Exhibit 10.2
EXECUTION COPY
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5-YEAR COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of August 8, 2002
among
THE X.X. XXXXXXX COMPANY,
as Borrower,
THE BANKS NAMED HEREIN,
JPMORGAN CHASE BANK,
as Administrative Agent,
X.X. XXXXXX SECURITIES INC.,
as Sole Advisor, Lead Arranger and
Sole Bookrunner, and
WACHOVIA BANK, N.A., US BANK N.A., MELLON BANK, N.A.,
KEYBANK NATIONAL ASSOCIATION and SUNTRUST BANK,
as Co-Syndication Agents
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.......................................................................1
Section 1.01. Defined Terms........................................................1
Section 1.02. Terms Generally.....................................................11
ARTICLE II THE CREDITS.....................................................................11
Section 2.01. Commitments.........................................................11
Section 2.02. Loans...............................................................12
Section 2.03. Competitive Bid Procedure...........................................13
Section 2.04. Standby Borrowing Procedure.........................................15
Section 2.05. Refinancings........................................................15
Section 2.06. Fees................................................................16
Section 2.07. Repayment of Loans; Evidence of Debt................................17
Section 2.08. Interest on Loans...................................................17
Section 2.09. Default Interest....................................................18
Section 2.10. Alternate Rate of Interest..........................................18
Section 2.11. Termination and Reduction of Commitments............................18
Section 2.12. Prepayment..........................................................19
Section 2.13. Reserve Requirements; Change in Circumstances.......................19
Section 2.14. Change in Legality..................................................21
Section 2.15. Indemnity...........................................................21
Section 2.16. Pro Rata Treatment..................................................22
Section 2.17. Sharing of Setoffs..................................................23
Section 2.18. Payments............................................................23
Section 2.19. Taxes...............................................................23
Section 2.20. Mandatory Assignment; Commitment Termination........................26
ARTICLE III REPRESENTATIONS AND WARRANTIES.................................................26
Section 3.01. Organization; Powers................................................26
Section 3.02. Authorization.......................................................27
Section 3.03. Enforceability......................................................27
Section 3.04. Governmental Approvals..............................................27
Section 3.05. Financial Statements................................................27
Section 3.06. No Material Adverse Change..........................................28
Section 3.07. Title to Properties; Possession Under Leases........................28
Section 3.08. Stock of Borrower...................................................28
Section 3.09. Litigation; Compliance with Laws....................................28
Section 3.10. Agreements..........................................................28
Section 3.11. Federal Reserve Regulations.........................................28
Section 3.12. Investment Company Act; Public Utility Holding Company Act..........29
Section 3.13. Use of Proceeds.....................................................29
Section 3.14. Tax Returns.........................................................29
Section 3.15. No Material Misstatements...........................................29
Section 3.16. Employee Benefit Plans..............................................29
Section 3.17. Environmental and Safety Matters....................................30
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PAGE
ARTICLE IV CONDITIONS OF LENDING...........................................................30
Section 4.01. All Borrowings......................................................30
Section 4.02. First Borrowing.....................................................31
ARTICLE V AFFIRMATIVE COVENANTS............................................................32
Section 5.01. Existence; Businesses and Properties................................32
Section 5.02. Insurance...........................................................32
Section 5.03. Obligations and Taxes...............................................33
Section 5.04. Financial Statements, Reports, etc..................................33
Section 5.05. Litigation and Other Notices........................................34
Section 5.06. ERISA...............................................................34
Section 5.07. Maintaining Records; Access to Properties and Inspections...........35
Section 5.08. Use of Proceeds.....................................................35
Section 5.09. Filings.............................................................35
ARTICLE VI NEGATIVE COVENANTS..............................................................35
Section 6.01. Indebtedness........................................................35
Section 6.02. Liens...............................................................36
Section 6.03. Sale and Lease-Back Transactions....................................37
Section 6.04. Mergers, Consolidations and Sales of Assets.........................38
Section 6.05. Interest Coverage Ratio.............................................38
Section 6.06. Fiscal Year.........................................................38
ARTICLE VII EVENTS OF DEFAULT..............................................................38
ARTICLE VIII THE AGENT.....................................................................41
ARTICLE IX MISCELLANEOUS...................................................................43
Section 9.01. Notices.............................................................43
Section 9.02. Survival of Agreement...............................................43
Section 9.03. Binding Effect......................................................44
Section 9.04. Successors and Assigns..............................................44
Section 9.05. Expenses; Indemnity.................................................47
Section 9.06. Rights of Setoff....................................................48
SECTION 9.07. APPLICABLE LAW......................................................48
Section 9.08. Waivers; Amendment..................................................48
Section 9.09. Interest Rate Limitation............................................48
Section 9.10. Entire Agreement....................................................49
Section 9.11. Waiver of Jury Trial................................................49
Section 9.12. Severability........................................................49
Section 9.13. Counterparts........................................................49
Section 9.14. Headings............................................................49
Section 9.15. Jurisdiction; Consent to Service of Process.........................49
Section 9.16. Confidentiality.....................................................50
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Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Administrative Questionnaire
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Opinion of Counsel
Schedule 2.01 Commitments
Schedule 3.09 Litigation
Schedule 3.17 Environmental
Schedule 6.01 Indebtedness
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5-YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
dated as of August 8, 2002, among THE X.X. XXXXXXX COMPANY, an Ohio corporation
(the "Borrower"), the banks listed in Schedule 2.01 (the "Banks"), JPMORGAN
CHASE BANK, a New York banking corporation, as agent for the Banks (in such
capacity, the "Agent").
The Borrower has requested the Banks to extend credit to the Borrower
in order to enable it to borrow on a standby revolving credit basis on and after
the date hereof and at any time and from time to time prior to the Maturity Date
(as herein defined) a principal amount not in excess of $200,000,000 at any time
outstanding. The Borrower has also requested the Banks to provide a procedure
pursuant to which the Borrower may invite the Banks to bid on an uncommitted
basis on short-term borrowings by the Borrower. The proceeds of such borrowings
are to be used for general corporate purposes. The Banks are willing to extend
such credit to the Borrower on the terms and subject to the conditions herein
set forth.
Accordingly, the Borrower, the Banks and the Agent agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Administrative Fees" shall have the meaning assigned to such term in
Section 2.06(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B hereto.
"Affiliate" shall mean, when used 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.
"Aggregate Commitments": at any time, the sum of the aggregate amount
of the Commitments then in effect and the aggregate amount of the Commitments
(as defined in the Other Agreement) then in effect.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) 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
1/2 of 1%. For purposes hereof, "Prime Rate" shall
mean the rate of interest per annum publicly announced from time to time by the
Agent as its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective on the date such change is publicly
announced as effective. "Base CD Rate" shall mean the sum of (a) the product of
(i) the Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the
Assessment Rate. "Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day shall not be a Business Day, the 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 shall not be 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 shall not be a Business Day, on the
next preceding Business Day) by the Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it. "Federal
Funds Effective Rate" shall mean, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of new York, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it. If for any reason the Agent shall
have determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the Federal Funds Effective
Rate or both for any reason, including the inability or failure of the Agent to
obtain sufficient quotations in accordance with the terms thereof, the Alternate
Base Rate shall be determined without regard to clause (b) or (c), or both, of
the first sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively.
"Applicable Percentage" shall mean on any date, with respect to the
Facility Fee or the Loans comprising any Eurodollar Standby Borrowing, the
applicable percentage set forth below based upon the ratings applicable on such
date to the Borrower's implied or actual senior, unsecured, non-credit-enhanced
long-term indebtedness for borrowed money (the "Index Debt"):
FEE AND SPREAD TABLE
============== ============================ ================ =================
RATINGS (S&P/XXXXX'X) FACILITY FEE LIBOR SPREAD
-------------- ---------------------------- ---------------- -----------------
Category 1 A+/A1 or higher 0.0700% 0.1550%
-------------- ---------------------------- ---------------- -----------------
Category 2 A/A2 0.0800% 0.1700%
-------------- ---------------------------- ---------------- -----------------
Category 3 A-/A3 0.1000% 0.2000%
-------------- ---------------------------- ---------------- -----------------
Category 4 BBB+/Baa1 0.1250% 0.3750%
-------------- ---------------------------- ---------------- -----------------
Category 5 BBB/Baa2 0.1500% 0.4750%
-------------- ---------------------------- ---------------- -----------------
Category 6 BBB-/Baa3 or lower 0.1750% 0.5750%
============== ============================ ================ =================
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For purposes of the foregoing, (a) if no rating for the Index Debt
shall be available from either Xxxxx'x or S&P (other than by reason of the
circumstances referred to in the last sentence of this definition), each such
rating agency shall be deemed to have established a rating in Category 4; (b) if
only one of Xxxxx'x and S&P shall have in effect a rating for the Index Debt,
the Applicable Percentage shall be determined by reference to the available
rating; (c) if the ratings established or deemed to have been established by
Xxxxx'x and S&P shall fall within different categories, the Applicable
Percentage shall be based upon the superior (or numerically lower) category
unless the ratings differ by more than one category, in which case the governing
rating shall be the rating next below the higher of the two; and (d) if any
rating established or deemed to have been established by Xxxxx'x or S&P shall be
changed (other than as a result of a change in the rating system of either
Xxxxx'x or S&P), such change shall be effective as of the date on which such
change is first announced publicly by the rating agency making such change. Any
change in the LIBOR spread due to a change in the applicable category shall be
effective on the effective date of such change in the applicable category and
shall apply to all Eurodollar Standby Loans that are outstanding at any time
during the period commencing on the effective date of such change in the
applicable category and ending on the date immediately preceding the effective
date of the next such change in the applicable category. If the rating system of
either Xxxxx'x or S&P shall change, the Borrower and the Banks shall negotiate
in good faith to amend the references to specific ratings in this definition to
reflect such changed rating system. If either Xxxxx'x or S&P shall cease to be
in the business of rating corporate debt obligations, the Borrower and the Banks
shall negotiate in good faith to agree upon a substitute rating agency and to
amend the references to specific ratings in this definition to reflect the
ratings used by such substitute rating agency and, pending such agreement, the
Applicable Percentage shall be determined on the basis of the ratings provided
by the other rating agency.
"Assessment Rate" shall mean for any date the annual rate (rounded
upwards if necessary, to the next 1/100 of 1%) most recently estimated by the
Agent as the then current net annual assessment rate that will be employed in
determining amounts payable by the Agent to the Federal Deposit Insurance
Corporation (or such successor) of time deposits made in dollars at the Agent's
domestic offices.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Bank and an assignee, and accepted by the Agent, in the form
of Exhibit C.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrowing" shall mean a group of Loans of a single Type made by the
Banks (or, in the case of a Competitive Borrowing, by the Bank or Banks whose
Competitive Bids have been accepted pursuant to Section 2.03) on a single date
and as to which a single Interest Period is in effect.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; PROVIDED, HOWEVER, that, when used in
connection with a Eurodollar Loan, the
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term "Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any person shall mean 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, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if the Trust or
the beneficiaries thereof shall not be the direct or indirect owner,
beneficially and of record, of at least 51% of the issued and outstanding Common
Voting Shares, $.01 par value per share, of the Borrower and any other common
stock at any time issued by the Borrower, other than the Borrower's Class A
Common Shares, $.01 per share.
"Closing Date" shall mean August 8, 2002.
"Code" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
"Commitment" shall mean, with respect to each Bank, the commitment of
such Bank hereunder as set forth in Schedule 2.01 hereto, as such Bank's
Commitment may be permanently terminated or reduced from time to time pursuant
to Section 2.11. The Commitments shall automatically and permanently terminate
on the Maturity Date.
"Competitive Bid" shall mean an offer by a Bank to make a Competitive
Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification made
by the Borrower pursuant to Section 2.03(d) in the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a
Bank pursuant to Section 2.03(b), (i) in the case of a Eurodollar Loan, the
Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of interest
offered by the Bank making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to
Section 2.03 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Bank or Banks whose
Competitive Bids for such Borrowing have been accepted by the Borrower under the
bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan from a Bank to the Borrower
pursuant to the bidding procedure described in Section 2.03. Each Competitive
Loan shall be a Eurodollar Competitive Loan or a Fixed Rate Loan.
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"Consolidated Cash Flow" shall mean with respect to any person for any
period the aggregate operating income of such person and its consolidated
subsidiaries plus any depreciation and any amortization of intangibles arising
from acquisitions that have been deduced in deriving such operating income, all
computed and consolidated in accordance with GAAP.
"Consolidated Indebtedness" with respect to any person shall mean the
aggregate Indebtedness of such person and its consolidated subsidiaries,
consolidated in accordance with GAAP.
"Consolidated Interest Expense" with respect to any person shall mean
for any period the aggregate interest expense of such person and its
consolidated subsidiaries for such period, computed and consolidated in
accordance with GAAP.
"Consolidated Net Income" with respect to any person shall mean for
any period the aggregate net income (or net deficit) of such person and its
consolidated subsidiaries for such period equal to gross revenues and other
proper income less the aggregate for such person and its consolidated
subsidiaries of (i) operating expenses, (ii) selling, administrative and general
expenses, (iii) taxes, (iv) depreciation, depletion and amortization of
properties and (v) any other items that are treated as expenses under GAAP but
excluding from the definition of Consolidated Net Income any extraordinary gains
or losses, all computed and consolidated in accordance with GAAP.
"Consolidated Stockholders' Equity" with respect to any person shall
mean the aggregate Stockholders' Equity of such person and its consolidated
subsidiaries, consolidated in accordance with GAAP.
"Control" shall mean 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 ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of
America.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which the Borrower is a member and
which is treated as a single employer under Section 414 of the Code.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
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"Eurodollar Competitive Loan" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Competitive Loan or
Eurodollar Standby Loan.
"Eurodollar Standby Borrowing" shall mean a Borrowing comprised of
Eurodollar Standby Loans.
"Eurodollar Standby Loan" shall mean any Standby Loan bearing interest
at a rate determined by reference to the LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Existing Credit Agreement" shall mean the 5-Year Competitive Advance
and Revolving Credit Facility Agreement dated as of September 26, 1997, as
amended, among the Borrower, the banks named therein and JPMorgan Chase Bank,
successor by merger to the Chase Manhattan Bank, as agent.
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a).
"Fee Letter" shall mean the letter agreement dated July 2, 2002,
between the Borrower and the Agent, providing for the payment of certain fees or
other amounts in connection with the credit facilities established by this
Agreement.
"Fees" shall mean the Facility Fee and the Administrative Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer, Assistant Treasurer or
Controller of such corporation.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed Rate
Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing interest at
a fixed percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Bank making such Loan in its
Competitive Bid.
"GAAP" shall mean generally accepted accounting principles, applied on
a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or
6
to advance or supply funds for the purchase of) any security for the payment of
such Indebtedness, (b) to purchase property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; PROVIDED, HOWEVER, that the
term Guarantee shall not include endorsements for collection or deposit, in
either case in the ordinary course of business.
"Indebtedness" of any person shall mean, 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
or assets purchased by such person, (d) all obligations of such person issued or
assumed as the deferred purchase price of property or services, (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 obligations
secured thereby have been assumed, (f) all Guarantees by such person of
Indebtedness of others, (g) all Capital Lease Obligations of such person, (h)
all obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange
rate hedging arrangements, in such amount which exceeds $15,000,000 at any time
and (i) all obligations of such person as an account party in respect of letters
of credit and bankers' acceptances; PROVIDED that the definition of Indebtedness
shall not include (i) accounts payable to suppliers and (ii) programming rights,
in each case incurred in the ordinary course of business and not overdue. The
Indebtedness of any person shall include the recourse Indebtedness of any
partnership in which such person is a general partner. For purposes of this
Agreement, the amount of any Indebtedness referred to in clause (h) of the
preceding sentence shall be amounts, including any termination payments,
required to be paid to a counterparty after giving effect to any contractual
netting arrangements, and not any notional amount with regard to which payments
may be calculated.
"Interest Payment Date" shall mean, with respect to any Loan, the last
day of the Interest Period applicable thereto and, in the case of a Eurodollar
Loan with an Interest Period of more than three months' duration or a Fixed Rate
Loan with an Interest Period of more than 90 days' duration, each day that would
have been an Interest Payment Date for such Loan had successive Interest Periods
of three months' duration or 90 days' duration, as the case may be, been
applicable to such Loan and, in addition, the date of any refinancing or
conversion of such Loan with or to a Loan of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months (or, if agreed to by all Banks, 9 or 12 months) thereafter, as
the Borrower may elect, (b) as to any ABR Borrowing, the period commencing on
the date of such Borrowing and ending on the date 90 days thereafter or, if
earlier, on the Maturity Date or the date of prepayment of such Borrowing and
(c) as to any Fixed Rate Borrowing, the period commencing on the date of such
Borrowing and ending on the date
7
specified in the Competitive Bids in which the offer to make the Fixed Rate
Loans comprising such Borrowing were extended, which shall not be earlier than
seven days after the date of such Borrowing or later than 360 days after the
date of such Borrowing; PROVIDED, HOWEVER, that 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 Eurodollar Loans 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.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Telerate Service (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 reasonably determined by the
Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity comparable to
such Interest Period. In the event that such rate is not available at such time
for any reason, then the "LIBO RATE" with respect to such Eurodollar Borrowing
for such Interest Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Agent 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" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset or (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset.
"Loan" shall mean a Competitive Loan or a Standby Loan, whether made
as a Eurodollar Loan, an ABR Loan or a Fixed Rate Loan, as permitted hereby.
"Loan Documents" shall mean this Agreement and the Fee Letter.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be added to or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"Margin Stock" shall have the meaning given such term under
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse effect
on the business, assets, operations, or condition, financial or otherwise, of
the Borrower and its Subsidiaries taken as a whole, (b) material impairment of
the ability of the Borrower or any Subsidiary to perform any of its obligations
under any Loan Document to which it is or will be a party or (c) material
impairment of the rights of or benefits expressly available to the Banks under
any Loan Document.
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"Maturity Date" shall mean August 8, 2007.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Code Section 414) is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an obligation to
make contributions.
"Other Agreement" shall mean the 364-Day Competitive Advance and
Revolving Credit Facility Agreement, dated as of the date hereof, among the
Borrower, the banks named therein, JPMorgan Chase Bank, as administrative agent,
and X.X. Xxxxxx Securities Inc.
"Participant" shall have the meaning set forth in Section 9.04.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Plan" shall mean any pension plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code and
which is maintained for employees of the Borrower or any ERISA Affiliate.
"Rate" shall include the LIBO Rate, the Alternate Base Rate and the
Fixed Rate.
"Register" shall have the meaning given such term in Section
9.04(b)(iv).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Parties" shall mean, 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.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"Required Banks" shall mean, at any time, Banks having Commitments
representing at least 51% of the Total Commitment or, for purposes of
acceleration pursuant to
9
clause (ii) of Article VII, Banks holding Loans representing at least 51% of the
aggregate principal amount of the Loans outstanding.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Standby Borrowing" shall mean a borrowing consisting of simultaneous
Standby Loans from each of the Banks.
"Standby Borrowing Request" shall mean a request made pursuant to
Section 2.04 in the form of Exhibit A-5.
"Standby Loans" shall mean the revolving loans made by the Banks to
the Borrower pursuant to Section 2.04. Each Standby Loan shall be a Eurodollar
Standby Loan or an ABR Loan.
"Statutory Reserves" shall mean 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 and any other banking authority to which the Agent is
subject for new negotiable nonpersonal time deposits in dollars of over $100,000
with maturities approximately equal to the applicable Interest Period. Statutory
Reserves shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"Stockholders' Equity" shall mean, for any corporation, the
consolidated total stockholders' equity of such corporation determined in
accordance with GAAP, consistently applied.
"subsidiary" shall mean, with respect to any person (herein referred
to as the "parent"), any corporation, partnership, association or other business
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 more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) which is, at the time any
determination is made, 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" shall mean any subsidiary of the Borrower.
"Total Commitment" shall mean at any time the aggregate amount of the
Banks' Commitments, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Trust" shall mean The Xxxxxx X. Scripps Trust, being that certain
trust for the benefit of descendants of Xxxxxx X. Scripps and owning shares of
capital stock of the Borrower.
10
"Type", when used in respect of any Loan or Borrowing, shall refer
to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined.
"Utilization Fee" shall have the meaning assigned to such term in
Section 2.06(c).
"Withdrawal Liability" shall mean 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. TERMS GENERALLY. The definitions in Section 1.01 shall
apply equally to both 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".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. 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,
HOWEVER, that, for purposes of determining compliance with any covenant set
forth in Article VI, such terms shall be construed in accordance with GAAP as in
effect on the date of this Agreement applied on a basis consistent with the
application used in preparing the Borrower's audited financial statements
referred to in Section 3.05.
ARTICLE II
THE CREDITS
Section 2.01. COMMITMENTS. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Bank
agrees, severally and not jointly, to make Standby Loans to the Borrower, at any
time and from time to time on and after the date hereof and until the earlier of
the Maturity Date and the termination of the Commitment of such Bank as provided
in this Agreement, in an aggregate principal amount at any time outstanding not
to exceed such Bank's Commitment minus the amount by which the Competitive Loans
outstanding at such time shall be deemed to have used such Commitment pursuant
to Section 2.16, subject, however, to the conditions that (a) at no time shall
(i) the sum of (x) the outstanding aggregate principal amount of all Standby
Loans made by all Banks plus (y) the outstanding aggregate principal amount of
all Competitive Loans made by all Banks exceed (ii) the Total Commitment and (b)
at all times the outstanding aggregate principal amount of all Standby Loans
made by each Bank shall equal the product of (i) the percentage which its
Commitment represents of the Total Commitment times (ii) the outstanding
aggregate principal amount of all Standby Loans made pursuant to Section 2.04.
Each Bank's Commitment is set forth opposite its respective name in Schedule
2.01. Such Commitments may be terminated or reduced from time to time pursuant
to Section 2.11.
Within the foregoing limits, the Borrower may borrow, pay or repay and
reborrow hereunder, on and after the Closing Date and prior to the Maturity
Date, subject to the terms, conditions and limitations set forth herein.
11
Section 2.02. LOANS. (a) Each Standby Loan shall be made as part of a
Borrowing consisting of Loans made by the Banks ratably in accordance with their
Commitments; provided, however, that the failure of any Bank to make any Standby
Loan shall not in itself relieve any other Bank of its obligation to lend
hereunder (it being understood, however, that no Bank shall be responsible for
the failure of any other Bank to make any Loan required to be made by such other
Bank). Each Competitive Loan shall be made in accordance with the procedures set
forth in Section 2.03. The Standby Loans or Competitive Loans comprising any
Borrowing shall be (i) in the case of Competitive Loans, in an aggregate
principal amount which is an integral multiple of $1,000,000 and not less than
$5,000,000 and (ii) in the case of Standby Loans, in an aggregate principal
amount which is an integral multiple of $1,000,000 and not less than $10,000,000
in the case of Eurodollar Standby Loans and $5,000,000 in the case of ABR Loans
(or an aggregate principal amount equal to the remaining balance of the
available Commitments).
(b) Each Competitive Borrowing shall be comprised entirely of
Eurodollar Competitive Loans or Fixed Rate Loans, and each Standby Borrowing
shall be comprised entirely of Eurodollar Standby Loans or ABR Loans, as the
Borrower may request pursuant to Section 2.03 or 2.04, as applicable. Each Bank
may at its option make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Bank to make such Loan; PROVIDED that any exercise
of such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement. Borrowings of more than one
Type may be outstanding at the same time; PROVIDED, HOWEVER, that the Borrower
shall not be entitled to request any Borrowing which, if made, would result in
an aggregate of more than five separate Standby Loans of any Bank being
outstanding hereunder at any one time. For purposes of the foregoing, Loans
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Loans.
(c) Subject to Section 2.05, each Bank shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately
available funds to the Agent in New York, New York, not later than 12:00 noon,
New York City time, and the Agent shall by 3:00 p.m., New York City time, wire
transfer the amounts so received to the general deposit account of the Borrower
at Mellon Bank (or other general deposit account designated by the Borrower in
writing) or, if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so
received to the respective Banks. Competitive Loans shall be made by the Bank or
Banks whose Competitive Bids therefor are accepted pursuant to Section 2.03 in
the amounts so accepted and Standby Loans shall be made by the Banks pro rata in
accordance with Section 2.16. Unless the Agent shall have received notice from a
Bank prior to the date of any Borrowing that such Bank will not make available
to the Agent such Bank's portion of such Borrowing, the Agent may assume that
such Bank has made such portion available to the Agent on the date of such
Borrowing in accordance with this paragraph (c) and the Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have made
such portion available to the Agent, such Bank and the Borrower severally agree
(without duplication) to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent at (i) in the case of the Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing
12
and (ii) in the case of such Bank, the Federal Funds Effective Rate. If such
Bank shall repay to the Agent such corresponding amount, such amount shall
constitute such Bank's Loan as part of such Borrowing for purposes of this
Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
Section 2.03. COMPETITIVE BID PROCEDURE. (a) In order to request
Competitive Bids, the Borrower shall hand deliver or telecopy to the Agent a
duly completed Competitive Bid Request in the form of Exhibit A-1 hereto, to be
received by the Agent (i) in the case of a Eurodollar Competitive Borrowing, not
later than 10:00 a.m., New York City time, four Business Days before a proposed
Competitive Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, one Business Day before a proposed
Competitive Borrowing. No ABR Loan shall be requested in, or made pursuant to, a
Competitive Bid Request. A Competitive Bid Request that does not conform
substantially to the format of Exhibit A-1 may be rejected in the Agent's sole
discretion, and the Agent shall as soon as practicable notify the Borrower of
such rejection by telecopier. Such request shall in each case refer to this
Agreement and specify (x) whether the Borrowing then being requested is to be a
Eurodollar Borrowing or a Fixed Rate Borrowing, (y) the date of such Borrowing
(which shall be a Business Day) and the aggregate principal amount thereof which
shall be in a minimum principal amount of $5,000,000 and in an integral multiple
of $1,000,000, and (z) the Interest Period with respect thereto (which may not
end after the Maturity Date). As soon as practicable after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the Agent shall
invite by telecopier (in the form set forth in Exhibit A-2 hereto) the Banks to
bid, on the terms and conditions of this Agreement, to make Competitive Loans
pursuant to the Competitive Bid Request.
(b) Each Bank may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to a Competitive Bid Request. Each
Competitive Bid by a Bank must be received by the Agent via telecopier, in the
form of Exhibit A-3 hereto, (i) in the case of a Eurodollar Competitive
Borrowing, not later than 9:30 a.m., New York City time, three Business Days
before a proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m., New York City time, on the day of a
proposed Competitive Borrowing. Multiple bids will be accepted by the Agent.
Competitive Bids that do not conform substantially to the format of Exhibit A-3
may be rejected by the Agent after conferring with, and upon the instruction of,
the Borrower, such conference between the Agent and the Borrower to occur as
soon as practicable following the receipt by the Agent of such Competitive Bid,
and the Agent shall notify the Bank making such nonconforming bid of such
rejection as soon as practicable. Each Competitive Bid shall refer to this
Agreement and specify (x) the principal amount (which shall be in a minimum
principal amount of $5,000,000 and in an integral multiple of $1,000,000 and
which may equal the entire principal amount of the Competitive Borrowing
requested by the Borrower) of the Competitive Loan or Loans that the Bank is
willing to make to the Borrower, (y) the Competitive Bid Rate or Rates at which
the Bank is prepared to make the Competitive Loan or Loans and (z) the Interest
Period and the last day thereof. If any Bank shall elect not to make a
Competitive Bid, such Bank shall so notify the Agent via telecopier (I) in the
case of Eurodollar Competitive Loans, not later than 9:30 a.m., New York City
time, three Business
13
Days before a proposed Competitive Borrowing, and (II) in the case of Fixed Rate
Loans, not later than 9:30 a.m., New York City time, on the day of a proposed
Competitive Borrowing; PROVIDED, HOWEVER, that failure by any Bank to give such
notice shall not cause such Bank to be obligated to make any Competitive Loan as
part of such Competitive Borrowing. A Competitive Bid submitted by a Bank
pursuant to this paragraph (b) shall be irrevocable.
(c) The Agent shall as soon as practicable notify the Borrower by
telecopier (i) in the case of Eurodollar Competitive Loans, not later than 10:00
a.m., New York City time, three Business Days before a proposed Competitive
Borrowing, and (ii) in the case of Fixed Rate Loans, not later than 10:00 a.m.,
New York City time, on the day of a proposed Competitive Borrowing, of all the
Competitive Bids made, the Competitive Bid Rate and the principal amount of each
Competitive Loan in respect of which a Competitive Bid was made and the identity
of the Bank that made each bid. The Agent shall send a copy of all Competitive
Bids to the Borrower for its records as soon as practicable after completion of
the bidding process set forth in this Section 2.03.
(d) The Borrower may in its sole and absolute discretion, subject only
to the provisions of this paragraph (d), accept or reject any Competitive Bid
referred to in paragraph (c) above. The Borrower shall notify the Agent by
telephone, confirmed by telecopier in the form of a Competitive Bid
Accept/Reject Letter in the form of Exhibit A-4, whether and to what extent it
has decided to accept or reject any of or all the bids referred to in paragraph
(c) above, (x) in the case of a Eurodollar Competitive Borrowing, not later than
10:00 a.m., New York City time, three Business Days before a proposed
Competitive Borrowing, and (y) in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, on the day of a proposed Competitive
Borrowing; PROVIDED, HOWEVER, that (i) the failure by the Borrower to give such
notice shall be deemed to be a rejection of all the bids referred to in
paragraph (c) above, (ii) the Borrower shall not accept a bid made at a
particular Competitive Bid Rate if the Borrower has decided to reject an
unrestricted bid made at a lower Competitive Bid Rate, (iii) the aggregate
amount of the Competitive Bids accepted by the Borrower shall not exceed the
principal amount specified in the Competitive Bid Request, (iv) if the Borrower
shall accept a bid or bids made at a particular Competitive Bid Rate but the
amount of such bid or bids shall cause the total amount of bids to be accepted
by the Borrower to exceed the amount specified in the Competitive Bid Request,
then the Borrower shall accept a portion of such bid or bids in an amount equal
to the amount specified in the Competitive Bid Request less the amount of all
other Competitive Bids accepted with respect to such Competitive Bid Request,
which acceptance, in the case of multiple bids at such Competitive Bid Rate,
shall be made pro rata in accordance with the amount of each such bid at such
Competitive Bid Rate, and (v) except pursuant to clause (iv) above, no 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, HOWEVER, 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 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 which shall be in the
discretion of the Borrower. A notice given by the Borrower pursuant to this
paragraph (d) shall be irrevocable.
14
(e) The Agent shall promptly notify each bidding Bank (i) in the case
of Eurodollar Competitive Loans, not later than 11:00 a.m., New York City time,
three Business Days before a proposed Competitive Borrowing, and (ii) in the
case of Fixed Rate Loans, not later than 11:00 a.m., New York City time, on the
day of a proposed Competitive Borrowing, whether or not its Competitive Bid has
been accepted (and if so, in what amount and at what Competitive Bid Rate) by
telecopy sent by the Agent, and each successful bidder will thereupon become
bound, subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its bid has been accepted.
(f) A Competitive Bid Request shall not be made within five Business
Days after the date of any previous Competitive Bid Request.
(g) If the Agent shall elect to submit a Competitive Bid in its
capacity as a Bank, it shall submit such bid directly to the Borrower one
quarter of an hour earlier than the latest time at which the other Banks are
required to submit their bids to the Agent pursuant to paragraph (b) above.
(h) All Notices required by this Section 2.03 shall be given in
accordance with Section 9.01.
Section 2.04. STANDBY BORROWING PROCEDURE. In order to request a
Standby Borrowing, the Borrower shall hand deliver or telecopy to the Agent in
the form of Exhibit A-5 (a) in the case of a Eurodollar Standby Borrowing, not
later than 10:00 a.m., New York City time, three Business Days before a proposed
borrowing and (b) in the case of an ABR Borrowing, not later than 10:00 a.m.,
New York City time, on the day of a proposed borrowing. No Fixed Rate Loan shall
be requested or made pursuant to a Standby Borrowing Request. Such notice shall
be irrevocable and shall in each case specify (i) whether the Borrowing then
being requested is to be a Eurodollar Standby Borrowing or an ABR Borrowing;
(ii) the date of such Standby Borrowing (which shall be a Business Day) and the
amount thereof; and (iii) if such Borrowing is to be a Eurodollar Standby
Borrowing, the Interest Period with respect thereto. If no election as to the
Type of Standby Borrowing is specified in any such notice, then the requested
Standby Borrowing shall be an ABR Borrowing. If no Interest Period with respect
to any Eurodollar Standby Borrowing is specified in such notice, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. If the Borrower shall not have given notice in accordance with this
Section 2.04 of its election to refinance a Standby Borrowing prior to the end
of the Interest Period in effect for such Borrowing, then the Borrower shall
(unless such Borrowing is repaid at the end of such Interest Period) be deemed
to have given notice of an election to refinance such Borrowing with an ABR
Borrowing. The Agent shall promptly advise the Banks of any notice given
pursuant to this Section 2.04 and of each Bank's portion of the requested
Borrowing.
Section 2.05. REFINANCINGS. The Borrower may refinance all or any part
of any Borrowing with a Borrowing of the same or a different Type made pursuant
to Section 2.03 or Section 2.04, subject to the conditions and limitations set
forth herein and elsewhere in this Agreement, including refinancings of
Competitive Borrowings with Standby Borrowings and Standby Borrowings with
Competitive Borrowings. Any Borrowing or part thereof so refinanced shall be
repaid in accordance with Section 2.07 with the proceeds of a new Borrowing
15
hereunder and the proceeds of the new Borrowing shall be paid by the Banks to
the Agent or by the Agent to the Borrower pursuant to Section 2.02(c); PROVIDED,
HOWEVER, that (i) if the principal amount extended by a Bank in a refinancing is
greater than the principal amount extended by such Bank in the Borrowing being
refinanced, then such Bank shall pay such difference to the Agent for
distribution to the Banks described in (ii) below, (ii) if the principal amount
extended by a Bank in the Borrowing being refinanced is greater than the
principal amount being extended by such Bank in the refinancing, the Agent shall
return the difference to such Bank out of amounts received pursuant to (i)
above, and (iii) to the extent any Bank fails to pay the Agent amounts due from
it pursuant to (i) above, any Loan or portion thereof being refinanced with such
amounts shall not be deemed repaid in accordance with Section 2.07 and shall be
payable by the Borrower.
Section 2.06. FEES. (a) The Borrower agrees to pay to each Bank,
through the Agent, on each March 31, June 30, September 30 and December 31 and
on the date on which the Commitment of such Bank shall be terminated as provided
herein, a facility fee (a "Facility Fee") at a rate per annum equal to the
Applicable Percentage from time to time in effect, on the amount of the
Commitment of such Bank, whether used or unused, during the preceding quarter
(or shorter period commencing with the date hereof or ending with the Maturity
Date or any date on which the Commitment of such Bank shall be terminated as
provided in this Agreement). All Facility Fees shall be computed on the basis of
the actual number of days elapsed in a year of 360 days. The Facility Fee due to
each Bank shall commence to accrue on the date hereof and shall cease to accrue
on the earlier of the Maturity Date and the termination of the Commitment of
such Bank as provided herein.
(b) The Borrower agrees to pay the Agent, for its own account, the
fees (the "Administrative Fees") at the times and in the amounts agreed upon in
the Fee Letter.
(c) The Borrower agrees to pay, in immediately available funds, to the
Agent for the account of each Bank a fee (the "UTILIZATION FEE") based upon the
average daily amount of the outstanding Standby Loans of such Bank at a rate per
annum equal to 0.10%, when and for as long as the aggregate outstanding
principal amount of the sum of (a) the Standby Loans hereunder plus (b) the
aggregate principal amount of the Standby Loans (as defined therein) under the
Other Agreement exceeds 25% of (i) until the Availability Termination Date (as
defined therein) of the Other Agreement, the Aggregate Commitments, (ii) from
the Availability Termination Date (as defined therein) of the Other Agreement
through the Maturity Date (as defined therein) of the Other Agreement and the
payment in full of all Standby Loans (as defined therein), the aggregate amount
of the Commitments hereunder plus the aggregate amount of the Commitments (as
defined therein) under the Other Agreement in effect immediately prior to the
Availability Termination Date (as defined therein) of the Other Agreement and
(iii) after the Maturity Date (as defined therein) of the Other Agreement and
the payment in full of all Standby Loans (as defined therein), the aggregate
amount of the Commitments hereunder. The Utilization Fee shall be payable
quarterly in arrears on the last day of each March, June, September and
December, commencing on the first of such dates to occur after the date hereof,
and on the Maturity Date (or such earlier date on which the Commitments shall
terminate and the Loans and all interest, fees and other amounts in respect
thereof shall have been paid in full).
16
(d) All Fees shall be paid on the date due, in immediately available
funds, to the Agent for distribution, if and as appropriate, among the Banks.
Section 2.07. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower
hereby unconditionally promises to pay (i) to the Agent for the account of each
Bank the then unpaid principal amount of each Standby Loan on the Maturity Date
and (ii) to the Agent for the account of each applicable Bank the then unpaid
principal amount of each Competitive Loan on the last day of the Interest Period
applicable to such Loan.
(b) Each Bank shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Bank
resulting from each Loan made by such Bank, including the amounts of principal
and interest payable and paid to such Bank from time to time hereunder.
(c) The Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, whether such Loan is a Standby Loan or a
Competitive Loan, and the Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Bank hereunder and (iii) the
amount of any sum received by the Agent hereunder for the account of the Banks
and each Bank's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (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
Bank or the Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.
(e) Any Bank may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Bank a promissory note payable to the order of such Bank (or, if
requested by such Bank, to such Bank and its registered assigns) and in a usual
and customary form for such Type approved by the Agent in its reasonable
discretion.
Section 2.08. INTEREST ON LOANS. (a) Subject to the provisions of
Section 2.09, the Loans comprising each Eurodollar Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to (i) in the case of each Eurodollar Standby
Loan, the LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Percentage, and (ii) in the case of each Eurodollar Competitive
Loan, the LIBO Rate for the Interest Period in effect for such Borrowing plus
the Margin offered by the Bank making such Loan and accepted by the Borrower
pursuant to Section 2.03.
(b) Subject to the provisions of Section 2.09, the Loans comprising
each ABR Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, when
determined by reference to the Prime Rate and over a year of 360 days at all
other times) at a rate per annum equal to the Alternate Base Rate.
(c) Subject to the provisions of Section 2.09, each Fixed Rate Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a
17
year of 360 days) equal to the fixed rate of interest offered by the Bank making
such Loan and accepted by the Borrower pursuant to Section 2.03.
(d) Interest on each Loan shall be payable on each Interest Payment
Date applicable to such Loan. The LIBO Rate or the Alternate Base Rate for each
Interest Period or day within an Interest Period shall be determined by the
Agent, and such determination shall be conclusive absent manifest error.
Section 2.09. DEFAULT INTEREST. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, whether by scheduled maturity, notice of prepayment, acceleration
or otherwise, the Borrower shall on demand from time to time from the Agent pay
interest, to the extent permitted by law, on such defaulted amount up to (but
not including) the date of actual payment (after as well as before judgment) at
a rate per annum (computed as provided in Section 2.08(b)) equal to the
Alternate Base Rate plus 1%.
Section 2.10. ALTERNATE RATE OF INTEREST. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Agent shall have determined that
dollar deposits in the principal amounts of the Eurodollar Loans comprising such
Borrowing are not generally available in the London interbank market, or that
the rates at which such dollar deposits are being offered will not adequately
and fairly reflect the cost to any Bank of making or maintaining its Eurodollar
Loan during such Interest Period, or that reasonable means do not exist for
ascertaining the LIBO Rate, the Agent shall, as soon as practicable thereafter,
give written or telecopy notice of such determination to the Borrower and the
Banks. In the event of any such determination, until the Agent shall have
advised the Borrower and the Banks that the circumstances giving rise to such
notice no longer exist, (i) any request by the Borrower for a Eurodollar
Competitive Borrowing pursuant to Section 2.03 shall be of no force and effect
and shall be denied by the Agent and (ii) any request by the Borrower for a
Eurodollar Standby Borrowing pursuant to Section 2.04 shall be deemed to be a
request for an ABR Borrowing. Each determination by the Agent hereunder shall be
conclusive absent manifest error.
Section 2.11. TERMINATION AND REDUCTION OF COMMITMENTS. (a) The
Commitments shall be automatically terminated on the Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment; PROVIDED, HOWEVER, that (i) each partial reduction of the Total
Commitment shall be in an integral multiple of $5,000,000 and in a minimum
principal amount of $5,000,000 and (ii) no such termination or reduction shall
be made which would reduce the Total Commitment to an amount less than the
aggregate outstanding principal amount of the Loans.
(c) Each reduction in the Total Commitment hereunder shall be made
ratably among the Banks in accordance with their respective Commitments. The
Borrower shall pay to the Agent for the account of the Banks, on the date of
each termination or reduction, the Facility
18
Fees on the amount of the Commitments so terminated or reduced accrued to the
date of such termination or reduction.
Section 2.12. PREPAYMENT. (a) The Borrower shall have the right at any
time and from time to time to prepay any Standby Borrowing, in whole or in part,
upon giving written or telecopy notice (or telephone notice promptly confirmed
by written or telecopy notice) to the Agent: (i) before 10:00 a.m., New York
City time, three Business Days prior to prepayment, in the case of Eurodollar
Loans and (ii) before 10:00 a.m., New York City time, one Business Day prior to
prepayment, in the case of ABR Loans; PROVIDED, HOWEVER, that each partial
prepayment shall be in an amount which is an integral multiple of $1,000,000 and
not less than $10,000,000. The Borrower shall not have the right to prepay any
Competitive Borrowing.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.11, the Borrower shall pay or prepay so much of the
Standby Borrowings as shall be necessary in order that the aggregate principal
amount of the Competitive Loans and Standby Loans outstanding will not exceed
the Total Commitment after giving effect to such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment date and
the principal amount of each Borrowing (or portion thereof) to be prepaid, shall
be irrevocable and shall commit the Borrower to prepay such Borrowing (or
portion thereof) by the amount stated therein on the date stated therein. All
prepayments under this Section 2.12 shall be subject to Section 2.15 but
otherwise without premium or penalty. All prepayments under this Section 2.12
shall be accomplished by accrued interest on the principal amount being prepaid
to the date of payment.
Section 2.13. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Bank of the principal
of or interest on any Eurodollar Loan or Fixed Rate Loan made by such Bank or
any Fees or other amounts payable hereunder (other than changes in respect of
taxes imposed on the overall net income of such Bank by the jurisdiction in
which such Bank has its principal office or by any political subdivision or
taxing authority therein), or shall 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 such Bank, or shall impose on such
Bank or the London interbank market any other condition affecting this Agreement
or any Eurodollar Loan or Fixed Rate Loan made by such Bank, and the result of
any of the foregoing shall be to increase the cost to such Bank of making or
maintaining any Eurodollar Loan or Fixed Rate Loan or to reduce the amount of
any sum received or receivable by such Bank hereunder (whether of principal,
interest or otherwise) by an amount deemed by such Bank to be material, then the
Borrower will pay to such Bank within 30 days of demand such additional costs
incurred or reduction suffered. Notwithstanding the foregoing, no Bank shall be
entitled to request compensation under this paragraph with respect to any
Competitive Loan if it shall have been aware of the change giving rise to such
request at the time of submission of the Competitive Bid pursuant to which such
Competitive Loan shall have been made.
19
(b) If any Bank shall have determined that the applicability of any
law, rule, regulation or guideline adopted pursuant to or arising out of the
July 1988 report of the Basle Committee on Banking Regulations and Supervisory
Practices entitled "International Convergence of Capital Measurement and Capital
Standards", or the adoption after the date hereof of any other law, rule,
regulation or guideline regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or administration of any of the foregoing by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or any
lending office of such Bank) or any Bank's holding company with any request or
directive regarding capital adequacy (whether or not having the focus of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's capital or on the capital
of such Bank's holding company, if any, as a consequence of this Agreement or
the Loans made by such Bank pursuant hereto to a level below that which such
Bank or such Bank's holding company could have achieved but for such
applicability, adoption, change or compliance (taking into consideration such
Bank's policies and the policies of such Bank's holding company with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time the Borrower shall pay to such Bank such additional amount or
amounts as will compensate such Bank or such Bank's holding company for any such
reduction suffered. It is acknowledged that the Facility Fee provided for in
this Agreement has been determined on the understanding that the Banks will not
be required to maintain capital against their Commitments under currently
applicable law, rules, regulations and regulatory guidelines. In the event the
Banks shall be advised by bank regulatory authorities responsible for
interpreting or administering such applicable laws, rules, regulations and
guidelines or shall otherwise determine, on the basis of applicable laws, rules,
regulations, guidelines or other requests or statements (whether or not having
the force of law) of such bank regulatory authorities, that such understanding
is incorrect, it is agreed that the Banks will be entitled to make claims under
this paragraph based upon prevailing market requirements for commitments under
comparable credit facilities against which capital is required to be maintained.
(c) Notwithstanding any other provision of this Section 2.13, no Bank
shall demand compensation for any increased cost or reduction referred to in
paragraph (a) or (b) above if it shall not at the time be the general policy or
practice of such Bank to demand such compensation in similar circumstances under
comparable provisions of other credit agreements, if any.
(d) A certificate of a Bank setting forth such amount or amounts as
shall be necessary to compensate such Bank as specified in paragraph (a) or (b)
above, as the case may be, shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay each Bank the amount
shown as due on any such certificate delivered by it within 30 days after the
receipt of the same. If any Bank subsequently receives a refund of any such
amount paid by the Borrower it shall remit such refund to the Borrower.
(e) Failure on the part of any Bank to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Bank's right to demand compensation with respect to any other period;
PROVIDED that if any Bank fails to make such demand within 90 days after it
obtains knowledge of the event giving rise to the demand such Bank shall, with
respect to
20
amounts payable pursuant to this Section 2.13 resulting from such event, only be
entitled to payment under this Section 2.13 for such costs incurred or reduction
in amounts or return on capital from and after the date 90 days prior to the
date that such Bank does make such demand. The protection of this Section shall
be available to each Bank regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, guideline or other
change or condition which shall have occurred or been imposed.
Section 2.14. CHANGE IN LEGALITY. (a) Notwithstanding any other
provision herein, if any change in any law or regulation or in the
interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any Bank to
make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written or
telecopy notice to the Borrower and to the Agent, such Bank may:
(i) declare that Eurodollar Loans will not thereafter be made by such
Bank hereunder, whereupon such Bank shall not submit a Competitive Bid in
response to a request for Eurodollar Competitive Loans and any request by
the Borrower for a Eurodollar Standby Borrowing shall, as to such Bank
only, be deemed a request for an ABR Loan unless such declaration shall be
subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Bank shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Bank or the
converted Eurodollar Loans of such Bank shall instead be applied to repay the
ABR Loans made by such Bank in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by any
Bank shall be effective as to each Eurodollar Loan, if lawful, on the last day
of the Interest Period currently applicable to such Eurodollar Loan; in all
other cases such notice shall be effective on the date of receipt by the
Borrower.
(c) Each Bank agrees that, upon the occurrence of any event giving
rise to the operation of paragraph (a) of this Section 2.14 with respect to such
Bank, it shall have a duty to endeavor in good faith to mitigate the adverse
effects that may arise as a consequence of such event to the extent that such
mitigation will not, in the reasonable judgment of such Bank, entail any cost or
disadvantage to such Bank that such Bank is not reimbursed or compensated for by
the Borrower.
Section 2.15. INDEMNITY. The Borrower shall indemnify each Bank
against any loss or expense which such Bank may sustain or incur as a
consequence of (a) any failure by the Borrower to fulfill on the date of any
borrowing hereunder the applicable conditions set forth in Article IV, (b) any
failure by the Borrower to borrow or to refinance or continue any Loan hereunder
after irrevocable notice of such borrowing, refinancing or continuation has been
given
21
pursuant to Section 2.03 or 2.04, (c) any payment, prepayment or conversion of a
Eurodollar Loan or Fixed Rate Loan required by any other provision of this
Agreement or otherwise made or deemed made on a date other than the last day of
the Interest Period applicable thereto, (d) any default in payment or prepayment
of the principal amount of any Loan or any part thereof or interest accrued
thereon, as and when due and payable (at the due date thereof, whether by
scheduled maturity, acceleration, irrevocable notice of prepayment or otherwise)
or (e) the occurrence of any Event of Default, including, in each such case, any
loss or reasonable expense sustained or incurred or to be sustained or incurred
in liquidating or employing deposits from third parties acquired to effect or
maintain such Loan or any part thereof as a Eurodollar Loan or Fixed Rate Loan.
Such loss or reasonable expense shall include an amount equal to the excess, if
any, as reasonably determined by such Bank, of (i) its cost of obtaining the
funds for the Loan being paid, prepaid, converted or not borrowed (assumed to be
the LIBO Rate or, in the case of a Fixed Rate Loan, the fixed rate of interest
applicable thereto) for the period from the date of such payment, prepayment or
failure to borrow to the last day of the Interest Period for such Loan (or, in
the case of a failure to borrow, the Interest Period for such Loan which would
have commenced on the date of such failure) over (ii) the amount of interest (as
reasonably determined by such Bank) that would be realized by such Bank in
reemploying the funds so paid, prepaid or not borrowed for the remainder of such
period or Interest Period, as the case may be. A certificate of any Bank setting
forth any amount or amounts which such Bank is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error.
Each Bank shall have a duty to mitigate the damages to such Bank that
may arise as a consequence of clause (a), (b), (c), (d) or (e) above to the
extent that such mitigation will not, in the reasonable judgment of such Bank,
entail any cost or disadvantage to such Bank that such Bank is not reimbursed or
compensated for by the Borrower.
Section 2.16. PRO RATA TREATMENT. Except as required under Section
2.14, each Standby Borrowing, each payment or prepayment of principal of any
Standby Borrowing, each payment of interest on the Standby Loans, each payment
of the Facility Fees, each reduction of the Commitments and each refinancing of
any Borrowing with a Standby Borrowing of any Type, shall be allocated pro rata
among the Banks in accordance with their respective Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Standby Loans). Each payment
of principal of any Competitive borrowing shall be allocated pro rata among the
Banks participating in such Borrowing in accordance with the respective
principal amounts of their outstanding Competitive Loans comprising such
Borrowing. Each payment of interest on any Competitive Borrowing shall be
allocated pro rata among the Banks participating in such Borrowing in accordance
with the respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of determining the
available Commitments of the Banks at any time, each outstanding Competitive
Borrowing shall be deemed to have utilized the Commitments of the Banks
(including those Banks which shall not have made Loans as part of such
Competitive Borrowing) pro rata in accordance with such respective Commitments.
Each Bank agrees that in computing such Bank's portion of any Borrowing to be
made hereunder, the Agent may, in its discretion, round each Bank's percentage
of such Borrowing to the next higher or lower whole dollar amount.
22
Section 2.17. SHARING OF SETOFFS. Each Bank agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant to, a secured claim under Section 506 of title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim received by such Bank under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Standby Loan or Loans as a
result of which the unpaid principal portion of the Standby Loans shall be
proportionately less than the unpaid principal portion of the Standby Loans of
any other Bank, it shall be deemed simultaneously to have purchased from such
other Bank at face value, and shall promptly pay to such other Bank the purchase
price for, a participation in the Standby Loans of such other Bank, so that the
aggregate unpaid principal amount of the Standby Loans and participations in the
Standby Loans held by each Bank shall be in the same proportion to the aggregate
unpaid principal amount of all Standby Loans then outstanding as the principal
amount of its Standby Loans prior to such exercise of banker's lien, setoff or
counterclaim or other event was to the principal amount of all Standby Loans
outstanding prior to such exercise of banker's lien, setoff or counterclaim or
other event; PROVIDED, HOWEVER, that, if any such purchase or purchases or
adjustment shall be made pursuant to this Section 2.17 and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustments restored without interest. The Borrower expressly
consents to the foregoing arrangements and agrees that any Bank holding a
participation in a Standby Loan deemed to have been so purchased may exercise
any and all rights of banker's lien, setoff or counterclaim with respect to any
and all moneys owing by the Borrower to such Bank by reason thereof as fully as
if such Bank had made a Standby Loan directly to the Borrower in the amount of
such participation.
Section 2.18 PAYMENTS. (a) The Borrower shall initiate each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder and under any other Loan Document not later than 12:00
(noon), New York City time, on the date when due in dollars to the Agent at its
offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, in immediately available funds.
Section 2.19. TAXES. (a) Any and all payments by the Borrower
hereunder shall be made, in accordance with Section 2.18, free and clear of and
without deduction for any and all current or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
EXCLUDING (i) income taxes imposed on the net income of the Agent or any Bank
(or any transferee or assignee thereof, including a participation holder (any
such entity a "Transferee")) and (ii) franchise taxes imposed on the net income
of the Agent or any Bank (or Transferee), in each case by the jurisdiction under
the laws of which the Agent or such Bank (or Transferee) is organized or has its
principal place of business or any political subdivision thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities, collectively or individually, "Taxes"). If the Borrower shall be
required to deduct any Taxes from or in respect of any sum payable hereunder to
any Bank (or any Transferee) or the Agent, (i) the sum payable shall be
increased by the amount (an "additional amount") necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 2.19) such Bank (or Transferee) or the Agent (as the
case may be) shall receive an amount equal to the sum it would have received had
no such deduction been made, (ii)
23
the Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower agrees to pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Document ("Other Taxes").
(c) The Borrower will indemnify each Bank (or Transferee) and the
Agent for the full amount of Taxes and Other Taxes paid by such Bank (or
Transferee) or the Agent, as the case may be, and any liability (including
penalties, interest and expenses (including reasonable attorney's fees and
expenses)) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability prepared
by a Bank, or the Agent on its behalf, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Bank (or Transferee) or the Agent, as the case
may be, makes written demand therefor.
(d) If a Bank (or Transferee) or the Agent shall become aware that it
is entitled to claim a refund from a Governmental Authority in respect of Taxes
or Other Taxes as to which it has been indemnified by the Borrower, or with
respect to which the Borrower has paid additional amounts, pursuant to this
Section 2.19, it shall promptly notify the borrower of the availability of such
refund claim and shall, within 30 days after receipt of a request by the
Borrower, make a claim to such Governmental Authority for such refund at the
Borrower's expense. If a Bank (or Transferee) or the Agent receives a refund
(including pursuant to a claim for refund made pursuant to the preceding
sentence) in respect of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.19, it shall within 30 days from
the date of such receipt pay over such refund to the Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower
under this Section 2.19 with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of such Bank (or Transferee) or
the Agent and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund); PROVIDED, HOWEVER, that the
Borrower, upon the request of such Bank (or Transferee) or the Agent, agrees to
repay the amount paid over to the Borrower (plus penalties, interest or other
charges) to such Bank (or Transferee) or the Agent in the event such Bank (or
Transferee) or the Agent is required to repay such refund to such Governmental
Authority.
(e) As soon as practicable after the date of any payment of Taxes or
Other Taxes by the Borrower to the relevant Governmental Authority, the Borrower
will deliver to the Agent, at its address referred to in Section 9.01, the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.19 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
24
(g) Each Bank (or Transferee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "Non-U.S. Bank") shall deliver to the Borrower and the Agent two
copies of either United States Internal Revenue Service Form W-8BEN or Form
W-8ECI, or, in the case of a Non-U.S. Bank claiming exemption from U.S. Federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a Form W-8BEN, or any subsequent versions
thereof or successors thereto (and, if such Non-U.S. Bank delivers a Form
W-8BEN, a certificate representing that such Non-U.S. Bank is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U.S. Bank claiming complete exemption from, or reduced rate of, U.S. Federal
withholding tax on payments by the Borrower under this Agreement and the other
Loan Documents. Such forms shall be delivered by each Non-U.S. Bank on or before
the date it becomes a party to this Agreement (or, in the case of a Transferee
that is a participation holder, on or before the date such participation holder
becomes a Transferee hereunder) and on or before the date, if any, such Non-U.S.
Bank changes its applicable lending office by designating a different lending
office (a "New Lending Office"). In addition, each Non-U.S. Bank shall deliver
such forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Bank. Notwithstanding any other provision of this
Section 2.19(g), a Non-U.S. Bank shall not be required to deliver any form
pursuant to this Section 2.19(g) that such Non-U.S. Bank is not legally able to
deliver.
(h) The Borrower shall not be required to indemnify any Non-U.S. Bank,
or to pay any additional amounts to any Non-U.S. Bank, in respect of United
States Federal withholding tax pursuant to paragraph (a) or (c) above to the
extent that (i) the obligation to withhold amounts with respect to United States
Federal withholding tax existed on the date such Non-U.S. Bank became a party to
this Agreement (or, in the case of a Transferee that is a participation holder,
on the date such participation holder became a Transferee hereunder) or, with
respect to payments to a New Lending Office, the date such Non-U.S. Bank
designated such New Lending Office with respect to a Loan; PROVIDED, HOWEVER,
that this clause (i) of this subsection 2.19(h) shall not apply to any
Transferee or New Lending Office that becomes a Transferee or New Lending Office
as a result of an assignment, participation, transfer or designation made at the
request of the Borrower; and PROVIDED, FURTHER, HOWEVER, that this clause (i) of
this subsection 2.19(h) shall not apply to the extent the indemnity payment or
additional amounts any Transferee, or Bank (or Transferee) through a New Lending
Office, would be entitled to receive (without regard to this clause (i) of this
subsection 2.19(h)) do not exceed the indemnity payment or additional amounts
that the person making the assignment, participation or transfer to such
Transferee, or Bank (or Transferee) making the designation of such New Lending
Office, would have been entitled to receive in the absence of such assignment,
participation, transfer or designation or (ii) the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S. Bank
to comply with the provisions of paragraph (g) above.
(i) Any Bank (or Transferee) claiming any additional amounts payable
under this Section 2.19 shall (A) to the extent legally able to do so, upon
written request from the Borrower, file any certificate or document if such
filing would avoid the need for or reduce the amount of
25
any such additional amounts which may thereafter accrue, and the Borrower shall
not be obligated to pay such additional amounts if, after the Borrower's
request, any Bank (or Transferee) could have filed such certificate or document
and failed to do so; or (B) consistent with legal and regulatory restrictions,
use reasonable efforts to change the jurisdiction of its applicable lending
office if the making of such change would avoid the need for or reduce the
amount of any additional amounts which may thereafter accrue and would not, in
the sole determination of such Bank (or Transferee), be otherwise
disadvantageous to such Bank (or Transferee).
(j) Nothing contained in this Section 2.19 shall require any Bank (or
Transferee) or the Agent to make available any of its tax returns (or any other
information that it deems to be confidential or proprietary).
Section 2.20. MANDATORY ASSIGNMENT; COMMITMENT TERMINATION. In the
event any Bank delivers to the Agent or the Borrower, as appropriate, a
certificate in accordance with Section 2.13(c) or a notice in accordance with
Section 2.10 or 2.14, or the Borrower is required to pay any additional amounts
or other payments in accordance with Section 2.19, the Borrower may, at its own
expense, and in its sole discretion (a) require such Bank to transfer and assign
in whole or in part, without recourse (in accordance with Section 9.04), all or
part of its interests, rights and obligations under this Agreement (other than
outstanding Competitive Loans) to an assignee which shall assume such assigned
obligations (which assignee may be another Bank, if a Bank accepts such
assignment); PROVIDED that (i) such assignment shall not conflict with any law,
rule or regulation or order of any court or other Governmental Authority and
(ii) the Borrower or such assignee shall have paid to the assigning Bank in
immediately available funds the principal of and interest accrued to the date of
such payment on the Loans made by it hereunder and all other amounts owed to it
hereunder or (b) terminate the Commitment of such Bank and prepay all
outstanding Loans (other than Competitive Loans) of such Bank; PROVIDED that (x)
such termination of the Commitment of such Bank and prepayment of Loans does not
conflict with any law, rule or regulation or order of any court or Governmental
Authority and (y) the Borrower shall have paid to such Bank in immediately
available funds the principal of and interest accrued to the date of such
payment on the Loans (other than Competitive Loans) made by it hereunder and all
other amounts owed to it hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Banks that:
Section 3.01. ORGANIZATION; POWERS. The Borrower and each Subsidiary
of the Borrower (a) is a corporation or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has all requisite corporate or other entity power and
authority to own its property and assets and to carry on its business as now
conducted, (c) is qualified to do business in every jurisdiction where such
qualification is required, except where the failure so to qualify would not be
reasonably likely to have a Material Adverse Effect, and (d) in the case of the
Borrower, has the corporate power and authority to execute, deliver and perform
its obligations under each of the Loan Documents to which it is a
26
party and each other agreement or instrument contemplated thereby to which it is
or will be a party and to borrow hereunder.
Section 3.02. AUTHORIZATION. The execution, delivery and performance
by the Borrower of this Agreement and the execution, delivery and performance of
each of the other Loan Documents and the borrowings hereunder (collectively, the
"Transactions") (a) have been duly authorized by all requisite corporate and, if
required, stockholder action and (b) will not (i) violate (A) any provision of
law, statute, rule or regulation, or of the certificate or articles of
incorporation or other constitutive documents or by-laws (or code of
regulations) of the Borrower or any Subsidiary, (B) any order of any
Governmental Authority or (C) any provision of any indenture, agreement or other
instrument to which the Borrower or any Subsidiary is a party or by which any of
them or any of their property is or may be bound, (ii) be in conflict with,
result in a breach of or constitute (alone or with notice or lapse of time or
both) a default under any such indenture, agreement or other instrument and
(iii) result in the creation or imposition of any Lien upon or with respect to
any property or assets now owned or hereafter acquired by the Borrower or any
Subsidiary, except for any such violation, conflict, creation or imposition
which does not impair the Borrower's ability to enter into and perform the
Transactions or would not be reasonably likely to have a Material Adverse Effect
or materially impair the position of the Banks with respect to any other
creditors of the Borrower.
Section 3.03. ENFORCEABILITY. This Agreement has been duly executed
and delivered by the Borrower and constitutes, and each other Loan document when
executed and delivered by the Borrower will constitute, a legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws of general application affecting
the enforcement of creditors' rights or by general principles of equity.
Section 3.04. GOVERNMENTAL APPROVALS. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required by the Borrower in connection with the
Transactions, except such as have been made or obtained and are in full force
and effect.
Section 3.05. FINANCIAL STATEMENTS. The Borrower has heretofore
furnished to the Banks the consolidated balance sheet and consolidated
statements of income, retained earnings and cash flows of the Borrower and its
consolidated subsidiaries (a) as of and for the fiscal year ended December 31,
2001, audited by and accompanied by the opinion of Deloitte & Touche LLP,
independent public accountants, and (b) as of and for the fiscal quarter and the
portion of the fiscal year ended March 31, 2002, certified by the chief
financial officer of the Borrower. Such financial statements (subject, in the
case of such interim statements, to normal year-end audit adjustments) present
fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated subsidiaries as of such dates
and for such periods. Such balance sheets and the notes thereto disclose, in
accordance with GAAP, all material liabilities, direct or contingent, of the
Borrower and its consolidated subsidiaries as of the dates thereof. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis, except that such interim financial statements do not contain
footnotes.
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Section 3.06. NO MATERIAL ADVERSE CHANGE. There has been no change in
the business, assets, operations or condition, financial or otherwise, of the
Borrower and its Subsidiaries since December 31, 2001 that would constitute a
Material Adverse Effect which is not reflected in the financial statements
referred to in Section 3.05(b).
Section 3.07. TITLE TO PROPERTIES; POSSESSION UNDER LEASES. (a) Each
of the Borrower and its Subsidiaries has good and marketable title to, or valid
leasehold interests in , all its properties and assets, except for defects in
title that would not, in the aggregate, be reasonably likely to have a Material
Adverse Effect. All material properties and assets are free and clear of Liens,
other than Liens expressly permitted by Section 6.02.
(b) Each of the Borrower and its Subsidiaries has complied with all
obligations under all leases to which it is a party, all such leases are in full
force and effect and each of the Borrower and its Subsidiaries enjoys peaceful
and undisturbed possession under all such leases, except for any noncompliance,
ineffectiveness or other conditions that would not, in the aggregate, be
reasonably likely to have a Material Adverse Effect.
Section 3.08. STOCK OF BORROWER. More than 51% of the outstanding
Common Voting Shares, par value $.01, of the Borrower are owned legally,
beneficially and of record by the Trust or the beneficiaries thereof.
Section 3.09. LITIGATION; COMPLIANCE WITH LAWS. (b) Except as set
forth in Schedule 3.09 or otherwise disclosed to the Banks in writing, there are
not any actions, suits or proceedings at law or in equity or by or before any
Governmental Authority now pending or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any Subsidiary or any business,
property or rights of any such person (i) which involve any Loan Document or the
Transactions or (ii) as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, would, individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect.
(b) None of the Borrower nor any of its Subsidiaries is in violation
of any law, rule or regulation, or in default with respect to any judgment,
writ, injunction or decree of any Governmental Authority, where such violation
or default would be reasonably likely to have a Material Adverse Effect.
Section 3.10. AGREEMENTS. (a) None of the Borrower nor any of its
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or would be reasonably likely to result
in a Material Adverse Effect.
(b) None of the Borrower nor any of its Subsidiaries is in default in
any manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other material agreement or instrument to which
it is a party or by which it or any of its properties or assets are or may be
bound, where such default would be reasonably likely to have a Material Adverse
Effect.
Section 3.11. FEDERAL RESERVE REGULATIONS. (a) None of the Borrower
nor any of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
28
(b) No part of the proceeds of any Loan will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, (i) to
purchase or carry Margin Stock or to extend credit to others for the purpose of
purchasing or carrying Margin Stock or to refund indebtedness originally
incurred for such purpose, or (ii) for any purpose which entails a violation of,
or which is inconsistent with, the provisions of the Regulations of the Board,
including Regulation U or X.
Section 3.12. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT. None of the Borrower nor any Subsidiary 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 3.13. USE OF PROCEEDS. The Borrower will use the proceeds of
the Loans only for the purposes specified in the preamble to this Agreement.
Section 3.14. TAX RETURNS. Each of the Borrower and its Subsidiaries
has filed or caused to be filed all Federal, state and local tax returns
required to have been filed by it and has paid or caused to be paid all taxes
shown to be due and payable on such returns or on any assessments received by
it, except taxes that are being contested in good faith by appropriate
proceedings and for which the Borrower shall have set aside on its books
adequate reserves.
Section 3.15. NO MATERIAL MISSTATEMENTS. No material information,
report, financial statement, exhibit or schedule furnished by the Borrower in
writing to the Agent or any Bank in connection with the negotiation of any Loan
Document or included therein or delivered pursuant thereto contained, contains
or will contain any material misstatement of fact or omitted, omits or will omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were, are or will be made, not
misleading.
Section 3.16. EMPLOYEE BENEFIT PLANS. The Borrower and each of its
ERISA Affiliates is in compliance with the applicable provisions of ERISA and
the Code and the regulations and published interpretations thereunder, except
for violations which, in the aggregate, would not be reasonably likely to have a
Material Adverse Effect. No Reportable Event has occurred in respect of any plan
of the Borrower or any ERISA Affiliate that would be reasonably likely to have a
Material Adverse Effect. The present value of all benefit liabilities under each
Plan (based on those assumptions used to fund such Plan) did not, as of the last
annual valuation date applicable thereto, exceed by more than $20,000,000 the
value of the assets of such Plan, and the present value of all benefit
liabilities of all underfunded Plans (based on those assumptions used to fund
each such Plan) did not, as of the last annual valuation dates applicable
thereto, exceed $40,000,000. Neither the Borrower nor any ERISA Affiliate has
incurred any Withdrawal Liability that materially adversely affects the
financial condition of the Borrower and its ERISA Affiliates taken as a whole.
Neither the Borrower nor any ERISA Affiliate has received any notification that
any Multiemployer Plan is in reorganization or has been terminated, within the
meaning of Title IV of ERISA, and no Multiemployer Plan is reasonably expected
to be in reorganization or to be terminated, where such reorganization or
termination has resulted or would reasonably be expected to result in the
contributions required to be made to such Plan that would materially and
adversely affect the financial condition of the Borrower and its ERISA
Affiliates taken as a whole.
29
Section 3.17. ENVIRONMENTAL AND SAFETY MATTERS. Except as set forth in
Schedule 3.17 or otherwise previously disclosed to the Banks in writing, each of
the Borrower and each of its Subsidiaries has complied with all Federal, state,
local and other statutes, ordinances, orders, judgments, rulings and regulations
relating to environmental pollution or to environmental regulation or control or
to employee health or safety, except for violations which, in the aggregate,
would not be reasonably likely to have a Material Adverse Effect. Except as set
forth in Schedule 3.17 or otherwise previously disclosed to the Banks in
writing, none of the Borrower or any of its Subsidiaries has received notice of
any failure so to comply. Except as set forth in Schedule 3.17 or otherwise
previously disclosed to the Banks in writing, the Borrower's and its
Subsidiaries' plants do not manage any hazardous wastes, hazardous substances,
hazardous materials, toxic substances, toxic pollutants, or substances similarly
denominated, as those terms or similar terms are used in the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response
Compensation and Liability Act, the Hazardous Materials Transportation Act, the
Toxic Substance Control Act, the Clean Air Act, the Clean Water Act or any other
applicable law relating to environmental pollution or employee health and
safety, in violation in any material respect of any law or any regulations
promulgated pursuant thereto, except for violations which, in the aggregate,
would not be reasonably likely to have a Material Adverse Effect. Except as set
forth in Schedule 3.17 or otherwise previously disclosed to the Banks in
writing, none of the Borrower nor any of its Subsidiaries is aware of any
events, conditions or circumstances involving environmental pollution or
contamination or employee health or safety that is reasonably expected to result
in liability which would have a Material Adverse Effect.
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Banks to make Loans hereunder are subject to
the satisfaction of the following conditions:
Section 4.01. ALL BORROWINGS. On the date of each Borrowing, including
each Borrowing in which Loans are refinanced with new Loans as contemplated by
Section 2.05:
(a) The Agent shall have received a notice of such Borrowing as
required by Section 2.03 or Section 2.04, as applicable.
(b) The representations and warranties set forth in Article III hereof
(except, subject to Section 4.02(e), the representations set forth in
Section 3.06) shall be true and correct in all material respects on and as
of the date of such Borrowing with the same effect as though made on and as
of such date, except to the extent such representations and warranties
expressly relate to an earlier date.
(c) At the time of and immediately after such Borrowing no Event of
Default or Default shall have occurred and be continuing.
30
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Borrowing as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
Section 4.02. FIRST BORROWING. On the Closing Date:
(a) The Agent shall have received a favorable written opinion of Xxxxx
& Xxxxxxxxx LLP, counsel for the Borrower, dated the Closing Date and
addressed to the Banks, to the effect set forth in Exhibit D hereto, and
the Borrower hereby instructs such counsel to deliver such opinion to the
Agent.
(b) All legal matters incident to this Agreement and the borrowings
hereunder shall be satisfactory to the Banks and their counsel and to
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent.
(c) The Agent shall have received (i) a copy of the articles of
incorporation, including all amendments thereto, of the Borrower, certified
as of a recent date by the Secretary of State of the state of its
organization, and a certificate as to the good standing of the Borrower as
of a recent date, from such Secretary of State; (ii) a certificate of the
Secretary or Assistant Secretary of the Borrower dated the Closing Date and
certifying (A) that attached thereto is a true and complete copy of the
code of regulations of the Borrower as in effect on the Closing Date and at
all times since a date prior to the date of the resolutions described in
clause (B) below, (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of the Borrower
authorizing the execution, delivery and performance of the Loan Documents
and the borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C) that
the articles of incorporation of the Borrower have not been amended since
the date of the last amendment thereto shown on the certificate of good
standing furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each officer executing any Loan
document or any other document delivered in connection herewith on behalf
of the Borrower; (iii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to (ii) above; and (iv) such other
documents as the Banks or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Agent, may reasonably request.
(d) The Agent shall have received a certificate from the Borrower,
dated the Closing Date and signed by a Financial Officer thereof,
confirming compliance with the conditions precedent set forth in paragraphs
(b) and (c) of Section 4.01.
(e) The representations and warranties set forth in Section 3.06 shall
be true and correct in all material respects.
(f) Concurrently with the transactions contemplated hereby on the
Closing Date, the Borrower, the applicable Banks and the Agent shall have
executed a side letter whereby all competitive loans under the Existing
Credit Agreement shall be deemed to be Competitive Loans hereunder. The
Borrower shall have repaid in full all other amounts
31
due under the Existing Credit Agreement and under each other agreement
related thereto, and the Agent shall have received duly executed
documentation either evidencing or necessary for (i) the termination of the
Existing Credit Agreement and each other agreement related thereto and (ii)
the cancelation of all commitments thereunder.
(g) The Agent shall have received all Fees and other amounts due and
payable on or prior to the Closing Date.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Bank that, so long as this
Agreement shall remain in effect or the principal of or interest on any Loan,
any Fees or any other expenses or amounts payable under any Loan Document shall
be unpaid, unless the Required Banks shall otherwise consent in writing, it
will, and will cause each of its Subsidiaries to:
Section 5.01. EXISTENCE; BUSINESSES AND PROPERTIES. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.04 and except with respect to the Subsidiaries of the Borrower where
such failure would not reasonably be likely to have a Material Adverse Effect.
(b) Except to the extent that the failure to do or cause the same to
be done would not be reasonably likely to have a Material Adverse Effect, do or
cause to be done all things necessary to obtain, preserve, renew, extend and
keep in full force and effect the rights, licenses, permits, franchises,
authorizations, patents, copyrights, trademarks and trade names material to the
conduct of its business; maintain and operate such business in substantially the
manner in which it is presently conducted and operated (subject to changes in
the ordinary course of business); comply in all material respects with all
applicable laws, rules, regulations and orders of any Governmental Authority,
whether now in effect or hereafter enacted; and at all times maintain and
preserve all property material to the conduct of such business and keep such
property in good repair, working order and condition and from time to time make,
or cause to be made all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times.
Section 5.02. INSURANCE. (a) Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; (b) maintain
such other insurance, to such extent and against such risks, including fire and
other risks insured against by extended coverage, as is customary with companies
in the same or similar businesses, including public liability insurance against
claims for personal injury or death or property damage occurring upon, in, about
or in connection with the use of any properties owned, occupied or controlled by
it, and (c) maintain such other insurance as may be required by law; PROVIDED,
HOWEVER, that, in lieu of or supplementing any such insurance described in (a)
or (b) above, it may adopt such other plan or method of protection conforming to
its self-insurance practices existing on the date hereof.
32
Section 5.03. OBLIGATIONS AND TAXES. Except to the extent the failure
to do so would not, in the aggregate, be reasonably likely to have a Material
Adverse Effect, pay its Indebtedness and other obligations promptly and in
accordance with their terms and pay and discharge promptly when due all taxes,
assessments and governmental charges or levies imposed upon it or upon it or
upon its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might give rise to a Lien
upon such properties or any part thereof; PROVIDED, HOWEVER, that such payment
and discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the Borrower shall have
set aside on its books adequate reserves with respect thereto.
Section 5.04. FINANCIAL STATEMENTS, REPORTS, ETC. Furnish to the Agent
and each Bank:
(a) within 120 days after the end of each fiscal year of the Borrower,
consolidated balance sheets of the Borrower and its consolidated
subsidiaries, the related consolidated statements of operations and the
related consolidated statements of stockholders' equity and cash flows,
showing the financial condition of the Borrower and its consolidated
subsidiaries as of the close of such fiscal year and the results of its
operations during such year, all such consolidated financial statements
audited by and accompanied by the report thereon of Deloitte & Touche LLP
or other independent public accountants of recognized national standing
reasonably acceptable to the Required Banks and accompanied by an opinion
of such accountants (which shall not be qualified in any material respect)
to the effect that such consolidated financial condition and results of
operations of the Borrower on a consolidated basis;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, consolidated balance sheets
and related consolidated statements of income, retained earnings and cash
flows, showing the financial condition of the Borrower and its consolidated
subsidiaries as of the close of such fiscal quarter and the results of its
operations during such fiscal quarter and the then elapsed portion of the
fiscal year, all certified by a Financial Officer of the Borrower as fairly
presenting in all material respects the financial condition and results of
operations of the Borrower on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and
except for the absence of footnotes in the case of quarterly statements;
(c) concurrently with any delivery of financial statements under (a)
or (b) above, a certificate of a Financial Officer of the Borrower opining
on or certifying such statements (i) certifying that no Event of Default or
Default has occurred or, if such an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto and (ii) setting
forth computations in reasonable detail satisfactory to the Agent
demonstrating compliance with the covenants contained in Sections 6.01(a)
and (b)(v), 6.03 and 6.05;
33
(d) promptly after the same become publicly available, copies of all
material periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any governmental authority succeeding to any of or all the
functions of said Commission, or with any national securities exchange, or
distributed to its public shareholders, as the case may be;
(e) promptly after the same become publicly available, copies of all
material reports pertaining to any change in ownership filed by the
Borrower or any Subsidiary with any Governmental Authority; and
(f) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Borrower or any
Subsidiary, or compliance with the terms of any Loan Document, as the Agent
or any Bank may reasonably request.
Section 5.05. LITIGATION AND OTHER NOTICES. Furnish to the Agent and
each Bank prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with
respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against the Borrower or any Affiliate thereof which could be
reasonably anticipated to be adversely determined and, if adversely
determined, could result in a Material Adverse Effect; and
(c) any development that has resulted in, or could reasonably be
anticipated by the Borrower to result in, a Material Adverse Effect.
Section 5.06. ERISA. (a) Comply with the applicable provisions of
ERISA and the Code except to the extent of such noncompliance which, in the
aggregate, would not be reasonably likely to have a Material Adverse Effect and
(b) furnish to the Agent (i) as soon as possible after, and in any event with 30
days after any Responsible Officer of the Borrower or any ERISA Affiliate knows
or has reason to know that any Reportable Event has occurred that alone or
together with any other Reportable Event could reasonably be expected to result
in liability of the Borrower to the PBGC in an aggregate amount exceeding
$10,000,000, a statement of a Financial Officer setting forth details as to such
Reportable Event and the action proposed to be taken with respect thereto,
together with a copy of the notice, if any, of such Reportable Event given to
the PBGC, (ii) promptly after receipt thereof, a copy of any notice that the
Borrower or any ERISA Affiliate may receive from the PBGC relating to the
intention of the PBGC to terminate any Plan or Plans (other than a Plan
maintained by an ERISA Affiliate that is considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Code Section 414 or to appoint a trustee to
administer any such Plan, (iii) within 10 days after the due date for filing
with the PBGC pursuant to Section 412(n) of the Code of a notice of failure to
make a required installment or other payment with respect to a Plan, a statement
of a Financial Officer setting forth details as to such failure and the action
proposed to be taken with respect thereto, together
34
with a copy of such notice given to the PBGC and (iv) promptly and in any
event within 30 days after receipt thereof by the Borrower or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, a copy of each notice
received by the Borrower, or any ERISA Affiliate concerning (A) the
imposition of Withdrawal Liability or (B) a determination that a
Multiemployer Plan is, or is expected to be, terminated or in
reorganization, in each case within the meaning of Title IV of ERISA.
Section 5.07. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND
INSPECTIONS. Maintain all financial records in accordance with GAAP and permit
any representatives designated by any Bank to visit and inspect the financial
records and the properties of the Borrower or any Subsidiary upon reasonable
prior notice at reasonable times and as often as reasonably requested (PROVIDED
that such Bank shall make reasonable efforts not to interfere unreasonably with
the business of the Borrower or any Subsidiary) and to make extracts from and
copies of such financial records, and permit any representatives designated by
any Bank to discuss the affairs, finances and condition of the Borrower or any
Subsidiary with the officers thereof and independent accountants therefor;
provided that each person obtaining such information shall hold all such
information in strict confidence in accordance with the restrictions set forth
in Section 9.16.
Section 5.08. USE OF PROCEEDS. Use the proceeds of the Loans only for
the purposes set forth in the preamble to this Agreement.
Section 5.09. FILINGS. Make all material filings required to be made
by it with any Governmental Authority.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with each Bank and the Agent that,
so long as this Agreement shall remain in effect or the principal of or interest
on any Loan, any Fees or any other expenses or amounts payable under any Loan
Document shall be unpaid, unless the Required Banks shall otherwise consent in
writing, it will not, and will not cause or permit any of its Subsidiaries to:
Section 6.01. INDEBTEDNESS. (a) Permit the ratio of Consolidated
Indebtedness of the Borrower to Consolidated Cash Flow of the Borrower at the
end of and for the most recently ended four consecutive calendar quarters at any
time to be greater than 5.0 to 1.0.
(b) Permit any Subsidiary of the Borrower to incur, create, assume or
permit to exist any Indebtedness, except:
(i) Indebtedness existing on the date hereof as set forth in Schedule
6.01 hereto, and additional Indebtedness incurred pursuant to commitments
by persons to lend to any Subsidiary but only to the extent such
commitments are available and unused as of the date hereof as set forth in
Schedule 6.01 hereto;
35
(ii) Indebtedness of a Subsidiary or business existing at the time
such Subsidiary or business was acquired by the Borrower or a Subsidiary;
PROVIDED that such Indebtedness was not incurred in contemplation of such
acquisition;
(iii) Indebtedness to the Borrower or to another Subsidiary of the
Borrower; and
(iv) other Indebtedness exclusive of the Indebtedness permitted by
clauses (i) through (iii) above in an aggregate amount at any time
outstanding which, when added to the aggregate Indebtedness secured by
Liens permitted by Section 6.02(k) and to the aggregate amount incurred by
the Borrower and any of the Subsidiaries pursuant to Section 6.03(ii)
herein, shall not exceed 15% of the Consolidated Stockholders' Equity of
the Borrower at such time.
Section 6.02. LIENS. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens incurred or pledges and deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and old-age pensions and other social security benefits;
(b) Liens securing the performance of bids, tenders, leases, contracts
(other than for the repayment of borrowed money), statutory obligations,
surety and appeal bonds and other obligations of like nature, incurred as
an incident to and in the ordinary course of business;
(c) Liens imposed by law, such as carriers', warehousemen's,
mechanics', materialmen's, suppliers', repairmen's and vendors' liens,
incurred in good faith in the ordinary course of business with respect to
obligations not delinquent or which are being contested in good faith by
appropriate proceedings and as to which the Borrower or a Subsidiary shall
have set aside on its books adequate reserves;
(d) Liens securing the payment of taxes, assessments and governmental
charges or levies, either (i) not delinquent or (ii) being contested in
good faith by appropriate legal or administrative proceedings and as to
which the Borrower or a Subsidiary, as the case may be, shall have set
aside on its books adequate reserves;
(e) zoning restrictions, easements, licenses, reservations,
restrictions on the use of real property or minor irregularities incident
thereto (and with respect to leasehold interests: mortgages, obligations,
liens and other encumbrances that are incurred, created, assumed or
permitted to exist and arise by, through or under or are asserted by a
landlord or owner of the leased property, with or without consent of the
lessee) which were not incurred in connection with the borrowing of money
or the obtaining of advances or credit and which do not in the aggregate
materially detract from the value of the property or assets of the Borrower
or a Subsidiary, as the case may be, or impair the
36
use of such property for the purposes for which such property is held by
the Borrower or such Subsidiary;
(f) Liens to secure the purchase price of real or personal property
acquired, constructed or improved after the date hereof; PROVIDED that any
such Lien is existing or created at the time of, or substantially
simultaneously with, the acquisition, construction or improvement by the
Borrower or a Subsidiary of the property so acquired and at all times
covers only such property;
(g) Liens on property of a Subsidiary in favor of the Borrower or
another Subsidiary;
(h) Liens created by or resulting from any litigation or proceeding
which is currently being contested in good faith by appropriate proceedings
and as to which (i) levy and execution have been stayed and continue to be
stayed and (ii) the Borrower or a Subsidiary shall have set aside on its
books adequate reserves;
(i) Liens on property of a Subsidiary existing at the time it becomes
a Subsidiary; PROVIDED that such Liens were not created in contemplation of
the acquisition by the Borrower or another Subsidiary of such Subsidiary;
(j) Liens on the property of the Borrower or a Subsidiary incidental
to the conduct of its business or the ownership of its property which were
not incurred in connection with the borrowing of money or the obtaining of
advances or credit or other financial accommodations (including but not
limited to interest rate swap obligations or letter of credit obligations
of the Borrower or any Subsidiary), and which do not in the aggregate
materially detract from the value of its property or assets or impair the
use thereof in the operation of its business;
(k) the Borrower and any Subsidiary may incur Liens not otherwise
permitted by this covenant securing Indebtedness in an aggregate amount at
any time outstanding which, when added to the aggregate amount incurred by
Subsidiaries under Section 6.01(b)(iv) and to the aggregate amount incurred
by the Borrower and the Subsidiaries under Section 6.03(ii) does not exceed
15% of Consolidated Stockholders' Equity of the Borrower at such time;
(l) judgment Liens that do not constitute an Event of Default; and
(m) Liens on property acquired by the Borrower or any of its
Subsidiaries after the Closing Date so long as such Liens are limited to
the property acquired and were not created in contemplation of the
acquisition.
Section 6.03. SALE AND LEASE-BACK TRANSACTIONS. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred, except that (i) any
Subsidiary may enter into such an arrangement for the sale or transfer of its
property to another Subsidiary or to
37
the Borrower and (ii) the Borrower and the Subsidiaries may enter into any such
arrangements provided that the aggregate sale price of all property subject to
such arrangements (other than arrangements described in clause (i) above), when
added to the aggregate amount of Indebtedness incurred by Subsidiaries under
Section 6.01(b)(v) and to the aggregate amount of Indebtedness secured by Liens
permitted by Section 6.02(k), shall not exceed 15% of the Consolidated
Stockholders' Equity of the Borrower at such time.
Section 6.04. MERGERS, CONSOLIDATIONS AND SALES OF ASSETS. 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 (whether now owned or hereafter acquired) or purchase, lease or otherwise
acquire (in one transaction or a series of transactions) all or substantially
all of the assets of any other person, except that if at the time thereof and
immediately after giving effect thereto no Event of Default or Default shall
have occurred and be continuing, (a) the Borrower or a Subsidiary may merge with
another corporation in a transaction in which the surviving entity is the
Borrower or such Subsidiary, respectively, and, in the case of a Subsidiary, the
surviving entity is a wholly owned Subsidiary, (b) any Subsidiary may merge into
the Borrower or another Subsidiary; or (c) the Borrower or a Subsidiary may
purchase, lease or otherwise acquire any assets of any other person.
Section 6.05. INTEREST COVERAGE RATIO. Permit the ratio of
Consolidated Cash Flow of the Borrower to Consolidated Interest Expense of the
Borrower for the period of four consecutive calendar quarters most recently
ended at any time to be less than 2.5 to 1.0.
Section 6.06. FISCAL YEAR. Change its fiscal year.
ARTICLE VII
EVENTS OF DEFAULT
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings hereunder, or any
representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of 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 by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan
or any Fee or any other amount (other than an amount referred to in (b)
above) due under any Loan Document, when and as the same shall become due
and payable, and such default shall continue unremedied for a period of 5
Business Days;
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(d) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 5.01(a) or 5.05(a) or in Article VI;
(e) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement
contained in any Loan Document (other than those specified in (b), (c) or
(d) above) and such default shall continue unremedied for a period of 30
days after written notice thereof from the Agent or any Bank to the
Borrower;
(f) the Borrower or any Subsidiary shall (i) fail to pay any principal
or interest, regardless of amount, due in respect of any Indebtedness in a
principal amount in excess of $10,000,000, when and as the same shall
become due and payable, or (ii) fail to observe or perform any other term,
covenant, condition or agreement contained in any agreement or instrument
evidencing or governing any such Indebtedness if the effect of any failure
referred to in this clause (ii) is to cause such Indebtedness to become due
prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Borrower or any Subsidiary, or of a substantial
part of the property or assets of the Borrower or a Subsidiary, under Title
11 of the United States Code, as now constituted or hereafter amended, or
any other Federal or state bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a
substantial part of the property or assets of the Borrower or a Subsidiary
or (iii) the winding-up or liquidation of the Borrower or any Subsidiary;
and such proceeding or petition shall continue undismissed for 90 days or
an order or decree approving or ordering any of the foregoing shall be
unstayed and in effect for 90 days;
(h) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal
or state bankruptcy, insolvency, receivership or similar law, (ii) consent
to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in (g)
above, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Borrower or any Subsidiary or for a substantial part of the property or
assets of the Borrower or any Subsidiary, (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, (vi) become
unable, admit in writing its inability or fail generally to pay its debts
as they become due or (vii) take any action for the purpose of effecting
any of the foregoing;
(i) one or more final judgments for the payment of money in excess of
$10,000,000, excluding such amounts which are covered by insurance, shall
be rendered against the Borrower, any Subsidiary or any combination thereof
and the same shall remain undischarged for a period of 30 consecutive days
during which execution shall
39
not be effectively stayed, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of the Borrower or any
Subsidiary to enforce any such judgment;
(j) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section
412(n)(l) of the Code), shall have occurred with respect to any Plan or
Plans that reasonably could be expected to result in liability of the
Borrower to the PBGC or to a Plan in an aggregate amount exceeding
$10,000,000 and, within 30 days after the reporting of any such Reportable
Event to the Agent or after the receipt by the Agent of the statement
required pursuant to Section 5.06, the Agent shall have notified the
Borrower in writing that (i) the Required Banks have made a determination
that, on the basis of such Reportable Event or Reportable Events or the
failure to make a required payment, there are reasonable grounds (A) for
the termination of such Plan or Plans by the PBGC, (B) for the appointment
by the appropriate United States District Court of a trustee to administer
such Plan or Plans or (C) for the imposition of a lien in favor of a Plan
and (ii) as a result thereof an Event of Default exists hereunder; or a
trustee shall be appointed by a United States District Court to administer
any such Plan or Plans; or the PBGC shall institute proceedings to
terminate any Plan or Plans; or
(k) (i) the Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan, (ii) the Borrower or such ERISA
Affiliate does not have reasonable grounds for contesting such Withdrawal
Liability or is not contesting such Withdrawal Liability in a timely and
appropriate manner and (iii) the amount of such Withdrawal Liability
specified in such notice, when aggregated with all other amounts required
to be paid to Multiemployer Plans in connection with Withdrawal Liabilities
(determined as of the date or dates of such notification), either (A)
exceeds $10,000,000 or requires payments exceeding $10,000,000 in any year
or (B) is less than $10,000,000 but any Withdrawal Liability payment
remains unpaid 30 days after such payment is due;
(l) the Borrower or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, if solely as a result of such reorganization or termination the
aggregate annual contributions of the Borrower and its ERISA Affiliates to
all Multiemployer Plans that are then in reorganization or have been or are
being terminated have been or will be increased over the amounts required
to be contributed to such Multiemployer Plans for their most recently
completed plan years by an amount exceeding $10,000,000; or
(m) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Agent, at the request of the Required Banks,
shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i) terminate forthwith the Commitments and (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or
in part,
40
whereupon the principal of the Loans so declared to be due and payable, together
with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE VIII
THE AGENT
In order to expedite the transactions contemplated by this Agreement,
JPMorgan Chase Bank is hereby appointed to act as Agent on behalf of the Banks.
Each of the Banks, and each transferee of any Bank, hereby irrevocably
authorizes the Agent to take such actions on behalf of such Bank or transferee
and to exercise such powers as are specifically delegated to the Agent by the
terms and provisions hereof and of the other Loan Documents, together with such
actions and powers as are reasonably incidental thereto. The Agent is hereby
expressly authorized by the Banks, without hereby limiting any implied
authority, (a) to receive on behalf of the Banks all payments of principal of
and interest on the Loans and all other amounts due to the Banks hereunder, and
promptly to distribute to each Bank its proper share of each payment so
received; (b) to give notice on behalf of each of the Banks to the Borrower of
any Event of Default specified in this Agreement of which the Agent has actual
knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Bank copies of all notices, financial statements and other
materials delivered by the Borrower pursuant to this Agreement as received by
the Agent.
Neither the Agent nor any of its directors, officers, employees or
agents shall be liable as such for any action taken or omitted by any of them
except for its or his own gross negligence or wilful misconduct, or be
responsible for any statement, warranty or representation herein or the contents
of any document delivered in connection herewith, or be required to ascertain or
to make any inquiry concerning the performance or observance by the Borrower of
any of the terms, conditions, covenants or agreements contained in any Loan
Document. The Agent shall not be responsible to the Banks for the due execution,
genuineness, validity, enforceability or effectiveness of this Agreement or any
other Loan Documents or other instruments or agreements. The Agent shall in all
cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Required Banks and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Banks. The Agent shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to have been
signed or sent by the proper person or persons. Neither the
41
Agent nor any of its directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure of or delay in
performance or breach by any Bank of any of its obligations hereunder or to any
Bank on account of the failure of or delay in performance or breach by any other
Bank or the Borrower of any of their respective obligations hereunder or under
any other Loan Document or in connection herewith or therewith. The Agent may
execute any and all duties hereunder by or through agents or employees and shall
be entitled to rely upon the advice of legal counsel selected by it with respect
to all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Banks hereby acknowledge that the Agent shall be under no duty to
take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so by
the Required Banks.
Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by notifying the Banks and the
Borrower. Upon any such resignation, the Required Banks shall have the right to
appoint a successor. If no successor shall have been so appointed by the
Required Banks and shall have accepted such appointment within 30 days after the
retiring Agent gives notice of its resignation, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent which shall be a bank with an
office in New York, New York, having a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its duties and
obligations hereunder. After the Agent's resignation hereunder, the provisions
of this Article and Section 9.05 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
Agent.
With respect to the Loans made by it hereunder, the Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Bank and may exercise the same as though it were not the Agent, and
the Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Agent.
Each Bank agrees (i) to reimburse the Agent, on demand, in the amount
of its pro rata share (based on its Commitment hereunder) of any expenses
incurred for the benefit of the Banks by the Agent, including counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Banks, which shall not have been reimbursed by the Borrower and (ii) to
indemnify and hold harmless the Agent and any of its directors, officers,
employees or agents, on demand, in the amount of such pro rata share, from and
against any and all liabilities, taxes, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against it in
its capacity as the Agent or any of them in any way relating to or arising out
of this Agreement or any other Loan Document or any action taken or omitted by
it or any of them under this Agreement or any other Loan Document, to the extent
the same shall not have been reimbursed by the Borrower; PROVIDED that no Bank
shall be liable to the Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
42
expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Agent or any of its directors, officers, employees or agents.
Each Bank acknowledges that it has, independently and without reliance
upon the Agent or any other Bank 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 Bank also acknowledges that it will, independently and
without reliance upon the Agent or any other Bank 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 or any other Loan Document, any related agreement or any document
furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
Section 9.01. NOTICES. 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 Borrower, to it at 000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxx, Xxxx 00000, Attention of Treasurer (Telecopy No. 513-977-3729)
with a copy to Xxxxx & Xxxxxxxxx LLP, counsel for the Borrower, to it at
0000 Xxxxxxxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, Attention of Xxxx X.
Xxxxxxxxxx, Esq. (Telecopy No. 216-696-0740) and 000 Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxxx, Xxxx 00000, Attention of Xxxxxxx Xxxxxxxx (Telecopy No.
513-929-0303);
(b) if to the Agent, to JPMorgan Chase Bank, Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxx Xxxxxxx (Telecopy No.
212 - 552-5700), with copies to JPMorgan Chase Bank, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxxxxx (Telecopy No.
212-270-4164); and
(c) if to a Bank, to it at its address (or telecopy number) set forth
in Schedule 2.01 or in the Assignment and Acceptance pursuant to which such
Bank shall have become a party 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 if delivered by hand or overnight courier service or sent by
telecopy, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 9.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 9.01.
Section 9.02. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other material instruments prepared or delivered in connection
with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the Banks and shall survive the making by
the Banks of the Loans, regardless of any investigation made by the
43
Banks or on their behalf, 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 or any other Loan Document is outstanding
and unpaid and so long as the Commitments have not been terminated.
Section 9.03. BINDING EFFECT. This Agreement shall become effective
when it shall have been executed by the Borrower and the Agent and when the
Agent shall have received copies hereof which, when taken together, bear the
signatures of each Bank, and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Agent and each Bank and their respective successors
and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior consent of all the
Banks.
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 (i)
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Bank (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Bank may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. 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, Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Agent and the Banks) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Bank may assign to one or more assignees 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) with the prior written consent
(such consent not to be unreasonably withheld, conditioned or delayed) of:
(A) the Borrower, PROVIDED that no consent of the Borrower shall
be required for an assignment to a Bank, an Affiliate of a Bank, an
Approved Fund (as defined below) or, if an Event of Default under clause
(b), (c), (g) or (h) of Article VII has occurred and is continuing, any
other assignee; and
(B) the Agent, PROVIDED that no consent of the Agent shall be
required for an assignment to an assignee that is a Bank or an affiliate of
a Bank immediately prior to giving effect to such assignment.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Bank or an Affiliate
of a Bank or an assignment of the entire remaining amount of the assigning
Bank's Commitment, the amount of the Commitment of the assigning Bank
subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the Agent)
shall not be less than $5,000,000 unless each of the
44
Borrower and the Agent otherwise consent, PROVIDED that no such consent of
the Borrower shall be required if an Event of Default under clause (b),
(c), (g) or (h) of Article VII has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Bank's rights and obligations under
this Agreement, PROVIDED that this clause shall not apply to rights in
respect of outstanding Competitive Loans;
(C) the parties to each assignment shall execute and deliver to
the Agent an Assignment and Acceptance, together with a processing and
recordation fee of $3,500;
(D) the assignee, if it shall not be a Bank, shall deliver to the
Agent an Administrative Questionnaire; and
(E) in the case of an assignment to a CLO (as defined below), the
assigning Bank shall retain the sole right to approve any amendment,
modification or waiver of any provision of this Agreement, PROVIDED that
the Assignment and Acceptance between such Bank and such CLO may provide
that such Bank will not, without the consent of such CLO, agree to any
amendment, modification or waiver described in the first proviso to Section
9.08(b) that affects such CLO.
For the purposes of this Section 9.04(b), the terms "Approved Fund"
and "CLO" have the following meanings:
"APPROVED FUND" means (a) a CLO and (b) with respect to any Bank that
is a fund which invests in bank loans and similar extensions of credit, any
other fund that invests in bank loans and similar extensions of credit and is
managed by the same investment advisor as such Bank or by an Affiliate of such
investment advisor.
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Bank or an Affiliate of such Bank.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) 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 Bank under this Agreement, and
the assigning Bank 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 Bank's rights and obligations under this Agreement, such Bank shall
cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.13, 2.15, 2.19 and 9.05). Any assignment or transfer by a Bank of
rights or obligations under this Agreement that does not comply with this
Section 9.04 shall be treated for purposes of this Agreement as a sale by such
Bank of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
45
(iv) The Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of
the Banks, and the Commitment of, and principal amount of the Loans owing to,
each Bank pursuant to the terms hereof from time to time (the "REGISTER"). The
entries in the Register shall be conclusive, and the Borrower, the Agent and the
Banks may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Bank hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Bank, at any reasonable time and from time to
time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Bank and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Bank
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 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.
(c) (i) Any Bank may, without the consent of the Borrower or the
Agent, sell participations to one or more banks or other entities (a
"PARTICIPANT") in all or a portion of such Bank's rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans owing
to it); PROVIDED that (A) such Bank's obligations under this Agreement shall
remain unchanged, (B) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the
Agent and the other Banks shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Bank sells such a participation
shall provide that such Bank 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 Bank will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.08(b) that affects such Participant. Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.13, 2.15 and 2.19 to the same extent as if it were a Bank
and had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 9.06 as though it were a Bank, provided such
Participant agrees to be subject to Section 2.17 as though it were a Bank.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.19 than the applicable Bank 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
Borrower's prior written consent. A Participant that would be a Non-U.S. Bank if
it were a Bank shall not be entitled to the benefits of Section 2.19 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.19(g) as though it were a Bank.
46
(d) Any Bank 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 Bank, including any pledge or assignment to secure obligations 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 Bank from any of its obligations hereunder or
substitute any such pledgee or assignee for such Bank as a party hereto.
Section 9.05. EXPENSES; INDEMNITY. (a) The Borrower agrees to pay all
out-of-pocket expenses incurred by the Agent in connection with the preparation
of this Agreement and the other Loan Documents or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby contemplated shall be consummated) or
incurred by the Agent or any Bank in connection with the enforcement or
protection of their rights in connection with this Agreement and the other Loan
Documents or in connection with the Loans made hereunder, including the
reasonable fees, charges and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Agent, and, in connection with any such enforcement or
protection, the reasonable fees, charges and disbursements of any other counsel
for the Agent or any Bank. The Borrower further agrees that it shall indemnify
the Banks from and hold them harmless against any documentary taxes, assessments
or charges made by any Governmental Authority by reason of the execution and
delivery of this Agreement or any of the other Loan Documents.
(b) The Borrower agrees to indemnify the Agent, each Bank and each of
their respective directors, officers, employees and agents (each such person
being called an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated thereby, the performance by
the parties thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated
thereby, (ii) the use of the proceeds of the Loans or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not 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 are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
(A) in the case of the Agent or any Bank, any unexcused breach by the Agent or
such Bank of any of its obligations under this Agreement or (b) the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Agent or any Bank. All amounts due under this
Section 9.05 shall be payable on written demand therefor.
47
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank; PROVIDED that no such assignment
shall release a Bank from any of its obligations hereunder.
Section 9.06. RIGHTS OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Bank is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Bank to or for
the credit or the account of the Borrower against any of and all the obligations
of the Borrower now or hereafter existing under this Agreement and other Loan
Documents held by such Bank, irrespective of whether or not such Bank shall have
made any demand under this Agreement or such other Loan Document and although
such obligations may be unmatured. The rights of each Bank under this Section
are in addition to other rights and remedies (including other rights of Setoff)
which such Bank may have.
SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
Setion 9.08. WAIVERS; AMENDMENT. (a) No failure or delay of the Agent
or any Bank in exercising any power or right 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 Agent and the Banks hereunder and
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies which they would otherwise have. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on the Borrower in any case shall entitle the Borrower to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower, and the Required Banks; PROVIDED, HOWEVER, that no
such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan, or waive or excuse any such payment of or any part
thereof, or decrease the rate of interest on any Loan, without the prior written
consent of each Bank affected thereby, (ii) change or extend the Commitment or
decrease the Facility Fees of any Bank without the prior written consent of such
Bank, or (iii) amend or modify the provisions of Section 2.16, the provisions of
this Section, or the definition of "Required Banks", without the prior written
consent of each Bank; PROVIDED FURTHER that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Agent hereunder without
the prior written consent of the Agent.
Section 0.09. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the applicable interest rate, together
with all fees and charges which are
48
treated as interest under applicable law (collectively the "Charges"), as
provided for herein or in any other document executed in connection herewith, or
otherwise contracted for, charged, received, taken or reserved by any Bank,
shall exceed the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by such Bank in accordance
with applicable law, the rate of interest payable hereunder, together with all
Charges payable to such Bank, shall be limited to the Maximum Rate.
Section 9.10. ENTIRE AGREEMENT. This Agreement and the other Loan
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
Section 9.11. 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 respect of any litigation directly or indirectly arising out
of, under or in connection with this Agreement or any of the other Loan
Documents. 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 and the other Loan Documents, as
applicable, by, among other things, the mutual waivers and certifications in
this Section 9.11.
Section 9.12. SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible so that of the invalid, illegal or unenforceable provisions.
Section 9.13. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
Section 9.14. 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 are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
Section 9.15. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (c) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and
49
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 jurisdiction by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any Bank
may otherwise have to bring any action or proceeding relating to this Agreement
or the other Loan Documents against the Borrower or its properties in the courts
of any jurisdiction.
(b) The 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 or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) 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 9.16 CONFIDENTIALITY. (d) Each Bank agrees to keep
confidential (and to cause its respective officers, directors, employees, agents
and representatives to keep confidential) the Information (as defined below),
except that any Bank shall be permitted to disclose Information (i) to such of
its officers, directors, employees, agents and representatives (including
outside counsel) as need to know such Information; (ii) to the extent required
by applicable laws and regulations or by any subpoena or similar legal process,
or requested by any bank regulatory authority (provided that such Bank shall,
except (A) as prohibited by law and (B) for Information requested by any such
bank regulatory authority, promptly notify Borrower of the circumstances and
content of each such disclosure and shall request confidential treatment of any
information so disclosed); (iii) to the extent such Information (A) becomes
publicly available other than as a result of a breach of this Agreement, (B)
becomes available to such Bank on a non-confidential basis from a source other
than the Borrower or its Affiliates or (C) was available to such Bank on a
non-confidential basis prior to its disclosure to such Bank by the Borrower or
its Affiliates; or (iv) to the extent the Borrower shall have consented to such
disclosure in writing. As used in this Section 9.16, as to any Bank,
"Information" shall mean any financial statements, materials, documents and
other information that the Borrower or any of its Affiliates may have furnished
or made available or may hereafter furnish or make available to the Agent or any
Bank in connection with this Agreement or any other materials prepared by any
such person from any of the foregoing.
50
IN WITNESS WHEREOF, the Borrower, the Agent and the Banks have caused
this Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
THE X. X. XXXXXXX COMPANY, as Borrower,
By /s/ E. Xxxx Xxxxxxxx
--------------------------------------
Name: E. Xxxx Xxxxxxxx
Title: Treasurer
JPMORGAN CHASE BANK, individually and as
Administrative Agent,
By
--------------------------------------
Name:
Title:
X.X. XXXXXX SECURITIES INC.
By
--------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the Borrower, the Agent and the Banks have caused
this Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
THE X. X. XXXXXXX COMPANY, as Borrower,
By
--------------------------------------
Name: E. Xxxx Xxxxxxxx
Title: Treasurer
JPMORGAN CHASE BANK, individually and as
Administrative Agent,
By /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
X.X. XXXXXX SECURITIES INC.
By /s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
SUNTRUST BANK
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
MELLON BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Lending Officer
WACHOVIA BANK, N.A.
By: /s/ J. Xxxxxxx Xxxxx
-------------------------------------
Name: J. Xxxxxxx Xxxxx
Title: Director
US BANK N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
FIFTH THIRD BANK
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Assistant Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx XX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx XX
Title: Vice President
XXXXXXX XXXXX BANK USA
By: /s/ D. Xxxxx Xxxxx
-------------------------------------
Name: D. Xxxxx Xxxxx
Title: Senior Credit Officer
XXXXX FARGO BANK N.A.
By: /s/ Xxxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
