CONFORMED COPY
=====================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
September 16, 1999
among
AIR PRODUCTS AND CHEMICALS, INC.,
as the Initial Borrower,
The Additional Borrowers Parties Hereto,
The Lenders Parties Hereto,
DEUTSCHE BANK AG,
BANC ONE CAPITAL MARKETS, INC. and
HSBC BANK USA,
as Co-Syndication Agents,
DEUTSCHE BANK AG,
BANC ONE CAPITAL MARKETS, INC.,
HSBC BANK USA,
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
XXXXXXX SACHS CREDIT PARTNERS L.P. and
ABN AMRO BANK N.V.,
as Co-Arrangers,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
=====================================================================
CHASE SECURITIES INC.,
as Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions........................................................................................ 1
SECTION 1.01. Defined Terms................................................................... 1
SECTION 1.02. Classification of Loans and Borrowings.......................................... 20
SECTION 1.03. Terms Generally................................................................. 21
SECTION 1.04. Accounting Terms; GAAP.......................................................... 21
ARTICLE II
The Credits........................................................................................ 21
SECTION 2.01. 364-Day Revolving Commitments................................................... 21
SECTION 2.02. Five-Year Revolving Commitments................................................. 21
SECTION 2.03. Procedure for Revolving Loan Borrowing.......................................... 22
SECTION 2.04. Competitive Bid Procedure....................................................... 23
SECTION 2.05. Funding of Borrowings........................................................... 25
SECTION 2.06. Interest Elections.............................................................. 25
SECTION 2.07. Termination and Reduction of Commitments; Extension of Revolving Termination
Date............................................................................ 26
SECTION 2.08. Repayment of Loans; Evidence of Debt............................................ 28
SECTION 2.09. Optional Prepayment of Loans.................................................... 28
SECTION 2.10. Mandatory Prepayments and Commitment Reductions................................. 29
SECTION 2.11. Facility Fees; Other Fees....................................................... 30
SECTION 2.12. Interest........................................................................ 30
SECTION 2.13. Alternate Rate of Interest...................................................... 31
SECTION 2.14. Increased Costs................................................................. 31
SECTION 2.15. Break Funding Payments.......................................................... 32
SECTION 2.16. Taxes........................................................................... 33
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs..................... 34
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.................................. 35
SECTION 2.19. Certain Funds Period............................................................ 36
ARTICLE III
Representations and Warranties..................................................................... 36
SECTION 3.01. Organization; Powers............................................................ 36
SECTION 3.02. Authorization; Enforceability................................................... 36
SECTION 3.03. Governmental Approvals; No Conflicts............................................ 36
SECTION 3.04. Financial Condition; No Material Adverse Change................................. 37
SECTION 3.05. Properties...................................................................... 37
SECTION 3.06. Litigation and Environmental Matters............................................ 37
SECTION 3.07. Compliance with Laws and Agreements............................................. 38
i
TABLE OF CONTENTS
Page
----
SECTION 3.08. Investment and Holding Company Status........................................... 38
SECTION 3.09. Taxes........................................................................... 38
SECTION 3.10. ERISA........................................................................... 38
SECTION 3.11. Disclosure...................................................................... 38
SECTION 3.12. Federal Regulations............................................................. 38
SECTION 3.13. Subsidiaries.................................................................... 39
SECTION 3.14. Solvency........................................................................ 39
SECTION 3.15. Labor Matters................................................................... 39
SECTION 3.16. Year 2000 Matters............................................................... 39
SECTION 3.17. Mandatory Offers................................................................ 39
SECTION 3.18. Pari Passu Obligations.......................................................... 39
ARTICLE IV
Conditions......................................................................................... 39
SECTION 4.01. Effective Date.................................................................. 39
SECTION 4.02. Certain Funds Period............................................................ 41
SECTION 4.03. Initial Revolving Loans......................................................... 41
SECTION 4.04. Each Credit Event............................................................... 42
SECTION 4.05. Each Additional Borrower Credit Event........................................... 42
ARTICLE V
Affirmative Covenants.............................................................................. 43
SECTION 5.01. Financial Statements and Other Information...................................... 43
SECTION 5.02. Notices of Material Events...................................................... 44
SECTION 5.03. Existence; Conduct of Business.................................................. 44
SECTION 5.04. Payment of Obligations.......................................................... 44
SECTION 5.05. Maintenance of Properties; Insurance............................................ 45
SECTION 5.06. Books and Records; Inspection Rights............................................ 45
SECTION 5.07. Compliance with Laws............................................................ 45
SECTION 5.08. Use of Proceeds................................................................. 45
SECTION 5.09. Acquisition..................................................................... 46
SECTION 5.10. Proceeds from Sale of Shares.................................................... 47
SECTION 5.11. Acquisition-Related Guarantors.................................................. 47
SECTION 5.12. Loan Stock...................................................................... 47
SECTION 5.13. Additional Guarantors........................................................... 47
SECTION 5.14. Asset Divisions................................................................. 47
ii
TABLE OF CONTENTS
Page
----
ARTICLE VI
Negative Covenants................................................................................. 47
SECTION 6.01. Interest Coverage............................................................... 47
SECTION 6.02. Maximum Leverage Ratio.......................................................... 48
SECTION 6.03. Indebtedness.................................................................... 48
SECTION 6.04. Liens........................................................................... 49
SECTION 6.05. Fundamental Changes............................................................. 50
SECTION 6.06. Investments, Loans, Advances, Guarantees and Acquisitions; Hedging Agreements .. 51
SECTION 6.07. Transactions with Affiliates.................................................... 52
SECTION 6.08. Restrictive Agreements.......................................................... 52
SECTION 6.09. Sales and Leasebacks............................................................ 53
SECTION 6.10. Changes in Fiscal Periods....................................................... 53
SECTION 6.11. Additional Borrowers............................................................ 53
SECTION 6.12. Bidco........................................................................... 53
SECTION 6.13. Acquisition Agreement........................................................... 53
ARTICLE VII
Events of Default.................................................................................. 53
SECTION 7.01. Events of Default............................................................... 53
SECTION 7.02. Target Group Exceptions......................................................... 55
ARTICLE VIII
The Agents......................................................................................... 56
ARTICLE IX
Miscellaneous...................................................................................... 57
SECTION 9.01. Notices......................................................................... 57
SECTION 9.02. Waivers; Amendments............................................................. 58
SECTION 9.03. Expenses; Indemnity; Damage Waiver.............................................. 58
SECTION 9.04. Successors and Assigns.......................................................... 59
SECTION 9.05. Survival........................................................................ 61
SECTION 9.06. Counterparts; Integration; Effectiveness........................................ 61
SECTION 9.07. Severability.................................................................... 61
SECTION 9.08. Right of Setoff................................................................. 61
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process...................... 62
SECTION 9.10. WAIVER OF JURY TRIAL............................................................ 62
SECTION 9.11. Headings........................................................................ 62
SECTION 9.12. Confidentiality................................................................. 62
iii
TABLE OF CONTENTS
Page
----
SECTION 9.13. Interest Rate Limitation........................................................ 63
SECTION 9.14. Additional Borrowers............................................................ 63
SECTION 9.15. Conversion of Currencies........................................................ 64
- iv -
SCHEDULES:
Schedule 1.01(a) -- Pricing Grid
Schedule 2.01 -- 364-Day Revolving Commitments
Schedule 2.02 -- Five-Year Revolving Commitments
Schedule 3.06 -- Disclosed Matters
Schedule 3.13 -- Material Subsidiaries
Schedule 6.03 -- Existing Indebtedness
Schedule 6.04 -- Existing Liens
Schedule 6.07 -- Transaction Affiliates
Schedule 6.08 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Cravath, Swaine & Xxxxx
Exhibit B-2 -- Form of Opinion of Assistant General Counsel of the Parent
Exhibit C -- Form of Guarantee
Exhibit D -- Form of Additional Borrower Agreement
Exhibit E -- Form of Additional Borrower Termination
- v -
AMENDED AND RESTATED CREDIT AGREEMENT dated as of September 16, 1999,
among AIR PRODUCTS AND CHEMICALS, INC., a Delaware corporation (the "Parent"),
the ADDITIONAL BORROWERS parties hereto, the LENDERS parties hereto, and THE
CHASE MANHATTAN BANK, as Administrative Agent.
W I T N E S S E T H:
WHEREAS, the Parent and Air Liquide SA ("Perrier") collectively
intend, through a company organized under the laws of England and Wales and
owned equally, directly or indirectly, by the Parent and Perrier ("Bidco"), to
acquire (the "Stock Acquisition") all of the issued and outstanding ordinary
shares, 25 xxxxx par value (the "Shares"), of The BOC Group plc, a public
limited company organized under the laws of England and Wales ("Jaguar"), and,
thereafter, to divide the assets and businesses of Jaguar through a
reconstruction (the "Asset Divisions" and, together with the Stock Acquisition,
the "Acquisitions") (the assets and businesses to be owned by Parent pursuant to
the Asset Divisions are referred to as the "Apollo Businesses");
WHEREAS, the Parent and Perrier intend to effect the Stock Acquisition
through a process that will include a preconditional bid by Bidco (the
"Preconditional Bid"), recommended by Jaguar, for the shares of Jaguar and,
following receipt of necessary regulatory approvals for the Stock Acquisition, a
posted offer (the "Offer") for more than 50% of the Shares to which the Offer
relates for the purposes of the Companies Xxx 0000 of England and Wales as
amended (the "Companies Act"), which may be followed by a compulsory acquisition
pursuant to which the Shares not tendered in the Offer will be acquired by
Bidco;
WHEREAS, in order to finance the Stock Acquisition, to refinance
existing indebtedness, to pay fees and expenses in connection with the
Acquisitions and the financing thereof, to support commercial paper issued by
the Parent, and to provide for the working capital and general corporate needs
of the Parent and its subsidiaries prior to and following the Stock Acquisition,
the Parent entered into a Credit Agreement, dated as of July 6, 1999 (the
"Existing Credit Agreement"); and
WHEREAS, the Parent has requested that the Existing Credit Agreement
be amended and restated in its entirety as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto hereby agree that, subject to
the satisfaction of the conditions set forth in Section 4.01, the Existing
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acquisition Agreement" has the meaning set forth in Section 4.01(b).
"Acquisitions" has the meaning set forth in the recitals hereto.
2
"Additional Borrower" means, at any time, any Subsidiary designated as
an Additional Borrower by the Parent (with the consent of the Administrative
Agent (such consent not to be unreasonably withheld)) pursuant to Section 9.14
that has not ceased to be an Additional Borrower pursuant to such Section or
Article VII; provided, that the Parent owns or Controls shares of Capital Stock
representing at least 80% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of such Subsidiary.
"Additional Borrower Agreement" means an Additional Borrower Agreement
substantially in the form of Exhibit D.
"Additional Borrower Termination" means an Additional Borrower
Termination substantially in the form of Exhibit E.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agents" means (a) the Administrative Agent, (b) Deutsche Bank AG,
Banc One Capital Markets, Inc. and HSBC Bank USA, as co-syndication agents (the
"Co-Syndication Agents"), and (c) Deutsche Bank AG, Banc One Capital Markets,
Inc., HSBC Bank USA, Xxxxxx Xxxxxxx Senior Funding, Inc., Xxxxxxx Sachs Credit
Partners L.P. and ABN Amro Bank N.V., as co-arrangers.
"Agreement" means this Amended and Restated Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
"Agreement Currency" has the meaning set forth in Section 9.15.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 0.50%. Any change in the Alternate Base Rate due to a change in
the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Apollo Businesses" has the meaning set forth in the recitals hereto.
"Applicable Creditor" has the meaning set forth in Section 9.15.
"Applicable Percentage" means, with respect to any Lender, at any
time, the percentage which (a) the sum of (i) such Lender's 364-Day Revolving
Commitment (or, if the 364-Day Revolving Commitments have been terminated, the
aggregate principal amount of such Lender's 364-Day Revolving Loans and 364-Day
Competitive Loans outstanding) plus (ii) such Lender's Five-Year Revolving
Commitment (or, if the Five-Year Revolving Commitments have been terminated,
the aggregate principal amount of such Lender's Five-Year Revolving Loans and
Five-Year Competitive Loans outstanding) then
3
constitutes of (b) the sum of (i) the 364-Day Revolving Commitments of all
the Lenders (or, if the 364-Day Revolving Commitments have been terminated, the
aggregate principal amount of all the 364-Day Revolving Loans and 364-Day
Competitive Loans outstanding) plus (ii) the Five-Year Revolving Commitments of
all the Lenders (or, if the Five-Year Revolving Commitments have been
terminated, the aggregate principal amount of all the Five-Year Revolving Loans
and Five-Year Competitive Loans outstanding).
"Applicable Rate" means, for any day, with respect to any Type of
Loan, the rate for such Type of Loan as is indicated for such day on the Pricing
Grid.
"Assessment Rate" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in Dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be reasonably determined by the Administrative Agent to be
representative of the cost of such insurance to the Lenders.
"Asset Divisions" has the meaning set forth in the recitals hereto.
"Assignee" has the meaning set forth in Section 9.04(b).
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Bidco" has the meaning set forth in the recitals hereto.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America, or any successor Governmental Authority.
"Borrowers" means the Parent and the Additional Borrowers.
"Borrowing" means (a) 364-Day Revolving Loans or Five-Year Revolving
Loans of the same Type, made, converted or continued on the same date and, in
the case of Eurocurrency Loans, as to which a single Interest Period is in
effect or (b) a Competitive Loan or group of Competitive Loans of the same Type
made on the same date and as to which a single Interest Period is in effect.
"Borrowing Date" means any Business Day specified in a notice pursuant
to Section 2.03 as a date on which a Borrower requests the Lenders to make Loans
hereunder.
"Borrowing Request" means a request by a Borrower for a Borrowing in
accordance with Section 2.03.
4
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurocurrency
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in Dollar and Pound Sterling deposits in the London interbank
market.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Market Transaction" means (a) the issuance or sale in a
registered public offering, Rule 144A/Regulation S transaction or private
placement of Capital Stock (including equity-linked securities) or notes,
debentures, instruments or other debt securities with a maturity in excess of
one year or (b) the incurrence of loans with a maturity in excess of one year.
"Capital Market Transaction" does not include any incurrence of Indebtedness by
a Project Finance Company or JV Affiliate.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Certain Funds Commencement Date" has the meaning set forth in
Section 4.02.
"Certain Funds Period" means the period beginning on the Certain Funds
Commencement Date and ending on the earliest of:
(a) the later of (i) the date which falls 22 days after
the Offer is declared unconditional in all respects and (ii) the date
which is four months after the posting of the Offer, unless in either
case on such date Bidco has become entitled to implement the Compulsory
Acquisition procedures in respect of the Shares of Jaguar shareholders
who have not accepted the Offer, in which case such date shall be the
date falling nine weeks after the date on which it first became so
entitled under Section 429 of the Companies Act to implement those
procedures;
(b) the date of withdrawal of the Offer; and
(c) June 15, 2000.
"Certain Funds Termination Date" means the earliest of the dates
specified in paragraphs (a), (b) and (c) of the definition of "Certain Funds
Period" in this Section.
"Change in Control" means any of the following:
(a) any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities and Exchange Act of 1934 of the United
States of America, as in effect on the date hereof (the "Exchange
Act")) or group of persons (as so used), other than the Parent, any
company a majority of whose outstanding stock entitled to vote is owned
directly or indirectly by the Parent (a "Controlled Subsidiary"), or a
trustee of an employee benefit plan sponsored solely by the Parent
and/or such a Controlled Subsidiary, is or becomes the "beneficial
owner" (as such term is defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Parent representing 20% or
more of the combined voting power of the Parent's then-outstanding
voting securities. Such a Change in Control will be deemed to have
occurred on the first to occur of (i) the date securities are first
5
purchased by a tender or exchange offer, (ii) the date upon which the
Parent first learns of the acquisition of 20% or more of such
securities or (iii) the later of the effective date of an agreement for
the merger, consolidation or other reorganization of the Parent or the
date of approval thereof by a majority of the Parent's shareholders, as
the case may be;
(b) during any period of two consecutive years, individuals
who at the beginning of such period were members of the board of
directors of the Parent cease for any reason to constitute at least a
majority thereof, unless the election or nomination for election by the
Parent's shareholders of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were
directors at the beginning of the period. Such a Change in Control will
be deemed to have occurred on the date upon which the requisite
majority of directors fails to be elected by the shareholders of the
Parent;
(c) any other event or series of events that, notwithstanding
any prior paragraph in this definition to the contrary, is determined
by a majority of the outside members of the board of directors of the
Parent serving in office at the time such event or events occur to
constitute a change in control of the Parent for the purposes of this
Agreement or any agreement or arrangement relating to Indebtedness
entered into by the Parent. Such a Change in Control will be deemed to
have occurred on the date of such determination or on such date as the
said majority of outside members of the board of directors of the
Parent shall specify;
(d) except as contemplated pursuant to the Acquisition
Agreement, Bidco shall cease to be, directly or indirectly,
wholly-owned and Controlled by the Parent and Perrier or the Parent
shall cease to own or Control, directly or indirectly, 50% of the
Capital Stock of Bidco; or
(e) except as contemplated pursuant to the Acquisition
Agreement, at any time after the last day of the Certain Funds Period,
Jaguar shall cease to be, directly or indirectly, wholly-owned and
Controlled by Bidco (or, if on the last day of the Certain Funds
Period, Jaguar is not, directly or indirectly, wholly-owned and
Controlled by Bidco, Bidco shall cease, directly or indirectly, to own
and Control Jaguar to at least the same extent it did as of the last
day of the Certain Funds Period).
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.14(c), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law but with which institutions similarly
situated to such Lender customarily comply) of any Governmental Authority made
or issued after the date of this Agreement.
"Chase" means The Chase Manhattan Bank, a New York banking
corporation.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are 364-Day Revolving
Loans, Five-Year Revolving Loans or Competitive Loans, and when used in
reference to any Lenders, refers to whether such Lenders are 364-Day Revolving
Lenders or Five-Year Revolving Lenders.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means, with respect to each Lender, the 364-Day Revolving
Commitment or the Five-Year Revolving Commitment of such Lender, as the case may
be.
6
"Companies Act" has the meaning set forth in the recitals hereto.
"Competitive Bid" means an offer by a Lender to make a Competitive
Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Parent for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Compulsory Acquisition" means an acquisition by Bidco, pursuant to
Sections 428 to 430F of the Companies Act, of all of the issued and outstanding
Shares not then owned by Bidco.
"Consenting Lender" has the meaning set forth in Section 2.07(d).
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the sum
of (including items related to the Parent's share of Bidco's net income which is
reflected in Consolidated Net Income even when such items are not reflected in
the consolidated income statement of the Parent on a line by line basis) (a)
income tax expense, (b) interest expense, amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness (including the Loans), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, and (e) any extraordinary, unusual
or non-recurring expenses or losses (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, losses on sales of assets outside of the ordinary course of
business). For the purposes of calculating Consolidated EBITDA for any period of
four consecutive fiscal quarters, if the Initial Funding Date shall have
occurred, Consolidated EBITDA for such period shall be calculated after giving
pro forma effect to the Acquisitions as if the Acquisitions occurred on the
first day of such period.
"Consolidated Interest Coverage Ratio" means, for any period ending
with the last day of any fiscal quarter of the Parent, the ratio of (a)
Consolidated EBITDA for the four fiscal quarters then ended to (b) Consolidated
Interest Expense for such fiscal quarters (or if such period ends less than one
year after the Initial Funding Date, an annualization of the Consolidated
Interest Expense for the period of the completed fiscal quarters commencing on
or after the Initial Funding Date).
"Consolidated Interest Expense" means, for any period, total interest
expense (including that attributable to Capital Lease Obligations) of the Parent
and its Subsidiaries for such period plus capitalized interest for such period
less interest income for such period, all determined on a consolidated basis in
accordance with GAAP, except that Consolidated Interest Expense shall be
adjusted to include any interest expense, interest income and capitalized
interest of Bidco and its subsidiaries which is related to the Parent's share of
the net income of Bidco and its subsidiaries which is reflected in Consolidated
Net Income when such items have not been reflected in the consolidated financial
statements of the Parent on a line by line basis and that Consolidated Interest
Expense shall be further adjusted to exclude any non-recurring expenses
incurred in connection with the financing of the Acquisitions.
7
"Consolidated Leverage Ratio" means, at any date, the ratio of
(a)Consolidated Total Debt on such date to (b) Consolidated Total Capitalization
on such date.
"Consolidated Net Equity" means, at any date, the amount which would
appear as shareholders' equity or preferred stock on a consolidated balance
sheet of the Parent and its Subsidiaries at such date in accordance with GAAP.
For purposes of calculating Consolidated Net Equity at any date after the
Initial Funding Date, Consolidated Net Equity shall be calculated after giving
pro forma effect (to the extent the same has not occurred) to the receipt by the
Parent from the issuance of Capital Stock after the date hereof of Net Cash
Proceeds equal to $1,000,000,000.
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Parent and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of the Parent or is merged into or consolidated with the
Parent or any of its Subsidiaries and (b) the income (or deficit) of any Person
(other than a Subsidiary of the Parent and the Parent's proportional share of
Bidco and its subsidiaries) in which the Parent or any of its Subsidiaries has
an ownership interest, except to the extent that any such income is actually
received by the Parent or such Subsidiary in the form of dividends or similar
distributions.
"Consolidated Total Capitalization" means, at any date, the sum of
(a) Consolidated Total Debt at such date plus (b) Consolidated Net Equity at
such date.
"Consolidated Total Debt" means, at any date, the aggregate principal
amount of all Indebtedness of the Parent and its Subsidiaries at such date, to
the extent such Indebtedness would appear on a consolidated balance sheet of the
Parent (excluding the notes thereto) at such date in accordance with GAAP,
except that Consolidated Total Debt shall be adjusted to include any
Indebtedness of Bidco and its subsidiaries which is related to the Parent's
share of the interest expense of Bidco and its subsidiaries which is reflected
in Consolidated Net Income (excluding Indebtedness provided by a member of the
Group to Bidco) when such Indebtedness has not been reflected as Indebtedness on
the consolidated balance sheet of the Parent. For purposes of calculating
Consolidated Total Debt at any date after the Initial Funding Date, Consolidated
Total Debt shall be calculated after giving pro forma effect (to the extent the
same have not occurred) (a) to the receipt by the Parent from the issuance of
Capital Stock (including equity-linked securities) after the date hereof of Net
Cash Proceeds equal to $1,000,000,000, and (b) to the use of such Net Cash
Proceeds to reduce Consolidated Total Debt.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Co-Syndication Agents" has the meaning set forth in the definition of
"Agents" contained in this Section 1.01.
"Currency" means Dollars or Pounds Sterling, as the case may be.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Lenders" has the meaning set forth in Section 4.01(a).
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
8
"Disposition" means, with respect to any property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
thereof.
"Dollar Equivalent" means, on any date of determination, with respect
to any amount in Pounds Sterling, the equivalent in Dollars of such amount,
determined by the Administrative Agent using the Exchange Rate with respect to
Pounds Sterling then in effect.
"Dollars" or "$" mean dollars in lawful currency of the United States
of America.
"Effective Date" has the meaning set forth in Section 4.01, subject to
the terms of the Escrow Letter dated September 16, 1999 from the Parent to the
Persons listed on Schedule 1 thereto.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, binding notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Parent or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with Parent, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the Parent or any of
its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Parent or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the Parent or any of its ERISA Affiliates of
any liability with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; or (g) the receipt by the Parent or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Parent or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
"Eurocurrency", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the LIBO Rate.
9
"Event of Default" has the meaning assigned to such term in
Article VII.
"Exchange Rate" means, with respect to any Currency on any date, the
average of the bid and asked rates at which such Currency may be exchanged into
any other relevant Currency, as set forth on such date on the relevant Reuters
currency page at or about 11:00 A.M., London time, on such date. In the event
that such rates do not appear on any Reuters currency page, the "Exchange Rate"
with respect to such Currency shall be determined by reference to such other
publicly available service for displaying exchange rates as may be agreed upon
by the Administrative Agent and the Parent or, in the absence of such agreement,
such "Exchange Rate" shall instead be the Administrative Agent's spot rate of
exchange in the London interbank market, at or about 11:00 A.M., local time, on
such date for the purchase of the other relevant Currency with such Currency,
for delivery two Business Days later; provided, that if at the time of any such
determination, no such spot rate can reasonably be quoted, the Administrative
Agent may use any reasonable method as it deems applicable to determine such
rate, and such determination shall be conclusive absent manifest error.
"Excluded Foreign Subsidiary" means any Subsidiary organized under the
laws of any jurisdiction outside the United States of America (other than, to
the extent permitted by applicable Requirements of Law and contractual
obligations to become parties to the Guarantee, Material Subsidiaries of the
Parent acquired or created in connection with the Acquisitions which are
organized under the laws of the United Kingdom or Australia).
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of any Borrower hereunder, (a) income, corporation or franchise
taxes, in each case, imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such recipient
is organized or is resident for tax purposes or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which any Borrower is
located and (c) in the case of a Lender (other than an assignee pursuant to a
request by the Borrowers under Section 2.18(b)), any United States withholding
tax that (i) is imposed on amounts payable to the Lender as a result of such
Lender failing to be a Qualifying Lender, unless such failure results from any
change in any relevant law or double taxation treaty or in the interpretation or
application thereof after the date such Lender became a party to this Agreement
or (ii) is attributable to such Lender's failure to comply with Section 2.16(d),
except to the extent that such Lender's assignor (if any) was entitled, at the
time of assignment, to receive additional amounts from any Borrower with respect
to such withholding tax pursuant to Section 2.16(d).
"Existing Revolving Credit Facility" means the $600,000,000 Revolving
Credit Agreement dated January 31, 1996 (as amended), between the Parent, the
other Borrowers named therein, the Lenders named therein, The First National
Bank of Chicago, as Administrative Agent, Mellon Bank, N.A., as Documentation
Agent, and ABN AMRO Bank N.V., as Global Currency Agent and Global Currency
Lender.
"Extension Date" has the meaning set forth in Section 2.07(d).
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
10
"Financial Officer" means, as to any Borrower, any of the chief
financial officer, principal accounting officer or treasurer of such Borrower.
"First Amendment": the First Amendment, dated as of December 3, 1999,
to this Agreement.
"Five-Year Competitive Loan" means a Loan made pursuant to
Section 2.04 in a Five-Year Competitive Borrowing.
"Five-Year Revolving Commitment" means, with respect to any Lender,
the obligation of such Lender, if any, to make Five-Year Revolving Loans in an
aggregate principal amount not to exceed the amount set forth under the heading
"Five-Year Revolving Commitment" opposite such Lender's name on Schedule 2.02 or
in the Assignment and Acceptance pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof. The original aggregate amount of the Five-Year Revolving Commitments is
$800,000,000.
"Five-Year Revolving Commitment Period" means the period from and
including the Initial Funding Date to the Five-Year Revolving Termination Date.
"Five-Year Revolving Lender" means each Lender that has a Five-Year
Revolving Commitment or that holds Five-Year Revolving Loans.
"Five-Year Revolving Loans" has the meaning set forth in Section 2.02.
"Five-Year Revolving Percentage" means, as to any Five-Year Revolving
Lender at any time, the percentage which such Lender's Five-Year Revolving
Commitment then constitutes of the Total Five-Year Revolving Commitments (or, at
any time after the Five-Year Revolving Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such Lender's
Five-Year Revolving Loans then outstanding constitutes of the aggregate
principal amount of the Five-Year Revolving Loans of all the Lenders then
outstanding).
"Five-Year Revolving Termination Date" means the date which is the
fifth anniversary of the Effective Date.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurocurrency Competitive Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
"Funding Office" means the office of the Administrative Agent
specified in Section 9.02 or such other office as may be specified from time to
time by the Administrative Agent as its funding office or offices by written
notice to the Borrowers and the Lenders.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means any nation or any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
11
"Group" means, at any time of determination, the Parent and all its
Subsidiaries (and "member of the Group" shall be construed accordingly).
"Guarantee" means the Guarantee to be executed and delivered by the
Parent and each Subsidiary Guarantor, substantially in the form of Exhibit C,
as the same may be amended, supplemented or otherwise modified from time to
time, including by any supplement adding any Subsidiary Guarantor thereto. Any
such supplement may be limited as required to comply with any contractual
obligation or requirement of law binding upon such Subsidiary Guarantor or
limiting its ability to guarantee the Loans and other obligations hereunder.
"Guaranteed Loan Notes" means loan notes of Bidco issued pursuant to
the Offer at the election of Jaguar Shareholders, having the terms described in
the Press Release and guaranteed by the Loan Notes Guarantor.
"Guarantee Obligation" of any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantors" means the Parent and the Subsidiary Guarantors, in their
capacities as guarantors under the Guarantee.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services having the effect of a borrowing
(excluding accounts payable incurred in the ordinary course of business), (e)
all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed but limited to the book value of
such property when recourse is limited to such property, (f) all Guarantee
Obligations of such Person in respect of Indebtedness of others, (g) all Capital
Lease Obligations of such Person, (h) all obligations, contingent or otherwise,
of such Person as an account party in respect of letters of credit and letters
of guaranty and (i) all obligations,
12
contingent or otherwise, of such Person in respect of bankers' acceptances.
The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Initial Funding Date" has the meaning set forth in Section 4.03.
"Interest Election Request" means a request by a Borrower to convert
or continue a Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period, and (c) with
respect to any Fixed Rate Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Fixed Rate
Borrowing with an Interest Period of more than 90 days' duration (unless
otherwise specified in the applicable Competitive Bid Request), each day prior
to the last day of such Interest Period that occurs at intervals of 90 days'
duration after the first day of such Interest Period, and any other dates that
are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing.
"Interest Period" means (a) with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the relevant Borrower may elect (or such other shorter
period available generally in the interbank market as the Parent may agree with
the Reference Lenders), and (b) with respect to any Fixed Rate Borrowing, the
period (which shall not be less than 7 days or more than 360 days) commencing on
the date of such Borrowing and ending on the date specified in the applicable
Competitive Bid Request; provided, that (i) if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of a Eurocurrency Borrowing
only, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day
and (ii) any Interest Period pertaining to a Eurocurrency Borrowing that
commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month
of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and, in the case of a
Revolving Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Jaguar" has the meaning set forth in the recitals hereto.
"Jaguar Shareholders" means the holders of the Shares from time to
time.
"Judgment Currency" has the meaning set forth in Section 9.15.
"JV Affiliate" means any corporation, limited liability company,
partnership, association or other entity (not itself being a member of the
Group) at least 20% of any class of the Capital Stock of which is beneficially
owned by a member of the Group.
13
"Lenders" means the Persons listed on Schedule 2.01 or 2.02 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Markets screen
(or on any successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of such service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in Dollars in the London interbank market
for Dollars) at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period, as the rate for deposits in Dollars
with a maturity comparable to such Interest Period. In the event that such rate
is not available with respect to any Eurocurrency Borrowing at such time for any
reason, then the "LIBO Rate" with respect to such Eurocurrency Borrowing for
such Interest Period shall be the average rate (rounded upwards to five decimal
places) at which Dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London offices of the
Reference Lenders in immediately available funds in the London interbank market
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, the Additional Borrower
Agreements, the Guarantee and the Notes.
"Loan Notes Guarantor" means a financial institution selected by Bidco
to guarantee the Guaranteed Loan Notes.
"Loan Parties" means the Parent and each Subsidiary of the Parent that
is a party to a Loan Document.
"Loans" means the loans made by the Lenders to the Borrowers pursuant
to this Agreement.
"Loan Stock" means Jaguar's (pound)100 million 12-1/4% Loan Stock due
2012/2017.
"Loan Stock Trust Deed" means the Trust Deed dated 15 October 1982
between, inter alia, Jaguar and Guardian Royal Exchange Assurance plc
constituting (pound)100,000,000 12-1/4% Unsecured Loan Stock 2012/2017 (as
from time to time amended, varied or waived).
"Major Default" shall mean and be deemed to have occurred if (a) the
Parent shall default in the due performance or observance by it of any term,
covenant or agreement contained in Section 5.09(e), (f), (i) or (j); or (b)
there shall exist a Default or an Event of Default under Section 7.01(a),
7.01(b), 7.01(h), 7.01(i) or 7.01(j) in respect of the Parent or any of its
Material Subsidiaries or Bidco or a Default or Event of Default under Section
7.01(n) in respect of the guarantee of the Parent pursuant to the Guarantee in
respect of Loans to an Additional Borrower or a Default or Event of Default
under Section 7.01(o).
"Margin" means, with respect to any Competitive Loan bearing interest
at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBO Rate to
14
determine the rate of interest applicable to such Loan, as specified by the
Lender making such Loan in its related Competitive Bid.
"Margin Stock" has the meaning assigned to such term in Regulation U
of the Board (including, so long as the same constitute Margin Stock under
Regulation U, the Shares).
"Material Adverse Effect" means a material adverse effect on (a) the
business, property, operations, condition (financial or otherwise) or prospects
of the Parent and its Subsidiaries taken as a whole, (b) the ability of the
Parent to perform its payment obligations under this Agreement and the other
Loan Documents or (c) the validity or enforceability of this Agreement or any of
the other Loan Documents or the rights and remedies of the Administrative Agent
or the Lenders hereunder or thereunder.
"Material Obligations" means Indebtedness (other than the Loans), and
obligations in respect of one or more Hedging Agreements, of the Parent and its
Subsidiaries in an aggregate principal amount exceeding $50,000,000. For
purposes of determining Material Obligations, the "principal amount" of the
obligations of the Parent or any Subsidiary in respect of any Hedging Agreement
at any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that the Parent or such Subsidiary would be required to pay if such
Hedging Agreement were terminated at such time.
"Material Subsidiary" means, at any time of determination, each of the
Subsidiaries of the Parent at such time listed on Schedule 3.13 and any other
Subsidiary at any time having operations generating at least 5% of the
Consolidated EBITDA for the most recent fiscal quarter.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means, in connection with any Capital Markets
Transaction (but not including in "Net Cash Proceeds" any replacements,
refundings or refinancings of existing Indebtedness), the cash proceeds received
from such issuance or incurrence, net of attorneys' fees, investment banking
fees, accountants' fees, underwriting discounts and commissions and other
customary fees and expenses actually incurred in connection therewith. In
addition, no proceeds realized in a single transaction or series of related
transactions shall constitute Net Cash Proceeds unless such proceeds shall
exceed $5,000,000.
"Non-Consenting Lender" has the meaning set forth in Section 2.07(d).
"Non-Executing Person" has the meaning set forth in Section 4.01(a).
"Note" means any promissory note issued pursuant to Section 2.08(e).
"OECD Country" means any country which is a member of the Organization
for Economic Cooperation and Development.
"Offer" has the meaning set forth in the recitals hereto.
"Offer Documents" means the Press Release, any press release
announcing the Offer and the Offer documentation subsequently to be posted by
Bidco setting out the detailed terms of the Offer.
15
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Panel" means the Panel on Takeovers and Mergers in the City of
London.
"Parent" has the meaning set forth in the preamble hereto.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business; and
(e) easements, zoning restrictions, rights-of-way, landlords'
liens on property held under lease, tenants' rights under leases and
similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary obligations
and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of the Parent or any
Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America or the United Kingdom or, if such obligations are in the currency
of such country, any other OECD Country (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the
United States of America or the United Kingdom), in each case maturing
within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any office of any commercial bank organized under the
laws of the United States of America or any State thereof or the United
Kingdom or, if
16
such obligations are in the currency of such country, any other OECD
Country which has a combined capital and surplus and undivided profits
of not less than $1,000,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in
clause (c) above; and
(e) any money market fund that invests primarily in the foregoing
types of investments.
"Perrier" has the meaning set forth in the recitals hereto.
"Person" means any natural person, corporation, limited liability
company, trust, association, company, partnership, Governmental Authority or
other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which the
Parent or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Pounds Sterling" and ["pound sterling sign"] means pounds sterling
in lawful currency of the United Kingdom.
"Preconditional Bid" has the meaning set forth in the recitals hereto.
"Press Release" means the press announcement issued on July 13, 1999
by or on behalf of Bidco publicly announcing the Preconditional Bid and, subject
to the satisfaction of certain conditions, a firm intention to make the Offer.
"Pricing Grid" means Schedule 1.01(a).
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Project Finance Company" means any Affiliate of the Parent (a) whose
principal assets and business are the ownership, acquisition, development or
operation of any asset or combination of assets whether directly or indirectly,
(b) none of whose Indebtedness in respect of the financing of the ownership,
acquisition development or operation of any such asset benefits from recourse to
any member of the Group (other than such Affiliate or another Project Finance
Company) in respect of any payment or repayment in respect thereof, except as
expressly referred to in paragraph (b)(iii) of the definition of "Project
Finance Indebtedness" and (c) which has been designated as such by the Parent by
written notice to the Administrative Agent, provided that the Parent may give
written notice to the Administrative Agent at any time that any Project Finance
Company is no longer a Project Finance Company, whereupon it shall cease to be a
Project Finance Company.
"Project Finance Indebtedness" means any Indebtedness which finances
or otherwise relates to the acquisition, development, ownership or operation of
an asset or combination of assets whether directly or indirectly:
(a) which is incurred by a Project Finance Company; or
(b) in respect of which the Person or Persons to whom such borrowing
is or may be owed by the relevant debtor (whether or not a member of the
Group) has or have no recourse whatsoever to any
17
member of the Group (other than to a Project Finance Company) for any
payment or repayment in respect thereof other than:
(i) recourse to such debtor for amounts limited to
the cash flow or net cash flow (other than historic cash flow
or historic net cash flow) from such asset or assets; or
(ii) recourse to such debtor for the purpose only of
enabling amounts to be claimed in respect of such Indebtedness
in an enforcement of any Lien given by such debtor over such
asset or assets or the income, cash flow or other proceeds
deriving therefrom (or given by any shareholder or the like in
the debtor over the Capital Stock of the debtor if such debtor
is a Project Finance Company) to secure such Indebtedness or
to secure any recourse referred to in clause (iii) below
provided that (A) the extent of such recourse to such debtor
is limited solely to the amount of any recoveries made on any
such enforcement, and (B) such Person or Persons are not
entitled, by virtue of any right or claim arising out of or in
connection with such Indebtedness, to commence proceedings for
the winding up or dissolution of the debtor or to appoint or
procure the appointment of any receiver, trustee or similar
person or officer in respect of the debtor or any of its
assets (save only for the assets the subject of such
security); or
(iii) recourse (A) to such debtor generally, or
directly or indirectly to a member of the Group, under any
form of assurance, undertaking or support, which recourse is
limited to a claim for damages for breach of any obligation
(not being a Guarantee Obligation or other payment obligation
or any obligation to procure payment by another or an
indemnity in respect thereof or any obligation to comply or
procure compliance by another with any financial ratios or
other tests of financial condition) by the Person against whom
such recourse is available or (B) to the Capital Stock in or
loans to or the assets of such debtor (if such debtor is a
Project Finance Company) or any other Project Finance Company
owned by a member of the Group.
"Qualifying Lender" means any Lender that is (a) a "United States
person" (as defined in Section 7701(a)(30) of the Code) or (b) otherwise
entitled to complete exemption from United States withholding tax on interest
payable to it under this Agreement.
"Reference Lenders" means Chase and the Co-Syndication Agents.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Five-Year Revolving Lenders" means, at any time, Lenders
whose Five-Year Revolving Percentages aggregate at least 51%.
"Required Lenders" means, at any time, Lenders whose Applicable
Percentages aggregate at least 51%.
"Required 364-Day Revolving Lenders" means, at any time, Lenders whose
364-Day Revolving Percentages aggregate at least 51%.
"Requirement of Law" means, as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule (including the Takeover Code) or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case
18
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Restricted Margin Stock" means Margin Stock owned by the Parent or
any Subsidiary which represents not more than 33-1/3% of the aggregate value
(determined in accordance with Regulation U), on a consolidated basis, of the
property and assets of the Parent and the Subsidiaries (other than any Margin
Stock) that is subject to the provisions of Article 6 (including Section 6.04).
"Revolving Loan" means a Five-Year Revolving Loan or a 364-Day
Revolving Loan.
"S&P" means Standard & Poor's Ratings Group.
"Sale/Leaseback Transaction" has the meaning set forth in
Section 6.09.
"Shares" has the meaning set forth in the recitals hereto.
"Solvent" means, when used with respect to any Person, that, as of any
date of determination, (a) the amount of the "present fair saleable value" of
the assets of such Person will, as of such date, exceed the expected amount of
all "liabilities of such Person, contingent or otherwise", after giving effect
to the expected value of rights of indemnity, contribution and subrogation, as
of such date, as such quoted terms are determined in accordance with applicable
federal and state laws governing determinations of the insolvency of debtors,
(b) the present fair saleable value of the assets of such Person will, as of
such date, be greater than the amount that will be required to pay the liability
of such Person on the expected amount of its debts as and to the extent expected
to such debts become absolute and matured, after giving effect to the expected
value of rights of indemnity, contribution and subrogation, (c) such Person will
not have, as of such date, an unreasonably small amount of capital with which to
conduct its business, and (d) such Person will be able to pay its debts as they
mature, after giving effect to the expected value of rights of indemnity,
contribution and subrogation. For purposes of this definition, (i) "debt" means
liability on a "claim", and (ii) "claim" means any (x) right to payment, whether
or not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured or (y) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
Dollars of over $100,000 with maturities approximately equal to three months,
and (b) with respect to the LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Sterling Equivalent" means, on any date of determination, with
respect to any amount in Dollars, the equivalent in Pounds Sterling of such
amount, determined by the Administrative Agent using the Exchange Rate with
respect to Dollars then in effect.
19
"Stock Acquisition" has the meaning set forth in the recitals hereto.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Parent, but excluding any
Project Finance Company the accounts of which would not be consolidated with
those of the Parent in the Parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP on the date of
determination.
"Subsidiary Guarantor" means, subject to Section 5.11, each Material
Subsidiary of the Parent that is wholly owned at any time on or after the date
hereof other than any Excluded Foreign Subsidiary.
"Takeover Code" shall mean the City Code on Takeovers and Mergers.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"364-Day Competitive Loan" means a Loan made pursuant to Section 2.04
in a 364-Day Competitive Borrowing.
"364-Day Revolving Commitment" means, with respect to any Lender, the
obligation of such Lender, if any, to make 364-Day Revolving Loans in an
aggregate principal amount not to exceed the amount set forth under the heading
"364-Day Revolving Commitment" opposite such Lender's name on Schedule 2.01 or
in the Assignment and Acceptance pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof. The original aggregate amount of the 364-Day Revolving Commitments is
(pound)3,950,000,000. The 364-Day Revolving Commitments shall be converted to
364-Day Revolving Commitments denominated in Dollars on a date selected by the
Parent that is not less than seven Business Days prior to the Initial Funding
Date at the Exchange Rate then in effect. The Administrative Agent shall
promptly notify each 364-Day Revolving Lender of such conversion and the amount
of its 364-Day Revolving Commitment in Dollars after giving effect thereto.
20
"364-Day Revolving Commitment Period" means the period from and
including the Initial Funding Date to the 364-Day Revolving Termination Date.
"364-Day Revolving Lender" means each Lender that has a 364-Day
Revolving Commitment or that holds 364-Day Revolving Loans.
"364-Day Revolving Loans" has the meaning set forth in Section 2.01.
"364-Day Revolving Percentage" means, as to any 364-Day Revolving
Lender at any time, the percentage which such Lender's 364-Day Revolving
Commitment then constitutes of the Total 364-Day Revolving Commitments (or, at
any time after the 364-Day Revolving Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such Lender's
364-Day Revolving Loans then outstanding constitutes of the aggregate principal
amount of the 364-Day Revolving Loans of all the Lenders then outstanding).
"364-Day Revolving Termination Date" means the date which is 364 days
after the Effective Date (subject to extension pursuant to Section 2.07).
"Total Five-Year Revolving Commitments" means, at any time, the
aggregate amount of the Five-Year Revolving Commitments in effect.
"Total 364-Day Revolving Commitments" means, at any time, the
aggregate amount of the 364-Day Revolving Commitments in effect.
"Transactions" means the execution, delivery and performance by the
Borrowers of this Agreement and the Additional Borrower Agreements, the
borrowing of Loans and the use of the proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate, the Alternate Base Rate
or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed
Rate.
"Unconditional Offer Date" shall mean the date upon which the Offer
has become or has been declared unconditional in all respects as permitted under
Section 5.09.
"Unrestricted Margin Stock" means any Margin Stock owned by the Parent
or any Subsidiary which is not Restricted Margin Stock.
"Whitewash Date" means, as to any Subsidiary organized in the United
Kingdom acquired in connection with the Acquisitions, the date on which such
Subsidiary is permitted to provide financial assistance in accordance with
Sections 151-158 of the Companies Act in respect of the Loans.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"364-Day Revolving Loan"), by Type (e.g., a "Eurocurrency Loan") or currency
(e.g., a "Dollar Loan") or by a combination thereof (e.g., a "364-Day
Eurocurrency Revolving Loan" or a "Dollar Revolving Loan"). Borrowings also may
be classified and referred
21
to by Class (e.g., a "364-Day Revolving Borrowing"), by Type (e.g., a
"Eurocurrency Borrowing") or currency (e.g., a "Dollar Borrowing") or by a
combination thereof (e.g., a "364-Day Eurocurrency Revolving Borrowing" or a
"Dollar Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights and (f) references to
amounts in Dollars shall refer, as appropriate, to the equivalent in Dollars of
amounts in other currencies.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Parent notifies the Administrative Agent that the Parent requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Parent
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. 364-Day Revolving Commitments. Subject to the terms and
conditions hereof, each 364-Day Revolving Lender severally agrees to make
revolving credit loans ("364-Day Revolving Loans") to the Borrowers from time to
time during the 364-Day Revolving Commitment Period in an aggregate principal
amount at any one time outstanding which will not result in (a) the aggregate
principal amount of outstanding 364-Day Revolving Loans of such Lender exceeding
such Lender's 364-Day Revolving Commitment, (b) the sum of the aggregate
principal amount of outstanding 364-Day Revolving Loans plus the aggregate
principal amount of outstanding 364-Day Competitive Loans exceeding the Total
364-Day Revolving Commitments and (c) the aggregate outstanding principal amount
of Revolving Loans to the Additional Borrowers exceeding $200,000,000 at any
time. During the 364-Day Revolving Commitment Period, the Borrowers may use the
364-Day Revolving Commitments by borrowing, prepaying, and reborrowing the
364-Day Revolving Loans in whole or in part, all in accordance with the terms
and conditions hereof.
SECTION 2.02. Five-Year Revolving Commitments. Subject to the terms
and conditions hereof, each Five-Year Revolving Lender severally agrees to make
revolving credit loans ("Five-Year Revolving Loans")
22
to the Borrowers from time to time during the Five-Year Revolving Commitment
Period in an aggregate principal amount at any one time outstanding which will
not result in (a) the aggregate principal amount of outstanding Five-Year
Revolving Loans of such Lender exceeding such Lender's Five-Year Revolving
Commitment, (b) the sum of the aggregate principal amount of outstanding
Five-Year Revolving Loans plus the aggregate principal amount of outstanding
Five-Year Competitive Loans exceeding the Total Five-Year Revolving Commitments
and (c) the aggregate outstanding principal amount of Revolving Loans to the
Additional Borrowers exceeding $200,000,000 at any time. During the Five-Year
Revolving Commitment Period, the Borrowers may use the Five-Year Revolving
Commitments by borrowing, prepaying, and reborrowing the Five-Year Revolving
Loans in whole or in part, all in accordance with the terms and conditions
hereof.
SECTION 2.03. Procedure for Revolving Loan Borrowing. (a) To request a
364-Day Revolving or Five-Year Revolving Borrowing, the relevant Borrower shall
notify the Administrative Agent of such request by telephone (a) in the case of
a Eurocurrency Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the relevant Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with this Section:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing, and whether such Borrowing is to be a 364-Day
Borrowing or a Five-Year Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the relevant Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.05.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurocurrency Revolving Borrowing,
then the relevant Borrower shall be deemed to have selected an Interest Period
of one month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise in writing
each affected Lender of the details thereof and of the amount of such Lender's
Loan to be made as part of the requested Borrowing.
(b) Each 364-Day Revolving Loan or Five-Year Revolving Loan shall be
made as part of a Borrowing consisting of 364-Day Revolving Loans or Five-Year
Revolving Loans, as the case may be, made by the relevant Lenders ratably in
accordance with their respective 364-Day Revolving Commitments or Five-Year
Revolving Commitments, as the case may be. Each Competitive Loan shall be made
in accordance with the procedures set forth in Section 2.04. The failure of any
Lender to make any 364-Day Revolving Loan or Five-Year Revolving Loan required
to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments and Competitive Bids of the Lenders
are several and no Lender shall be responsible for any other Lender's failure
to make Loans as required.
23
(c) Subject to Section 2.13, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the relevant Borrower
may request in accordance herewith, and (ii) each Competitive Borrowing shall be
comprised entirely of Eurocurrency Loans or Fixed Rate Loans as the Parent may
request in accordance herewith. Each Lender at its option may make any
Eurocurrency Revolving Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Revolving Loan; provided that any exercise
of such option shall not affect the obligation of the Borrowers to repay such
Revolving Loan in accordance with the terms of this Agreement.
(d) At the commencement of each Interest Period for any Eurocurrency
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $10,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $10,000,000.
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of ten
Eurocurrency Revolving Borrowings outstanding.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, (i) from time to time following the initial
Borrowing Date of Revolving Loans and during the 364-Day Revolving Commitment
Period the Parent may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans in Dollars;
provided that the sum of the aggregate principal amount of outstanding 364-Day
Revolving Loans plus the aggregate principal amount of outstanding 364-Day
Competitive Loans at any time shall not exceed the 364-Day Total Revolving
Commitments, and (ii) from time to time following the initial Borrowing Date of
Revolving Loans and during the Five-Year Revolving Commitment Period the Parent
may request Competitive Bids and may (but shall not have any obligation to)
accept Competitive Bids and borrow Competitive Loans in Dollars; provided that
the sum of the aggregate principal amount of outstanding Five-Year Revolving
Loans plus the aggregate principal amount of outstanding Five-Year Competitive
Loans at any time shall not exceed the Five-Year Total Revolving Commitments. To
request Competitive Bids, the Parent shall notify the Administrative Agent of
such request by telephone, in the case of a Eurocurrency Borrowing, not later
than 11:00 a.m., New York City time, four Business Days before the date of the
proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later than
10:00 a.m., New York City time, one Business Day before the date of the proposed
Borrowing; provided that the Parent may submit up to (but not more than) three
Competitive Bid Requests on the same day, but a Competitive Bid Request shall
not be made within five Business Days after the date of any previous Competitive
Bid Request, unless any and all such previous Competitive Bid Requests shall
have been withdrawn or all Competitive Bids received in response thereto
rejected. Each such telephonic Competitive Bid Request shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Competitive Bid Request in a form approved by the Administrative Agent and
signed by the Parent. Each such telephonic and written Competitive Bid Request
shall specify the following information in compliance with Section 2.04:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurocurrency Borrowing or a
Fixed Rate Borrowing, and whether such Borrowing is a 364-Day Competitive
Borrowing or a Five-Year Competitive Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
24
(v) the location and number of the Parent's account to which funds are
to be disbursed, which shall comply with the requirements of Section 2.05.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Parent in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurocurrency Competitive Borrowing, not later than
9:30 a.m., New York City time, three Business Days before the proposed date of
such Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later
than 9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Parent) of the Competitive Loan or Loans that the
relevant Lender is willing to make, (ii) the Competitive Bid Rate or Rates at
which the relevant Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last
day thereof.
(c) The Administrative Agent shall promptly notify the Parent by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Parent may
accept or reject any Competitive Bid. The Parent shall notify the Administrative
Agent by telephone, confirmed by telecopy in a form approved by the
Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurocurrency Competitive
Borrowing, not later than 10:30 a.m., New York City time, three Business Days
before the date of the proposed Competitive Borrowing, and in the case of a
Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the
proposed date of the Competitive Borrowing; provided that (i) the failure of the
Parent to give such notice shall be deemed to be a rejection of each Competitive
Bid, (ii) the Parent shall not accept a Competitive Bid made at a particular
Competitive Bid Rate if the Parent rejects a Competitive Bid made at a lower
Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by the Parent shall not exceed the aggregate amount of the requested
Competitive Borrowing specified in the related Competitive Bid Request, (iv) to
the extent necessary to comply with clause (iii) above, the Parent may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid, and
(v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of $5,000,000 and an integral multiple of $1,000,000; provided further
that if a Competitive Loan must be in an amount less than $5,000,000 because of
the provisions of clause (iv) above, such Competitive Loan may be for a minimum
of $1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Parent. A notice given by the Parent pursuant to this paragraph shall be
irrevocable.
25
(e) The Administrative Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted (and, if so,
the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the Parent at least one quarter of an hour earlier than the time by which the
other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds in Dollars by 12:00 noon, New York City time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in
Dollars, to an account of the Borrower maintained with the Administrative Agent
and designated by the Borrower in the applicable Borrowing Request or
Competitive Bid Request. All Revolving Loans shall be made in Dollars. All
Competitive Loans shall be made in Dollars.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with this Agreement and may, in
reliance upon such assumption, make available to the applicable Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to such
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the
case of such Borrower, the interest rate applicable to ABR Loans. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Borrowing initially shall
be of the Type specified in the applicable Borrowing Request and, in the case of
a Eurocurrency Borrowing, shall have an initial Interest Period as specified in
such Borrowing Request. Thereafter, the applicable Borrower may elect to convert
any Revolving Borrowing to a different Type or to continue any Borrowing and, in
the case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all
as provided in this Section. The relevant Borrower may elect different options
with respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply to Competitive
Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the relevant
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03 if such
Borrower were requesting a Borrowing of the Type resulting from such election to
be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
relevant Borrower.
26
(c) Each telephonic and written Interest Election Request shall
specify the following information:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the relevant Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise in writing each affected Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the relevant Borrower fails to deliver a timely Interest
Election Request with respect to a Eurocurrency Revolving Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrowers, then, so long as an Event of Default is continuing (i) no outstanding
Revolving Borrowing may be converted to or continued as a Eurocurrency Borrowing
and (ii) unless repaid, each Eurocurrency Revolving Borrowing shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments; Extension of
Revolving Termination Date. (a) Unless previously terminated, (i) the 364-Day
Revolving Commitments shall terminate on the 364-Day Revolving Termination Date
and (ii) the Five-Year Revolving Commitments shall terminate on the Five-Year
Revolving Termination Date.
(b) The Parent may at any time terminate, or from time to time reduce,
the 364-Day Revolving Commitments or Five-Year Revolving Commitments; provided
that (i) each reduction shall be in an amount that is not less than
(pound)10,000,000 (or $10,000,000, in the case of any reduction after the
364-Day Revolving Commitments are converted to Dollars in accordance with the
terms hereof), in the case of the 364-Day Revolving Commitments, and
$10,000,000, in the case of the Five-Year Revolving Commitments, (ii) the Parent
shall not terminate or reduce the 364-Day Revolving Commitments if, after giving
effect to any concurrent prepayment of the 364-Day Revolving Loans in accordance
with Section 2.09, the sum of the aggregate principal amount of outstanding
364-Day Revolving Loans plus the aggregate principal amount of outstanding
364-Day Competitive Loans would exceed the Total 364-Day Revolving Commitments,
and (iii) the Parent shall not terminate or reduce the Five-Year Revolving
Commitments if, after giving effect to any
27
concurrent prepayment of the Five-Year Revolving Loans in accordance with
Section 2.09, the sum of the aggregate principal amount of outstanding Five-Year
Revolving Loans plus the aggregate principal amount of outstanding Five-Year
Competitive Loans would exceed the Total Five-Year Revolving Commitments.
(c) The Parent shall notify the Administrative Agent of any election
to terminate or reduce the 364-Day Revolving Commitments or the Five-Year
Revolving Commitments under paragraph (b) of this Section at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the affected
Lenders of the contents thereof. Each notice delivered by the Parent pursuant to
this Section shall be irrevocable; provided that a notice of termination of the
364-Day Revolving Commitments or the Five-Year Revolving Commitments delivered
by the Parent may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Parent (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction
of the 364-Day Revolving Commitments or the Five-Year Revolving Commitments
shall be permanent.
(d) At least 30 days but not more than 60 days prior to the 364-Day
Revolving Termination Date in effect at any time, the Parent, by written notice
to the Administrative Agent, may request an extension of the 364-Day Revolving
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
364-Day Revolving Lender of such request, and each 364-Day Revolving Lender
shall in turn, in its sole discretion, not earlier than 30 days but at least 20
days prior to such 364-Day Revolving Termination Date, notify the Parent and the
Administrative Agent in writing as to whether such 364-Day Revolving Lender will
consent to such extension. If any 364-Day Revolving Lender shall fail to notify
the Administrative Agent and the Parent in writing of its consent to any such
request for extension of the 364-Day Revolving Termination Date at least 20 days
prior to the scheduled occurrence thereof at such time, such 364-Day Revolving
Lender shall be deemed to be a Non-Consenting Lender with respect to such
request. The Administrative Agent shall notify the Parent not later than 15 days
prior to the scheduled 364-Day Revolving Termination Date in effect at such time
of the decision of the 364-Day Revolving Lenders regarding the Parent's request
for an extension of the 364-Day Revolving Termination Date. If all of the
364-Day Revolving Lenders consent in writing to any such request in accordance
with the foregoing, the 364-Day Revolving Termination Date shall, effective as
at the 364-Day Revolving Termination Date otherwise in effect at such time (the
"Extension Date"), be extended for a 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
Parent that the representations and warranties contained in Article III are
correct in all material respects on and as of the date of such notice and on
such Extension Date, as though made on and as of such dates. If the Required
364-Day Revolving Lenders at such time consent in writing to any such request,
the 364-Day Revolving Termination Date in effect at such time shall, effective
as at the applicable Extension Date, be extended as to those 364-Day Revolving
Lenders that so consented (each a "Consenting Lender") but shall not be extended
as to any other 364-Day Revolving Lender (each a "Non-Consenting Lender"). To
the extent that the 364-Day Revolving Termination Date is not extended as to
any 364-Day Revolving Lender pursuant to this Section, the 364-Day Revolving
Commitment of such Non-Consenting Lender shall automatically terminate in whole
on such unextended 364-Day Revolving Termination Date without any further notice
or other action by the Borrowers, such 364-Day Revolving Lender or any other
Person; provided that such Non-Consenting Lender's rights under Sections 2.14,
2.16 and 9.03, shall survive the payment of the Loans of such 364-Day Revolving
Lender as to matters occurring on or prior to such date and provided, further,
that until such Non-Consenting Lender's outstanding Loans are repaid in full,
all such Non-Consenting Lender's rights with respect to such Loans shall survive
the 364-Day Revolving Termination Date. It is understood and agreed that no
364-Day Revolving Lender shall have any obligation whatsoever to agree to any
request made by the Parent for any requested extension of the 364-Day Revolving
Termination Date.
28
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) Each
applicable Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each 364-Day Revolving Lender one-half
of the then unpaid principal amount of each 364-Day Revolving Loan of such
364-Day Revolving Lender on the 364-Day Revolving Termination Date with respect
to such Lender and the remaining one-half of the unpaid principal amount of such
364-Day Revolving Loan as of such 364-Day Revolving Termination Date on the
first anniversary thereof, (ii) to the Administrative Agent for the account of
each Five-Year Revolving Lender the then unpaid principal amount of each
Five-Year Revolving Loan of such Five-Year Revolving Lender on the Five-Year
Revolving Termination Date and (iii) to the Administrative Agent for the account
of the applicable Lender the then unpaid principal amount of each Competitive
Loan on the last day of the Interest Period applicable to such Loan. Each
applicable Borrower agrees to pay interest on its Revolving Loans from time to
time in accordance with Section 2.12.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, if any, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
applicable Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of the Lenders
and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any Borrower
to repay its Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the applicable Borrower shall prepare, execute
and deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, but without
prejudice to clause (c) above, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section 9.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is
a registered note, to such payee and its registered assigns).
SECTION 2.09. Optional Prepayment of Loans. (a) Any Borrower shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part, subject to prior notice in accordance with paragraph (b) of
this Section; provided that no Borrower shall have the right to prepay any
Competitive Loan without the prior consent of the Lender thereof.
(b) The applicable Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment and (ii) in
the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York
City time, one Business Day before the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the 364-Day Revolving Commitments or Five-Year
29
Revolving Commitments as contemplated by Section 2.07, then such notice of
prepayment may be revoked if such notice of termination is revoked in accordance
with Section 2.07. Promptly following receipt of any such notice relating to a
Borrowing, the Administrative Agent shall advise each affected Lender of the
contents thereof. Partial prepayments of 364-Day Revolving Loans or Five-Year
Revolving Loans shall be in an aggregate principal amount of $10,000,000 or a
whole multiple of $1,000,000 in excess thereof. Each prepayment of a 364-Day
Revolving Borrowing or Five-Year Revolving Borrowing shall be applied ratably to
the 364-Day Revolving Loans or Five-Year Revolving Loans, respectively, included
in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest
to the extent required by Section 2.12.
SECTION 2.10. Mandatory Prepayments and Commitment Reductions. (a) If
any Net Cash Proceeds from Capital Markets Transactions are received (other than
from any Indebtedness permitted under Section 6.03 (other than paragraph (c)) by
the Parent or any of its Subsidiaries, an amount equal to 100% of the Net Cash
Proceeds thereof shall be applied on the date of such issuance or incurrence to
the reduction of the Commitments as set forth in Section 2.10(b); provided,
that, notwithstanding the foregoing, in the event of any such issuance or
incurrence by Subsidiaries of the Parent that are acquired or created in
connection with the Acquisitions prior to the Whitewash Date or, as applicable,
the date any other applicable Requirement of Law or contractual obligation that
may limit the portion of any such Net Cash Proceeds received by such Subsidiary
that may be distributed or advanced to the Parent is eliminated, except to the
extent that the Net Cash Proceeds therefrom may be lawfully distributed or
advanced to the Parent, such Net Cash Proceeds shall be maintained as cash or
invested in Permitted Investments and shall be applied to such prepayment or
reduction only upon the Whitewash Date or such other date.
(b) Amounts to be applied in connection with reductions of the
Commitments made pursuant to Section 2.10(a) shall be applied, without
duplication, first, to reduce permanently the 364-Day Revolving Commitments, and
second, to reduce permanently the Five-Year Revolving Commitments. To the extent
that, after giving effect to any reduction thereof pursuant to this Section
2.10(b), the 364-Day Revolving Commitments or the Five-Year Revolving
Commitments are less than the aggregate principal amount of the 364-Day
Revolving Loans or the Five-Year Revolving Loans, as the case may be, the Parent
shall prepay or cause to be prepaid such Loans. Each prepayment of the Loans
under Section 2.10 shall be accompanied by accrued interest to the date of such
prepayment on the amount prepaid. Amounts to be applied pursuant to this Section
shall be applied, first, to prepay ABR Borrowings, if applicable, and, second,
to prepay Eurocurrency Borrowings. At the option of the Parent, amounts to be
applied to prepay Eurocurrency Borrowings shall, if such prepayment would not
occur on the last day of the relevant Interest Period, be deposited in the
Prepayment Account (as defined below). The Administrative Agent shall apply any
cash deposited in the Prepayment Account to prepay the relevant Eurocurrency
Borrowings on the last day of the respective Interest Periods therefor (or, at
the direction of the Parent, on any earlier date). For purposes of this
Agreement, the term "Prepayment Account" shall mean an account established by
the Parent with the Administrative Agent. The Administrative Agent will, at the
request of the Parent, invest amounts on deposit in the Prepayment Account in
Permitted Investments that mature prior to the last day of the applicable
Interest Periods of the Eurocurrency Borrowings to be prepaid, provided that (i)
the Administrative Agent shall not be required to make any investment that, in
its sole judgment, would require or cause the Administrative Agent to be in, or
would result in any, violation of any Requirement of Law and (ii) the
Administrative Agent shall have no obligation to invest amounts on deposit in
the Prepayment Account if a Default or Event of Default shall have occurred and
be continuing. The Parent shall indemnify the Administrative Agent for any
losses relating to the investments so that the amount available to prepay
Eurocurrency Borrowings on the last day of the applicable Interest Periods
therefor is not less than the amount that would have been available had no
investments been made. Other than any interest earned on such investments, the
Prepayment Account shall not bear interest. Interest or profits, if any, on such
investments shall be deposited and reinvested and disbursed as described above.
If the maturity of the Loans
30
has been accelerated pursuant to Article 7, the Administrative Agent shall apply
amounts on deposit in the Prepayment Account to prepay the Eurocurrency
Borrowings.
SECTION 2.11. Facility Fees; Other Fees. (a) The Parent agrees to pay
to the Administrative Agent for the account of each Lender a facility fee, which
shall accrue at the applicable rate per annum determined in accordance with the
Pricing Grid on the daily amount of the 364-Day Revolving Commitment and
Five-Year Revolving Commitment of such Lender (whether used or unused) during
the period from and including the Effective Date to but excluding the date on
which such 364-Day Revolving Commitment or Five-Year Revolving Commitment, as
the case may be, terminates; provided that, if such Lender continues to have any
Revolving Loans after its 364-Day Revolving Commitment or Five-Year Revolving
Commitment, as the case may be, terminates, then such facility fee shall
continue to accrue at the applicable rate per annum on the daily principal
amount of such Lender's Revolving Loans from and including the date on which its
364-Day Revolving Commitment or Five-Year Revolving Commitment, as the case may
be, terminates to but excluding the date on which such Lender ceases to have any
Revolving Loans outstanding. Accrued facility fees shall be payable in arrears
on the last day of March, June, September and December of each year and on the
date on which the Revolving Commitments terminate, commencing on the first such
date to occur after the date hereof; provided that any facility fees accruing
after the date on which the Revolving Commitments terminate shall be payable on
demand.
(b) The Parent agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Parent and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees, to the Lenders. Fees paid shall not be refundable
under any circumstances.
SECTION 2.12. Interest. (a) The Borrower of each Loan shall pay
interest thereon as provided in this Section. The Loans comprising each ABR
Borrowing shall bear interest at a rate per annum equal to the Alternate Base
Rate plus the Applicable Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest at a rate per annum equal to (i) in the case of a Eurocurrency Loan
(other than a Eurocurrency Competitive Loan), the LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Rate, or (ii) in the
case of a Eurocurrency Competitive Loan, the LIBO Rate for the Interest Period
in effect for such Borrowing plus (or minus, as applicable) the Margin
applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at a rate per annum equal
to the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by any Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided above.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the 364-Day Revolving Commitment Period or
Five-Year
31
Revolving Commitment Period, as the case may be), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, (iii) in the event of any conversion of any
Eurocurrency Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion and (iv) all accrued interest shall be payable upon
termination of the Commitments.
(f) All interest and facility fees hereunder shall be computed on the
basis of a year of 365 days (or 366 days in a leap year), except that interest
computed by reference to the Eurocurrency Loans and facility fees shall be
computed on the basis of a year of 360 days and in each case shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day). The applicable Alternate Base Rate or LIBO Rate shall be determined
by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required 364-Day
Revolving Lenders or Required Five-Year Revolving Lenders, as applicable
(or, in the case of a Eurocurrency Competitive Loan, the Lender that is
required to make such Loan), that the LIBO Rate for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (or Lender)
of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the affected
Borrowers and Lenders by telephone or telecopy as promptly as practicable
thereafter and, until the Administrative Agent notifies such Borrowers and
Lenders that the circumstances giving rise to such notice no longer exist, (i)
any Interest Election Request that requests the conversion of any Revolving
Borrowing to, or continuation of any Revolving Borrowing as, a Eurocurrency
Borrowing shall be ineffective, (ii) if any Borrowing Request requests a
Eurocurrency Revolving Borrowing, such Borrowing shall be made as an ABR
Borrowing and (iii) any request by a Borrower for a Eurocurrency Competitive
Borrowing shall be ineffective; provided that (A) if the circumstances giving
rise to such notice do not affect all the Lenders, then requests by the relevant
Borrower for Eurocurrency Competitive Borrowings may be made to Lenders that are
not affected thereby and (B) if the circumstances giving rise to such notice
affect only one Type of Borrowings, then the other Type of Borrowings shall be
permitted.
SECTION 2.14. Increased Costs. (a) If any Governmental Authority of
the jurisdiction of any currency (or any other jurisdiction in which the funding
operations of any Lender shall be conducted with respect to such currency) shall
have in effect any reserve, liquid asset or similar requirement with respect to
any category of deposits or liabilities customarily used to fund loans in such
currency, or by reference to which interest rates applicable to Loans in such
currency are determined (including any such additional cost as is contemplated
by the definition of "Statutory Reserve Rate" in Section 1.01), and the result
of such requirement shall be to increase the cost to such Lender of making or
maintaining any Loan in such currency (other than an ABR Loan) by an amount
deemed by such Lender to be material, and such Lender shall deliver to the
Parent a notice requesting compensation under this paragraph and setting forth
the applicable additional cost, then the Parent will pay or cause the applicable
Borrower to pay to such Lender on each Interest Payment Date with respect to
each affected Loan an amount that shall compensate such Lender for such
additional cost (which, in the case of any additional cost as is contemplated by
such definition of "Statutory Reserve Rate" shall be at the Statutory Reserve
Rate).
32
(b) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender; or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement, Eurocurrency Loans or Fixed Rate Loans
made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise), then the Parent
shall pay or shall cause the applicable Borrower to pay to such Lender such
additional amount or amounts as to compensate such Lender for such additional
costs incurred or reduction suffered.
(c) If any Lender determines that any Change in Law regarding capital
requirements has the effect of reducing the rate of return on such Lender's
capital or on the capital of such Lender's holding company, if any, as a
consequence of this Agreement or the Loans made by such Lender, to a level below
that which such Lender or such Lender's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's policies and the
policies of such Lender's holding company with respect to capital adequacy),
then from time to time the Parent shall pay or shall cause the applicable
Borrower to pay to such Lender such additional amount or amounts as will
compensate such Lender or such Lender's holding company for any such reduction
suffered.
(d) A certificate of a Lender setting forth in reasonable detail the
amount or amounts necessary to compensate such Lender or its holding company, as
the case may be, as specified in paragraph (a), (b) or (c) of this Section shall
be delivered to the Parent and shall be conclusive absent manifest error. The
Parent shall pay or cause the applicable Borrower to pay to such Lender the
amount shown as due on any such certificate within 10 days after receipt
thereof.
(e) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Parent shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than six months prior to the date that such Lender
notifies the Parent of the Change in Law giving rise to such increased costs or
reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the six-month period referred to above shall
be extended to include the period of retroactive effect thereof.
(f) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurocurrency Loan or Fixed Rate Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurocurrency Loan other than
on the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice is permitted to be
revocable under Section 2.07(b) and is revoked in accordance herewith), (d) the
failure to
33
borrow any Competitive Loan after accepting the Competitive Bid to
make such Loan, or (e) the assignment of any Eurocurrency Loan or Fixed Rate
Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by the Parent pursuant to Section 2.18, then, in any such
event, the Parent shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurocurrency Loan, the loss to any
Lender attributable to any such event shall be deemed to include an amount
determined by such Lender to be equal to the excess, if any, of (i) the amount
of interest that such Lender would pay for a deposit equal to the principal
amount of such Loan for the period from the date of such payment, conversion,
failure or assignment to the last day of the then current Interest Period for
such Loan (or, in the case of a failure to borrow, convert or continue, the
duration of the Interest Period that would have resulted from such borrowing,
conversion or continuation) if the interest rate payable on such deposit were
equal to the LIBO Rate for such Interest Period, over (ii) the amount of
interest that such Lender would earn on such principal amount for such period if
such Lender were to invest such principal amount for such period at the interest
rate that would be bid by such Lender (or an affiliate of such Lender) for
dollar deposits from other banks in the eurodollar market at the commencement of
such period. A certificate of any Lender setting forth in reasonable detail any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Parent and shall be conclusive absent manifest
error. The Parent shall or shall cause the applicable Borrower to pay to such
Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.16. Taxes. Any and all payments by or on account of any
obligation of the Borrowers hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes except as required by
applicable law. If any Borrower shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions of
Indemnified Taxes and Other Taxes (including deductions applicable to additional
sums payable under this Section) the Administrative Agent or the relevant
Lenders (as the case may be) receive 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 Governmental Authority in accordance with applicable law.
(a) In addition, the Borrowers shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(b) The Borrowers shall indemnify the Administrative Agent and each
Lender within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent or such Lender, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrowers by a Lender or by the Administrative Agent on its own behalf or on
behalf of a Lender shall be conclusive absent manifest error.
(c) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrowers to a Governmental Authority, the Borrowers shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(d) Any Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the relevant Borrower
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to such Borrower (with a
34
copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by such Borrower, such properly completed and
executed documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate.
(e) If the Administrative Agent or any Lender receives a refund in
respect of Indemnified Taxes or Other Taxes paid by the Borrowers, which in the
sole judgment of such Lender is allocable to such payment, it shall promptly pay
such refund, together with any other amounts paid by the relevant Borrower in
connection with such refunded Taxes or Other Taxes, to such Borrower, net of all
out-of-pocket expenses of such Lender incurred in obtaining such refund,
provided, however, that such Borrower agrees to promptly return such refund to
the Administrative Agent or the applicable Lender, as the case may be, if it
receives notice from the Administrative Agent or applicable Lender that such
Administrative Agent or Lender is required to repay such refund.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) Except as provided in Section 2.04, each borrowing by any Borrower
from the Lenders hereunder, each payment by any Borrower on account of any
facility fee and any reduction of the Commitments of the Lenders shall be made
pro rata according to the respective 364-Day Revolving Percentages or Five-Year
Revolving Percentages, as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by any Borrower on
account of principal of and interest on its 364-Day Revolving Loans shall be
made pro rata according to the respective outstanding amounts on account of the
364-Day Revolving Loans then due and payable to the 364-Day Revolving Lenders.
Each payment (including each prepayment) by any Borrower on account of principal
of and interest on its Five-Year Revolving Loans shall be made pro rata
according to the respective outstanding amounts on account of the Five-Year
Revolving Loans then due and payable to the Five-Year Revolving Lenders.
(c) Each Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees, or under Section 2.14, 2.15
or 2.16, or otherwise) prior to 12:00 noon, New York City time, on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx and except that payments pursuant to Sections 2.14, 2.15, 2.16
and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars (based, if appropriate, on the Dollar
Equivalent of the amount thereof).
(d) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and accrued interest thereon than the proportion received by any other relevant
Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Revolving Loans of other relevant
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the relevant Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their relevant respective
Revolving Loans; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this
35
paragraph shall not be construed to apply to any payment made by any Borrower
pursuant to and in accordance with the express terms of this Agreement or any
payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Revolving Loans to any assignee or participant,
other than to such Borrower or any subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). Each Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(e) Unless the Administrative Agent shall have received notice from
any Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that such Borrower will not make
such payment, the Administrative Agent may assume that such Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if such
Borrower has not in fact made such payment, then each of the relevant Lenders
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the Federal Funds Effective
Rate.
(f) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(b) or 2.17(e), then the Administrative Agent may,
in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.14, or if the Parent is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Parent
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if the
Parent is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, or if any
Lender is a Non-Consenting Lender with respect to any request to extend the
364-Day Revolving Termination Date which is approved by the Required 364-Day
Revolving Lenders, as applicable, or if any Lender does not approve any
amendment, waiver or modification to this Agreement or any other Loan Document
which has been approved by the Required Lenders, then the Parent may, so long as
no Event of Default has occurred and is continuing, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that
(i)the Parent shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans (other than Competitive Loans), accrued interest thereon,
accrued fees and all other amounts payable
36
to it hereunder, from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrowers (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.14 or payments required to be made pursuant to
Section 2.16, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Parent to require such assignment and
delegation cease to apply.
SECTION 2.19. Certain Funds Period. Notwithstanding any other
provision of any Loan Document to the contrary, prior to and during the Certain
Funds Period, unless a Major Default is continuing, no Lender shall (or shall be
entitled to instruct the Administrative Agent to) cancel any of the Commitments
(except at the request of the Parent or as expressly provided herein); refuse to
make any Loan hereunder in accordance with the terms hereof (to the extent of
any part of any of its relevant undrawn Commitments) or rescind, terminate or
cancel this Agreement; or require repayment of any Loan or exercise any right of
set-off or counterclaim in respect of any Loan. Immediately upon the expiry of
the Certain Funds Period, all such rights, remedies and entitlements shall be
available to the Administrative Agent and each of the Lenders, to the full
extent set forth in this Agreement, notwithstanding that they may not have been
exercised or been available for use during the Certain Funds Period.
ARTICLE III
Representations and Warranties
Each Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Such Borrower and each of its
Subsidiaries is duly organized, validly existing and, to the extent applicable,
in good standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and is
qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure to be so
organized, existing or qualified or to be in good standing, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.02. Authorization; Enforceability. The Transactions are
within such Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by such Borrower. This Agreement constitutes,
and each other Loan Document upon execution will constitute, a legal, valid and
binding obligation of each Loan Party thereto, enforceable against each such
Loan Party in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(which shall not include the Offer until the commencement of the Certain Funds
Period or include the consummation of the Offer until the Initial Funding Date)
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, except where failure to
obtain or make the same (either individually or in the aggregate) could not be
reasonably expected to result in a Material Adverse Effect, (b) will not violate
any applicable law or regulation or order of any Governmental Authority, except
where any such violation (either individually or in the aggregate) could not be
reasonably expected to result in a Material Adverse Effect, (c) will not violate
any material provision of the charter, bylaws or other organizational document
of such Borrower or any of its Subsidiaries, (d) will not violate or result in a
default under any indenture, agreement
37
or other instrument binding upon such Borrower or any of its Subsidiaries or its
assets, or give rise to a right thereunder to require any payment to be made by
such Borrower or any of its Subsidiaries, which could reasonably be expected to
have a Material Adverse Effect, and (e) will not result in the creation or
imposition of any Lien on any asset of any Borrower or any of its Subsidiaries.
SECTION 3.04 Financial Condition; No Material Adverse Change. (a) The
audited consolidated balance sheets of Parent as at September 30, 1996,
September 30, 1997 and September 30, 1998, and the related consolidated
statements of income, cash flows and shareholders' equity for the fiscal years
ended on such dates, reported on by and accompanied by an unqualified report
from Xxxxxx Xxxxxxxx LLP, present fairly in all material respects the
consolidated financial condition of Parent as at such date, and the consolidated
results of its operations and its consolidated cash flows for the respective
fiscal years then ended. The unaudited consolidated balance sheet of Parent as
at June 30, 1999, and the related unaudited consolidated statements of income
and cash flows for the nine-month period ended on such date, present fairly in
all material respects the consolidated financial condition of Parent as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the nine-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). Neither the Parent nor any of its
Subsidiaries has any material Guarantee Obligations, contingent liabilities and
liabilities for taxes, or any long-term leases or unusual forward or long-term
commitments, including any interest rate or foreign currency swap or exchange
transaction or other obligation in respect of derivatives, that are not
reflected in the most recent financial statements referred to in this paragraph
(or the notes that accompany them).
(b) Since September 30, 1998, there has been no material adverse
change in the business, assets, operations, prospects or condition, financial or
otherwise, of the Parent and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Such Borrower and each of its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for any such defects
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, and none of such property is subject to any
Lien except as permitted by Section 6.04.
(b) Such Borrower and each of its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by such Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of such Borrower, threatened
against or affecting such Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither such Borrower nor any
of its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law,
38
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Such Borrower and
each of its Subsidiaries is in compliance with all laws, regulations and orders
of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Event of
Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither such
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Such Borrower and each of its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves, (b) Taxes for which
such Borrower or such Subsidiary has otherwise set aside on its books adequate
reserves or (c) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Disclosure. All of the reports, financial statements,
certificates or other information furnished by or on behalf of such Borrower to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) (or, in the case of any such reports, financial
statements, certificates or other information in respect of Jaguar and its
subsidiaries, to the best knowledge of the Parent), taken as a whole, are
complete and correct in all material respects and not misleading in any material
respect in light of the circumstances under which they were made or delivered;
provided that, with respect to projected financial information provided by the
Parent, the Parent represents only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time, it being
recognized by the Lenders that such projected financial information as to future
events is not to be viewed as facts and that actual results during the period or
periods covered by such projected financial information may differ from the
projected results.
SECTION 3.12. Federal Regulations. No part of the proceeds of any
Loans will be used for "buying" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect to the extent such use would constitute a
violation of the provisions of the Regulations of the Board. If requested by any
Lender or the Administrative Agent, the applicable Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable,
referred to in Regulation U.
39
SECTION 3.13. Subsidiaries. Schedule 3.13 sets forth the name and
jurisdiction of incorporation of each Material Subsidiary of each Borrower as of
the date hereof and, as to each such Subsidiary, the percentage of each class of
Capital Stock owned by any Loan Party, and as of the date hereof there are no
outstanding subscriptions, options, warrants, calls, rights or other agreements
or commitments (other than stock options granted to employees or directors and
directors' qualifying shares) of any nature relating to any Capital Stock of any
of the Borrower's Material Subsidiaries, except as created by the Loan
Documents.
SECTION 3.14. Solvency. Each Loan Party is, and after giving effect to
the Acquisitions and the incurrence of all Indebtedness and obligations being
incurred in connection herewith and therewith will be and will continue to be,
Solvent.
SECTION 3.15. Labor Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes against the Parent or any of its Subsidiaries pending or, to the
knowledge of such Borrower, threatened; (b) hours worked by and payment made to
employees of the Parent and its Subsidiaries have not been in violation of the
Fair Labor Standards Act or any other applicable Requirement of Law dealing with
such matters; and (c) all payments due from the Parent or any of its
Subsidiaries on account of employee health and welfare insurance have been paid
or accrued as a liability on the books of the Parent or the relevant Subsidiary.
SECTION 3.16. Year 2000 Matters. The disclosure set forth under the
heading "Year 2000 Readiness Disclosure" in the Parent's Form 10-Q filed with
the Securities and Exchange Commission for the quarterly period ended June 30,
1999 is true and correct in all material respects as of the date of this
Agreement. The costs to the Parent and its Subsidiaries that have not been
incurred as of the date hereof for such reprogramming and testing and for the
other reasonably foreseeable consequences to them of any improper functioning of
other computer systems and equipment containing embedded microchips due to the
occurrence of the year 2000 could not reasonably be expected to result in a
Default or Event of Default or to have a Material Adverse Effect. Except for any
reprogramming referred to above, the computer systems of the Parent and its
Subsidiaries are and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement to be, sufficient for the conduct of
their business as currently conducted.
SECTION 3.17. Mandatory Offers. No circumstances have arisen (whether
as a result of actions by the Parent or Bidco or otherwise) whereby a mandatory
offer is required to be made under the terms of Rule 9 of the Takeover Code in
respect of the Shares.
SECTION 3.18. Pari Passu Obligations. The Loans made to the Parent and
the payment obligations of the Parent under the Guarantee constitute obligations
of the Parent which are pari passu with all other unsecured Indebtedness of the
Parent.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The Agreement shall become effective on
the date on which each of the following conditions is satisfied (or waived in
accordance with Section 9.02) (the date on which such conditions are satisfied
or waived, the "Effective Date"):
40
(a) The Administrative Agent (or its counsel) shall have received (A)
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence reasonably satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of
this Agreement, provided, that, notwithstanding the foregoing, in the event that
this Agreement has not been executed and conditionally delivered by each party
listed on Schedule 2.01 or 2.02 on the date (which shall be no earlier than the
date hereof) on which (x) all of the other conditions to the occurrence of the
Effective Date shall have been satisfied or waived and (y) this Agreement shall
have been executed and unconditionally delivered by the Parent and the
Administrative Agent, then the condition set forth in this Section 4.01(a) shall
nonetheless be satisfied on such date with respect to those parties listed on
Schedule 2.01 or 2.02 which have executed and unconditionally delivered this
Agreement on or before such date if on such date the Borrower and the
Administrative Agent shall have designated one or more banks, financial
institutions or other entities ("Designated Lenders") to assume with the consent
of such Designated Lender, in the aggregate, all of the Commitments of the
parties listed on Schedule 2.01 or 2.02 (the "Non-Executing Persons") which have
not executed and unconditionally delivered this Agreement as of such date
(Schedules 2.01 and 2.02 shall automatically be deemed to be amended to reflect
the respective Commitments of the Designated Lenders and the omission of the
Non-Executing Persons as Lenders hereunder) and (B) from the Parent and each
Subsidiary Guarantor either (i) a counterpart of the Guarantee signed on behalf
of such party or (ii) written evidence reasonably satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of the Guarantee) that such party has signed a counterpart of the
Guarantee.
(b) The Agreement, dated July 2, 1999 (the "Acquisition Agreement"),
between the Parent and Perrier shall not have been amended or waived in any
material respect without the consent of the Administrative Agent.
(c) The Press Release shall not have been amended or waived in any
material respect without the consent of the Administrative Agent.
(d) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrowers hereunder.
(e) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of (i) Xxxxxxx Xxxxxx & Xxxxx, New York counsel for the Parent
and its Subsidiaries, substantially in the form of Exhibit B-1 and
(ii) Xxxxxx X. Xxxxxxx, Assistant General Counsel of the Parent, substantially
in the form of Exhibit B-2, and covering such other matters relating to the
Parent and Bidco, this Agreement or the Transactions as the Required Lenders
shall reasonably request. The Parent hereby requests such counsel to deliver
such opinions.
(f) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Parent, the
authorization of the Transactions and any other legal matters relating to the
Parent, this Agreement or the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
(g) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a Financial
Officer of the Parent, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.04.
41
(h) Xxxxx'x and S&P shall have issued indicative ratings with respect
to the Loans of at least Baa2 and BBB, respectively, and shall have issued
indicative ratings (after giving effect to the Acquisitions) with respect to
commercial paper of the Parent of at least A2 and P2, respectively.
The Administrative Agent shall notify the Parent and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, this Agreement shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or
prior to 3:00 p.m., New York City time, on October 15, 1999 (and, in the event
such conditions are not so satisfied or waived, the Commitments shall terminate
at such time).
SECTION 4.02. Certain Funds Period. The Certain Funds Period shall
commence on the date on or after the Effective Date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02)
(the date on which such conditions are satisfied or waived, the "Certain Funds
Commencement Date"):
(a) All conditions in the Preconditional Bid to the making of the
Offer (including conditions with respect to required regulatory approvals)
shall have been satisfied (or waived with the consent of the Required
Lenders) in all material respects.
(b) The Offer shall have been posted to the Jaguar Shareholders as
soon as practicable (and in any event within 28 days) after all conditions
in the Preconditional Bid to the making of the Offer have been satisfied
(or waived with the consent of the Required Lenders).
(c) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Certain Funds Commencement Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrowers
hereunder.
SECTION 4.03. Initial Revolving Loans. The obligation of each Lender
to make any Revolving Loan in respect of the financing of the Stock Acquisition
during the Certain Funds Period is subject to the satisfaction (or waiver
pursuant to Section 9.02) of the following conditions on the date of such Loan,
which date shall in any event be on or after the Effective Date and on or prior
to June 15, 2000 (the first date on which such conditions are satisfied or
waived, the "Initial Funding Date"):
(a) The representations and warranties of the Borrowers set forth in
Sections 3.01 (other than with respect to the corporate existence of Jaguar
and its subsidiaries), 3.02, 3.03 (other than with respect to Jaguar and
its subsidiaries), 3.07 (other than the last sentence thereof and other
than with respect to Jaguar and its subsidiaries), 3.08 and 3.12 of this
Agreement shall be true and correct in all material respects on and as of
the date of such Borrowing.
(b) There shall not be in effect any injunction or restraining order
of any Governmental Authority having jurisdiction to issue such injunction
or restraining order prohibiting the making of the Loans made on such date,
the use of the proceeds thereof or the consummation of the Offer or the
Acquisitions.
(c) No Major Default shall have occurred and be continuing.
(d) In the case of the Revolving Loans made on the Initial Funding
Date, the Offer shall have been declared unconditional in all respects on
behalf of Bidco and no Default or Event of Default shall have occurred in
respect of Section 5.09(j).
42
(e) In the case of the Revolving Loans made on the Initial Funding
Date, the Administrative Agent shall have received copies of the Offer
Documents, and of all other documents and materials filed or released
publicly by the Parent or Bidco in connection with the Offer, certified as
true and correct copies thereof as of the Initial Funding Date by the
President, a Vice President or a Financial Officer of Bidco.
(f) In the case of the Revolving Loans made on the Initial Funding
Date, the Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Initial Funding Date, including,
to the extent invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the Borrowers hereunder.
(g) In the case of the Revolving Loans made on the Initial Funding
Date, the Parent shall have provided irrevocable notice of termination of
the Existing Revolving Credit Facility pursuant to the terms thereof and
all amounts due and payable thereunder shall have been paid in full (it
being agreed that no borrowings shall be made under the Existing Revolving
Credit Facility after the Initial Funding Date and each Lender which is a
lender under the Existing Revolving Credit Facility hereby waives any
requirement for the giving of such notice under the Existing Revolving
Credit Facility).
(h) Perrier shall have contributed (or shall simultaneously
contribute) to Bidco its share of the purchase price of the Shares being
acquired in the Offer in accordance with the Acquisition Agreement.
SECTION 4.04. Each Credit Event. The obligation of each Lender to make
any Revolving Loan requested to be made by it on any date (other than the
Revolving Loans made during the Certain Funds Period in connection with the
Stock Acquisition) is subject to the satisfaction of the following conditions
(in addition to the conditions otherwise applicable):
(a) The representations and warranties of the Borrowers set forth in
Article III (other than those set forth in Sections 3.04 and 3.06) shall be
true and correct in all material respects on and as of the date of such
Borrowing, except to the extent such representations and warranties
expressly relate to an earlier date.
(b) At the time of and immediately after giving effect to such
Borrowing no Default or Event of Default shall have occurred and be
continuing.
Each Borrowing shall be deemed to constitute a representation and warranty
by the Borrowers on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
SECTION 4.05. Each Additional Borrower Credit Event. The obligation of
each Lender to make Revolving Loans hereunder to any Additional Borrower is
subject to the satisfaction of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received from
each party thereto either (i) a counterpart of such Additional Borrowers
Agreement or (ii) written evidence reasonably satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page thereof) that such party has signed a counterpart of such
Additional Borrower Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion of counsel for such Additional Borrower (which counsel shall be
reasonably acceptable to the Administrative Agent), in a form satisfactory
to the Administrative Agent, and covering such of the representations in
43
Section 3.01, 3.02, 3.03 and 3.06(a) as may be reasonably requested by the
Administrative Agent and such other matters relating to such Additional
Borrower or its Additional Borrower Agreement as the Administrative Agent
or the Required Lenders shall reasonably request.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of such
Additional Borrower, the authorization of the Transactions relating to such
Additional Borrower and any other legal or tax matters relating to such
Additional Borrower, its Additional Borrower Agreement or such
Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Parent covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Parent
will furnish to the Administrative Agent:
(a) within 95 days after the end of each fiscal year of the Parent,
its audited consolidated balance sheet and related statements of income,
cash flows and stockholders' equity as of the end of and for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by Xxxxxx Xxxxxxxx LLP or other independent
public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any qualification
or exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material respects
the financial condition and results of operations of the Parent and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 50 days after the end of each of the first three fiscal
quarters of each fiscal year of the Parent, its consolidated balance sheet
and related statements of income, cash flows and stockholders' equity as of
the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one of
its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Parent and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the Parent
(i) certifying as to whether a Default has occurred and is continuing and,
if a Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections
6.01 and 6.02 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial
statements referred to
44
in Section 3.04 and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such
certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any Default
insofar as the same relates to any financial accounting matters covered by
their audit (which certificate may be limited to the extent required by
accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Parent or any Subsidiary with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or distributed
by the Parent to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Parent, or compliance with the terms of this Agreement, as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Parent will furnish to
the Administrative Agent and each Lender prompt written notice of the following,
promptly after a Financial Officer or other responsible officer of the Parent
obtains knowledge thereof:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Parent or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Parent and its Subsidiaries in an aggregate
amount exceeding $25,000,000;
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect; and
(e) any formal notices delivered under the Acquisition Agreement.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Parent setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Parent will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under
Section 6.05.
SECTION 5.04. Payment of Obligations. The Parent will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
before the same shall become delinquent or in default, that, if not paid, could
result in a Material Adverse Effect, except where (a) the validity or amount
45
thereof is being contested in good faith by appropriate proceedings, (b) the
Parent or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Parent will,
and will cause such of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations (it being understood that,
to the extent consistent with prudent business practice of persons carrying on a
similar business in a similar location, a program of self-insurance for first or
other loss layers may be utilized).
SECTION 5.06. Books and Records; Inspection Rights. The Parent will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Parent will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.07. Compliance with Laws. The Parent will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property (including,
without limitation, Environmental Laws), except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used
for financing the Acquisitions (including capitalization of Bidco by means of
debt or equity in accordance with the Acquisition Agreement and, following the
Initial Funding Date, to fund an escrow account for use to purchase or otherwise
acquire Shares and including the funding of cash collateral provided by Bidco in
connection with any Guaranteed Loan Notes issued pursuant to the Offer), to
refinance existing Indebtedness, to pay fees and expenses in connection with the
Acquisitions and the financing thereof, supporting commercial paper issued by
the Parent, and providing for the working capital and general corporate needs of
the Parent and its Subsidiaries prior to and following the Acquisitions. No part
of the proceeds of any Loan will be used, whether directly or indirectly, for
any purpose that entails a violation of any of the Regulations of the Board,
including Regulations U and X. If requested by the Administrative Agent, the
Parent shall set forth in reasonable detail the use of the proceeds of each
Borrowing of the Revolving Loans.
SECTION 5.09. Acquisition. (a) The Parent will, and will cause Bidco
to, comply in all material respects with the Financial Services Xxx 0000 and the
Companies Act and all other applicable laws and regulations relevant in the
context of the Offer and use all reasonable endeavors to comply in all material
respects with the Takeover Code.
(b) Subject to the provisions of the Takeover Code, the Parent will
keep the Lenders and the Administrative Agent reasonably informed of, and will
promptly respond to reasonable inquiries of the Administrative Agent regarding,
the progress of the Offer and all material matters likely to affect the
interests of the Lenders in respect of the Offer and consult with the
Administrative Agent on all such matters.
(c) Subject to any requirements of the Takeover Code, the Parent will
not, and will not permit Bidco to, issue any press release or make any statement
during the course of the Offer which contains any information or statement
concerning the Loan Documents or the Lenders except to the extent set forth in
46
the Loan Documents without first obtaining the prior approval of the information
or statement from the Required Lenders (such approval not to be unreasonably
withheld or delayed).
(d) Subject to this Section 5.09 and if Section 5.09(e) does not
apply, after the Unconditional Offer Date, the Parent will, and will cause Bidco
to, use all reasonable endeavors (which shall not include making any purchase in
the market) to acquire all the Shares as soon as practicable.
(e) (i) As soon as reasonably practicable (and in any event within
three Business Days) after it first becomes entitled to implement the Compulsory
Acquisition procedures in respect of the Shares of Jaguar shareholders who have
not accepted the Offer, the Parent shall notify the Administrative Agent thereof
and (ii) as soon as reasonably practicable (and in any event within the time
period prescribed by applicable law) after Bidco becomes entitled to apply the
provisions of Part XIIIA of the Companies Act in relation to the Shares, the
Parent shall cause Bidco to dispatch the appropriate notices under Section 429
of the Companies Act.
(f) The Parent will, and will cause Bidco to, ensure that at no time
shall circumstances arise whereby a mandatory offer is required to be made under
the terms of Rule 9 of the Takeover Code in respect of the Shares.
(g) The Parent will not, and will not permit Bidco to, acquire any
Shares in the market at a price above the price set forth in the Offer.
(h) The Parent will, and will cause Bidco to, procure that Jaguar is
(i) removed from the Official List of London Stock Exchange Limited and from the
listings of the New York Stock Exchange and (ii) re-registered as a private
company (in each case) as soon as legally and reasonably practicable after Bidco
has received acceptances from the holders of 90% of the Shares.
(i) The Parent will not, and will not permit Bidco to, declare the
Offer unconditional as to acceptances without the consent of the Required
Lenders (including the Agents) unless Bidco has acquired or has contracted to
acquire (through the receipt of acceptances or otherwise) more than 50% of the
Shares.
(j) The Parent will not, and will not permit Bidco to, amend,
supplement, waive or otherwise modify any substantive term or condition of the
Offer as described in the Press Release (including, without limitation, any
increase in the consideration to be paid but excluding any extension of the time
for acceptance of the Offer permitted under paragraph (k) below and excluding
any waiver of the minimum acceptance conditions to any amount which is greater
than 50% of the Shares) without the consent of the Required Lenders (including,
in the case of any such increase in the consideration to be paid, the Agents) if
such amendment, supplement, waiver or other modification could reasonably be
expected to materially adversely affect the Lenders, provided that the consent
of the Required Lenders (including the Agents) shall not be required in relation
to any waiver of the conditions contained in the Press Release, relating to
matters other than aggregate purchase price (including the terms of the
Guaranteed Loan Notes), minimum acceptance conditions (to the extent that, after
giving effect to such waiver, the minimum acceptance condition would be for 50%
or less of the Shares) and required regulatory approvals, that is required by
the Panel.
(k) The Parent will not, and will not permit Bidco to, extend the time
for the acceptance of the Offer without the prior written consent of the
Required Lenders if anything has occurred since the date of this Agreement or,
as the case may be, the last extension of the time for the acceptance of the
Offer that has had, or could reasonably be expected to have, a material adverse
effect on the assets, business, financial condition or prospects of Jaguar and
its subsidiaries and that could reasonably be expected to have a material
adverse effect on the ability of the Loan Parties to perform their obligations
under the Loan Documents when
47
compared to the position that would have applied had the material adverse effect
in relation to Jaguar and its subsidiaries not occurred.
(l) The Parent will, and will cause Bidco to, give the Administrative
Agent not less than two Business Days prior written notice of any proposed
extension of the time for the acceptance of the Offer together with a
certificate signed by two officers of the Parent confirming that as at the date
of the certificate (which shall not be more than ten Business Days before the
current expiry date of the Offer) to the best of their knowledge and belief
(after reasonable enquiry) no material adverse effect in relation to Jaguar and
its subsidiaries of the kind described in paragraph (k) above has occurred.
SECTION 5.10. Proceeds from Sale of Shares. In the event that the
Parent or any of its Subsidiaries consummates any sale of any Unrestricted
Margin Stock, so long as any Loans are outstanding hereunder, the Parent will
either (a) hold the proceeds of such sale as cash or (b) invest such proceeds in
Permitted Investments.
SECTION 5.11. Acquisition-Related Guarantors. Promptly following any
applicable statutory waiting period, the Parent shall cause, to the extent
permitted by applicable Requirements of Law and contractual restrictions,
Material Subsidiaries acquired or created in connection with the Acquisitions to
become Subsidiary Guarantors.
SECTION 5.12. Loan Stock. The Parent shall use reasonable commercial
efforts to ensure that Clause 7 of the Loan Stock Trust Deed is amended, varied
or waived as and to the extent necessary to permit Jaguar and its subsidiaries
to make any Dispositions which are contemplated or required in connection with
the Asset Divisions.
SECTION 5.13. Additional Guarantors. With respect to any Subsidiary
which becomes a Subsidiary Guarantor after the Effective Date, the Parent shall
promptly (but in any case within 14 days) cause such new Subsidiary (a) to
become a party to the Guarantee and (b) to deliver to the Administrative Agent
such certificates and opinions with respect to such Guarantee as the
Administrative Agent shall reasonably request.
SECTION 5.14. Asset Divisions. The Parent shall, subject to
Section 5.12, use its reasonable best efforts to complete in accordance with the
Acquisition Agreement the Asset Divisions as soon as practicable after the Offer
is declared unconditional.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full,
the Parent covenants and agrees with the Lenders that:
SECTION 6.01. Interest Coverage. The Parent will not permit for any
period ending with the last day of any fiscal quarter commencing after the
Initial Funding Date the Consolidated Interest Coverage Ratio to be less than
2.25 to 1.00 for the first three fiscal quarters commencing after the Initial
Funding Date, 2.50 to 1.00 for the next succeeding four fiscal quarters and 3.00
to 1.00 for each fiscal quarter thereafter.
48
SECTION 6.02. Maximum Leverage Ratio. The Parent will not permit the
Consolidated Leverage Ratio as of the last day of the first three fiscal
quarters commencing after the Initial Funding Date to be greater than 0.72 to
1.00, will not permit the Consolidated Leverage Ratio as of the last day of the
next succeeding four fiscal quarters to be greater than 0.69 to 1.00 and will
not permit the Consolidated Leverage Ratio as of the last day of any subsequent
fiscal quarter to be greater than 0.65 to 1.00.
SECTION 6.03. Indebtedness. The Parent will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth in
Schedule 6.03 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof;
(c) Indebtedness of the Parent or any Subsidiary Guarantor issued
pursuant to Capital Markets Transactions the Net Cash Proceeds of which are
used to reduce the 364-Day Revolving Commitments and Five-Year Revolving
Commitments in accordance with Section 2.10;
(d) Indebtedness of the Parent in respect of commercial paper issued
by it, provided that the aggregate principal amount of such Indebtedness at
any one time outstanding does not exceed the unused portion of the 364-Day
Revolving Commitments and the Five-Year Revolving Commitments;
(e) Indebtedness of the Parent to any Subsidiary and of any Subsidiary
to the Parent or any other Subsidiary;
(f) Guarantee Obligations incurred by the Parent in respect of
Indebtedness of any Subsidiary and by any Subsidiary in respect of
Indebtedness of the Parent or any other Subsidiary;
(g) Indebtedness of the Parent or its Subsidiaries incurred to finance
the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on
any such assets prior to the acquisition thereof, and refinancings,
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof; provided that (i) such
Indebtedness is incurred prior to or within 360 days after such acquisition
or the completion of such construction or improvement and (ii) the
aggregate principal amount of Indebtedness incurred after the date hereof
permitted by this clause (g) shall not exceed $25,000,000 at any time
outstanding;
(h) Indebtedness of (i) any Person (including a subsidiary of Jaguar)
that becomes a Subsidiary after the date hereof, provided that such
Indebtedness exists at the time such Person becomes a Subsidiary and is not
created in contemplation of or in connection with such Person becoming a
Subsidiary and (ii) the Parent (including Indebtedness issued pursuant to
Capital Markets Transactions) incurred to refinance or replace existing
Indebtedness of Jaguar and its subsidiaries;
(i) Indebtedness of the Parent or its Subsidiaries as an account party
in respect of trade and performance letters of credit, or in respect of
operating guarantees or warranties, in each case in the ordinary course
of business;
49
(j) Project Finance Indebtedness of Project Finance Companies, and
Guarantee Obligations of the Parent or any of its other Subsidiaries in
respect of Project Finance Indebtedness and Indebtedness of JV Affiliates,
provided that the aggregate principal amount of the Project Finance
Indebtedness which is the subject of such Guarantee Obligations incurred
after the date hereof, together with the aggregate principal amount of
any Indebtedness of any JV Affiliate which is the subject of Guarantee
Obligations incurred after the date hereof by the Parent and its
Subsidiaries, does not exceed $175,000,000;
(k) to the extent Bidco becomes a Subsidiary of the Parent,
Indebtedness of Bidco in respect of the Guaranteed Loan Notes;
(l) Indebtedness of the Parent or its Subsidiaries as an account party
in respect of letters of credit required to satisfy financing conditions of
the Cantarell Nitrogen Project in Mexico, in which Jaguar or its
subsidiaries are participants, which are imposed or required as a result of
the Acquisitions; and
(m) Indebtedness of the Parent or its subsidiary to finance the
purchase of the outstanding shares of Capital Stock of Korea Industrial
Gases Ltd. not owned by the Parent and its Subsidiaries; and
(n) other unsecured Indebtedness in an aggregate principal amount not
exceeding at any time outstanding $200,000,000 from the date hereof to and
including the Initial Funding Date, $400,000,000 from immediately after the
Initial Funding Date to the first anniversary of the Initial Funding Date
and $600,000,000 thereafter; provided that the aggregate principal amount
of Indebtedness of the Parent's Subsidiaries permitted by this clause (n)
shall not exceed $100,000,000 at any time outstanding.
SECTION 6.04. Liens. The Parent will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it (other than Unrestricted Margin
Stock), or assign or sell any income or revenues (including accounts receivable)
or rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) (i) any Lien on any property or asset of the Parent or its
Subsidiary (other than any Project Finance Company) existing on the date
hereof and described in Schedule 6.04, or (ii) any Lien on any property or
asset of any Project Finance Company existing on the date hereof; provided
that, in any such case, such Lien shall secure only those obligations which
it secures on the date hereof and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Parent or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii)
such Lien shall not apply to any other property or assets of the Parent or
any Subsidiary and (iii) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;
50
(d) Liens on fixed or capital assets acquired, constructed or improved
by the Parent or any Subsidiary; provided that (i) such security interests
secure Indebtedness permitted by clause (g) of Section 6.03, (ii) such
security interests and the Indebtedness secured thereby are incurred prior
to or within 360 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does
not exceed 100% of the cost of acquiring, constructing or improving such
fixed or capital assets, (iv) such security interests shall not apply to
any other property or assets of the Parent or any Subsidiary and
(v) extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(e) Liens securing Indebtedness permitted under Section 6.03(e);
(f) Liens in favor of any Governmental Authority, or any department,
agency or political subdivision of any Governmental Authority, to secure
partial, progress, advance or other payments pursuant to any contract or
statute, including, without limitation, Liens to secure Indebtedness of
the pollution control or industrial revenue bond type, or to secure any
Indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of constructing or improving the property
subject to such Liens;
(g) Liens in favor of any customer arising in respect of partial,
progress, advance or other payments made by or on behalf of such
customer for goods produced for or services rendered to such customer
in the ordinary course of business not excluding the amount of such
payments;
(h) Liens securing Hedging Agreements;
(i) Liens created by or resulting from any litigation or
proceedings which are being contested in good faith; Liens arising out
of judgments or awards against the Parent or any Subsidiary with respect
to which the Parent or such Subsidiary is in good faith prosecuting an
appeal or proceeding for review; or Liens incurred by the Parent or any
Subsidiary for the purpose of obtaining a stay or discharge in the course
of any legal proceeding to which the Parent or such Subsidiary is a party,
provided that, in each case, if the amount received thereby is more than
$50,000,000, such Lien has not existed for more than 45 days;
(j) to the extent Bidco becomes a Subsidiary of the Parent, Liens in
respect of cash collateral created by Bidco in favor of the Loan Notes
Guarantor to secure its obligations in respect of the Guaranteed Loan
Notes;
(k) Liens securing Indebtedness or other obligations not exceeding
$25,000,000 in the aggregate at any time outstanding; and
(l) Liens securing Project Finance Indebtedness of any Project Finance
Company.
SECTION 6.05. Fundamental Changes. (a) The Parent will not, and will
not permit any Subsidiary to, merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of its assets (other than Unrestricted
Margin Stock), or all or substantially all of the stock of any of its
Subsidiaries (other than Unrestricted Margin Stock) (in each case, whether now
owned or hereafter acquired), or liquidate or dissolve, except for transactions
contemplated by the Acquisition Agreement and except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Person may merge into a Borrower in a
transaction in which a Borrower is the surviving corporation, (ii) any Person
may merge into any Subsidiary in a transaction in which the surviving entity
is a
51
Subsidiary, (iii) any Subsidiary may sell, transfer, lease or otherwise
dispose of its assets to any Borrower or to another Subsidiary and (iv) any
Subsidiary may liquidate or dissolve if the Parent determines in good faith that
such liquidation or dissolution is in the best interests of the Parent and is
not materially disadvantageous to the Lenders; provided that any such merger
involving a Person that is not a wholly owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section 6.06.
(b) The Parent will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than businesses of the
type conducted by the Parent and its Subsidiaries or Jaguar and its subsidiaries
on the date of execution of this Agreement and businesses reasonably related
thereto.
SECTION 6.06. Investments, Loans, Advances, Guarantees and
Acquisitions; Hedging Agreements. (a) The Parent will not, and will not permit
any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any
merger with any Person that was not a wholly owned Subsidiary prior to such
merger) any capital stock, evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing
which can be exercised during the term of this Agreement) of, make or permit to
exist any loans or advances to, guarantee any obligations of, or make or permit
to exist any investment or any other interest in, any other Person, or purchase
or otherwise acquire (in one transaction or a series of transactions) any
assets of any other Person constituting a business unit, except for
transactions contemplated by the Acquisition Agreement and except the
following:
(i) Permitted Investments;
(ii) investments, loans and advances by the Parent or any of
its Subsidiaries in connection with the purchase of the outstanding shares
of Capital Stock of Korea Industrial Gases, Ltd. not owned by the Parent
and its Subsidiaries, provided that the aggregate amount of all such
investments, loans and advances permitted by this this Section 6.06(a)(ii)
shall not exceed Korean Won 250 billion;
(iii) investments, loans and advances by the Parent or any of
its Subsidiaries in the Parent or any of its Subsidiaries now or
hereafter existing, provided that (A) the aggregate amount of all
such investments, loans and advances and of Guarantee Obligations
in respect of Indebtedness made after the date hereof by the
Parent or any Subsidiary Guarantor in Subsidiaries which are not
Subsidiary Guarantors shall not exceed $200,000,000 from the date
hereof to the first anniversary of the date hereof, and
$400,000,000 thereafter, and (B) the aggregate principal amount
of such loans and advances made after the date hereof by any
Subsidiary which is not a Subsidiary Guarantor to the Parent or a
Subsidiary Guarantor on a basis that is not subordinated to the
Loans or the guarantee thereof under the Guarantee to a Borrower
or a Subsidiary Guarantor shall not exceed $100,000,000 at any
time;
(iv) Guarantee Obligations permitted by Section 6.03;
(v) investments, loans and advances by the Parent or any
Subsidiary in JV Affiliates or Project Finance Companies now or
hereafter existing; provided, that any investments, loans or advances
made after the date hereof to JV Affiliates or Project Finance Companies
shall not in the aggregate exceed, at any time, $200,000,000 from the
date hereof to the first anniversary of the date hereof, and
$400,000,000 thereafter; and
(vi) loans or advances to or investments in any Person other than
a Subsidiary or the Parent, JV Affiliates or Project Finance Companies in
the ordinary course of business in an aggregate principal amount not to
exceed $25,000,000 at any time; and
52
(vii) loans and advances to employees of the Parent or its
Subsidiaries in the ordinary course of business (including, without
limitation, for travel, entertainment and relocation expenses).
(b) The Parent will not, and will not permit any of its Subsidiaries
to, enter into any Hedging Agreement, other than Hedging Agreements entered
into in the ordinary course of business to hedge or mitigate risks to which the
Parent or any Subsidiary is exposed in the conduct of its business or the
management of its liabilities or in connection with the Acquisitions.
SECTION 6.07. Transactions with Affiliates. The Parent will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates after the date hereof, except (a) in the ordinary course of business
at prices and on terms and conditions not less favorable to the Parent or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, (b) transactions between or among the Borrowers or between or among the
Parent and its wholly owned Subsidiaries not involving any other Affiliate, (c)
any issuance of securities or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of, employment arrangements,
stock options and stock ownership plans approved by the Parent and any loans or
advances to employees of the Parent or its Subsidiaries in the ordinary course
of business and (d) transactions contemplated by the Acquisition Agreement;
provided, however, that the Parent and its Subsidiaries shall be permitted to
continue current practices and honor current long-term contracts with the
Affiliates identified on Schedule 6.07. The foregoing shall not apply to
customary benefits to officers, directors and employees of the Parent and its
Subsidiaries or to transactions with Project Finance Companies and JV Affiliates
expressly contemplated hereby.
SECTION 6.08. Restrictive Agreements. The Parent will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon (a) the ability of the Parent or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets
(other than Unrestricted Margin Stock), or (b) the ability of any Subsidiary to
pay dividends or other distributions with respect to any shares of its capital
stock or to make or repay loans or advances to the Parent or any other
Subsidiary or to guarantee Indebtedness of the Parent or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by this Agreement, (ii) the foregoing shall not apply to
restrictions and conditions existing on the date hereof identified on
Schedule 6.08 or any extension or renewal of, or any amendment or modification
not expanding the scope of, any such restriction or condition, (iii) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary or assets pending such sale,
provided such restrictions and conditions apply only to the Subsidiary or assets
that are to be sold and such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness, (v) clause (a) of the foregoing shall not apply to customary
provisions in leases and other contracts restricting the assignment thereof and
(vi) the foregoing shall not apply to transactions contemplated by the
Acquisition Agreement.
SECTION 6.09. Sales and Leasebacks. The Parent will not, and will not
permit any of its Subsidiaries to, enter into any arrangement after the date
hereof with any Person providing for the leasing by the Parent or any Subsidiary
of real or personal property that has been or is to be sold or transferred by
the Parent or such Subsidiary to such Person or to any other Person to whom
funds have been or are to be advanced by such Person on the security of such
property or rental obligations of the Parent or such Subsidiary (a
"Sale/Leaseback Transaction") unless, if the asset that is the subject of such
Sale/Leaseback Transaction was acquired or constructed in contemplation
53
thereof, the transaction would be permitted as a financing under Section 6.04
(including all other Sale/Leaseback Transactions after the date hereof).
SECTION 6.10. Changes in Fiscal Periods. The Parent will not permit
the fiscal year of the Parent to end on a day other than September 30 or change
the Parent's method of determining fiscal quarters.
SECTION 6.11. Additional Borrowers. If the Parent ceases to own at
least 80% of an Additional Borrower, the Parent shall, within 10 days after an
officer of the Parent becomes aware of such cessation, cause such Subsidiary to
cease be an Additional Borrower pursuant to an Additional Borrower Termination
and to prepay all Loans made to it and outstanding at such time.
SECTION 6.12. Bidco. The Parent will not permit Bidco to engage in any
business or activity or enter into any transaction, contractual obligation or
other undertaking which is not expressly permitted by, or directly related or
incidental to the transactions contemplated by, the Offer Documents, this
Agreement or the Acquisition Agreement in connection with the consummation of
the Acquisitions.
SECTION 6.13. Acquisition Agreement. The Parent will not amend,
supplement, waive or otherwise modify in any material respect the Acquisition
Agreement without the prior written consent of the Administrative Agent.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. If any of the following events
("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan when and
as the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a)
of this Article) payable under this Agreement, when and as the same shall
become due and payable, and such failure shall continue unremedied for a
period of five days;
(c) any representation or warranty made or deemed made by or on
behalf of the Parent or any Subsidiary in or in connection with this
Agreement, the Guarantee, any Additional Borrower Agreement or any
amendment or modification hereof or thereof, or in any report, certificate,
financial statement or other document furnished pursuant to or in
connection with this Agreement, the Guarantee, any Additional Borrower
Agreement or any amendment or modification hereof or thereof, shall prove
to have been incorrect in any material respect when made or deemed made;
(d) any Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02(a), 5.03 (with respect
to the Parent's existence), 5.08, 5.09(e), 5.09(f), 5.09(i), 5.09(j) or in
Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article) or the Guarantee, and
such failure shall continue unremedied for a period of 30 days after the
earlier to occur
54
of (i) the date on which a Financial Officer shall have discovered such
default and (ii) the date on which written notice thereof has been given
to the Parent by the Administrative Agent (at the request of any Lender);
(f) the Parent or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Obligations, when and as the same shall become due and payable
beyond the applicable grace period therefor;
(g) any event or condition occurs that results in any Material
Obligations (other than Project Finance Indebtedness which is not
guaranteed by the Parent or any Subsidiary (other than a Project Finance
Company)) becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both)
the holder or holders of such Material Obligations or any trustee or agent
on its or their behalf to cause all of such Material Obligations to
become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity (unless waived);
provided that this clause (g) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Parent or any Material Subsidiary or any
Additional Borrower or Bidco or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Parent or any Material Subsidiary or any
Additional Borrower or Bidco or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) the Parent or any Material Subsidiary or any Additional Borrower
or Bidco shall (i) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Parent or any Material Subsidiary or any Additional
Borrower or Bidco or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action to authorize any of the foregoing;
(j) the Parent or any Material Subsidiary or any Additional Borrower
or Bidco shall become unable, admit in writing or fail generally to pay its
debts as they become due, including in respect of any Subsidiary organized
under the laws of the United Kingdom for the purposes of Section 123 of the
Insolvency Xxx 0000 (other than Section 123(1)(a), (b), (c) and (d),
provided that, for purposes of this paragraph, the words "to the
satisfaction of the court" shall be deemed to be omitted from Section
123(1)(e) and Section 123(2));
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $50,000,000 shall be rendered against the Parent, any
Material Subsidiary, any Additional Borrower or any combination thereof and
the same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action shall
be legally
55
taken by a judgment creditor to attach or levy upon any assets
of the Parent or any Material Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect;
(m) a Change in Control shall occur;
(n) the guarantee contained in Section 2 of the Guarantee shall
cease, for any reason, to be in full force and effect in accordance
with its terms or any Loan Party or any Affiliate of any Loan Party
shall so assert; or
(o) the Acquisition Agreement ceases to be in full effect
in all material respects prior to the completion of the Asset
Divisions;
then, subject to Section 7.02, and in every such event (which, prior to the
Certain Funds Termination Date, must result in a Major Default) (A) (other than
an event with respect to a Borrower described in clause (h) or (i) of this
Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by
notice to the Borrowers, take either or both of the following actions, at the
same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Borrower; (B) in case of any event with
respect to the Parent or Bidco described in clause (h) or (i) of this Article,
the Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and all fees and other
obligations of each Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by such Borrower; and (C) in the case of any
event with respect to an Additional Borrower described in clause (h) or (i) of
this Article, (i) the eligibility of such Additional Borrower to borrow
hereunder shall terminate and (ii) the Loans of such Additional Borrower shall
become immediately due and payable, together with accrued interest thereon and
all fees and other obligations of such Additional Borrower accrued hereunder
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived.
SECTION 7.02. Target Group Exceptions. For a period of six months
after the Unconditional Offer Date, the Events of Default set out in
Section 7.01(c), (d) and (e) shall not apply to or in respect of any event with
respect to the Apollo Businesses which exists on, or is a direct result of the
occurrence of, the Unconditional Offer Date, provided that this exception shall
not apply in relation to matters (other than those which exist on the
Unconditional Offer Date) which the Parent (either directly or through control
over its Subsidiaries) could reasonably be expected to have exercised control to
prevent or cure in the time available since the Unconditional Offer Date.
56
ARTICLE VIII
The Agents
Each of the Lenders hereby irrevocably appoints each Agent as its
agent and authorizes such Agent to take such actions on its behalf and to
exercise such powers as are delegated to such Agent by the terms hereof,
together with such actions and powers as are reasonably incidental thereto.
Each bank serving as an Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not an Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Parent or any Subsidiary or other Affiliate thereof as if it were not an
Agent hereunder.
No Agent shall have any duties or obligations except those expressly
set forth herein. Without limiting the generality of the foregoing, (a) no Agent
shall be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing, (b) no Agent shall have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders,
and (c) except as expressly set forth herein, no Agent shall have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Parent or any of its Subsidiaries that is communicated to or
obtained by the bank serving as an Agent or any of its Affiliates in any
capacity. No Agent shall be liable for any action taken or not taken by it with
the consent or at the request of the requisite Lenders or in the absence of its
own gross negligence or wilful misconduct. No Agent shall be deemed to have
knowledge of any Default unless and until written notice thereof is given to
such Agent by the Parent, a Borrower or a Lender, and no Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement, (ii)
the contents of any certificate, report or other document delivered hereunder or
in connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Agents.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be
counsel for any of the Borrowers), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Parent. Upon any such
resignation, the Required Lenders shall have the right, with the prior written
consent of the
57
Parent (such consent shall not be unreasonably withheld and shall
not be required if an Event of Default under clause (h) or (i) of Section 7.01
has occurred and is continuing with respect to the Parent), to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Parent to a successor Administrative Agent shall be the same as those payable to
its predecessor unless otherwise agreed between the Parent and such successor.
After the Administrative Agent's resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the any Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
Notwithstanding anything to the contrary contained herein, no Lender
identified as an "Agent", other than the Administrative Agent, shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders so identified shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders so identified in deciding to
enter into this Agreement or not taking action hereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Parent or any Borrower, c/o Air Products and
Chemicals, Inc., Attention of Corporate Secretary (Telecopy No.
610-481-8223);
(b) if to the Administrative Agent, to The Chase Manhattan Bank,
Agent Bank Services Group, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Xxxxx Xxxxx (Telecopy No. (000) 000-0000),
with a copy to The Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx
00000, Attention of Xxxxx Xxxxxxxx (Telecopy No. (000) 000-0000).
(c) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
58
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement, the Guarantee nor any provision hereof or
thereof may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Parent and the Required Lenders or by
the Parent and the Administrative Agent with the consent of the Required Lenders
(except that no consent is required to permit the termination of any Guarantee
of any Guarantor in accordance with the terms thereof); provided that no such
agreement shall (i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or reduce
the rate or amount of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of any payment of any principal amount of any Loan, or any
interest thereon, or any fees payable hereunder, or reduce the amount of, waive
or excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
amend, modify or waive Section 2.17(a), (b), (c) or (e) in a manner that would
alter the pro rata sharing of payments required thereby without the consent of
the Lenders of the Class of Lenders (constituting Required 364-Day Revolving
Lenders or Required Five-Year Revolving Lenders, as the case may be) adversely
affected thereby, (v) amend, modify or waive any of the provisions of this
Section or the definition of "Required Lenders" or release the Parent or all or
substantially all of the other Guarantors from the Guarantee or the provisions
of the first sentence of Section 9.04(a) without the written consent of each
Lender, (vi) amend, modify or waive Section 5.09(i) without the written consent
of the Administrative Agent and the Co-Syndication Agents, (vii) amend, modify
or waive Section 2.10(b) without the written consent of the Required 364-Day
Revolving Lenders or amend, modify or waive the definition of Required 364-Day
Revolving Lenders without the written consent of all the 364-Day Revolving
Lenders or (viii) amend, modify or waive the definition of Required Five-Year
Revolving Lenders without the written consent of all the Five-Year Revolving
Lenders; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of any Agent hereunder without the prior
written consent of such Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Parent shall
pay (i) all reasonable out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), and (ii) all out-of-pocket expenses incurred by
the Administrative Agent or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or reasonable protection of its rights in
connection with this Agreement, including its rights under this
59
Section, or in connection with the Loans made hereunder, including in connection
with any workout, restructuring or negotiations in respect thereof.
(b) The Parent shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Parent or any of its
Subsidiaries, or any Environmental Liability related in any way to the Parent or
any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses resulted from the gross negligence or wilful misconduct of such
Indemnitee. It is understood and agreed that, to the extent not precluded by a
conflict of interest, each Indemnitee shall endeavor to work cooperatively with
the Parent with a view toward minimizing the legal and other expenses associated
with any defense and any potential settlement or judgment. To the extent
reasonably practicable and not disadvantageous to any Indemnitee, it is
anticipated that a single counsel may be used. Settlement of any claim or
litigation involving any material indemnified amount will require the approval
of the Parent (not to be unreasonably withheld).
(c) To the extent that the Parent fails to pay any amount required to
be paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought and as if all the
Commitments of the Lenders had terminated at such time) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the Borrowers shall not
assert, and hereby waive, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that no
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by a Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
60
(b) Any Lender may assign to one or more assignees (each, an
"Assignee") all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it); provided that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, the Administrative Agent and the Parent must give their
prior written consent to such assignment (which consent, in each case, shall not
be unreasonably withheld or delayed), (ii) except in the case of an assignment
to a Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 (or the Sterling
Equivalent thereof) unless the Parent and the Administrative Agent otherwise
consent, (iii) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (iv) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; provided further that any consent of the Parent otherwise
required under this paragraph shall not be required if an Event of Default under
clause (h) or (i) of Section 7.01 has occurred and is continuing. Upon
acceptance and recording pursuant to paragraph (d) of this Section, from and
after the effective date specified in each Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of
a Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment
and Acceptance covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03).
Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for purposes
of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrowers or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrowers, 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. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will
61
not, without the consent of each affected Participant, agree to any amendment,
modification or waiver described in clauses (i), (ii), (iii), (iv), (v), (vii)
and (viii) of the first proviso to Section 9.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, the Borrowers agree that
each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and
2.16 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.14 or 2.16 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the prior written
consent of the Parent.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any such pledge or assignment to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Borrowers herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, any separate
letter agreements with respect to fees payable to the Administrative Agent and
the Escrow Letter dated September 16, 1999 from the Parent to the Persons listed
on Schedule 1 thereto constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, and the Loans have been accelerated pursuant to
Section 7.01, each Lender is hereby authorized at any time after the
62
Certain Funds Termination Date and from time to time thereafter, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the credit or the
account of a Borrower against any of and all the obligations of any other
Borrower now or hereafter existing under this Agreement held by such Lender. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, 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 such
New York State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Administrative Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
against any Borrower or its properties in the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which 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 in any court referred to
in paragraph (b) of this Section. 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.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal
63
counsel and other advisors on a need-to-know basis (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Parent or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than a Borrower. For the purposes
of this Section, "Information" means all information received from the Parent or
any of its Subsidiaries relating to its business, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by the Parent or any of its
Subsidiaries; provided that, (i) in the case of information received from the
Parent or any of its Subsidiaries after the date hereof, such information is
clearly identified at the time of delivery as confidential and (ii) with respect
to disclosures pursuant to clauses (b) and (c) of this Section, unless
prohibited by applicable law or court order, each Lender and the Administrative
Agent shall notify the Parent of any request by any governmental agency or
representative thereof or other Person (other than any such request in
connection with an examination of the financial condition of such Lender by such
governmental agency) for disclosure of any such confidential information
promptly after receipt of such request, and if practicable and permissible,
before disclosure of such information. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. Additional Borrowers. On or after the Initial Funding
Date, the Parent may designate any Subsidiary of the Parent (of which the Parent
owns or Controls shares representing at least 80% of the ordinary voting power
of the issued and outstanding Capital Stock of such Subsidiary) as an Additional
Borrower by delivery to the Administrative Agent of an Additional Borrower
Agreement executed by such Subsidiary and the Parent, and upon such delivery
such Subsidiary shall for all purposes of this Agreement be an Additional
Borrower and a party to this Agreement until the Parent shall have executed and
delivered to the Administrative Agent an Additional Borrower Termination with
respect to such Subsidiary, whereupon such Subsidiary shall cease to be an
Additional Borrower and a party to this Agreement. Notwithstanding the preceding
sentence, no Additional Borrower Termination will become effective as to any
Additional Borrower at a time when any principal of or interest on any Loan to
such Additional Borrower shall be outstanding hereunder; provided that such
Additional Borrower Termination shall be effective to terminate such Additional
Borrower's right to make further Borrowings under this Agreement. As soon as
practicable upon receipt of an Additional Borrower Agreement, the Administrative
Agent shall send a copy thereof to each Lender. Each
64
Additional Borrower hereby irrevocably appoints the Parent as its agent for
service of process in respect of this Agreement and any Additional Borrower
Agreement; provided that such appointment will not affect the right of any party
to this Agreement to serve process on any Additional Borrower in any other
manner permitted by law.
SECTION 9.15. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto (including
any Additional Borrower) agrees, to the fullest extent that it may effectively
do so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures in the relevant jurisdiction the first currency could
be purchased with such other currency on the Business Day immediately preceding
the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due to any
party hereto or any holder of the obligations owing hereunder (the "Applicable
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to be due
hereunder (the "Agreement Currency"), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 9.15 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
AIR PRODUCTS AND CHEMICALS, INC.,
by /s/ Xxx X. Xxxxx
-------------------------
Name: Xxx X. Xxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent,
by /s/ Xxxxx Xxxxxxxx
-------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
ABBEY NATIONAL TREASURY SERVICES PLC,
by /s/ X. Xxxxx
-------------------------
Name: X. Xxxxx
Title: Head of Structured Finance
ABN AMRO BANK N.V.,
by /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: SVP
by /s/ Xxxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: VP
BANCA COMMERCIALE ITALIANA --
NEW YORK BRANCH,
by /s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
-------------------------
Name: X. Xxxxxxxxx Xxxxxx Xxxxxxx
Title: VP VP
BANCA DI ROMA -- NEW YORK BRANCH,
by /s/ Xxxxxx Xxxx /s/ Xxxxxxxxxx Xxxxx
-------------------------
Name: Xxxxxx Xxxx Xxxxxxxxxx Xxxxx
Title: VP Asst. Treasurer
BANCA MONTE DEI PASCHI DI SIENA S.P.A.,
by /s/ G. Natalicchi
-------------------------
Name: G. Natalicchi
Title: Senior Vice President & General
Manager
by /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
BANCA NAZIONALE DEL LAVORO S.P.A.,
NEW YORK BRANCH
by /s/ Xxxxxx Xxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
by /s/ Xxxxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
BANCO BILBAO VIZCAYA,
by /s/ Xxxx Xxxxxxx
-------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
by /s/ Xxxxxxxxx Xxxxx
-------------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
BANCO ESPANOL DE CREDITO, S.A.,
NEW YORK BRANCH
by /s/ Xxxx Xxxxxxxxx
-------------------------
Name: Xxxx Xxxxxxxxx
Title: Executive Vice-President
by /s/ Xxxx Calan
-------------------------
Name: Xxxx Calan
Title: Senior Vice-President
BANK HAPOALIM B.M.,
by /s/ Xxxxx Xxxx Xxxxx /s/ Xxxxx Bieidbort
-------------------------
Name: Xxxxx Xxxx Xxxxx Xxxxx Bieidordbort
Title: FVP VP
BANK OF AMERICA, N.A.,
by /s/ Xxxxxx X. Xxxx
-------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
BANK OF CHINA,
by /s/ Luo Jiashu
-------------------------
Name: Luo Jiashu
Title: Deputy General Manager
THE BANK OF NOVA SCOTIA,
by /s/ J. Xxxx Xxxxxxx
-------------------------
Name: J. Xxxx Xxxxxxx
Title: Authorized Signatory
BANK OF TOKYO -- MITSUBISHI TRUST
COMPANY,
by /s/ Xxxx X'Xxxxxx
-------------------------
Name: Xxxx X'Xxxxxx
Title: Vice President
BANQUE NATIONALE DE PARIS,
NEW YORK BRANCH,
by /s/ Xxxxxxx X. Xxxx
-------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
by /s/ Xxxxxx Xxxxxx
-------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Corporate Banking Division
BARCLAYS BANK PLC,
by /s/ Xxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH,
by /s/ Xxxxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Director
by /s/ Xxxx Xxxxxxxxx
-------------------------
Name: Xxxx Xxxxxxxxx
Title: Associate Director
CAISSE DES DEPOTS ET CONSIGNATIONS,
by /s/ signed
-------------------------
Name:
Title:
CITIBANK, NA,
by /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
COMMERZBANK AG (NEW YORK BRANCH),
by /s/ Xxxxxx Xxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
by /s/ Xxxxxx Xxxx
-------------------------
Name: Xxxxxx Xxxx
Title: Assistant Treasurer
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE,
by /s/ X. X. Xxxxxx /s/ A. de Gromard
-------------------------
Name: X. X. Xxxxxx A. de Gromard
Title: Manager Senior Manager
CREDIT AGRICOLE INDOSUEZ,
by /s/ signed /s/ signed
-------------------------
Name:
Title: FVP VP
CREDIT COMMERCIAL DE FRANCE,
by /s/ Xxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director Head of Corporate Banking
by /s/ Yves Meynial
-------------------------
Name: Yves Meynial
Title: Executive Vice President
& General Manager - UK
CREDIT LYONNAIS, NEW YORK BRANCH
by /s/ Xxxxxxxx Xxxxx
-------------------------
Name: Xxxxxxxx Xxxxx
Title: First Vice President - Manager
THE DAI-ICHI KANGYO BANK, LTD.,
by /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
DEUTSCHE BANK AG LONDON
by /s/ M. G. W. Xxxxxxx-Xxxxx
-------------------------
Name: M. G. W. Xxxxxxx-Xxxxx
Title: Senior Associate Director
by /s/ X. X. Xxxxxxxxx
-------------------------
Name: X. X. Xxxxxxxxx
Title: Managing Director
DRESDNER BANK AG,
NEW YORK AND GRAND CAYMAN
BRANCHES,
by /s/ Xxxxxxx Xxxxxxxxxx /s/ A. Xxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxxxx A. Xxxxxxx Xxxxxx
Title: Vice President First Vice President
FIRST COMMERCIAL BANK,
NEW YORK AGENCY,
by /s/ Xxxxxxx X. X. Xxxx
-------------------------
Name: Xxxxxxx X. X. Xxxx
Title: SVP & General Manager
FIRST UNION NATIONAL BANK,
by /s/ Xxxxxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
FLEET NATIONAL BANK, N.A.,
by /s/ Xxxxxxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
THE FUJI BANK, LIMITED,
by /s/ Xxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President & Manager
XXXXXXX SACHS CREDIT PARTNERS L.P.,
by /s/ signed
-------------------------
Name:
Title:
HSBC BANK USA,
by /s/ X. X. Xxxxxx
-------------------------
Name: X. X. Xxxxxx
Title: Assistant Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
by /s/ Xxxx Xxxxx
-------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
XXXXXX COMMERCIAL PAPER INC.,
by /s/ Xxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
MELLON BANK, N.A.,
by /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
XXXXXX XXXXXXX SENIOR FUNDING, INC.
by /s/ Xxxx Xxxxxxxx
-------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
NATIONAL CITY BANK,
by /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
NORDDEUTSCHE LANDESBANK GIROZENTRALE,
by /s/ Xxxxxxxxx Xxxxxx /s/ Xxxxx Xxxx
-------------------------
Name: Xxxxxxxxx Xxxxxx Xxxxx Xxxx
Title: Vice President Vice President
PARIBAS,
/s/ Xxxxxx X. Xxxxx, Xx. by /s/ Xxxx Xxxxxxxx
------------------------ -------------------------
Xxxxxx X. Xxxxx, Xx Name: Xxxx Xxxxxxxx
Managing Director Title: Vice President
ROYAL BANK OF CANADA,
by /s/ Xxxxxx X. Greenbery
-------------------------
Name: Xxxxxx X. Greenbery
Title: Senior Manager
THE SANWA BANK, LIMITED,
NEW YORK BRANCH
by /s/ Xxxxxx X. Xxx
-------------------------
Name: Xxxxxx X. Xxx
Title: Vice President and Area Manager
STANDARD CHARTERED BANK,
by /s/ Xxxxx X. Cutting /s/ Xxxxxx X. Xx
-------------------------
Name: Xxxxx X. Cutting Xxxxxx X. Xx
Title: Senior Vice President Vice President
& CDM
THE SUMITOMO BANK, LIMITED,
by /s/ C. Xxxxxxx Xxxxxxx
-------------------------
Name: C. Xxxxxxx Xxxxxxx
Title: Senior Vice President
TORONTO DOMINION (TEXAS), INC.,
by /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
WACHOVIA BANK, N.A.
by /s/ Xxxxx Xxxxxx
-------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH,
by /s/ Xxxx X. Xxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
by /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Associate
WESTPAC BANKING CORPORATION,
by /s/ Xxxx Xxxxx
-------------------------
Name: Xxxx Xxxxx
Title: Vice President
FORTIS (USA) FINANCE LLC,
by /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANK ONE, NA (MAIN OFFICE CHICAGO),
by /s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxxxx
-------------------------
Name: Xxxxx Xxxxxx Xxxxx Xxxxxxxx
Title: Senior Vice President Senior V.P.
THE ROYAL BANK OF SCOTLAND PLC
by /s/ Xxxxx Xxxx
-------------------------
Name: Xxxxx Xxxx
Title: Vice President
Schedule 1.01(a)
Pricing Grid
The Applicable Rate and facility fee applicable to the 364-Day Revolving
Loans and the 364-Day Revolving Commitments and the Applicable Rate and facility
fee applicable to the Five-Year Revolving Loans and Five-Year Revolving
Commitments are, at any time, the Applicable Rate or facility fee set forth
below opposite the then-applicable ratings by S&P and Xxxxx'x for the Loans:
----------------------------------------------- -----------------------------------------------
Ratings 364-Day Revolving Facility Five-Year Revolving Facility
----------------------------------------------- -----------------------------------------------
Applicable Applicable Facility Applicable Applicable Facility
Rate Rate Fee Rate Rate Fee
ABR Loans Eurodollar ABR Loans Eurodollar
Loans Loans
--------------- ---------------- ---------------- ------------- ---------------- --------------- --------------
A/A2 0% 0.41% 0.09% 0% 0.375% 0.125%
--------------- ---------------- ---------------- ------------- ---------------- --------------- --------------
A-/A3 0% 0.65% 0.10% 0% 0.60% 0.15%
--------------- ---------------- ---------------- ------------- ---------------- --------------- --------------
BBB+/Baa1 0% 0.875% 0.125% 0% 0.825% 0.175%
--------------- ---------------- ---------------- ------------- ---------------- --------------- --------------
BBB/Baa2 0.10% 1.10% 0.15% 0.05% 1.05% 0.20%
--------------- ---------------- ---------------- ------------- ---------------- --------------- --------------
BBB-/Baa3 0.325% 1.325% 0.175% 0.275% 1.275% 0.225%
--------------- ---------------- ---------------- ------------- ---------------- --------------- --------------
BB+/Ba1 0.80% 1.80% 0.20% 0.70% 1.70% 0.30%
--------------- ---------------- ---------------- ------------- ---------------- --------------- --------------
For purposes of the foregoing, (i) if either Xxxxx'x or S&P shall not have
in effect a rating for the Loans (after both Xxxxx'x and S&P shall have had
ratings in effect for the Loans, it being understood that until such time as
both Xxxxx'x and S&P have ratings in effect for the Loans, if either Xxxxx'x or
S&P shall have a rating in effect for the Loans, the Applicable Rates and
facility fees shall be determined based solely upon such rating), then such
rating agency shall be deemed to have established a rating for the Loans equal
to the applicable senior unsecured debt rating for the Parent then in effect;
(ii) if the ratings established or deemed to have been established by Xxxxx'x
and S&P for the Loans shall fall within different Categories, the Applicable
Rates and facility fees shall be based on the higher (or lower, if the Parent's
commercial paper is not rated at least P2 and A2 by Xxxxx'x and S&P,
respectively) of the two ratings unless (in the case of Applicable Rates or
facility fees based on the higher of two ratings) one of the two ratings is two
or more Categories lower than the other, in which case the Applicable Rates and
facility fees shall be determined by reference to the Category next above that
of the lower of the two ratings; and (iii) if the ratings established or deemed
to have been established by Xxxxx'x and S&P for the Loans shall be changed
(other than as a result of a change in the rating system of Xxxxx'x or S&P),
such change shall be effective as of the date on which it is first announced by
the applicable rating agency. Each change in the Applicable Rates and facility
fees shall apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of the
next such change. Subject to the next succeeding sentence, if the rating system
of Xxxxx'x or S&P shall change, or if either such rating agency shall cease to
be in the business of rating corporate debt obligations, or if Xxxxx'x and S&P
shall not have in effect a rating for the Loans or senior unsecured debt ratings
for the Parent, the Parent and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Applicable Rates and facility fees shall be
determined by reference to the rating most recently in effect prior to such
change or cessation. Notwithstanding the foregoing, until such time as Xxxxx'x
or S&P shall initially have in effect a rating for the Loans, the Applicable
Rates and facility fees shall be determined by reference to the indicative
ratings referred to in Section 4.01(h) as the same may be adjusted from time to
time.
