respect of such other Lender's Committed Rate Loans, or
interest thereon (except as expressly provided in subsection 2.18), such
benefited Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Committed Rate Loan, or
shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such benefited Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefited Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest. The Company agrees that
each Lender so purchasing a portion of another Lender's Committed Rate Loan may
exercise all rights of payment (including, without limitation, rights of
set-off) with respect to such portion as fully as if such Lender were the direct
holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by
law (including, without limitation, other rights of set-off), each Lender
shall have the right, without prior notice to the Company, any such notice
being expressly waived by the Company to the extent permitted by applicable
law, upon the occurrence of any Event of Default, to setoff and appropriate
and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness
or claims, in any currency, in each case whether direct or indirect,
absolute or contingent, matured or unmatured, at any time held or owing by
such Lender or any branch or agency thereof to or for the credit or the
account of the Company, or any part thereof in such amounts as such Lender
may elect, against and on account of the obligations and liabilities of the
Company to such Lender hereunder and claims of every nature and description
of such Lender against the Company, in any currency, whether arising
hereunder, under the Loans or under any documents contemplated by or
referred to herein or therein, as such Lender may elect, whether or not
such Lender has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The aforesaid right
of set-off may be exercised by such Lender against the Company or against
any trustee in bankruptcy, debtor in possession, assignee for the benefit
of creditors, receiver or execution, judgment or attachment creditor of the
Company, or against anyone else claiming through or against the Company or
any such trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment
creditor, notwithstanding the fact that such right of set-off shall not
have been exercised by such Lender prior to the occurrence of any Event of
Default. Each Lender agrees promptly to notify the Company and the
Administrative Agent after any such set-off and application made by such
Lender; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application.
8.8 Table of Contents and Section Headings. The table of contents and the
Section and subsection headings herein are intended for convenience only and
shall be ignored in construing this Agreement.
8.9 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Administrative Agent.
8.10 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8.11 Integration. This Agreement represents the agreement of the Company,
the Administrative Agent and the Lenders with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Administrative Agent, the Company or any Lender relative to the subject
matter hereof not expressly set forth or referred to herein.
8.12 Governing Law. This Agreement and the rights and obligations of the
parties under this Agreement shall be governed by, and construed and interpreted
in accordance with, the law of the State of New York.
8.13 Consent to Jurisdiction and Service of Process. All judicial
proceedings brought against the Company with respect to this Agreement may be
brought in any state or federal court of competent jurisdiction in the State of
New York, and, by execution and delivery of this Agreement, the Company accepts,
for itself and in connection with its properties, generally and unconditionally,
the non-exclusive jurisdiction of the aforesaid courts and irrevocably agrees to
be bound by any final judgment rendered thereby in connection with this
Agreement from which no appeal has been taken or is available. The Company
irrevocably agrees that all process in any such proceedings in any such court
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to it at its address
set forth in subsection 8.2 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto, such service being hereby
acknowledged by the Company to be effective and binding service in every
respect. Each of the Company, the Administrative Agent and the Lenders
irrevocably waives any objection, including, without limitation, any objection
to the laying of venue or based on the grounds of forum non conveniens which it
may now or hereafter have to the bringing of any such action or proceeding in
any such jurisdiction. Nothing herein shall affect the right to serve process in
any other manner permitted by law or shall limit the right of any Lender to
bring proceedings against the Company in the court of any other jurisdiction.
8.14 Confidentiality. Each of the Lenders agrees that it will use its best
efforts not to disclose without the prior consent of the Company (other than to
its employees, auditors or counsel or to another Lender or to any affiliate of a
Lender which is a prospective or actual Transferee) any information with respect
to the Company and its Subsidiaries which is furnished pursuant to this
Agreement or any documents contemplated by or referred to herein or therein and
which is designated by the Company to the Lenders in writing as confidential,
except that any Lender may disclose any such information (a) as has become
generally available to the public other than by a breach of this subsection
8.14, (b) as may be required or appropriate in any report, statement or
testimony submitted to any municipal, state or federal regulatory body having or
claiming to have jurisdiction over such Lender or to the Federal Reserve Board
or the Federal Deposit Insurance Corporation or similar organizations (whether
in the United States or elsewhere) or their successors, (c) as may be required
or appropriate in response to any summons or subpoena or any law, order,
regulation or ruling applicable to such Lender, or (d) to any prospective
Participant or assignee in connection with any contemplated transfer pursuant to
subsection 8.6, provided that such prospective transferee shall have been made
aware of this subsection 8.14 and shall have agreed to be bound by its
provisions as if it were a party to this Agreement.
8.15 Acknowledgments. The Company hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of the Agreement;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Company arising out of or in connection
with this Agreement and the relationship between the Administrative Agent
and the Lenders, on one hand, and the Company, on the other hand, in
connection herewith is solely that of debtor and creditor; and
(c) no joint venture exists among the Lenders with respect to this
Agreement or among the Company and the Lenders.
8.16 Waivers Of Jury Trial. The Company, the Administrative Agent and the
Lenders hereby irrevocably and unconditionally waive trial by jury in any legal
action or proceeding relating to this Agreement and for any counterclaim
therein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in New York, New York by its proper and duly
authorized officers as of the day and year first above written.
AMERICAN HOME PRODUCTS CORPORATION
By: /s/ Xxxx X. X'Xxxxxx
Title: Vice President & Treasurer
JPMORGAN CHASE BANK
(f/k/a The Chase Manhattan Bank),
Individually and as Administrative Agent
By: /s/ Xxxx Xxx Xxx
Title: Vice President
CITIBANK, N.A., Individually and as
Co-Syndication Agent
By: /s/ Xxxxxxx X. Xxxxx
Title: Managing Director
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, Individually and as Co-Syndication
Agent
By: /s/ Xxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
By: /s/ Xxxxxx X. Xxxx
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA, Individually and
as Co-Documentation Agent
By: /s/ Xxxxx X. Xxxxx
Title: Managing Director
THE DAI ICHI KANGYO BANK, LTD., Individually
and as Co-Documentation Agent
By: /s/ Xxxx Xxxxxxx
Title: Vice President
BANCA NAZIONALE DEL LAVORO, S.P.A.
- NEW YORK BRANCH
By: /s/ Xxxxxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxxx
Title: First Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxxxxxx Xxxxxx
Title: Vice President
UBS AG, Stamford Branch
By: /s/ Xxxxxxxx X'Xxxxx
Title: Director
By: /s/ Xxxxxxx X. Saint
Title: Associate Director
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxxxxxxx
Title: Manager
FLEET NATIONAL BANK
By: /s/ Xxxxx Xxxxxxx
Title: EVP Corporate Banking
DEUTSCHE BANK AG, NEW YORK BRANCH
By: /s/ Xxxx Xxxxxxx
Title: Director
By: /s/ Xxxx X. Xxxxxxxx
Title: Director
FIRSTAR BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
MELLON BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
XXXXXX XXXXXXX BANK
By: /s/ Jaap L. Tonckens
Title: Vice President
SAN PAOLO IMI S.P.A.
By: /s/ Xxxxx Xxxxxxx
Title: General Manager
By: /s/ Xxxxxx Xxxxxx
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxxx Xxxxxxx
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/ Xxxx Xxxxxxxxxx
Title: Vice President
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
By: /s/ Xxxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxx
Title: Vice President
BANCO POPULAR DE PUERTO RICO
By: /s/ Xxxxxx X. Xxxxxxxx
Title: Vice President
THE GOVERNOR AND COMPANY OF BANK OF IRELAND
By: /s/ Xxxx Xxxxxxx
Title: Senior Manager
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxx X. Xxxxxx
Title: Vice President
SCHEDULES
Schedule I........Commitments
Schedule II.......Bank Addresses and Lending Offices
EXHIBITS
Exhibit A.........Form of Borrowing Notice
Exhibit B.........Form of Bid Loan Request
Exhibit C.........Form of 2.17 Certificate
Exhibit D.........Form of Bid Loan Offer - Absolute Rate Bid Loans
Exhibit E.........Form of Bid Loan Offer - Index Rate Bid Loans
Exhibit F.........Form of Bid Loan Confirmation
Exhibit G.........Form of Commitment Transfer Supplement
Exhibit H.........Form of Certificate of Secretary of the Company
Exhibit I.........Form of Opinion of Counsel to the Company
