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Exhhibit (b)(5)
EXECUTION COPY
US$150,000,000
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
Dated as of May 27, 1999
Among
THE GEON COMPANY
and
GEON CANADA INC.
AS BORROWERS
and
THE INITIAL LENDERS NAMED HEREIN
As Initial Lenders
-- ------- -------
and
CITIBANK, N.A.
As Administrative Agent
-- -------------- -----
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T A B L E O F C O N T E N T S
---------------------------------
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS...............................................1
SECTION 1.02. COMPUTATION OF TIME PERIODS........................................16
SECTION 1.03. ACCOUNTING TERMS...................................................16
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE REVOLVING CREDIT ADVANCES......................................16
SECTION 2.02. MAKING THE REVOLVING CREDIT ADVANCES...............................17
SECTION 2.03. THE COMPETITIVE BID ADVANCES.......................................19
SECTION 2.04. FEES ..............................................................24
SECTION 2.05. TERMINATION OR REDUCTION OF THE COMMITMENTS........................24
SECTION 2.06. REPAYMENT OF REVOLVING CREDIT ADVANCES; TERM LOAN
ELECTION......................................................25
SECTION 2.07. INTEREST ON REVOLVING CREDIT ADVANCES..............................25
SECTION 2.08. INTEREST RATE DETERMINATION........................................26
SECTION 2.09. OPTIONAL CONVERSION OF REVOLVING CREDIT ADVANCES...................27
SECTION 2.10. PREPAYMENTS OF REVOLVING CREDIT ADVANCES...........................28
SECTION 2.11. INCREASED COSTS....................................................28
SECTION 2.12. ILLEGALITY.........................................................29
SECTION 2.13. PAYMENTS AND COMPUTATIONS..........................................29
SECTION 2.14. TAXES..............................................................31
SECTION 2.15. SHARING OF PAYMENTS, ETC...........................................33
SECTION 2.16. USE OF PROCEEDS....................................................33
SECTION 2.17. EXTENSION OF TERMINATION DATE......................................33
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO EFFECTIVENESS OF SECTIONS 2.01
AND 2.03......................................................36
SECTION 3.02. CONDITIONS PRECEDENT TO EACH REVOLVING CREDIT
BORROWING.....................................................38
SECTION 3.03. CONDITIONS PRECEDENT TO EACH COMPETITIVE BID BORROWING
.........................................38
SECTION 3.04. DETERMINATIONS UNDER SECTION 3.01..................................39
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY......................39
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ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. AFFIRMATIVE COVENANTS..............................................43
SECTION 5.02. NEGATIVE COVENANTS.................................................47
SECTION 5.03. FINANCIAL COVENANTS................................................48
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT..................................................49
ARTICLE VII
COMPANY GUARANTY
SECTION 7.01. GUARANTY...........................................................52
SECTION 7.02. GUARANTY ABSOLUTE..................................................52
SECTION 7.03. WAIVER.............................................................53
SECTION 7.04. CONTINUING GUARANTY; ASSIGNMENTS...................................53
SECTION 7.05. SUBROGATION........................................................54
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. AUTHORIZATION AND ACTION...........................................54
SECTION 8.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC...............................55
SECTION 8.03. CITIBANK AND AFFILIATES............................................55
SECTION 8.04. LENDER CREDIT DECISION.............................................56
SECTION 8.05. INDEMNIFICATION....................................................56
SECTION 8.06. SUCCESSOR ADMINISTRATIVE AGENT.....................................56
SECTION 8.07. LOCAL AGENT........................................................57
SECTION 8.08. OTHER AGENTS.......................................................57
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. AMENDMENTS, ETC....................................................57
SECTION 9.02. NOTICES, ETC.......................................................58
SECTION 9.03. NO WAIVER; REMEDIES................................................58
SECTION 9.04. COSTS AND EXPENSES.................................................58
SECTION 9.05. RIGHT OF SET-OFF...................................................60
SECTION 9.06. BINDING EFFECT.....................................................61
SECTION 9.07. ASSIGNMENTS, DESIGNATIONS AND PARTICIPATIONS......................61
SECTION 9.08. CONFIDENTIALITY....................................................65
SECTION 9.09. GOVERNING LAW......................................................66
SECTION 9.10. EXECUTION IN COUNTERPARTS..........................................66
SECTION 9.11. CURRENCY CONVERSION FOR JUDGMENTS..................................66
SECTION 9.12. JURISDICTION, ETC..................................................67
SECTION 9.13. WAIVER OF JURY TRIAL..............................................68
Schedules
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Schedule I - Pricing Grid
Schedule 3.01(b) - Disclosed Litigation
Schedule 4.01(m) - Environmental Disclosure
Schedule 5.02(a) - Existing Liens
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Opinion of Counsel for the Borrowers
Exhibit F - Form of Acceptance Agreement
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AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
Dated as of May 27, 1999
THE GEON COMPANY, a Delaware corporation (the "COMPANY") and GEON
CANADA INC., a federal Canadian corporation (the "SUBSIDIARY BORROWER"), the
banks, financial institutions and other institutional lenders (the "INITIAL
LENDERS") listed on the signature pages hereof, and CITIBANK, N.A. ("CITIBANK"),
as administrative agent (the "ADMINISTRATIVE AGENT") for the Lenders (as
hereinafter defined), and NATIONSBANK, N.A., as documentation agent agree as
follows:
PRELIMINARY STATEMENTS:
1. The Company, the Subsidiary Borrower and Synergistics Industries
Limited, an Ontario corporation, are parties to a 364-Day Credit Agreement dated
as of May 29, 1998 (the "EXISTING CREDIT AGREEMENT") with the banks, financial
institutions and other institutional lenders party thereto, Citibank, as
administrative agent, CIBC, Inc., as syndication agent, and NationsBank, N.A.,
as documentation agent for the such lenders.
2. The parties to this Agreement desire to amend the Existing Credit
Agreement as set forth herein and to restate the Existing Credit agreement in
its entirety to read as hereinafter set forth.
NOW, THEREFORE, the parties hereto agree to amend and restate the
Existing Credit Agreement as set forth below:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ACCEPTANCE" means a bankers' acceptance issued as part of a
Competitive Bid Advance.
"ADMINISTRATIVE AGENT'S ACCOUNT" means (a) in the case of Advances
denominated in US Dollars, the account of the Administrative Agent
maintained by the Administrative Agent at Citibank with its office at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No. 3685 2248, Attention:
NAIB Agency/MTF Reference: Geon, (b) in the case of Advances denominated in
any Foreign Currency, the account
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of the Administrative Agent or Local Agent designated in writing from time
to time by the Administrative Agent to the Borrowers and the Lenders for
such purpose and (c) in any such case, such other account of the
Administrative Agent as is designated in writing from time to time by the
Administrative Agent to the Borrowers and the Lenders for such purpose.
"ADVANCE" means a Revolving Credit Advance or a Competitive Bid
Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "CONTROL" (including the terms "CONTROLLING",
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH") of a Person means the
possession, direct or indirect, of the power to vote 5% or, if such Person
is a Borrower, 15%, or more of the Voting Stock of such Person or to direct
or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"APPLICABLE FACILITY FEE" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth on Schedule I hereto.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a Competitive Bid Advance, the office of such
Lender notified by such Lender to the Administrative Agent as its
Applicable Lending Office with respect to such Competitive Bid Advance.
"APPLICABLE MARGIN" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date
and the Usage on such date as set forth on Schedule I hereto.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"ASSUMING LENDER" has the meaning specified in Section 2.17(c).
"ASSUMPTION AGREEMENT" has the meaning specified in Section 2.17(c).
"BASE RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
highest of:
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(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no
nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per
annum, PLUS (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities) three-month US Dollar non-personal time deposits in the
United States, PLUS (iii) the average during such three-week period of
the annual assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the Federal
Deposit Insurance Corporation (or any successor) for insuring US
Dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means a Revolving Credit Advance denominated in US
Dollars that bears interest as provided in Section 2.07(a)(i).
"BORROWED DEBT" means Debt described in clauses (a) through (e)
of the definition thereof.
"BORROWED DEBT/EBITDA RATIO" means, as of any date, the ratio
computed by dividing (a) Borrowed Debt of the Company and its
Subsidiaries, on a Consolidated basis as of such date by (b) EBITDA of
the Company and its Subsidiaries, including their pro rata share of
Sunbelt, on a Consolidated basis for the four consecutive fiscal
quarters of the Company most recently ended as of such date; PROVIDED
that clause (b) of this definition shall be calculated to include the
EBITDA for such period of four consecutive fiscal quarters of any
business acquired by the Company or its Subsidiaries
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during such period.
"BORROWER" means the Company or the Subsidiary Borrower, as the
context requires.
"BORROWING" means a Revolving Credit Borrowing or a Competitive
Bid Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market and, if
the applicable Business Day relates to any Local Rate Advances, on
which banks are open for business in the principal financial center of
the country of issue of the currency of such Local Rate Advance.
"CASH INTEREST EXPENSE" means, for any fiscal period of the
Company, interest expense on all Debt of the Company and its
Subsidiaries, net of interest income, in accordance with GAAP and
including, without limitation, to the extent not otherwise included in
accordance with GAAP, (a) interest expense in respect of Debt
resulting from Advances, (b) the interest component of obligations
under leases that have or should have been or should be, in accordance
with GAAP, recorded as capital leases, (c) commissions, discounts and
other fees and charges payable in connection with letters of credit
issued for the account of the Company or any of its Subsidiaries, (d)
the net payment, if any, payable in connection with Hedge Agreements
and (e) fees paid pursuant to Section 2.04(a), but excluding, in each
case, (w) any amounts accrued or payable in connection with the
Receivables Financing, (x) amortization of original issue discount,
(y) the interest portion of any deferred payment obligation and (z)
other interest not payable in cash.
"COMMITMENT" has the meaning specified in Section 2.01.
"COMPETITIVE BID ADVANCE" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
auction bidding procedure described in Section 2.03 and refers to an
issue of Acceptances, a Fixed Rate Advance, a LIBO Rate Advance or a
Local Rate Advance.
"COMPETITIVE BID BORROWING" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the auction bidding procedure
described in Section 2.03.
"COMPETITIVE BID NOTE" means the promissory note of any Borrower
payable to the order of any Lender, in substantially the Form of
Exhibit A-2 hereto, evidencing
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the indebtedness of such Borrower to such Lender resulting from the
Competitive Bid Advance made by such Lender to such Borrower.
"COMPETITIVE BID REDUCTION" has the meaning specified in Section
2.01.
"COMPETITIVE BID REGISTER" has the meaning specified in Section
2.03(s)(vii).
"CONFIDENTIAL INFORMATION" means information that any Borrower
furnishes to the Administrative Agent, the Local Agent or any Lender
in a writing designated as confidential or otherwise on a confidential
basis if such information otherwise furnished is reduced to a writing
designated as confidential within 30 days of the initial disclosure
thereof to the Administrative Agent, the Local Agent or any Lender,
but does not include any such information that is or becomes generally
available to the public other than a result of a breach by any of the
Administrative Agent, the Local Agent or any Lender of its obligations
hereunder or that is or becomes available to the Administrative Agent,
the Local Agent or such Lender from a source other than a Borrower or
any consultant employed by the Administrative Agent to provide
technical advice that is not, to the best of the Administrative
Agent's, the Local Agent's or such Lender's knowledge, acting in
violation of a confidentiality agreement with any Borrower.
"CONSENTING LENDER" has the meaning specified in Section 2.17(b).
"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
"DEBT" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred
in the ordinary course of such Person's business), (c) all obligations
of such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property), (e)
all obligations of such Person as lessee under leases that have been
or should be, in accordance with GAAP, recorded as capital leases, (f)
all obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit and (g)
obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to in effect guaranty any Debt
of others of the kinds referred to in clauses
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(a) through (f) above through an agreement (1) to pay or purchase such
Debt or to advance or supply funds for the payment or purchase of such
Debt, (2) to supply funds to or in any other manner invest in the
debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are
rendered) primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss
or (3) otherwise to assure a creditor against loss; PROVIDED, that the
term "Debt" shall not include obligations under the Receivables
Financing.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DESIGNATED BIDDER" means (a) an Eligible Assignee or (b) a
special purpose corporation that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial
paper rated at least "Prime-1" (or the then equivalent grade) by
Xxxxx'x or "A-1" (or the then equivalent grade) by S&P that, in the
case of either clause (a) or (b), (i) shall have become a party hereto
pursuant to Section 9.07(d), (e) and (f) and (ii) is not otherwise a
Lender.
"DESIGNATION AGREEMENT " means a designation agreement entered
into by a Lender (other than a Designated Bidder) and a Designated
Bidder, and accepted by the Administrative Agent, in substantially the
form of Exhibit D hereto.
"DISCLOSED LITIGATION" has the meaning specified in Section
3.01(b).
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" from
time to time to the Company and the Administrative Agent.
"EBITDA" means, for any period, net income (or net loss) PLUS the
sum of (a) interest expense, (b) income tax expense, (c) depreciation
expense and (d) amortization expense, in each case determined in
accordance with GAAP for such period.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (i) an Affiliate of a Lender; (ii) a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
US$5,000,000,000; (iv) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof,
and having total assets in excess of US$3,000,000,000; (v) a
commercial bank organized under the laws of any other country that is
a member of the Organization for Economic Cooperation and Development
or has concluded special lending arrangements
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with the International Monetary Fund associated with its General
Arrangements to Borrow or of the Cayman Islands, or a political
subdivision of any such country, and having total assets in excess of
US$5,000,000,000, so long as such bank is acting through a branch or
agency located in the country in which it is organized or another
country that is described in this clause (v); (vi) a finance company,
insurance company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) that is engaged in
making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and having total assets in excess of
US$3,000,000,000; PROVIDED, HOWEVER, that each Person described in
clauses (ii) through (vi) shall be approved by the Administrative
Agent and the Company, such approval not to be unreasonably withheld
or delayed; and (vii) any other Person approved by the Administrative
Agent and the Company, such approval not to be unreasonably withheld
or delayed; PROVIDED FURTHER, HOWEVER, that neither the Company nor an
Affiliate of the Company shall qualify as an Eligible Assignee.
"ENVIRONMENTAL ACTION" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of
non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent
agreement arising under any Environmental Law or Environmental Permit
or relating to Hazardous Materials or arising from alleged injury or
threat of injury to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory authority
for enforcement, cleanup, removal, response, remedial or other actions
or damages and (b) by any governmental or regulatory authority or any
third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"ENVIRONMENTAL LAW" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to the environment or Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification
number, license or other authorization required under any
Environmental Law.
"EQUIVALENT" in US Dollars of any Foreign Currency on any date
means the equivalent in US Dollars of such Foreign Currency determined
by using the quoted spot rate at which the Administrative Agent's
principal office in New York offers to exchange US Dollars for such
Foreign Currency in New York prior to 4:00 P.M. (New York time)
(unless otherwise indicated by the terms of this Agreement) on such
date as is required pursuant to the terms of this Agreement, and the
"Equivalent" in any Foreign Currency of US Dollars means the
equivalent in such Foreign Currency of US Dollars determined by using
the quoted spot rate at which the Administrative Agent's principal
office in New York offers to exchange such Foreign Currency for US
Dollars in New York prior to 4:00 P.M. (New York time) (unless
otherwise indicated by the
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terms of this Agreement) on such date as is required pursuant to the
terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV
of ERISA is a member of the Company's controlled group, or under
common control with the Company, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA EVENT" means (a) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has
been waived by the PBGC; (b) the application for a minimum funding
waiver with respect to a Plan; (c) the provision by the administrator
of any Plan of a notice of intent to terminate such Plan pursuant to
Section 4041(a)(2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of ERISA); (d) the
cessation of operations at a facility of the Company or any of its
ERISA Affiliates in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by the Company or any of its ERISA
Affiliates from a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (f) the failure by the Company or any of its ERISA Affiliates
to make a payment to a Plan if the conditions for the imposition of a
lien under Section 302(f)(1) of ERISA are satisfied; (g) the adoption
of an amendment to a Plan requiring the provision of security to such
Plan, pursuant to Section 307 of ERISA; or (h) the institution by the
PBGC of proceedings to terminate a Plan, pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in
Section 4042 of ERISA that could reasonably be expected to constitute
grounds for the termination of, or the appointment of a trustee to
administer, a Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
from time to time to the Company and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not
13
such a multiple) of the rate per annum at which deposits in US Dollars
are offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Revolving
Credit Borrowing to be outstanding during such Interest Period and for
a period equal to such Interest Period by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period. The Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing shall be determined by the Administrative Agent on the basis
of applicable rates furnished to and received by the Administrative
Agent from the Reference Banks two Business Days before the first day
of such Interest Period, SUBJECT, HOWEVER, to the provisions of
Section 2.08.
"EURODOLLAR RATE ADVANCE" means a Revolving Credit Advance
denominated in US Dollars that bears interest as provided in Section
2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period for
all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time
to time by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect
to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurodollar Rate Advances is
determined) having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXTENSION DATE" has the meaning specified in Section 2.17(b).
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is
a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
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"FIXED RATE ADVANCES" has the meaning specified in Section
2.03(a)(i), which Advances shall be denominated in US Dollars or in
any Foreign Currency.
"FOREIGN CURRENCY" means the lawful currency of Canada.
"GAAP" has the meaning specified in Section 1.03.
"HAZARDOUS MATERIALS" means petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, radon gas and any other chemicals,
materials or substances designated, classified or regulated as being
"hazardous" or "toxic", or words of similar import, under any federal,
state, local or foreign statute, law, ordinance, rule, regulation,
code, order, judgment, decree or judicial or agency interpretation,
policy or guidance.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"INSUFFICIENCY" means, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"INTEREST COVERAGE RATIO" means, with respect to any fiscal
quarter, the ratio of (a) EBITDA of the Company and its Subsidiaries,
including their pro rata share of Sunbelt, on a Consolidated basis to
(b) Cash Interest Expense of the Company and its Subsidiaries,
including their pro rata share of Sunbelt, on a Consolidated basis, in
each case in the aggregate for the period of four consecutive fiscal
quarters ended at the end of such fiscal quarter; PROVIDED that clause
(a) of this definition shall be calculated to include the EBITDA for
such period of four consecutive fiscal quarters of any business
acquired by the Company or its Subsidiaries during such period.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing, the period
commencing on the date of such Eurodollar Rate Advance or the date of
the Conversion of any Base Rate Advance into such Eurodollar Rate
Advance and ending on the last day of the period selected by the
Company pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the Company pursuant to the provisions below. The duration
of each such Interest Period shall be one, two, three or six months,
as the Company may, upon notice received by the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, select; PROVIDED,
HOWEVER, that:
(i) the Company may not select any Interest Period that ends
after
15
the Revolver Termination Date or, if the Revolving Credit
Advances have been converted to a term loan pursuant to Section
2.06 prior to such selection, which ends after the Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, PROVIDED, HOWEVER, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
and
(iv) whenever the first day of any Interest Period occurs on
a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds
such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding calendar
month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"LENDERS" means the Initial Lenders, each Assuming Lender that
shall become a party hereto pursuant to Section 2.17 and each Person
that shall become a party hereto pursuant to Section 9.07(a), (b) and
(c) and, except when used in reference to a Revolving Credit Advance,
a Revolving Credit Borrowing, a Revolving Credit Note, a Commitment or
a related term, each Designated Bidder.
"LIBO RATE" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of
the rate per annum at which deposits in US Dollars are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an
amount substantially equal to the amount that would be the Reference
Banks' respective ratable shares of such Borrowing if such Borrowing
were to be a Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b)
a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period. The LIBO Rate for any Interest
Period for each LIBO Rate Advance comprising part of the
16
same Competitive Bid Borrowing shall be determined by the
Administrative Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from the Reference Banks two
Business Days before the first day of such Interest Period, SUBJECT,
HOWEVER, to the provisions of Section 2.08.
"LIBO RATE ADVANCES" means a Competitive Bid Advance denominated
in US Dollars and bearing interest based on the LIBO Rate.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential
arrangement, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of way
or other encumbrance on title to real property.
"LOCAL AGENT" means Citibank Canada or any successor local agent
that is a Canadian chartered bank so designated by the Administrative
Agent.
"LOCAL RATE ADVANCES" means a Competitive Bid Advance denominated
in any Foreign Currency sourced from the jurisdiction of issuance of
such Foreign Currency.
"MATERIAL ADVERSE CHANGE" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance or properties of the Company or the Company and its
Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a)
the business, condition (financial or otherwise), operations,
performance or properties of the Company or the Company and its
Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent or any Lender under this Agreement or any Note or
(c) the ability of any Borrower to perform its obligations under this
Agreement or any Note.
"MATURITY DATE" means the earlier of (a) the second anniversary
of the Term Loan Conversion Date and (b) the date of termination in
whole of the aggregate Commitments pursuant to Section 2.05 or 6.01.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company or any of
17
its ERISA Affiliates is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made
or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees
of the Company or any of its ERISA Affiliates and at least one Person
other than the Company and its ERISA Affiliates or (b) was so
maintained and in respect of which the Company or any of its ERISA
Affiliates could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"NOTE" means a Revolving Credit Note or the Competitive Bid Note.
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning specified
in Section 2.03(a).
"NOTICE OF REVOLVING CREDIT BORROWING" has the meaning specified
in Section 2.02(a).
"PAYMENT OFFICE" means, for any Foreign Currency, such office of
the Local Agent as shall be from time to time be notified by the
Administrative Agent to the Company and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PERSON" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity,
or a government or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PUBLIC DEBT RATING" means, as of any date, the rating most
recently announced by each of S&P or Moody's, as the case may be, for
any class of long-term senior unsecured debt issued by the Company.
For purposes of the foregoing, (a) if only one of S&P and Moody's
shall have in effect a Public Debt Rating, the Applicable Margin and
the Applicable Facility Fee shall be determined by reference to the
available rating; (b) if the ratings established by S&P and Moody's
shall fall within different levels and the differential is one level,
the Applicable Margin and the Applicable Facility Fee shall be
established by the higher rating; (c) if the ratings established by
S&P and Moody's shall fall within different levels and the
differential is two levels or more, the Applicable Margin and the
Applicable Facility Fee shall be established by the level that is one
level higher than the lower rating; (d) if any rating established by
S&P or Moody's shall be changed, such change shall be effective as of
the date on which such change is first announced publicly by the
rating agency making such change; and (e) if S&P or Moody's shall
change the basis on which ratings are established, each reference to
the Public Debt Rating announced by S&P or Moody's, as the case may
be, shall refer to the then equivalent rating by S&P or Moody's, as
the case may be.
18
"RECEIVABLES FINANCING" means, collectively, the transactions
contemplated by (i) the Trade Receivables Purchase and Sale Agreement
dated as of August 16, 1994 among the Company, Corporate Receivables
Corporation and Citicorp North America, Inc., as Agent, and (ii) the
Parallel Purchase Commitment dated as of August 16, 1994 among the
Company, the banks named therein and Citicorp North America, Inc., as
Agent.
"REFERENCE BANKS" means Citibank and NationsBank, N.A.
"REGISTER" has the meaning specified in Section 9.07(g).
"REQUIRED LENDERS" means at any time Lenders owed at least
66-2/3% of the then aggregate unpaid principal amount of the Revolving
Credit Advances owing to Lenders, or, if no such principal amount is
then outstanding, Lenders having at least 66-2/3% of the Commitments.
"REVOLVER TERMINATION DATE" means the earlier of May 26, 2000 and
the date of termination in whole of the Commitments pursuant to
Section 2.05 or 6.01.
"REVOLVING CREDIT ADVANCE" means an advance by a Lender to the
Company as part of a Revolving Credit Borrowing and, if the Company
has made the Term Loan Election in accordance with Section 2.06,
includes each such advance that remains outstanding after the Term
Loan Conversion Date, and refers to a Base Rate Advance or a
Eurodollar Rate Advance (each of which shall be a "TYPE" of Revolving
Credit Advance).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each
of the Lenders pursuant to Section 2.01.
"REVOLVING CREDIT NOTE" means a promissory note of the Company
payable to the order of any Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of the
Company to such Lender resulting from the Revolving Credit Advances
made by such Lender.
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees
of the Company or any of its ERISA Affiliates and no Person other than
the Company and its ERISA Affiliates or (b) was so maintained and in
respect of which the Company or any of its ERISA Affiliates could have
liability under Section 4069 of ERISA in the event such plan has
19
been or were to be terminated.
"SUBSIDIARY" means any corporation, partnership, joint venture,
limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock or the
equivalent ownership or controlling interest, in either case having
ordinary voting power to elect a majority of the board of directors,
managers or trustees thereof (irrespective of whether at the time
capital stock (or other evidence of ownership) of any other class or
classes of such entity shall or might have the voting power upon the
occurrence of any contingency) or (b) the beneficial interest in such
trust or estate, is at the time owned or controlled, directly or
indirectly, by the Company, by the Company and one or more of its
other Subsidiaries or by one or more of the Company's other
Subsidiaries.
"SPC" has the meaning specified in Section 9.07(i) hereto.
"SUBSIDIARY BORROWER" has the meaning specified in the recital of
parties to this Agreement.
"SUNBELT" means Sunbelt Chlor Alkali Partnership, a joint venture
between the Company and The Xxxx Corp. to construct and operate a new
chlor alkali plant in XxXxxxxx, Alabama.
"TERM LOAN CONVERSION DATE" has the meaning specified in Section
2.06.
"TERM LOAN ELECTION" has the meaning specified in Section 2.06.
"TYPE" refers to the distinction between Base Rate Advances and
Eurodollar Rate Advances.
"US DOLLAR AMOUNT" means, with respect to any outstanding Advance
on any day (a) the outstanding principal amount of such Advance if it
is an Advance denominated in US Dollars and (b) the Equivalent in US
Dollars (determined on the third Business Day prior to such day) of
(i) the outstanding principal amount of such Advance if it is an
Advance denominated in any Foreign Currency or (ii) the aggregate face
amount of such Advance if it is an issue of Acceptances.
"US DOLLARS" and the "US$" sign each means lawful currency of the
United States of America.
"USAGE" means, as of any date of determination, the ratio
(expressed as a percentage) computed by dividing the aggregate
principal amount of Advances outstanding by the aggregate Commitments
of the Lenders.
20
"VOTING STOCK" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of
such Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements dated as of December 31, 1998 ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE REVOLVING CREDIT ADVANCES. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to the Company from time to time on any Business Day during the
period from the Effective Date until the earlier of the Revolver Termination
Date and the Term Loan Conversion Date in an aggregate amount not to exceed at
any time outstanding the US Dollar amount set forth opposite such Lender's name
on the signature pages hereof or, if such Lender has become a lender hereunder
pursuant to an Assumption Agreement, the US Dollar amount set forth in such
Assignment Agreement or, if such Lender has entered into any Assignment and
Acceptance, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 9.07(d), as such amount may be reduced
pursuant to Section 2.05 (such Lender's "COMMITMENT"), PROVIDED that the
aggregate amount of the Commitments of the Lenders shall be deemed used from
time to time to the extent of the aggregate US Dollar Amount of the Competitive
Bid Advances then outstanding and such deemed use of the aggregate amount of the
Commitments shall be allocated among the Lenders ratably according to their
respective Commitments (such deemed use of the aggregate amount of the
Commitments being a "COMPETITIVE BID REDUCTION"). Each Revolving Credit
Borrowing shall be in an aggregate amount of US$10,000,000 or an integral
multiple of US$1,000,000 in excess thereof (or, if less, an aggregate amount
equal to the amount by which the aggregate US Dollar Amount of a proposed
Competitive Bid Borrowing requested by the Company exceeds the aggregate US
Dollar Amount of Competitive Bid Advances offered to be made by the
21
Lenders and accepted by the Company in respect of such Competitive Bid
Borrowing, if such Competitive Bid Borrowing is made on the same date as such
Revolving Credit Borrowing) and shall consist of Revolving Credit Advances of
the same Type made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment, the
Company may borrow under this Section 2.01, prepay pursuant to Section 2.10 and
reborrow under this Section 2.01.
SECTION 2.02. MAKING THE REVOLVING CREDIT ADVANCES. (a) Each Revolving
Credit Borrowing shall be made on notice, given not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances, or the first Business Day prior to the
date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Base Rate Advances, by the Company to the
Administrative Agent, which shall give to each Lender prompt notice thereof by
telecopier or telex. Each such notice of a Revolving Credit Borrowing (a "NOTICE
OF REVOLVING CREDIT BORROWING") shall be by telecopier or telex, confirmed
immediately in writing, in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) date of such Revolving Credit Borrowing,
(ii) Type of Advances comprising such Revolving Credit Borrowing, (iii)
aggregate amount of such Revolving Credit Borrowing, and (iv) in the case of an
Revolving Credit Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Revolving Credit Advance. Each Lender shall,
before 11:00 A.M. (New York City time) on the date of such Revolving Credit
Borrowing, make available for the account of its Applicable Lending Office to
the Administrative Agent at the Administrative Agent's Account, in same day
funds, such Lender's ratable portion of such Revolving Credit Borrowing. After
the Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Company by depositing such funds into an
account of the Company maintained with the Administrative Agent at the
Administrative Agent's address referred to in Section 9.02 or to such other
account as the Company may from time to time direct.
(b) Anything in subsection (a) above to the contrary notwithstanding,
the Company may not select Eurodollar Rate Advances for any Revolving Credit
Borrowing if the aggregate amount of such Revolving Credit Borrowing is less
than US$10,000,000 or if the obligation of the Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.08 or 2.12.
(c) Each Notice of Revolving Credit Borrowing shall be binding on the
Company. In the case of any Revolving Credit Borrowing that the related Notice
of Revolving Credit Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Company shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any revocation of such Notice of
Revolving Credit Borrowing by the Company or any failure to fulfill on or before
the date specified in such Notice of Revolving Credit Borrowing for such
Revolving Credit Borrowing the applicable conditions set forth in Article III,
22
including, without limitation, any loss, cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Credit Advance to be made by such Lender as part of
such Revolving Credit Borrowing when such Revolving Credit Advance, as a result
of such revocation or failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Revolving Credit Borrowing that such Lender will
not make available to the Administrative Agent such Lender's ratable portion of
such Revolving Credit Borrowing, the Administrative Agent may assume that such
Lender has made such portion available to the Administrative Agent on the date
of such Revolving Credit Borrowing in accordance with subsection (a) of this
Section 2.02 and the Administrative Agent may, in reliance upon such assumption,
make available to the Company on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available to
the Administrative Agent, such Lender and the Company severally agree to repay
to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Company until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Company, the interest rate
applicable at the time to Revolving Credit Advances comprising such Revolving
Credit Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Administrative Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Revolving Credit Advance as
part of such Revolving Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to
be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. THE COMPETITIVE BID ADVANCES. (a) Each Lender severally
agrees that any Borrower may make Competitive Bid Borrowings under this Section
2.03 from time to time on any Business Day during the period from the date
hereof until the date occurring seven days prior to the earlier of the Revolver
Termination Date and the Term Loan Conversion Date in the manner set forth
below; PROVIDED that, following the making of each Competitive Bid Borrowing,
the aggregate US Dollar Amount of the Advances then outstanding shall not exceed
the aggregate amount of the Commitments of the Lenders (computed without regard
to any Competitive Bid Reduction).
(i) Any Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Administrative Agent, by
telecopier or telex, a notice of a Competitive Bid Borrowing (a
"NOTICE OF COMPETITIVE BID BORROWING"), in substantially the form of
Exhibit B-2 hereto, specifying therein the requested (A) date of such
proposed Competitive Bid Borrowing, (B) aggregate amount of such
proposed
23
Competitive Bid Borrowing, (C) interest rate basis and day count
convention to be offered by the Lenders, (D) currency of such proposed
Competitive Bid Borrowing, (E) in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, Interest Period, or in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances
or Local Rate Advances, maturity date for repayment of each Fixed Rate
Advance or Local Rate Advance to be made as part of such Competitive
Bid Borrowing (which maturity date may not be earlier than the date
occurring seven days after the date of such Competitive Bid Borrowing
or later than the earliest of (I) 180 days after the date of such
Competitive Bid Borrowing, (II) the Termination Date and (III) the
Term Loan Conversion Date), (F) interest payment date or dates
relating thereto, (G) location of such Borrower's account to which
funds are to be advanced and (H) other terms (if any) to be applicable
to such Competitive Bid Borrowing, not later than (w) 9:00 A.M. (New
York City time) at least one Business Day prior to the date of the
proposed Competitive Bid Borrowing, if such Borrower shall specify in
the Notice of Competitive Bid Borrowing that the rates of interest to
be offered by the Lenders shall be fixed rates per annum (the Advances
comprising any such Competitive Bid Borrowing being referred to herein
as "FIXED RATE ADVANCES") and that the Advances comprising such
proposed Competitive Bid Advances shall be denominated in US Dollars,
(x) 10:00 A.M. (New York City time) at least four Business Days prior
to the date of the proposed Competitive Bid Borrowing, if such
Borrower shall specify in the Notice of Competitive Bid Borrowing that
the Competitive Bid Borrowing shall be LIBO Rate Advances denominated
in US Dollars and (y) 10:00 A.M. (New York time) at least two Business
Days prior to the date of the proposed Competitive Bid Borrowing, if
such Borrower shall specify in the Notice of Competitive Bid Borrowing
that the Advances comprising such proposed Competitive Bid Advances
shall be either Fixed Rate Advances denominated in any Foreign
Currency or Local Rate Advances denominated in any Foreign Currency.
Each Notice of Competitive Bid Borrowing shall be irrevocable and
binding on the Borrower giving the applicable Notice of Competitive
Bid Borrowing. The Administrative Agent shall in turn promptly notify
each Lender of each request for a Competitive Bid Borrowing received
by it from a Borrower by sending such Lender a copy of the related
Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Competitive Bid Advances to
the Borrower proposing the Competitive Bid Borrowing as part of such
proposed Competitive Bid Borrowing at a rate or rates of interest
specified by such Lender in its sole discretion, by notifying the
Administrative Agent (which shall give prompt notice thereof to such
Borrower), before 10:00 A.M. (New York City time) (A) on the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances denominated in US
Dollars, (B) three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances denominated in US Dollars and (C) on
the Business
24
Day prior to the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of either Fixed
Rate Advances denominated in any Foreign Currency or Local Rate
Advances denominated in any Foreign Currency, of the minimum amount
and maximum amount of each Competitive Bid Advance which such Lender
would be willing to make as part of such proposed Competitive Bid
Borrowing (which amounts or the Equivalent thereof in US Dollars, as
the case may be, of such proposed Competitive Bid Borrowing may,
subject to the proviso to the first sentence of this Section 2.03(a),
exceed such Lender's Commitment, if any), the rate or rates of
interest therefor and such Lender's Applicable Lending Office with
respect to such Competitive Bid Advance; PROVIDED that if the
Administrative Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify such
Borrower of such offer before 9:00 A.M. (New York City time) on the
date on which notice of such election is to be given to the
Administrative Agent by the other Lenders. If any Lender shall elect
not to make such an offer, such Lender shall so notify the
Administrative Agent, before 10:00 A.M. (New York City time) on the
date on which notice of such election is to be given to the
Administrative Agent by the other Lenders, and such Lender shall not
be obligated to, and shall not, make any Competitive Bid Advance as
part of such Competitive Bid Borrowing; PROVIDED that the failure by
any Lender to give such notice shall not cause such Lender to be
obligated to make any Competitive Bid Advance as part of such proposed
Competitive Bid Borrowing. Each Lender that offers to make a
Competitive Bid Advance to the Subsidiary Borrower shall (x) be deemed
to have represented and warranted to the Subsidiary Borrower that it
is, and for so long as such Competitive Bid Advance shall remain
outstanding it will not become, a non-resident of Canada within the
meaning of the Income Tax Act (Canada) and (y) have entered into an
Acceptance Agreement in the form of Exhibit F hereto.
(iii) The Borrower proposing the Competitive Bid Borrowing shall,
in turn (A) before 11:00 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances denominated in US Dollars,
(B) before 1:00 P.M. (New York City time) three Business Days before
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances denominated
in US Dollars and (C) before 11:00 A.M. (New York City time) on the
Business Day prior to the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
either Fixed Rate Advances denominated in any Foreign Currency or
Local Rate Advances denominated in any Foreign Currency, either:
(x) cancel such Competitive Bid Borrowing by giving the
Administrative Agent notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, by giving notice to the
Administrative Agent
25
of the amount of each Competitive Bid Advance (which amount shall
be equal to or greater than the minimum amount, and equal to or
less than the maximum amount, notified to such Borrower by the
Administrative Agent on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii) above) to be
made by each Lender as part of such Competitive Bid Borrowing,
and reject any remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Administrative Agent notice to
that effect. If the Borrower proposing the Competitive Bid
Advance accepts any offers made by Lenders pursuant to paragraph
(ii) above, such offers shall be accepted in the order of the
lowest to highest interest rates or, if two or more Lenders offer
to make Competitive Bid Advances at the same interest rate, such
offers, if any, shall be accepted in proportion to the amount
offered by each such Lender at such interest rate.
(iv) If the Borrower proposing the Competitive Bid Borrowing
notifies the Administrative Agent that such Competitive Bid Borrowing
is canceled pursuant to paragraph (iii)(x) above, the Administrative
Agent shall give prompt notice thereof to the Lenders and such
Competitive Bid Borrowing shall not be made.
(v) If the Borrower proposing the Competitive Bid Borrowing
accepts one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, the Administrative Agent shall
in turn promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of
such Competitive Bid Borrowing and whether or not any offer or offers
made by such Lender pursuant to paragraph (ii) above have been
accepted by such Borrower and (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, of
the amount of each Competitive Bid Advance to be made by such Lender
as part of such Competitive Bid Borrowing. Each Lender that is to make
a Competitive Bid Advance as part of such Competitive Bid Borrowing
shall, before 12:00 noon (New York City time) on the date of such
Competitive Bid Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding sentence,
make available for the account of its Applicable Lending Office to (x)
the Administrative Agent at the applicable Administrative Agent's
Account, in same day funds, in the case of a Competitive Bid Advance
denominated in US Dollars, or (y) the Local Agent at the applicable
Payment Office, in same day funds, in the case of a Competitive Bid
Advance denominated in any Foreign Currency, such Lender's portion of
such Competitive Bid Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the
Administrative Agent of such funds, the Administrative Agent will make
such funds available to the applicable Borrower at the Administrative
Agent's address referred to in Section 9.02. Promptly after each
Competitive Bid Borrowing the Administrative Agent will notify each
Lender of the amount of the Competitive Bid Borrowing, the consequent
Competitive Bid Reduction and the dates upon which such Competitive
Bid Reduction commenced and will
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terminate.
(vi) If the Borrower proposing the Competitive Bid Borrowing
notifies the Administrative Agent that it accepts one or more of the
offers made by any Lender or Lenders pursuant to paragraph (iii)(y)
above, such notice of acceptance shall be irrevocable and binding on
such Borrower. The Borrower proposing the Competitive Bid Borrowing
shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the
date specified in the related Notice of Competitive Bid Borrowing for
such Competitive Bid Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid
Borrowing when such Competitive Bid Advance, as a result of such
failure, is not made on such date.
(vii) The Administrative Agent shall maintain at its address
referred to in Section 9.02 a copy of each Notice of Competitive Bid
Borrowing delivered pursuant to subsection (a)(i) above and a register
for the recordation of the date, amount, maturity, interest rate,
interest dates, other terms and Lender of each Competitive Bid Advance
accepted by any Borrower from time to time pursuant to this subsection
(a) (the "Competitive Bid Register"). The entries in the Competitive
Bid Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrowers, the Administrative Agent and the
Lenders may treat the entries recorded in the Competitive Bid Register
as evidence of Competitive Bid Advances made pursuant to this Section
2.03. The Competitive Bid Register shall be available for inspection
by the Borrowers, or by any Lender as to its Competitive Bid Advances,
at any reasonable time and from time to time upon reasonable prior
notice.
(b) Each Competitive Bid Borrowing shall be in a minimum aggregate
US Dollar Amount of US$10,000,000 and, following the making of each Competitive
Bid Borrowing, the Borrowers shall be in compliance with the limitation set
forth in the proviso to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, any Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, PROVIDED that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(d) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall repay to the Administrative Agent or the Local Agent, as the
case may be, for the account of each Lender that has made a Competitive Bid
Advance, on the maturity date of each Competitive Bid Advance (such maturity
date being that specified by such Borrower for
27
repayment of such Competitive Bid Advance in the related Notice of Competitive
Bid Borrowing delivered pursuant to subsection (a)(i) above and recorded in the
Competitive Bid Register with respect to such Competitive Bid Advance), the then
unpaid principal amount of such Competitive Bid Advance. Except as required by
Section 2.10(b) and then only to the extent no Revolving Credit Advances are
then outstanding, no Borrower shall have any right to prepay any principal
amount of any Competitive Bid Advance unless, and then only on the terms,
specified by such Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above and set forth in the Competitive Bid Register with respect to such
Competitive Bid Advance.
(e) Each Borrower that has borrowed through a Competitive Bid
Borrowing (other than by the issuance of Acceptances) shall pay interest on the
unpaid principal amount of each Competitive Bid Advance from the date of such
Competitive Bid Advance to the date the principal amount of such Competitive Bid
Advance is repaid in full, at the rate of interest for such Competitive Bid
Advance specified by the Lender making such Competitive Bid Advance in its
notice with respect thereto delivered pursuant to subsection (a)(ii) above,
payable on the interest payment date or dates specified by such Borrower for
such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above, as recorded in the Competitive
Bid Register with respect to such Competitive Bid Advance. Upon the occurrence
and during the continuance of an Event of Default under Section 6.01(a), each
Borrower shall pay interest on the amount of unpaid principal of and interest on
each Competitive Bid Advance made to it owing to a Lender, payable in arrears on
the date or dates interest is payable thereon, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on such
Competitive Bid Advance as recorded in the Competitive Bid Register with respect
to such Competitive Bid Advance unless otherwise agreed by the applicable
Borrower and the Lender making such Competitive Bid Advance.
(f) The indebtedness of any Borrower resulting from each
Competitive Bid Advance made to such Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a master Competitive Bid Note of the Borrowers
payable to the order of the Administrative Agent for the benefit of the Lender
making such Competitive Bid Advance.
SECTION 2.04. FEES. (a) FACILITY FEE. The Company agrees to pay to
the Administrative Agent for the account of each Lender (other than the
Designated Bidders) a facility fee on the aggregate amount of such Lender's
Commitment from the date hereof in the case of each Initial Lender and from the
effective date specified in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other Lender
until the earlier of the Revolver Termination Date and the Term Loan Conversion
Date at a rate per annum equal to the Applicable Facility Fee in effect from
time to time, payable in arrears quarterly on the last day of each March, June,
September and December, commencing June 30, 1999, and on the Revolver
Termination Date or the Term Loan Conversion Date, as the case may be.
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(b) ADMINISTRATIVE AGENT'S FEES. The Company shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Company and the Administrative Agent.
SECTION 2.05. TERMINATION OR REDUCTION OF THE COMMITMENTS. (a)
OPTIONAL. The Company shall have the right, upon at least three Business Days'
notice to the Administrative Agent, to terminate in whole or reduce ratably in
part the unused portions of the respective Commitments of the Lenders, PROVIDED
that each partial reduction shall be in the aggregate amount of US$10,000,000 or
an integral multiple of US$1,000,000 in excess thereof and PROVIDED FURTHER that
the aggregate amount of the Commitments of the Lenders shall not be reduced to
an amount that is less than the aggregate US Dollar Amount of the Competitive
Bid Advances then outstanding.
(b) MANDATORY. If the Company has not made the Term Loan Election
in accordance with Section 2.06(b) on or prior to the Revolver Termination Date,
the Commitments shall be automatically terminated on the Revolver Termination
Date. If the Company has made the Term Loan Election in accordance with Section
2.06, from time to time after the Term Loan Conversion Date upon each prepayment
of the Revolving Credit Advances, the aggregate Commitments of the Lenders under
this Agreement shall be automatically and permanently reduced on a pro rata
basis by an amount equal to the amount by which the aggregate Commitments of the
Lenders under this Agreement immediately prior to such reduction EXCEEDS the
aggregate unpaid principal amount of the Revolving Credit Advances outstanding
at such time.
SECTION 2.06. REPAYMENT OF REVOLVING CREDIT ADVANCES; TERM LOAN
ELECTION. (a) TERMINATION. The Company shall, subject to subsection (b) below,
repay to the Administrative Agent for the ratable account of the Lenders on the
Revolver Termination Date the aggregate principal amount of the Revolving Credit
Advances then outstanding.
(b) TERM LOAN ELECTION. The Company may, at any time prior to the
Revolver Termination Date and upon not less than 15 days' notice to the
Administrative Agent, elect (the "TERM LOAN ELECTION") to convert all of the
Revolving Credit Advances outstanding on the date specified in such notice (the
"TERM LOAN CONVERSION DATE") into a term loan which the Company shall repay in
full ratably to the Administrative Agent for the account of the Lenders on the
Maturity Date; PROVIDED that no Default has occurred and is continuing on the
date of notice of the Term Loan Election or on the Term Loan Conversion Date.
SECTION 2.07. INTEREST ON REVOLVING CREDIT ADVANCES. (a) SCHEDULED
INTEREST. The Company shall pay interest on the unpaid principal amount of each
Revolving Credit Advance owing to each Lender from the date of such Revolving
Credit Advance until such principal amount shall be paid in full, at the
following rates per annum:
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(i) BASE RATE ADVANCES. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the Base Rate in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) EURODOLLAR RATE ADVANCES. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per
annum equal at all times during each Interest Period for such
Revolving Credit Advance to the sum of (x) the Eurodollar Rate for
such Interest Period for such Revolving Credit Advance PLUS (y) the
Applicable Margin in effect from time to time, payable in arrears on
the last day of such Interest Period and, if such Interest Period has
a duration of more than three months, on each day that occurs during
such Interest Period every three months from the first day of such
Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(b) DEFAULT INTEREST. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), the Company shall pay
interest on (i) the unpaid principal amount of each Revolving Credit Advance
owing to each Lender, payable in arrears on the dates referred to in clause
(a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on such Revolving Credit Advance
pursuant to clause (a)(i) or (a)(ii) above and (ii) the amount of any interest,
fee or other amount payable hereunder that is not paid when due, from the date
such amount shall be due until such amount shall be paid in full, payable in
arrears on the date such amount shall be paid in full and on demand, at a rate
per annum equal at all times to 2% per annum above the rate per annum required
to be paid on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.08. INTEREST RATE DETERMINATION. (a) Each Reference Bank
agrees to furnish to the Administrative Agent timely information for the purpose
of determining each Eurodollar Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Administrative Agent for the
purpose of determining any such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Administrative Agent shall give prompt notice to
the Company and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.07(a)(i) or (ii) and the rate, if
any, furnished by each Reference Bank for the purpose of determining the
interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Required Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Administrative Agent shall forthwith
so notify the Company and the Lenders, whereupon (i)
30
each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance, and (ii)
the obligation of the Lenders to make, or to Convert Revolving Credit Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Company and the Lenders that the circumstances causing such
suspension no longer exist.
(c) If the Company shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Company and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than US$10,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
(f) If fewer than two Reference Banks furnish timely information
to the Administrative Agent for determining the Eurodollar Rate for any
Eurodollar Rate Advances,
(i) the Administrative Agent shall forthwith notify the Company
and the Lenders that the interest rate cannot be determined for such
Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue
as a Base Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert
Revolving Credit Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Company and
the Lenders that the circumstances causing such suspension no longer
exist.
(g) For the purposes of the Interest Act (Canada) (i) the yearly
rate of interest to which any rate of interest payable under this Agreement
which is calculated on any basis that is less than a full calendar year is
equivalent may be determined by multiplying such rate of interest by a fraction
the numerator of which is the actual number of days in the relevant year and the
denominator of which is the number of days comprising such other basis
31
of calculation, (ii) the principle of deemed reinvestment of interest shall not
apply to any interest calculation under this Agreement and (iii) the rates of
interest stipulated in this Agreement are intended to be nominal rates and not
effective rates or yields.
SECTION 2.09. OPTIONAL CONVERSION OF REVOLVING CREDIT ADVANCES.
The Company may on any Business Day, upon notice given to the Administrative
Agent not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the date of the proposed Conversion and subject to the provisions of
Sections 2.08 and 2.12, Convert all Revolving Credit Advances of one Type
comprising the same Borrowing into Revolving Credit Advances of the other Type;
PROVIDED, HOWEVER, that any Conversion of Eurodollar Rate Advances into Base
Rate Advances shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar
Rate Advances shall be in an amount not less than the minimum amount specified
in Section 2.02(b). Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
Revolving Credit Advances to be Converted, and (iii) if such Conversion is into
Eurodollar Rate Advances, the duration of the initial Interest Period for each
such Advance. Each notice of Conversion shall be binding on the Company. In the
case of any Conversion of Base Rate Advances into Eurodollar Rate Advances, the
Company shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any revocation of such notice of Conversion,
including, without limitation, any loss, cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the revolving Credit Advance to be Converted by such Lender as a
result of such revocation.
SECTION 2.10. PREPAYMENTS OF REVOLVING CREDIT ADVANCES. (a)
OPTIONAL. The Company may, upon at least one Business Day's notice, in the case
of Base Rate Advances, or three Business Days' notice, in the case of Eurodollar
Rate Advances, to the Administrative Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Company shall, prepay the outstanding principal amount of the Revolving Credit
Advances comprising part of the same Revolving Credit Borrowing in whole or
ratably in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid; PROVIDED, HOWEVER, that (x) each partial
prepayment shall be in an aggregate principal amount of US$10,000,000 or an
integral multiple of US$1,000,000 in excess thereof and (y) in the event of any
such prepayment of a Eurodollar Rate Advance, the Company shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 9.04(c).
(b) MANDATORY PREPAYMENTS. (i) If the Administrative Agent
notifies the Company that, on any interest payment date, the US Dollar Amount of
all Advances then outstanding exceeds 105% of the aggregate Commitments of the
Lenders on such date, the Borrowers shall, within two Business Days after
receipt of such notice, prepay the outstanding principal amount of any Advances
owing by the Borrowers in an aggregate amount sufficient to reduce such US
Dollar Amount to an amount not to exceed 100% of the aggregate
32
Commitments of the Lenders on such date.
(ii) Each prepayment made pursuant to this Section 2.10(b) shall
be made together with any interest accrued to the date of such prepayment on the
principal amounts prepaid and, in the case of any prepayment of a Eurocurrency
Rate Advance, a LIBO Rate Advance or a Local Rate Advance on a date other than
the last day of an Interest Period or at its maturity, any additional amounts
that the applicable Borrower shall be obligated to reimburse to the Lenders in
respect thereof pursuant to Section 9.04(c). The Administrative Agent shall give
prompt notice of any prepayment required under this Section 2.10(b) to the
Borrowers and the Lenders.
SECTION 2.11. INCREASED COSTS. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law)
which becomes effective after the date hereof, there shall be any increase in
the cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances or LIBO Rate Advances, then the Company shall from time
to time, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased cost setting
forth the basis thereof in reasonable detail and submitted to the Company and
the Administrative Agent by such Lender shall be conclusive and binding for all
purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change in or
in the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) which becomes effective after the date
hereof, there shall be any increase in the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender as a result of or based upon the existence of such Lender's commitment to
lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), the Company
shall pay to the Administrative Agent for the account of such Lender, from time
to time as specified by such Lender, additional amounts sufficient to compensate
such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be
allocable to the existence of such Lender's commitment to lend hereunder. A
certificate as to such amounts setting forth the basis thereof in reasonable
detail and submitted to the Company and the Administrative Agent by such Lender
shall be conclusive and binding for all purposes, absent manifest error.
Notwithstanding the foregoing and except in the case of any such law,
regulation, guideline or request having retroactive effect, the Company shall
not be required to pay to the Administrative Agent or any Lender such additional
amounts to the extent such amounts relate to periods prior to six months before
the Company's receipt of such notice.
33
SECTION 2.12. ILLEGALITY. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
LIBO Rate Advances or to fund or maintain Eurodollar Rate Advances or LIBO Rate
Advances hereunder, (i) each Eurodollar Rate Advance or LIBO Rate Advance, as
the case may be, will automatically, upon such demand, Convert into a Base Rate
Advance or an Advance that bears interest at the rate set forth in Section
2.07(a)(i), as the case may be, and (ii) the obligation of the Lenders to make,
or to Convert Revolving Credit Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Company and the
Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.13. PAYMENTS AND COMPUTATIONS. (a) Each Borrower shall
make each payment hereunder and under the Notes hereunder, except with respect
to principal of, interest on, and other amounts relating to, Advances
denominated in a Foreign Currency, not later than 11:00 A.M. (New York City
time) on the day when due in US Dollars to the Administrative Agent at the
applicable Administrative Agent's Account in same day funds. Each Borrower shall
make each payment hereunder with respect to principal of, interest on, and other
amounts relating to, Advances denominated in a Foreign Currency, not later than
11:00 A.M. (at the Payment Office for such Foreign Currency) on the day when due
in such Foreign Currency to the Local Agent in same day funds, by deposit of
such funds to the applicable Administrative Agent's Account in same day funds.
The Administrative Agent or Local Agent, as the case may be, will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest or facility fees ratably (other than amounts payable
pursuant to Section 2.03, 2.11, 2.14 or 9.04(c)) to the Lenders for the account
of their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon any Assuming Lender becoming a Lender
hereunder as a result of an extension of the Termination Date pursuant to
Section 2.17, and upon the Administrative Agent's receipt of such Lender's
Assumption Agreement and recording of the information contained therein in the
Register, from and after the applicable Extension Date, the Administrative Agent
or the Local Agent, as the case may be, shall make all payments hereunder and
under the Notes issued in connection therewith in respect of the interest
assumed thereby to the Assuming Lender. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 9.07(d), from and after the effective date specified in such
Assignment and Acceptance, the Administrative Agent or the Local Agent, as the
case may be, shall make all payments hereunder and under the Notes in respect of
the interest assigned thereby to the Lender assignee thereunder, and the parties
to such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
34
(b) Each Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made to the Administrative Agent or
the Local Agent, as the case may be, when due hereunder or under the Note held
by such Lender, to charge from time to time against any or all of such
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar Rate
or the Federal Funds Rate and of facility fees shall be made by the
Administrative Agent on the basis of a year of 360 days and computations in
respect of Competitive Bid Advances shall be made by the Administrative Agent as
specified in the applicable Notice of Competitive Bid Notice (or, in each case
of Advances denominated in Foreign Currencies for which market practice differs,
in accordance with market practice), in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or facility fees are payable. Each determination by the
Administrative Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; PROVIDED, HOWEVER, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Administrative Agent or the Local Agent, as the
case may be, shall have received notice from the applicable Borrower prior to
the date on which any payment is due to the Lenders hereunder that such Borrower
will not make such payment in full, the Administrative Agent or the Local Agent,
as the case may be, may assume that such Borrower has made such payment in full
to the Administrative Agent or the Local Agent, as the case may be, on such date
and the Administrative Agent or the Local Agent, as the case may be, may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower shall not have so made such payment in full to the
Administrative Agent or the Local Agent, as the case may be, each Lender shall
repay to the Administrative Agent or the Local Agent, as the case may be,
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative Agent
or the Local Agent, as the case may be, at (i) the Federal Funds Rate in the
case of Advances denominated in US Dollars or (ii) the cost of funds incurred by
the Administrative Agent or the Local Agent, as the case may be, in respect of
such amount in the case of Advances denominated in
35
Foreign Currencies.
SECTION 2.14. TAXES. (a) Any and all payments by any Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, EXCLUDING, in the case of each Lender and the Administrative
Agent, taxes imposed on its income, and franchise taxes imposed on it in lieu of
income taxes, by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
income, and franchise taxes imposed on it in lieu of income taxes, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "TAXES").
If any Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.14) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Borrower shall
make such deductions and (iii) such Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "OTHER TAXES").
(c) Each Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.14) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be made within 30 days from the date such Lender or
the Administrative Agent (as the case may be) makes written demand therefor in
reasonable detail.
(d) Within 30 days after the date of any payment of Taxes, each
Borrower will furnish to the Administrative Agent, at its address referred to in
Section 9.02, the original or a certified copy of a receipt evidencing payment
thereof. In the case of any payment hereunder or under the Notes by or on behalf
of the Company through an account or branch outside the United States or on
behalf of the Company by a payor that is not a United States person, if the
Company determines that no Taxes are payable in respect thereof, the Company
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such
36
address, an opinion of counsel acceptable to the Administrative Agent stating
that such payment is exempt from Taxes. For purposes of this subsection (d) and
subsection (e), the terms "UNITED STATES" and "UNITED STATES PERSON" shall have
the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by any Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
each Borrower with Internal Revenue Service form 1001 or 4224, as appropriate,
or any successor or other form prescribed by the Internal Revenue Service,
certifying that such Lender is exempt from or entitled to a reduced rate of
United States withholding tax on payments of interest pursuant to this Agreement
or the Notes. If the form provided by a Lender at the time such Lender first
becomes a party to this Agreement indicates a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from "Taxes" as defined in Section 2.14(a). If any form or document
referred to in this subsection (e) requires the disclosure of information, other
than information necessary to compute the tax payable and information required
on the date hereof by Internal Revenue Service form 1001 or 4224, that the
Lender reasonably considers to be confidential, the Lender shall give notice
thereof to the Borrowers and shall not be obligated to include in such form or
document such confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Borrowers with the appropriate form described in Section 2.14(e)
(OTHER THAN if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.14(a) with
respect to Taxes imposed by the United States; PROVIDED, HOWEVER, that should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, each Borrower shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
SECTION 2.15. SHARING OF PAYMENTS, ETC. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Revolving Credit Advances owing to
it (other than pursuant to Section 2.11, 2.14 or 9.04(c)) in excess of its
ratable share of payments on account of the Revolving Credit Advances obtained
by all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; PROVIDED, HOWEVER, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such
37
recovery together with an amount equal to such Lender's ratable share (according
to the proportion of (i) the amount of such Lender's required repayment to (ii)
the total amount so recovered from the purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. Each Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.15 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of such Borrower in the amount of such
participation.
SECTION 2.16. USE OF PROCEEDS. The proceeds of the Advances shall
be available (and each Borrower agrees that it shall use such proceeds) solely
for general corporate purposes of the Company and its Subsidiaries.
SECTION 2.17. EXTENSION OF TERMINATION DATE. (a) At least 30 days
but not more than 45 days prior to the Revolver Termination Date, the Company,
by written notice to the Administrative Agent, may request an extension of the
Revolver Termination Date in effect at such time for a period of 364 days from
its then scheduled expiration. The Administrative Agent shall promptly notify
each Lender of such request, and each Lender shall in turn, in its sole
discretion, not earlier than 30 days but at least 20 days prior to the Revolver
Termination Date, notify the Company and the Administrative Agent in writing as
to whether such Lender will consent to such extension. If any Lender shall fail
to notify the Administrative Agent and the Company in writing of its consent to
any such request for extension of such Revolver Termination Date at least 20
days prior to the scheduled occurrence thereof at such time, such Lender shall
be deemed to be a Non-Consenting Lender with respect to such request. The
Administrative Agent shall notify the Company not later than 15 days prior to
the scheduled Revolver Termination Date of the decision of the Lenders regarding
the Company's request for an extension of the Revolver Termination Date.
(b) If all the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.17, the Revolver Termination
Date in effect at such time shall, effective as at the Revolver Termination Date
(the "EXTENSION DATE"), be extended for period of 364 days from such Extension
Date; PROVIDED that on each Extension Date, no Default shall have occurred and
be continuing, or shall occur as a consequence thereof and the giving of a
request for extension shall constitute a representation and warranty by the
Company that the representations and warranties contained in Section 4.01 are
correct on and as of the date of such notice and on such Extension Date, as
though made on such dates. If less than all of the Lenders consent in writing to
any such request in accordance with subsection (a) of this Section 2.17, the
Revolver Termination Date in effect at such time shall, effective as at the
applicable Extension Date, be extended as to those Lenders that so consented
(each a "CONSENTING LENDER") but shall not be extended as to any other Lender
(each a "NON-CONSENTING LENDER"). To the extent that the Revolver Termination
Date is not extended as to any Lender pursuant to this Section 2.17 and the
Commitment of such Lender is not assumed in accordance with subsection (c) of
this Section 2.17 on or prior to the applicable
38
Extension Date, the Commitment of such Non-Consenting Lender shall automatically
terminate in whole on such unextended Revolver Termination Date without any
further notice or other action by the Company, such Lender or any other Person;
PROVIDED that such Non-Consenting Lender's rights under Sections 2.11, 2.14 and
9.04, and its obligations under Section 8.05, shall survive the Revolver
Termination Date for such Lender as to matters occurring prior to such date. It
is understood and agreed that no Lender shall have any obligation whatsoever to
agree to any request made by the Company for any requested extension of the
Revolver Termination Date.
(c) If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this Section 2.17, the Company may arrange for one
or more Consenting Lenders or other Eligible Assignees (each an "ASSUMING
LENDER") to assume, effective as of the Extension Date, any Non-Consenting
Lender's Commitment and all of the obligations of such NonConsenting Lender
under this Agreement thereafter arising, without recourse to or warranty by, or
expense to, such Non-Consenting Lender; PROVIDED, HOWEVER, that the amount of
the Commitment of any such Assuming Lender as a result of such substitution
shall in no event be less than US$5,000,000 unless the amount of the Commitment
of such Non-Consenting Lender is less than US$5,000,000, in which case such
Assuming Lender shall assume all of such lesser amount; and PROVIDED FURTHER
that:
(i) such Non-Consenting Lender shall have been paid (A) the
aggregate principal amount of, and any interest accrued and unpaid to
the effective date of the assignment on, the outstanding Advances, if
any, of such Non-Consenting Lender PLUS (B) any accrued but unpaid
facility fees owing to such Non-Consenting Lender as of the effective
date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements
and indemnities payable to such Non-Consenting Lender, and all other
accrued and unpaid amounts owing to such Non-Consenting Lender
hereunder, as of the effective date of such assignment shall have been
paid to such Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 9.07(a) for such
assignment shall have been paid;
PROVIDED FURTHER that such Non-Consenting Lender's rights under Sections 2.11,
2.14 and 9.04, and its obligations under Section 8.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date, (A) each such Assuming Lender,
if any, shall have delivered to the Company and the Administrative Agent an
assumption agreement in form and substance satisfactory to the Company and the
Administrative Agent (an "ASSUMPTION AGREEMENT"), duly executed by such Assuming
Lender, such Non-Consenting Lender, the Company and the Administrative Agent,
(B) any such Consenting Lender shall have delivered confirmation in writing
satisfactory to the
39
Company and the Administrative Agent as to the increase in the amount of its
Commitment and (C) each NonConsenting Lender being replaced pursuant to this
Section 2.17 shall have delivered to the Administrative Agent the Note or Notes
held by such Non-Consenting Lender. Upon the payment or prepayment of all
amounts referred to in clauses (i), (ii) and (iii) of the immediately preceding
sentence, each such Consenting Lender or Assuming Lender, as of the Extension
Date, will be substituted for such Non-Consenting Lender under this Agreement
and shall be a Lender for all purposes of this Agreement, without any further
acknowledgment by or the consent of the other Lenders, and the obligations of
each such Non-Consenting Lender hereunder shall, by the provisions hereof, be
released and discharged.
(d) If all of the Lenders (after giving effect to any assignments
pursuant to subsection (b) of this Section 2.17) consent in writing to a
requested extension (whether by execution or delivery of an Assumption Agreement
or otherwise) not later than one Business Day prior to such Extension Date, the
Administrative Agent shall so notify the Company, and, so long as no Default
shall have occurred and be continuing as of such Extension Date, or shall occur
as a consequence thereof, the Revolver Termination Date then in effect shall be
extended for the additional 364 day period as described in subsection (a) of
this Section 2.17, and all references in this Agreement, and in the Notes, to
the "REVOLVER TERMINATION DATE" shall, with respect to each Consenting Lender
and each Assuming Lender for such Extension Date, refer to the Revolver
Termination Date as so extended. Promptly following each Extension Date, the
Agent shall notify the Lenders (including, without limitation, each Assuming
Lender) of the extension of the scheduled Termination Date in effect immediately
prior thereto and shall thereupon record in the Register the relevant
information with respect to each such Consenting Lender and each such Assuming
Lender.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO EFFECTIVENESS OF SECTIONS
2.01 AND 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective
on and as of the first date (the "EFFECTIVE DATE") on which the following
conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 1998.
(b) There shall exist no action, suit, investigation, litigation
or proceeding affecting the Company or any of its Subsidiaries pending
or threatened before any court, governmental agency or arbitrator that
(i) could be reasonably likely to have a Material Adverse Effect other
than the matters described on Schedule 3.01(b) hereto (the "DISCLOSED
LITIGATION") or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of
the transactions contemplated hereby, and there shall have been no
adverse change in the status, or
40
financial effect on the Company or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 3.01(b) hereto
that could reasonably be expected to have a Material Adverse Effect.
(c) The Lenders shall have been given such access to the
management, records, books of account, contracts and properties of the
Company and its Subsidiaries as they shall have reasonably requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby
shall have been obtained (without the imposition of any conditions
that are not acceptable to the Lenders) and shall remain in effect,
and no law or regulation shall be applicable in the reasonable
judgment of the Lenders that restrains, prevents or imposes materially
adverse conditions upon the transactions contemplated hereby.
(e) The Company shall have notified each Lender and the
Administrative Agent in writing as to the proposed Effective Date.
(f) The Company shall have paid all accrued fees and expenses of
the Administrative Agent and the Lenders (including the accrued fees
and expenses of counsel to the Administrative Agent).
(g) On the Effective Date, the following statements shall be true
and the Administrative Agent shall have received for the account of
each Lender a certificate signed by a duly authorized officer of the
Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(h) The Administrative Agent shall have received on or before the
Effective Date the following, each dated such day, in form and
substance satisfactory to the Administrative Agent and (except for the
Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of the Lenders,
respectively, and the Competitive Bid Note to the order of the
Administrative Agent.
(ii) Certified copies of the resolutions of the Board of
Directors of each Borrower approving this Agreement and the
Notes, and of all documents evidencing other necessary corporate
action and governmental approvals, if any,
41
with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of each Borrower certifying the names and true
signatures of the officers of such Borrower authorized to sign
this Agreement and the Notes and the other documents to be
delivered hereunder.
(iv) A favorable opinion of Xxxxxxx X. Ban, Senior Corporate
Counsel and Assistant Secretary of the Company, and a favorable
opinion of Fasken Xxxxxxxx Xxxxxxx, special Canadian counsel to
the Subsidiary Borrower, substantially in the form of Exhibits
E-1 and E-2 hereto, respectively, and as to such other matters as
any Lender through the Administrative Agent may reasonably
request.
(v) A favorable opinion of Shearman & Sterling, counsel for
the Administrative Agent, in form and substance satisfactory to
the Administrative Agent.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH REVOLVING CREDIT
BORROWING. The obligation of each Lender to make a Revolving Credit Advance on
the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Revolving Credit Borrowing (a) the following statements shall be true
(and each of the giving of the applicable Notice of Revolving Credit Borrowing
and the acceptance by the Company of the proceeds of such Revolving Credit
Borrowing shall constitute a representation and warranty by the Company that on
the date of such Borrowing such statements are true):
(i) The representations and warranties contained in Section 4.01
are correct on and as of the date of such Revolving Credit Borrowing,
before and after giving effect to such Revolving Credit Borrowing and
to the application of the proceeds therefrom, as though made on and as
of such date, and
(ii) No event has occurred and is continuing, or would result
from such Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
SECTION 3.03. CONDITIONS PRECEDENT TO EACH COMPETITIVE BID
BORROWING. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (a) the Administrative
42
Agent shall have received the written confirmatory Notice of Competitive Bid
Borrowing with respect thereto, (b) on or before the date of such Competitive
Bid Borrowing, but prior to such Competitive Bid Borrowing, the Administrative
Agent shall have received for recordation in the Competitive Bid Register
information as to each of the one or more Competitive Bid Advances to be made by
the Lenders as part of such Competitive Bid Borrowing, the principal amount of
each such Competitive Bid Advance and such other terms as were agreed to for
each such Competitive Bid Advance in accordance with Section 2.03 and (c) on the
date of such Competitive Bid Borrowing the following statements shall be true
(and each of the giving of the applicable Notice of Competitive Bid Borrowing
and the acceptance by the Borrower proposing the applicable Competitive Bid
Borrowing of the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by the Company that on the date of such Competitive
Bid Borrowing such statements are true):
(i) The representations and warranties contained in Section 4.01
are correct on and as of the date of such Competitive Bid Borrowing,
before and after giving effect to such Competitive Bid Borrowing and
to the application of the proceeds therefrom, as though made on and as
of such date,
(ii) No event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default, and
(iii) No event has occurred and no circumstance exists as a
result of which the information concerning the Company that has been
provided to the Administrative Agent and each Lender by the Company in
connection herewith would include an untrue statement of a material
fact or omit to state any material fact or any fact necessary to make
the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
SECTION 3.04. DETERMINATIONS UNDER SECTION 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the proposed
Effective Date, as notified by the Company to the Lenders, specifying its
objection thereto. The Administrative Agent shall promptly notify the Lenders of
the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
43
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants as follows:
(a) Each Borrower is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation.
(b) The execution, delivery and performance by each Borrower of
this Agreement and the Notes executed by it, and the consummation of
the transactions contemplated hereby, are within such Borrower's
corporate powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) such Borrower's charter or by-laws
or (ii) law or any contractual restriction binding on or affecting
such Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body or any other third party is required for the due execution,
delivery and performance by any Borrower of this Agreement or the
Notes executed by it.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by each Borrower
party thereto. This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of each
Borrower party thereto enforceable against such Borrower in accordance
with their respective terms.
(e) The Consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 1998, and the related Consolidated
statements of income and cash flows of the Company and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Ernst & Young, independent public accountants, and the Consolidated
balance sheet of the Company and its Subsidiaries as at March 31, 1999
and the related Consolidated statements of income and cash flows of
the Company and its Subsidiaries for the three months then ended, duly
certified by the chief financial officer of the Company, copies of
which have been furnished to each Lender, fairly present, subject, in
the case of said balance sheet as at March 31, 1999 and said
statements of income and cash flows for the three months then ended,
to year-end audit adjustments, the Consolidated financial condition of
the Company and its Subsidiaries as at such dates and the Consolidated
results of the operations of the Company and its Subsidiaries for the
periods ended on such dates, all in accordance with generally accepted
accounting principles consistently applied. Except as disclosed to the
Lenders in writing prior to the date hereof, since December 31, 1998,
there has been no Material Adverse Change.
(f) To the best of the Company's knowledge, there is no pending
or threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Company or any of its Subsidiaries
44
before any court, governmental agency or arbitrator that (i) could be
reasonably likely to have a Material Adverse Effect (other than the
Disclosed Litigation described on Schedule 3.01(b)) or (ii) purports
to affect the legality, validity or enforceability of this Agreement
or any Note or the consummation of the transactions contemplated
hereby, and there has been no adverse change in the status, or
financial effect on the Company or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 3.01(b) hereto.
(g) No Borrower is engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System).
(h) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan.
(i) Neither the Company nor any of its ERISA Affiliates has
incurred or is reasonably expected to incur any Withdrawal Liability
to any Multiemployer Plan.
(j) Neither the Company nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no such Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated,
within the meaning of Title IV of ERISA.
(k) Except as set forth in the financial statements referred to
in Section 4.01(e), the Company and its Subsidiaries have no material
liability with respect to "expected post retirement benefit
obligations" within the meaning of Statement of Financial Accounting
Standards No. 106.
(l) The operations and properties of the Company and each of its
Subsidiaries comply in all material respects with all Environmental
Laws, all necessary Environmental Permits have been obtained and are
in effect for the operations and properties of the Company and its
Subsidiaries, the Company and its Subsidiaries are in compliance in
all material respects with all such Environmental Permits, and no
circumstances exist that could be reasonably likely to (i) form the
basis of an Environmental Action against the Company or any of its
Subsidiaries or any of their properties that could have a Material
Adverse Effect or (ii) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law that could have a Material Adverse Effect.
(m) None of the properties currently or formerly owned or
operated by the Company or any of its Subsidiaries is listed or
proposed for listing on the National Priorities List under the
Comprehensive Environmental Response, Compensation and
45
Liability Act of 1980 ("NPL") or on the Comprehensive Environmental
Response, Compensation and Liability Information System maintained by
the U.S. Environmental Protection Agency ("CERCLIS") or any analogous
state list of sites requiring investigation or cleanup, the listing,
or proposed listing of which would be reasonably likely to have a
Material Adverse Effect, except as described in the registration
statement filed on Form 10-K with the Securities and Exchange
Commission, for the period ending December 31, 1998 and the materials
set forth on Schedule 4.01(m) hereto or, to the best knowledge of the
Company, is adjacent to any such property.
(n) Except where noncompliance would not individually or in the
aggregate have a Material Adverse Effect (i) neither the Company nor
any of its Subsidiaries has transported or arranged for the
transportation of any Hazardous Materials to any location that is
listed or proposed for listing on the NPL or on the CERCLIS or any
analogous state list, and (ii) all Hazardous Materials generated,
used, treated, handled or stored at or transported to or from any
property currently or formerly owned or operated by the Company or any
of its Subsidiaries have been disposed of in compliance with all
Environmental Laws and Environmental Permits,
(o) Following application of the proceeds of each Advance, not
more than 25 percent of the value of the assets (either of the Company
only or of the Company and its Subsidiaries on a Consolidated basis)
subject to the provisions of Section 5.02(a) or subject to any
restriction contained in any agreement or instrument between any
Borrower and any Lender or any Affiliate of any Lender relating to
Debt and within the scope of Section 6.01(d) will be margin stock
(within the meaning of Regulation U issued by the Board of Governors
of the Federal Reserve System).
(p) The Borrower has (i) initiated a review and assessment of all
areas within its and each of its Subsidiaries' business and operations
(including those affected by suppliers, vendors and customers) that
could be adversely affected by the risk that computer applications
used by the Borrower or any of its Subsidiaries (or suppliers, vendors
and customers) may be unable to recognize and perform properly date
sensitive functions involving certain dates prior to and any date
after December 31, 1999 (the "YEAR 2000 PROBLEM"), (ii) developed a
plan and timetable for addressing the Year 2000 Problem on a timely
basis and (iii) to date, implemented that plan in accordance with such
timetable. Based on the foregoing, the Borrower believes that its
computer applications that are material to its or any of its
Subsidiaries' business and operations are reasonably expected on a
timely basis to be able to perform properly date-sensitive functions
for all dates before, on and after January 1, 2000, except to the
extent that a failure to do so could not reasonably be expected to
have a Material Adverse Effect and has no present reason to believe
that a failure of a computer application at a supplier, vendor or
customer for reasons related to the Year 2000 Problem would have a
Material Adverse Effect.
46
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and Environmental Laws as
provided in Section 5.01(j).
(b) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
PROVIDED, HOWEVER, that neither the Company nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) MAINTENANCE OF INSURANCE. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Company or such Subsidiary operates; PROVIDED, HOWEVER, that the
Company and its Subsidiaries may self-insure to the same extent as is
consistent with its past practice and to the extent consistent with
prudent business practice.
(d) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and
franchises; PROVIDED, HOWEVER, that the Company and its Subsidiaries
may consummate any merger or consolidation permitted under Section
5.02(b) and PROVIDED FURTHER that neither the Company nor any of its
Subsidiaries shall be required to preserve any right or franchise if
the Board of Directors of the Company or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any
material respect to the Company, such Subsidiary or the Lenders.
(e) VISITATION RIGHTS. At any reasonable time and from time to
time, permit
47
the Administrative Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Company and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Company and any of its Subsidiaries with
any of their officers or directors and with their independent
certified public accountants.
(f) KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Company and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(h) TRANSACTIONS WITH AFFILIATES. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under
this Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate.
(i) REPORTING REQUIREMENTS. Furnish to the Lenders:
(i) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal
year of the Company, Consolidated balance sheets of the Company
and its Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows of the Company
and its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter,
duly certified (subject to year-end audit adjustments) by the
chief financial officer or the controller of the Company as
having been prepared in accordance with GAAP, it being agreed
that delivery of the Company's Quarterly Report on Form 10-Q will
satisfy this requirement, together with a certificate of said
officer stating the Interest Coverage Ratio as of the end of such
quarter;
(ii) as soon as available and in any event within 120 days
after the end of each fiscal year of the Company, a copy of the
annual audit report for such year for the Company and its
Subsidiaries, containing Consolidated balance sheets of the
Company and its Subsidiaries as of the end of such fiscal year
and Consolidated statements of income and cash flows of the
Company and its
48
Subsidiaries for such fiscal year, in each case accompanied by an
opinion acceptable to the Required Lenders by Ernst & Young or
other independent public accountants acceptable to the Required
Lenders, together with a certificate of the chief financial
officer of the Company stating the Interest Coverage Ratio as of
the end of such fiscal year;
(iii) as soon as possible and in any event within five
Business Days after the occurrence of each Default continuing on
the date of such statement, a statement of an officer of the
Company having knowledge of or responsibility for such matters
setting forth details of such Default and the action that the
Company has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of
all reports that the Company sends to any of its securityholders,
and copies of all reports and registration statements that the
Company or any Subsidiary files with the Securities and Exchange
Commission or any national securities exchange;
(v) promptly after the commencement thereof, notice of the
commencement and nature of all actions and proceedings before any
court, governmental agency or arbitrator affecting the Company or
any of its Subsidiaries of the type described in Section 4.01(f);
(vi) promptly and in any event within 10 days after the
Company or any of its ERISA Affiliates knows or has reason to
know that any ERISA Event has occurred, a statement of an officer
of the Company having knowledge of or responsibility for such
matters describing such ERISA Event and the action, if any, that
the Company or such ERISA Affiliate has taken and proposes to
take with respect thereto;
(vii) promptly and in any event within seven Business Days
after receipt thereof by the Company or any of its ERISA
Affiliates, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed to
administer any such Plan;
(viii) promptly and in any event within 30 days after the
receipt thereof by the Company or any of its ERISA Affiliates, a
copy of the latest annual actuarial report for each Plan if the
ratio of the fair market value of the assets of such Plan to its
current liability (as defined in Section 412 of the Internal
Revenue Code) is less than 60%;
(ix) promptly and in any event within five Business Days
after receipt thereof by the Company or any of its ERISA
Affiliates from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of
49
Withdrawal Liability by any such Multiemployer Plan, (B) the
reorganization or termination, within the meaning of Title IV of
ERISA, of any such Multiemployer Plan or (C) the amount of
liability incurred, or that may be incurred, by the Company or
any of its ERISA Affiliates in connection with any event
described in clause (A) or (B); and
(x) such other information respecting the condition or
operations, financial or otherwise, of the Company or any of its
Subsidiaries as any Lender through the Administrative Agent may
from time to time reasonably request.
(j) COMPLIANCE WITH ENVIRONMENTAL LAWS. Comply, and cause each of
its Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause each of
its Subsidiaries to obtain and renew all Environmental Permits necessary for its
operations and properties; and conduct, and cause each of its Subsidiaries to
conduct, any investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties pursuant to the order of any
regulatory authority and generally in accordance with the requirements of all
Environmental Laws; PROVIDED, HOWEVER, that neither the Company nor any of its
Subsidiaries shall be required to undertake any such cleanup, removal, remedial
or other action to the extent that its obligation to do so is being contested in
good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.
(k) PREPARATION OF ENVIRONMENTAL REPORTS. If an Event of Default
shall have occurred and be continuing, at the request of the Administrative
Agent with respect to any Environmental Action, condition or occurrence that the
Administrative Agent or the Required Lenders reasonably deem to be material,
provide to the Lenders within 90 days after such request, at the expense of the
Company, an environmental site assessment report for the properties described in
such request, prepared by an environmental consulting firm acceptable to the
Administrative Agent, indicating the presence or absence of Hazardous Materials
and the estimated cost of any compliance, removal or remedial action in
connection with any Hazardous Materials on such properties; without limiting the
generality of the foregoing, if the Administrative Agent determines at any time
that a material risk exists that any such report will not be provided within the
time referred to above, the Administrative Agent may retain an environmental
consulting firm to prepare such report at the expense of the Company, and the
Company hereby grants and agrees to cause any Subsidiary that owns any property
described in such request to grant at the time of such request, to the
Administrative Agent, the Lenders, such firm and any agents or representatives
thereof an irrevocable non-exclusive license, subject to the rights of tenants,
to enter onto their respective properties to undertake such an assessment.
50
SECTION 5.02. NEGATIVE COVENANTS. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will not:
(a) LIENS, ETC. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect
to any of its properties, whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any right to
receive income, other than:
(i) (A) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under
Section 5.01(b) hereof (including contracts entered into in
connection with major construction projects); (B) Liens imposed
by law, such as materialmen's, mechanics', carriers', workmen's
and repairmen's Liens and other similar Liens arising in the
ordinary course of business securing obligations; (C) pledges or
deposits to secure obligations under workers' compensation laws
or similar legislation or to secure public or statutory
obligations; and (D) easements, rights of way and other
encumbrances on title to real property that do not materially
adversely affect the use of such property for its present
purposes, PROVIDED in each case, that no enforcement, execution,
levy or foreclosure proceeding shall have been commenced that is
not being contested in good faith and by proper proceedings with
appropriate reserves being maintained,
(ii) purchase money Liens upon or in any property acquired
or held by the Company or any Subsidiary in the ordinary course
of business to secure the purchase price of such property or to
secure Debt incurred solely for the purpose of financing the
acquisition of such property, or Liens existing on such property
at the time of its acquisition (other than any such Lien created
in contemplation of such acquisition) or extensions, renewals or
replacements of any of the foregoing for the same or a lesser
amount, PROVIDED, HOWEVER, that no such Lien shall extend to or
cover any property other than the property being acquired, and no
such extension, renewal or replacement shall extend to or cover
any property not theretofore subject to the Lien being extended,
renewed or replaced, PROVIDED FURTHER that the aggregate
principal amount of the indebtedness secured by the Liens
referred to in this clause (ii) shall not exceed US$10,000,000 at
any time outstanding,
(iii) the Liens existing on the Effective Date and described
on Schedule 5.02(a) hereto,
(iv) other Liens securing Debt in an aggregate principal
amount not to exceed US$20,000,000 at any time outstanding,
(v) the replacement, extension or renewal of any Lien
permitted by
51
clauses (ii) and (iii) above upon or in the same property
theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any direct
or contingent obligor) of the Debt secured thereby, and
(vi) Liens, if any, resulting from the documents evidencing
the Receivables Financing.
(b) MERGERS, ETC. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to, any Person, or permit
any of its Subsidiaries to do so, except that any Subsidiary of the
Company may merge or consolidate with or into, or dispose of assets
to, any other Subsidiary of the Company, and except that any
Subsidiary of the Company may merge into or dispose of assets to the
Company and the Company may merge with any other Person so long as the
Company is the surviving corporation, PROVIDED, in each case, that no
Default shall have occurred and be continuing at the time of such
proposed transaction or would result therefrom.
(c) ACCOUNTING CHANGES. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally
accepted accounting principles.
SECTION 5.03. FINANCIAL COVENANTS. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will:
(a) INTEREST COVERAGE RATIO. Maintain an Interest Coverage Ratio
of at least 6.0:1.0.
(b) BORROWED DEBT/EBITDA RATIO. Maintain a Borrowed Debt/EBITDA
Ratio of not more than 3.5:1.0.
(c) MINIMUM RETAINED EARNINGS. Either (i) for each fiscal
quarter, maintain retained earnings equal to or exceeding
US$250,000,000 or (ii) for any period of four consecutive fiscal
quarters, not incur net losses in excess of US$50,000,000.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Advance
when the
52
same becomes due and payable or any Borrower shall fail to pay any
interest on any Advance or make any other payment under this Agreement
or any Note within five Business Days after the same becomes due and
payable; or
(b) Any representation or warranty made by any Borrower herein or
by any Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(c) (i) The Company shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d) or (i)(iii), 5.02
or 5.03, or (ii) the Company shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement on its
part to be performed or observed if such failure shall remain
unremedied for 30 days after written notice thereof shall have been
given to the Company by the Administrative Agent or any Lender; or
(d) The Company or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in
a principal or notional amount of at least US$10,000,000 in the
aggregate (but excluding Debt outstanding hereunder) of the Company or
such Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to
any such Debt and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Debt; or any such Debt shall be declared to be
due and payable, or required to be prepaid or redeemed (other than by
a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated
maturity thereof; or
(e) The Company or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Company or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions sought in such
proceeding (including, without limitation, the
53
entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or for
any substantial part of its property) shall occur; or the Company or
any of its Subsidiaries shall take any corporate action to authorize
any of the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
US$10,000,000 shall be rendered against the Company or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(g) Any non-monetary judgment or order shall be rendered against
the Company or any of its Subsidiaries that could be reasonably
expected to have a Material Adverse Effect, and there shall be any
period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(h) (i) Any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3
of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of the
Company (or other securities convertible into such Voting Stock)
representing 33-1/3% or more of the combined voting power of all
Voting Stock of the Company; or (ii) during any period of up to 24
consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 24-month period were
directors of the Company shall cease for any reason (other than due to
death, disability or voluntary retirement) to constitute a majority of
the board of directors of the Company (except to the extent that
individuals who at the beginning of such 24-month period were replaced
by individuals (x) elected by 50% of the remaining members of the
nominating committee of the board of directors of the Company or (y)
nominated for election by a majority of the remaining members of the
nominating committee of the board of directors of the Company and
thereafter elected as directors by the shareholders of the Company);
or (iii) any Person or two or more Persons acting in concert shall
have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation prior to the
Termination Date, will result in its or their acquisition of the power
to exercise, directly or indirectly, a controlling influence over the
management or policies of the Company; or (iv) except as otherwise
permitted by Section 5.02(b), the Company shall cease to own a
majority of the Voting Stock of the Subsidiary Borrower; or
(i) Any ERISA Event shall have occurred and the sum (determined
as of the date of occurrence of such ERISA Event) of the Insufficiency
of the Plan with respect to which such ERISA Event shall have occurred
and the Insufficiency of any and all
54
other Plans with respect to which an ERISA Event shall have occurred
and then exist (or the liability of the Company and its ERISA
Affiliates related to any such ERISA Event) has, or is reasonably
likely to have, a Material Adverse Effect; or
(j) The Company or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that,
when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Company and its ERISA Affiliates as
Withdrawal Liability (determined as of the date of such notification),
exceeds US$25,000,000 or requires payments exceeding US$5,000,000 per
annum; or
(k) The Company or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, and as a result of such
reorganization or termination the aggregate annual contributions of
the Company and its ERISA Affiliates to all Multiemployer Plans that
are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for
the plan years of such Multiemployer Plans immediately preceding the
plan year in which such reorganization or termination occurs by an
amount exceeding US$10,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrowers,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrowers,
declare the Notes, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by each Borrower; PROVIDED, HOWEVER, that in the
event of an actual or deemed entry of an order for relief with respect to any
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by each Borrower.
ARTICLE VII
COMPANY GUARANTY
SECTION 7.01. GUARANTY. The Company hereby unconditionally and
irrevocably guarantees the punctual payment when due, whether at stated
maturity, by
55
acceleration or otherwise, of all obligations of the Subsidiary Borrower now or
hereafter existing under this Agreement, whether for principal, interest, fees,
expenses or otherwise (such obligations, to the extent not paid by the
Subsidiary Borrower or specifically waived in accordance with Section 9.01,
being the "GUARANTEED OBLIGATIONS"), and agrees to pay any and all expenses
(including reasonable counsel fees and expenses) incurred by the Administrative
Agent or the Lenders in enforcing any rights under this Guaranty. Without
limiting the generality of the foregoing, the Company's liability shall extend
to all amounts that constitute part of the Guaranteed Obligations and would be
owed by the Subsidiary Borrower to the Administrative Agent or any Lender under
this Agreement but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding involving
the Subsidiary Borrower.
SECTION 7.02. GUARANTY ABSOLUTE. The Company guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or the Lenders with respect thereto. The obligations of the
Company under this Guaranty are independent of the Guaranteed Obligations, and a
separate action or actions may be brought and prosecuted against the Company to
enforce this Guaranty, irrespective of whether any action is brought against the
Subsidiary Borrower or whether the Subsidiary Borrower is joined in any such
action or actions. The liability of the Company under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and the Company hereby
irrevocably waives any defenses it may now or hereafter have in any way relating
to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement or
any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from this
Agreement, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional
credit to the Subsidiary Borrower or otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or
consent to departure from any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any change, restructuring or termination of the corporate
structure or existence of the Subsidiary Borrower; or
(e) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Administrative Agent or any Lender that might
otherwise constitute a defense available to, or a
56
discharge of, the Company, the Subsidiary Borrower or any other
guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy or reorganization of the Subsidiary Borrower or
otherwise, all as though such payment had not been made.
SECTION 7.03. WAIVER. The Company hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty and any requirement that the
Administrative Agent or any Lender exhaust any right or take any action against
the Subsidiary Borrower or any other Person or any collateral. The Company
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated herein and that the waiver set forth in this
Section 7.03 is knowingly made in contemplation of such benefits. The Company
hereby waives any right to revoke this Guaranty, and acknowledges that this
Guaranty is continuing in nature and applies to all Guaranteed Obligations,
whether existing now or in the future.
SECTION 7.04. CONTINUING GUARANTY; ASSIGNMENTS. This Guaranty is
a continuing guaranty and shall (a) remain in full force and effect until the
later of the cash payment in full of the Guaranteed Obligations and all other
amounts payable under this Guaranty and the Revolver Termination Date, (b) be
binding upon the Company, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Lenders, the Administrative Agent and their
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (c), any Lender may assign or otherwise transfer all or any
portion of its rights and obligations hereunder (including, without limitation,
all or any portion of its Commitment, the Advances owing to it and the Note or
Notes held by it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to such Lender
herein or otherwise, in each case as provided in Section 9.07.
SECTION 7.05. SUBROGATION. The Company will not exercise any
rights that it may now or hereafter acquire against the Subsidiary Borrower or
any other insider guarantor that arise from the existence, payment, performance
or enforcement of the Company's obligations under this Agreement, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of the Administrative Agent or any Lender against the Subsidiary Borrower
or any other insider guarantor or any collateral, whether or not such claim,
remedy or right arises in equity or under contract, statute or common law,
including, without limitation, the right to take or receive from the Subsidiary
Borrower or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security solely
on account of such claim, remedy or right, unless and until all of the
Guaranteed Obligations and all other amounts payable under this Guaranty shall
have been paid in full in cash and the Revolver Termination Date shall have
occurred. If any amount shall be paid to the Company in violation of the
preceding sentence at any time prior to the later of the
57
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty and the Termination Date, such amount shall be held
in trust for the benefit of the Administrative Agent and the Lenders and shall
forthwith be paid to the Administrative Agent to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of this Agreement, or
to be held as collateral for any Guaranteed Obligations or other amounts payable
under this Guaranty thereafter arising. If (i) the Company shall make payment to
the Administrative Agent or any Lender of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall be paid in full in cash and (iii) the Revolver
Termination Date shall have occurred, the Administrative Agent and the Lenders
will, at the Company's request and expense, execute and deliver to the Company
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Company of an interest
in the Guaranteed Obligations resulting from such payment by the Company.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. AUTHORIZATION AND ACTION. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Administrative Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lenders and all holders of
Notes; PROVIDED, HOWEVER, that the Administrative Agent shall not be required to
take any action that exposes the Administrative Agent to personal liability or
that is contrary to this Agreement or applicable law. The Administrative Agent
agrees to give to each Lender prompt notice of each notice given to it by any
Borrower pursuant to the terms of this Agreement.
SECTION 8.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assumption
Agreement entered into by an Assuming Lender as provided in Section 2.17 or an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as
58
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
(ii) may consult with legal counsel (including counsel for the Borrowers),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of any Borrower or
to inspect the property (including the books and records) of any Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 8.03. CITIBANK AND AFFILIATES. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, the Company, any of its Subsidiaries and any Person who may do business
with or own securities of the Company or any such Subsidiary, all as if Citibank
were not the Administrative Agent and without any duty to account therefor to
the Lenders.
SECTION 8.04. LENDER CREDIT DECISION. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on the financial statements referred to in Section
4.01(e) and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the 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 decisions in taking or not taking action under this Agreement.
SECTION 8.05. INDEMNIFICATION. The Lenders (other than the
Designated Bidders) agree to indemnify the Administrative Agent (to the extent
not reimbursed by the Company), ratably according to the respective principal
amounts of the Revolving Credit Notes then held by each of them (or if no
Revolving Credit Notes are at the time outstanding or if any Revolving Credit
Notes are held by Persons that are not Lenders, ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any
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kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Administrative Agent under this
Agreement, PROVIDED that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender (other than the Designated Bidders) agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Administrative
Agent is not reimbursed for such expenses by the Company.
SECTION 8.06. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders and
the Company. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Administrative Agent, which successor
Administrative Agent, so long as no Default has occurred and is continuing,
shall be approved by the Company, which approval shall not be unreasonably
withheld or delayed. If no successor Administrative Agent shall have been so
appointed by the Required Lenders in accordance with the immediately preceding
sentence, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any State thereof and having a combined
capital and surplus of at least US$50,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
SECTION 8.07. LOCAL AGENT. The Local Agent has been designated
under this Agreement to carry out duties of the Administrative Agent. The Local
Agent shall be subject to each of the obligations to be performed by the Local
Agent, and each of the Borrowers and the Lenders agrees that the Local Agent
shall be entitled to exercise each of the rights and shall be entitled to each
of the benefits of the Administrative Agent under this Agreement as relate to
the performance of its obligations.
SECTION 8.08. OTHER AGENTS. Each Lender hereby acknowledges that
neither
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the syndication agent nor the documentation agent has any liability hereunder
other than in its capacity as Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; PROVIDED, HOWEVER, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders (other than
the Designated Bidders), do any of the following: (a) waive any of the
conditions specified in Section 3.01, (b) increase the Commitments of the
Lenders or subject the Lenders to any additional obligations, (c) reduce the
principal of, or interest on, the Revolving Credit Notes or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any reduction of
Commitment or for any payment of principal of, or interest on, the Revolving
Credit Notes or any fees or other amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Revolving Credit Notes, or the number of Lenders, that shall be required for the
Lenders or any of them to take any action hereunder or (f) amend this Section
9.01; PROVIDED FURTHER that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note; and PROVIDED FURTHER that
no amendment, waiver or consent of Section 9.07(i) shall, unless in writing and
signed by each Lender that has granted a funding option to a SPC in addition to
the Lenders required above to take such action, affect the rights or duties of
such Lender or SPC under this Agreement or any Note.
SECTION 9.02. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed, telexed or delivered,
if to the Company, at its address at Xxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx 00000,
Attention: Secretary, with a copy to: Chief Financial Officer at such address;
if to Geon Canada, at its address at Xxx Xxxx Xxxxxx, Xxxx Xxxx, Xxxx 00000,
Attention: Secretary; if to any Lender, at its Domestic Lending Office specified
in a written notice to the Company and the Administrative Agent from time to
time; and if to the Administrative Agent, at its address at Agency Services, 0
Xxxx'x Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000 Attention: Xx. Xxx Xxxxxx,
with a copy to 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chemicals
Department; or, as to any Borrower or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties. All such notices and communications shall, when mailed, telecopied,
telegraphed or telexed, be effective when deposited in the mails, telecopied,
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delivered to the telegraph company or confirmed by telex answerback,
respectively, except that notices and communications to the Administrative Agent
pursuant to Article II, III or VIII shall not be effective until received by the
Administrative Agent.
SECTION 9.03. NO WAIVER; REMEDIES. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. COSTS AND EXPENSES. (a) The Company agrees to pay
on demand all costs and expenses of the Administrative Agent in connection with
the preparation, execution, delivery, administration, modification and amendment
of this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Administrative Agent with respect thereto
and with respect to advising the Administrative Agent as to its rights and
responsibilities under this Agreement. The Company further agrees to pay on
demand all costs and expenses of the Administrative Agent and the Lenders, if
any (including, without limitation, reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Agreement, the Notes and the other documents to be
delivered hereunder, including, without limitation, reasonable fees and expenses
of counsel for the Administrative Agent and each Lender in connection with the
enforcement of rights under this Section 9.04(a).
(b) (i) The Company agrees to indemnify and hold harmless the
Administrative Agent and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "INDEMNIFIED
PARTY") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of, or in
connection with the preparation for a defense of, any investigation, litigation
or proceeding arising out of, related to or in connection with (i) the Notes,
this Agreement, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Company or any of its
Subsidiaries or any Environmental Action relating in any way to the Company or
any of its Subsidiaries, in each case whether or not such investigation,
litigation or proceeding is brought by the Company, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated, except to the extent such claim, damage,
loss, liability or expense resulted from such Indemnified Party's gross
negligence or willful
62
misconduct. The Company also agrees not to assert any claim against the
Administrative Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, for special or indirect damages arising out of or otherwise
relating to the Notes, this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Advances.
(ii) Each Indemnified Party shall, promptly after becoming aware
of any actual or threatened action or claim against such Indemnified Party in
respect of which indemnification may be sought against the Company pursuant to
this Section 9.04(b), notify the Company in writing of such action or claim. In
case any such action shall be brought against any Indemnified Party and such
Indemnified Party shall notify the Company of the commencement thereof, the
Company may participate therein or assume the defense thereof and after notice
from the Company to such Indemnified Party of an election so to assume the
defense thereof, such Indemnified Party shall cooperate fully, completely and
promptly in the defense thereof, including without limitation, the settlement of
outstanding claims, and the Company will not be liable to such Indemnified Party
under this Section 9.04(b) for any legal or other expenses subsequently incurred
by such Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation incurred with the consent of the Company,
which consent shall not be unreasonably withheld or delayed; PROVIDED, HOWEVER,
that unless and until the Company so assumes the defense of any such action, the
Company shall have the right to participate at its own expense in the defense of
any such action to which it is a party. If the Company shall not have so assumed
the defense of any such action or if any Indemnified Party shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to the Company (in which case the Company
shall not have the right to direct the defense of such action on behalf of such
Indemnified Party), legal and other expenses incurred by such Indemnified Party
shall be borne by the Company; PROVIDED that the Company shall be liable only
for the expenses of a single legal counsel for all Indemnified Parties in
connection with any single action. Notwithstanding the foregoing, the Company
shall not be liable for any settlement of any action or claim effected without
its consent.
(iii) The Company will not settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification has been sought hereunder
(whether or not an Indemnified Party is a party to such claim, action, suit or
proceeding) without the prior written consent of the Administrative Agent,
unless such settlement, compromise or consent includes an unconditional release
of the Administrative Agent and each Indemnified Party from all liability
arising from such claim, action, suit or proceeding.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance, LIBO Rate Advance or Local Rate Advance is made by any
Borrower to or for the account of a Lender other than on the last day of the
Interest Period for such Advance, as a result of a payment or Conversion
pursuant to Section 2.08(d) or (e), 2.10 or 2.12,
63
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, such Borrower shall, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender any amounts required to compensate such Lender for
any additional losses, costs or expenses that it may reasonably incur as a
result of such payment or Conversion, including, without limitation, any loss,
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of
the Company hereunder, the agreements and obligations of the Company contained
in Sections 2.11, 2.14 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 9.05. RIGHT OF SET-OFF. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time that payment owed to such Lender is not made by any
Borrower to the Administrative Agent when due and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender or such Affiliate to or for
the credit or the account of such Borrower against any and all of the
obligations of such Borrower now or hereafter existing under this Agreement and
the Note held by such Lender, whether or not such Lender shall have made any
demand under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify such Borrower after any such
set-off and application, PROVIDED that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
and its Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender and its Affiliates may have.
SECTION 9.06. BINDING EFFECT. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by each Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Initial Lender that
such Initial Lender has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrowers, the Administrative Agent and each Lender
and their respective successors and assigns, except that no Borrower shall have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
SECTION 9.07. ASSIGNMENTS, DESIGNATIONS AND PARTICIPATIONS. (a)
Each Lender (other than the Designated Bidders) may and, if demanded by the
Company (following
64
a demand by such Lender pursuant to Section 2.11 or Section 2.14) upon at least
20 Business Days' notice to such Lender and the Administrative Agent, will
assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Revolving Credit Advances owing to it and the Revolving Credit
Note or Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment
shall be of a constant, and not a varying, percentage of all rights and
obligations under this Agreement (other than any right to make Competitive Bid
Advances or Competitive Bid Advances owing to it), (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender
or an assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
US$5,000,000 or an integral multiple of US$1,000,000 in excess thereof, (iii)
each such assignment shall be to an Eligible Assignee, (iv) each such assignment
made as a result of a demand by the Company pursuant to this Section 9.07(a)
shall be arranged by the Company after consultation with the Administrative
Agent and shall be either an assignment of all of the rights and obligations of
the assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other
such assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Company pursuant to this
Section 9.07(a) unless and until such Lender shall have received one or more
payments from either the Company or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement and (vi) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any
Revolving Credit Note subject to such assignment and a processing and
recordation fee of US$3,000. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with
65
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of any Borrower or the performance or observance by
any Borrower of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01(e) and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Revolving Credit Note or Notes subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit C hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Company.
Within five Business Days after its receipt of such notice, the Company, at its
own expense, shall execute and deliver to the Administrative Agent in exchange
for the surrendered Revolving Credit Note a new Note to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Lender has retained a
Commitment hereunder, a new Revolving Credit Note to the order of the assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such new
Revolving Credit Note or Notes shall be in an aggregate principal amount equal
to the aggregate principal amount of such surrendered Revolving Credit Note or
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A-1 hereto.
(d) Each Lender (other than the Designated Bidders) may designate
one or more banks or other entities to have a right to make Competitive Bid
Advances as a Lender pursuant to Section 2.03; PROVIDED, HOWEVER, that (i) no
such Lender shall be entitled to make more than three such designations, (ii)
each such Lender making one or more of such designations shall retain the right
to make Competitive Bid Advances as a Lender pursuant to Section 2.03, (iii)
each such designation shall be to a Designated Bidder and (iv) the parties to
66
each such designation shall execute and deliver to the Administrative Agent, for
its acceptance and recording in the Register, a Designation Agreement. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Designation Agreement, the designee thereunder shall be a
party hereto with a right to make Competitive Bid Advances as a Lender pursuant
to Section 2.03 and the obligations related thereto.
(e) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder confirm and
agree with each other and the other parties hereto as follows: (i) such Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Borrower or the performance or observance by any Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such designee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Designation Agreement; (iv) such designee will, independently and without
reliance upon the Administrative Agent, such designating Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such designee confirms that it is a Designated
Bidder; (vi) such designee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such designee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Administrative Agent shall, if such Designation Agreement has been completed
and is substantially in the form of Exhibit D hereto, (i) accept such
Designation Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrowers.
(g) The Administrative Agent shall maintain at its address
referred to in Section 9.02 a copy of each Assumption Agreement, each Assignment
and Acceptance and each Designation Agreement delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders
and, with respect to Lenders other than the Designated Bidders, the Commitment
of, and principal amount of the Advances owing to, each Lender from time to time
(the "REGISTER"). The entries in the Register shall be conclusive and
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binding for all purposes, absent manifest error, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by any Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(h) Each Lender may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Company hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this Agreement, (iv) each
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by any
Borrower therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
(i) Each Lender may grant to a special purpose funding vehicle
(an "SPC") the option to fund all or any part of any Advance that such Lender is
obligated to fund under this Agreement (and upon the exercise by such SPC of
such option to fund, such Lender's obligations with respect to such Advance
shall be deemed satisfied to the extent of any amounts funded by such SPC);
PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Company hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) each Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (iv) any such option granted to a SPC shall
not constitute a commitment by such SPC to fund any Advance and (v) no SPC shall
have any right to approve any amendment or waiver of any provision of this
Agreement or any Note, or any consent to any departure by any Borrower
therefrom, except to the extent that such amendment, waiver or consent would
reduce the principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such grant of funding
option, or postpone any date fixed for any payment of principal of, or interest
on, the Notes or any fees or other amounts payable hereunder, in each case to
the extent subject to such grant of funding option.
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(j) Any Lender may, in connection with any assignment,
designation, participation or grant of funding option or proposed assignment,
designation, participation or grant of funding option pursuant to this Section
9.07, disclose to the assignee, designee, participant or SPC or proposed
assignee, designee, participant or SPC, any information relating to any Borrower
furnished to such Lender by or on behalf of such Borrower; PROVIDED that, prior
to any such disclosure, the assignee, designee, participant or SPC or proposed
assignee, designee, participant or SPC shall agree to preserve the
confidentiality of any Confidential Information relating to any Borrower
received by it from such Lender.
(k) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 9.08. CONFIDENTIALITY. Neither the Administrative Agent
nor any Lender or SPC shall disclose any Confidential Information to any Person
without the consent of the Company, other than (a) to the Administrative Agent's
or such Lender's Affiliates and their officers, directors, employees, agents and
advisors and to actual or prospective assignees and participants, and then only
on a confidential basis, (b) as required by any law, rule or regulation or
judicial process, (c) to any rating agency when required by it, PROVIDED that,
prior to any such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Confidential Information relating to the Company received
by it from such Lender and (d) as requested or required by any state, federal or
foreign authority or examiner regulating banks or banking.
SECTION 9.09. GOVERNING LAW. This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.10. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.11. CURRENCY CONVERSION FOR JUDGMENTS. (a) If for
purposes of obtaining judgment in any court it is necessary to convert a sum due
hereunder in US Dollars into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase US Dollars with such other currency at
Citibank's principal office in New York at 11:00 A.M. (New York time) on the
later of (i) the Business Day preceding that on which judgment is rendered and
(ii) if such judgment is
69
appealed, the Business Day on which such judgment is upheld.
(b) If for purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in a Foreign Currency into US Dollars,
the parties agree to the fullest extent that they may effectively do so, that
the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase such Foreign Currency
with US Dollars at Citibank's principal office in New York at 11:00 A.M. (New
York time) on the later of (i) the Business Day preceding that on which judgment
is rendered and (ii) if such judgment is appealed, the Business Day on which
such judgment is upheld.
(c) The obligation of each Borrower in respect of any sum due
from it in any currency (the "PRIMARY CURRENCY") to any Lender or the
Administrative Agent hereunder shall, notwithstanding any judgment in any other
currency, be discharged only to the extent that on the Business Day following
receipt by such Lender or the Administrative Agent (as the case may be), of any
sum adjudged to be so due in such other currency, such Lender or the
Administrative Agent (as the case may be) may in accordance with normal banking
procedures purchase the applicable Primary Currency with such other currency; if
the amount of the applicable Primary Currency so purchased is less than such sum
due to such Lender or the Administrative Agent (as the case may be) in the
applicable Primary Currency, each Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent (as the case may be) against such loss, and if the amount
of the applicable Primary Currency so purchased exceeds such sum due to any
Lender or the Administrative Agent (as the case may be) in the applicable
Primary Currency, such Lender or the Administrative Agent (as the case may be)
agrees to remit to such Borrower such excess.
SECTION 9.12. JURISDICTION, ETC. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. The Subsidiary Borrower hereby agrees that service of
process in any such action or proceeding brought in any such New York State
court or in such federal court may be made on the Subsidiary Borrower at Xxx
Xxxx Xxxxxx, Xxxx Xxxx, Xxxx 00000, Attention: Secretary. Each Borrower hereby
further irrevocably further consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any parties hereto by
registered or certified mail, postage prepaid, to such Borrower at its address
specified pursuant to Section 9.02. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any
70
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
71
SECTION 9.13. WAIVER OF JURY TRIAL. Each of the Borrowers, the
Administrative Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Administrative Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE GEON COMPANY
By ____________________________
Title:
GEON CANADA INC.
By ____________________________
Title:
CITIBANK, N.A.,
as Administrative Agent
By ____________________________
Title:
72
Initial Lenders
---------------
Commitment
----------
US$18,500,000 CITIBANK, N.A.
By_________________________
Title:
US$14,500,000 THE BANK OF NEW YORK
By__________________________
Title:
US$14,500,000 SCOTIABANC INC.
By__________________________
Title:
US$13,00,000 CIBC INC.
By__________________________
Title:
US$14,500,000 KEY BANK NATIONAL ASSOCIATION
By__________________________
Title:
US$14,500,000 MELLON BANK, N.A.
By__________________________
Title:
73
US$14,500,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By_________________________
Title:
US$14,500,000 NATIONAL CITY BANK
By_________________________
Title:
US$17,000,000 NATIONSBANK, N.A.
By_________________________
Title:
US$14,500,000 BANK ONE, MICHIGAN (f/k/a NBD Bank)
By_________________________
Title:
US$150,000,000 Total of the Commitments
74
SCHEDULE I
THE GEON COMPANY US$150,000,000
AMENDED AND RESTATED 364-DAY
CREDIT AGREEMENT
PRICING GRID
-----------------------------------------------------------------------------------------------------------------------------------
XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 5 LEVEL 6
-----------------------------------------------------------------------------------------------------------------------------------
BASIS FOR Long Term Long Term Long Term Long Term Long Term Long Term
PRICING* Senior Unsecured Senior Unsecured Senior Unsecured Senior Unsecured Senior Unsecured Senior
Debt Rated at Debt Rated at Debt Rated at Debt Rated at Debt Rated at Unsecured
Least A- by Least BBB+ by Least BBB by Least BBB- by Least BB+ by Debt Rated
Standard & Standard & Standard & Standard & Standard & lower than
Poor's or A3 by Poor's or Baa1 by Poor's or Baa2 by Poor's and Baa3 Poor's and Ba1 by Xxxxx 0 or no
Moody's Moody's Moody's by Moody's/ Xxxxx'x rating
-----------------------------------------------------------------------------------------------------------------------------------
APPLICABLE 0.075% 0.100% 0.125% 0.150% 0.200% 0.250%
FACILITY FEE
-----------------------------------------------------------------------------------------------------------------------------------
APPLICABLE
MARGIN 0.325% 0.350% 0.375% 0.475% 0.675% 1.000%
(LIBOR+)
USAGE<=33%
-----------------------------------------------------------------------------------------------------------------------------------
APPLICABLE
MARGIN 0.425% 0.400% 0.500% 0.600% 0.800% 1.125%
(LIBOR+)
USAGE>33%
--------
* If the ratings by S&P and Moody's fall within different levels and the
differential is one level, the higher rating will apply. If the ratings by S&P
and Moody's fall within different levels and the differential is two levels or
more, one level higher than the lower rating will apply.
75
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
US$_________________ Dated:___________, 19__
FOR VALUE RECEIVED, the undersigned, THE GEON COMPANY, a Delaware
corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the order of (the
"LENDER") for the account of its Applicable Lending Office on the Termination
Date (each as defined in the Credit Agreement referred to below) the principal
sum of US$[amount of the Lender's Commitment in figures] or, if less, the
aggregate principal amount of the Revolving Credit Advances made by the Lender
to the Borrower pursuant to the Amended and Restated Credit Agreement dated as
of May 27, 1999 among the Borrower, Geon Canada Inc., the Lender and certain
other lenders parties thereto and Citibank, N.A., as Administrative Agent for
the Lender and such other lenders (as amended or modified from time to time, the
"CREDIT AGREEMENT"; the terms defined therein being used herein as therein
defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance from the date of such Revolving Credit
Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Administrative Agent, at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in same day funds. Each Revolving Credit
Advance owing to the Lender by the Borrower pursuant to the Credit Agreement,
and all payments made on account of principal thereof, shall be recorded by the
Lender and, prior to any transfer hereof, endorsed on the grid attached hereto
which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, (i) provides for the making of Revolving
Credit Advances by the Lender to the Borrower from time to time in an aggregate
amount not
76
to exceed at any time outstanding the US Dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such Revolving Credit
Advance being evidenced by this Promissory Note, and (ii) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
THE GEON COMPANY
By________________________
Title:
77
ADVANCES AND PAYMENTS OF PRINCIPAL
----------------------------------------------------------------------------------------------------------------------
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
======================================================================================================================
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
US$_______________ Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, THE GEON COMPANY, a Delaware
corporation (the "COMPANY"), HEREBY PROMISES TO PAY to the order of Citibank,
N.A., as
78
Administrative Agent or its designated Local Agent (as defined in the Amended
and Restated Credit Agreement dated as of May 27, 1999 among the Company, Geon
Canada Inc., certain lenders parties thereto, and Citibank, N.A., as
Administrative Agent such lenders (as amended or modified from time to time, the
"CREDIT AGREEMENT"; the terms defined therein being used herein as therein
defined)), the principal amount set forth above or, if less, the aggregate
principal amount of all Competitive Bid Advances made by the Lenders to the
Borrowers pursuant to the Credit Agreement, and such principal amount shall
become due on the maturity date specified for such principal amount in the
Competitive Bid Register and the Credit Agreement.
The Company promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in full,
at the interest rate and payable at such times as are specified from time to
time in the Competitive Bid Register and the Credit Agreement.
Both principal and interest in respect of each Competitive Bid
Advance (i) in US Dollars are payable in lawful money of the United States of
America to Citibank, as Administrative Agent, at its Applicable Administrative
Agent's Account, in same day funds and (ii) in any Foreign Currency are payable
in such currency at the applicable Payment Office of the Local Agent, in same
day funds. Each Competitive Bid Advance owing to a Lender by any Borrower
pursuant to the Credit Agreement and the applicable Notice of Competitive Bid
Borrowing, and all payments made on account of principal thereof, shall be
recorded by the Administrative Agent in the Competitive Bid Register.
This Promissory Note is the Competitive Bid Note referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Competitive Bid advances by
the Lenders to the Borrowers from time to time in an aggregate amount not to
exceed at any time outstanding the US Dollar Amount first above mentioned, the
indebtedness of the Borrowers resulting from each such Competitive Bid Advance
being evidenced by this Promissory Note, (ii)contains provisions for determining
the US Dollar Equivalent of Advances denominated in Foreign Currencies and (iii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events.
The Company hereby waives presentment, demand, protest and notice
of any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
THE GEON COMPANY
By
Title:
79
EXHIBIT B-1 - FORM OF NOTICE
OF REVOLVING CREDIT
BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 [Date]
Attention:______________
Ladies and Gentlemen:
The undersigned, The Geon Company, refers to the Amended and Restated
Credit Agreement, dated as of May 27, 1999 (as amended or modified from time to
time, the "CREDIT AGREEMENT", the terms defined therein being used herein as
therein defined), among the undersigned, Geon Canada Inc., certain Lenders
parties thereto and Citibank, N.A., as Administrative Agent for said Lenders,
and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit
Agreement that the undersigned hereby requests a Revolving Credit Borrowing
under the Credit Agreement, and in that connection sets forth below the
information relating to such Revolving Credit Borrowing (the "PROPOSED REVOLVING
CREDIT BORROWING") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing
is ___________, 199_.
(ii) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is US$_____________.
[(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Revolving Credit Borrowing is
_____ month[s].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Revolving
Credit Borrowing:
(A) the representations and warranties contained in Section 4.01 of
the Credit Agreement are correct, before and after giving effect to the
Proposed Revolving Credit Borrowing and to the application of the
proceeds therefrom, as though made on and as
80
of such date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Revolving Credit Borrowing or from the application of
the proceeds therefrom, that constitutes a Default.
Very truly yours,
THE GEON COMPANY
By________________________
Title:
81
EXHIBIT B-2 - FORM OF
NOTICE OF COMPETITIVE
BID BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, [name of Borrower], refers to the Amended and
Restated Credit Agreement, dated as of May 27, 1999 (as amended or modified from
time to time, the "CREDIT AGREEMENT", the terms defined therein being used
herein as therein defined), among the undersigned, [The Geon Company][Geon
Canada Inc.], certain Lenders parties thereto and Citibank, N.A., as
Administrative Agent for said Lenders, and hereby gives you notice, irrevocably,
pursuant to Section 2.03 of the Credit Agreement that the undersigned hereby
requests a Competitive Bid Borrowing under the Credit Agreement, and in that
connection sets forth the terms on which such Competitive Bid Borrowing (the
"PROPOSED COMPETITIVE BID BORROWING") is requested to be made:
(A) Date of Competitive Bid Borrowing ________________________
(B) Amount of Competitive Bid Borrowing ________________________
(C) Maturity Date ________________________
(D) Interest Rate Basis ________________________
(E) Interest Payment Date(s) ________________________
[(F) Currency ________________________]
[(G) Borrower's Account Location ________________________]
(H) ________________ ________________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties contained in Section 4.01
are correct, before and after giving effect to the Proposed
Competitive Bid Borrowing and to the
82
application of the proceeds therefrom, as though made on and as of
such date;
(b) no event has occurred and is continuing, or would result from
the Proposed Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default;
(c) no event has occurred and no circumstance exists as a result
of which the information concerning the undersigned that has been
provided to the Administrative Agent and each Lender by the
undersigned in connection with the Credit Agreement would include an
untrue statement of a material fact or omit to state any material fact
or any fact necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not misleading;
and
(d) the aggregate amount of the Proposed Competitive Bid
Borrowing and all other Borrowings to be made on the same day under
the Credit Agreement is within the aggregate amount of the unused
Commitments of the Lenders.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(a)(v) of
the Credit Agreement.
Very truly yours,
[NAME OF BORROWER]
By__________________
Title:
83
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement dated
as of May 27, 1999 (as amended or modified from time to time, the "CREDIT
AGREEMENT") among The Geon Company, a Delaware corporation (the "COMPANY"), Geon
Canada Inc., a federal Canadian corporation, the Lenders (as defined in the
Credit Agreement) and Citibank, N.A., as administrative agent for the Lenders
(the "ADMINISTRATIVE AGENT"). Terms defined in the Credit Agreement are used
herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Advances) equal to the
percentage interest specified on Schedule 1 hereto of all outstanding rights and
obligations under the Credit Agreement (other than in respect of Competitive Bid
Advances). After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Revolving Credit Advances owing to the Assignee
will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or the
performance or observance by any Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Revolving Credit Note held by the Assignor and requests
that the Administrative Agent exchange such Revolving Credit Note for a new
Revolving Credit Note payable to the order of the Assignee in an amount equal to
the Commitment assumed by the Assignee pursuant hereto or new Revolving Credit
Notes payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and the Assignor in an amount equal to
the Commitment retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01(e)
84
thereof and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance upon
the Administrative Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (v) agrees that it
will perform in accordance with their terms all of the obligations that by the
terms of the Credit Agreement are required to be performed by it as a Lender;
and (vi) attaches any U.S. Internal Revenue Service forms required under Section
2.14 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent for acceptance and recording by the
Administrative Agent. The effective date for this Assignment and Acceptance (the
"EFFECTIVE DATE") shall be the date of acceptance hereof by the Administrative
Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the rights
and obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Revolving Credit Notes in respect of
the interest assigned hereby (including, without limitation, all payments of
principal, interest and facility fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments under
the Credit Agreement and the Revolving Credit Notes for periods prior to the
Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment
85
and Acceptance by telecopier shall be effective as delivery of a manually
executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
86
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: ___ %
Assignee's Commitment: US$____________
Aggregate outstanding principal
amount of Revolving Credit Advances assigned: US$____________
Principal amount of Revolving Credit Note
payable to Assignee: US$____________
Principal amount of Revolving Credit Note
payable to Assignor: US$____________
Effective Date:* ________________, 19__
[NAME OF ASSIGNOR], as Assignor
By_______________________
Title:
Dated: ___________, 19__
[NAME OF ASSIGNEE], as Assignee
By_______________________
Title:
Dated: ___________, 19__
Domestic Lending Office:
--------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Administrative
Agent.
87
[Address]
Eurodollar Lending Office:
[Address]
Accepted and Approved this
____ day of_____________, 19_
CITIBANK, N.A., as Administrative Agent
By____________________
Title:
Approved this _____day
of ____________, 19_
THE GEON COMPANY
By____________________
Title:
88
EXHIBIT D - FORM OF
DESIGNATION AGREEMENT
Dated _______________, 199_
Reference is made to the Amended and Restated Credit Agreement dated
as of May 27, 1999 (as amended or modified from time to time, the "CREDIT
AGREEMENT") among The Geon Company, a Delaware corporation (the "COMPANY"), Geon
Canada Inc., a federal Canadian Corporation, the Lenders (as defined in the
Credit Agreement) and Citibank, N.A., as agent for the Lenders (the
"ADMINISTRATIVE AGENT"). Terms defined in the Credit Agreement are used herein
with the same meaning.
_________________________ (the "DESIGNOR") and
________________________ (the "DESIGNEE") agree as follows:
1. The Designor hereby designates the Designee, and the Designee
hereby accepts such designation, to have a right to make Competitive Bid
Advances pursuant to Section 2.03 of the Credit Agreement.
2. The Designor makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto and
(ii) the financial condition of any Borrower or the performance or observance by
any Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Designation Agreement; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Designor or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is a Designated Bidder; (iv)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit Agreement
as are delegated to the Administrative Agent by the terms thereof, together with
such powers and discretion as are reasonably incidental thereto; and (v) agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of the Credit Agreement are required to be performed by it as a
Lender.
89
4. Following the execution of this Designation Agreement by the
Designor and its Designee, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent. The effective date for
this Designation Agreement (the "EFFECTIVE DATE") shall be the date of
acceptance hereof by the Administrative Agent, unless otherwise specified on the
signature page hereto.
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, the Designee shall be a party to the Credit Agreement
with a right to make Competitive Bid Advances as a Lender pursuant to Section
2.03 of the Credit Agreement and the rights and obligations of a Lender related
thereto.
6. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
7. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by telecopier
shall be effective as delivery of a manually executed counterpart of this
Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee have caused this
Designation Agreement to be executed by their officers thereunto duly authorized
as of the date first above written.
Effective Date:* _______________________, 199__
[NAME OF DESIGNOR],
as Designor
By______________________
Title:
[NAME OF DESIGNEE],
as Designee
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* This date should be no earlier than five Business Days after the
delivery of this Designation Agreement to the Administrative Agent.
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By_______________________
Title:
Applicable Lending
Office (and address
for notices):
[Address]
Accepted this ____ day
of _______________, 199_
CITIBANK, N.A., as Agent
By_________________________
Title:
91
EXHIBIT E-1 - FORM OF
OPINION OF COUNSEL
FOR THE BORROWERS
