24
Exhibit 10(n)
EXECUTION COPY
================================================================================
THREE-YEAR CREDIT AGREEMENT
dated as of
October 18, 2002
between
▇▇▇▇▇-▇▇▇▇▇, INC.
The LENDERS Party Hereto,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Sole Lead Advisor,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Joint Bookrunners
and
JPMORGAN CHASE BANK,
as Administrative Agent
--------------
$125,000,000
--------------
================================================================================
25
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.....................................................28
SECTION 1.02. Classification of Loans and Borrowings............................37
SECTION 1.03. Terms Generally...................................................37
SECTION 1.04. Accounting Terms; GAAP............................................38
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments...................................................38
SECTION 2.02. Loans and Borrowings..............................................38
SECTION 2.03. Requests for Syndicated Borrowings................................39
SECTION 2.04. Competitive Bid Procedure.........................................39
SECTION 2.05. Swingline Loans...................................................41
SECTION 2.06. Funding of Borrowings.............................................42
SECTION 2.07. Interest Elections................................................42
SECTION 2.08. Termination and Reduction of the Commitments......................43
SECTION 2.09. Repayment of Loans; Evidence of Debt..............................43
SECTION 2.10. Intentionally Left Blank..........................................44
SECTION 2.11. Prepayment of Loans...............................................44
SECTION 2.12. Fees..............................................................45
SECTION 2.13. Interest..........................................................45
SECTION 2.14. Alternate Rate of Interest........................................46
SECTION 2.15. Increased Costs...................................................46
SECTION 2.16. Break Funding Payments............................................47
SECTION 2.17. Taxes.............................................................48
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.......48
SECTION 2.19. Mitigation Obligations; Replacement of Lenders....................49
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers..............................................50
SECTION 3.02. Authorization; Enforceability.....................................50
SECTION 3.03. Governmental Approvals; No Conflicts..............................50
26
Page
----
SECTION 3.04. Financial Condition; No Material Adverse Change...................50
SECTION 3.05. Properties........................................................51
SECTION 3.06. Litigation and Environmental Matters..............................51
SECTION 3.07. Compliance with Laws and Agreements...............................51
SECTION 3.08. Investment and Holding Company Status.............................51
SECTION 3.09. Taxes ............................................................51
SECTION 3.10. ERISA ............................................................52
SECTION 3.11. Disclosure........................................................52
SECTION 3.12. Use of Credit.....................................................52
SECTION 3.13. Material Agreements and Liens.....................................52
SECTION 3.14. Subsidiaries......................................................52
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date....................................................52
SECTION 4.02. Each Credit Event.................................................54
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information........................54
SECTION 5.02. Notices of Material Events........................................55
SECTION 5.03. Existence; Conduct of Business....................................56
SECTION 5.04. Payment of Obligations............................................56
SECTION 5.05. Maintenance of Properties; Insurance..............................56
SECTION 5.06. Books and Records; Inspection Rights..............................56
SECTION 5.07. Compliance with Laws..............................................56
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Liens.............................................................56
SECTION 6.02. Fundamental Changes...............................................57
SECTION 6.03. Sale and Leasebacks...............................................57
SECTION 6.04. Transactions with Affiliates......................................58
SECTION 6.05. Subsidiary Indebtedness...........................................58
SECTION 6.06. Certain Financial Covenants.......................................58
27
Page
----
ARTICLE VII
EVENTS OF DEFAULT.......................................................................58
ARTICLE VIII
THE ADMINISTRATIVE AGENT................................................................60
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices...........................................................61
SECTION 9.02. Waivers; Amendments...............................................61
SECTION 9.03. Expenses; Indemnity; Damage Waiver................................62
SECTION 9.04. Successors and Assigns............................................63
SECTION 9.05. Survival..........................................................65
SECTION 9.06. Counterparts; Integration; Effectiveness..........................65
SECTION 9.07. Severability......................................................65
SECTION 9.08. Right of Setoff...................................................65
SECTION 9.09. Governing Law; Jurisdiction; Etc..................................66
SECTION 9.10. WAIVER OF JURY TRIAL..............................................66
SECTION 9.11. Headings..........................................................66
SECTION 9.12. Treatment of Certain Information; Confidentiality.................66
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Litigation
SCHEDULE IV - Environmental Matters
SCHEDULE V - Subsidiaries
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Opinion of Counsel to the Borrower
EXHIBIT C - Form of Opinion of Special
New York Counsel to JPMorgan
28
THREE-YEAR
CREDIT AGREEMENT dated as of October 18, 2002,
between ▇▇▇▇▇-▇▇▇▇▇, INC., the LENDERS party hereto, and JPMORGAN CHASE BANK, as
Administrative Agent.
The Borrower (as hereinafter defined) has requested that the
Lenders (as so defined) make loans to it in an aggregate principal amount not
exceeding $125,000,000 at any one time outstanding. The Lenders are prepared to
make such loans upon the terms and conditions hereof, and, accordingly, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, for the Interest Period for any
Syndicated Eurodollar Borrowing, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate for such Interest Period.
"Administrative Agent" means Chase, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate for such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may
be.
"Annual Report" has the meaning assigned to such term in
Section 5.01(a).
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any ABR
Loan or Syndicated Eurodollar Loan, or with respect to the facility fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "ABR Spread", "Eurodollar Spread" or "Facility Fee Rate",
respectively, based upon the Leverage Ratio as of the most recent determination
date:
29
==============================================================================================================
ABR Eurodollar Facility
Leverage Ratio: Spread Spread Fee Rate
--------------------------------------------------------------------------------------------------------------
Category 1
Less than 1.50x 0.000% 0.500% 0.125%
--------------------------------------------------------------------------------------------------------------
Category 2
Equal to or greater than 1.50x
but less than or equal to 2.50x 0.000% 0.600% 0.150%
--------------------------------------------------------------------------------------------------------------
Category 3
Greater than 2.50x 0.000% 0.700% 0.175%
==============================================================================================================
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting
from a change in the Leverage Ratio shall be effective during the period
commencing on and including the date three Business Days after delivery to the
Administrative Agent of such consolidated financial statements indicating such
change and ending on the date immediately preceding the effective date of the
next such change; provided that (i) the Leverage Ratio shall be deemed to be in
Category 3 (A) at any time that an Event of Default has occurred and is
continuing and (B) if the Borrower fails to deliver the consolidated financial
statements required to be delivered by it pursuant to Section 5.01(a) or (b),
during the period from the expiration of the time for delivery thereof until
such consolidated financial statements are delivered; and (ii) until the date
three Business Days after the first delivery of the Borrower's consolidated
financial statements pursuant to Section 5.01, the "Applicable Rate" shall be
the applicable rate per annum set forth above under the captions "Eurodollar
Spread" and "Facility Fee Rate" in Category 1.
"Approved Fund" means, with respect to any Lender that is a
fund that 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 Lender or by an Affiliate of such investment
advisor.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the Commitment Termination Date.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means ▇▇▇▇▇-▇▇▇▇▇, Inc., a Delaware corporation.
"Borrowing" means (a) all Syndicated ABR Loans made, converted
or continued on the same date, (b) all Syndicated Eurodollar Loans or
Competitive Loans of the same Class and Type that have the same Interest Period
(or any single Competitive Loan that does not have the same Interest Period as
any other Competitive Loan of the same Type) or (c) a Swingline Loan. For
purposes hereof, the date of a Syndicated Borrowing comprising Loans that have
been converted or continued shall be the effective date of the most recent
conversion or continuation of such Loans.
"Borrowing Request" means a request by the Borrower for a
Syndicated Borrowing in accordance with Section 2.03.
"Business Day" means any day (a) that is not a Saturday,
Sunday or other day on which commercial banks in
New York City are authorized or
required by law to remain closed and (b) if such day relates to a Competitive
Bid Request
30
or Competitive Bid for a Competitive Eurodollar Loan, or to a borrowing of, a
payment or prepayment of principal of or interest on, a continuation or
conversion of or into, or the Interest Period for, a Eurodollar Borrowing, or to
a notice by the Borrower with respect to any such borrowing, payment,
prepayment, continuation, conversion, or Interest Period, that is also a day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially, by any Person or group (within the meaning
of the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 25% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated; or (c) the
acquisition of direct or indirect Control of the Borrower by any Person or
group.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
Syndicated Loans, Competitive Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Syndicated Loans and to acquire participations
in Swingline Loans hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Commitment is set forth on Schedule I, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is $125,000,000.
"Commitment Termination Date" means October 18, 2005.
"Competitive", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans constituting such
Borrowing, are made pursuant to Section 2.04.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
31
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
disclosed in Schedule III and the environmental matters disclosed in Schedule
IV.
"Disposition" means any sale, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired) by the
Borrower or any of its Subsidiaries to any other Person (other than the Borrower
or any of its Subsidiaries) excluding (i) any sale, assignment, transfer or
other disposition of any property sold or disposed of in the ordinary course of
business and on ordinary business terms and (ii) any loss or damage to, or any
condemnation or taking of, any property.
"Dollars" or "$" refers to lawful money of the United States
of America.
"EBITDA" means, for any period, the sum, for the Borrower and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) income (loss) from operations
(calculated before Interest Expense, taxes, extraordinary and unusual items and
income or loss attributable to equity in Affiliates) for such period plus (b)
depreciation, amortization and other non-cash charges (to the extent deducted in
determining income (loss) from operations) for such period.
Notwithstanding the foregoing, if during any period for which
EBITDA is being determined the Borrower or any of its Subsidiaries shall have
consummated any acquisition or shall have consummated any Disposition then, for
all purposes of this Agreement, EBITDA shall be determined on a pro forma basis
as if such acquisition or such Disposition had been made or consummated on the
first day of such period.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any shareholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or securities convertible into, any
additional shares of capital stock of any class, or partnership or other
ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of
32
ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the
Code or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the Borrower or
any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
bearing interest at a rate determined by reference to (a) in the case of a
Syndicated Loan or a Syndicated Borrowing, the Adjusted LIBO Rate, or (b) in the
case of a Competitive Loan or a Competitive Borrowing, the LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.19(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement or is attributable to such Foreign Lender's failure or
inability to comply with Section 2.17(e), except to the extent that such Foreign
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.17(a).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of
New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Competitive Eurodollar Loan), the fixed rate of interest per annum
specified by the Lender making such Competitive Loan in its related Competitive
Bid. When used in reference to any Loan or Borrowing, "Fixed Rate" refers to
whether such Loan, or the Loans constituting such Borrowing, are Competitive
Loans bearing interest at a Fixed Rate.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, or of any other nation, or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court,
33
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor 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 the guarantor, 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 to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness of the payment
thereof, (c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or (d) as an account party in respect
of any letter of credit or letter of guaranty issued to support such
Indebtedness; provided, that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money (or with respect to deposits
or advances of any kind that have substantially the same effect as obligations
for borrowed money), (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person and (i)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Coverage Ratio" means, as at any date of
determination thereof, the ratio of (a) EBITDA for the period of four fiscal
quarters ending on or most recently ended prior to such date to (b) Interest
Expense for such period.
"Interest Election Request" means a request by the Borrower to
convert or continue a Syndicated Borrowing in accordance with Section 2.07.
"Interest Expense" means, for any period, the sum, for the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including the interest component of any payments in
respect of Capital Lease Obligations) accrued or capitalized during such period
(whether or not actually paid during such period) plus (b) the net amount
payable (or minus the net amount receivable) under Hedging Agreements relating
to interest during such period (whether or not actually paid or received during
such period).
Notwithstanding the foregoing, if during any period for which
Interest Expense is being determined the Borrower or any of its Subsidiaries
shall have consummated any acquisition or Disposition then, for all purposes of
this
34
Agreement, Interest Expense shall be determined on a pro forma basis as if such
acquisition or Disposition (and any Indebtedness incurred by the Borrower or any
of its Subsidiaries in connection with such acquisition or repaid as a result of
such Disposition) had been made or consummated (and such Indebtedness incurred
or repaid) on the first day of such period.
"Interest Payment Date" means (a) with respect to any
Syndicated ABR Loan, each Quarterly Date, (b) with respect to any Eurodollar
Loan, the last day of each Interest Period therefor and, in the case of any
Interest Period for a Eurodollar Loan of more than three months' duration, each
day prior to the last day of such Interest Period that occurs at three-month
intervals after the first day of such Interest Period, (c) with respect to any
Fixed Rate Loan, the last day of the Interest Period therefor and, in the case
of any Interest Period for a Fixed Rate Loan of more than 90 days' duration
(unless otherwise specified in the applicable Competitive Bid Request), each day
prior to the last day of such Interest Period that occurs at 90-day intervals
after the first day of such Interest Period, and any other dates that are
specified in the applicable Competitive Bid Request as Interest Payment Dates
with respect to such Loan and (d) with respect to any Swingline Loan, the day
that such Loan is required to be repaid.
"Interest Period" means:
(a) for any Syndicated Eurodollar Loan, the period commencing
on the date of such Loan and ending on the numerically corresponding
day in the calendar month that is one, two, three or six months
thereafter, as specified in the applicable Borrowing Request or
Interest Election Request;
(b) for any Competitive Eurodollar Loan, the period commencing
on the date of such Loan and ending on the numerically corresponding
day in the calendar month that is one, three, six or nine months
thereafter, as specified in the applicable Competitive Bid Request; and
(c) for any Fixed Rate Loan, the period (which shall not be
less than seven days or more than 360 days) commencing on the date of
such Loan and ending on the date specified in the applicable
Competitive Bid Request;
provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Loan initially shall be the date on which such
Loan is made and, in the case of a Syndicated Loan, thereafter shall be the
effective date of the most recent conversion or continuation of such Loan.
"JPMorgan" means JPMorgan Chase Bank.
"Lenders" means the Persons listed on Schedule I and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lenders.
"Leverage Ratio" means, as at any date, the ratio of (a)
Indebtedness of the Borrower and its Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP) on such date to (b) EBITDA
for the period of four fiscal quarters ending on or most recently ended prior to
such date.
"LIBO Rate" means, for the Interest Period for any Eurodollar
Borrowing, 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 determined by the Administrative 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 the offering of 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 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
35
London office of the Administrative 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" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset (including, in the case of any account or other
receivable, any sale thereof other than sales thereof in the ordinary course of
business for purposes of collection of past-due receivables) and (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement (or any financing lease having substantially
the same economic effect as any of the foregoing) relating to such asset.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Margin Stock" means "margin stock" within the meaning of
Regulations T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, properties, operations, prospects or condition,
financial or otherwise, of the Borrower and its Subsidiaries taken as a whole,
(b) the ability of the Borrower to perform any of its obligations under this
Agreement or (c) the rights of or benefits available to the Lenders under this
Agreement.
"Material Indebtedness" means Indebtedness (other than the
Loans), or obligations in respect of one or more Hedging Agreements, of any one
or more of the Borrower and its Subsidiaries in an aggregate principal amount
exceeding $20,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of any Person in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that such Person would be required to pay if such
Hedging Agreement were terminated at such time.
"Material Subsidiary" means any Subsidiary which (i) accounts
for more than 5% of the total consolidated revenue of the Borrower and its
Subsidiaries or (ii) represents more than 5% of the total consolidated assets of
the Borrower and its Subsidiaries.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or
are being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) cash deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and
36
appeal bonds, performance bonds and other obligations of a like nature,
in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Borrower or any
Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Chase as its prime rate in effect at its
principal office in
New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Quarterly Dates" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
"Quarterly Report" has the meaning assigned to such term in
Section 5.01(b).
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Syndicated Loans and unused Commitments representing at least 51% of the sum of
the total Syndicated Loans and unused Commitments at such time (provided that,
for purposes of declaring the Loans to be due and payable pursuant to Article
VII, and for all purposes after the Loans become due and payable pursuant to
Article VII or the Commitments expire or terminate, the outstanding Competitive
Loans of the Lenders shall be included in determining the Required Lenders). The
"Required Lenders" of a particular Class of Loans means Lenders having Revolving
Credit Exposures and unused Commitments of such Class representing at least 51%
of the total Revolving Credit Exposures and unused Commitments of such Class at
such time.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of the outstanding principal amount of such Lender's
Syndicated Loans and its Swingline Exposure at such time.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act" has the meaning assigned to such term in
Section 5.01(a).
"Statutory Reserve Rate" means, for the Interest Period for
any Syndicated Eurodollar Borrowing, 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 arithmetic mean, taken over each day in such Interest Period, of
the aggregate of the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a decimal established
by the Board to which the Administrative Agent is subject for eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D.
37
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held. Unless otherwise
specified, "Subsidiary" means a Subsidiary of the Borrower.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
"Swingline Lender" means JPMorgan and such other Lender that
agrees to become a Swingline Lender and is consented to by the Administrative
Agent and the Borrower, in their capacity as a lender of Swingline Loans
hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Syndicated", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
Revolving Loans or Borrowings (i.e. such Loan or Borrowing is not a Competitive
or Swingline Loan or Borrowing).
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means the execution, delivery and performance
by the Borrower of this Agreement, the borrowing of Loans and the use of the
proceeds thereof.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
constituting such Borrowing, is determined by reference to the Adjusted LIBO
Rate, the Alternate Base Rate or, in the case of a Competitive Loan or
Borrowing, the LIBO Rate or a Fixed Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a
"Competitive Loan"), by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Competitive Eurodollar Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Competitive Borrowing"), by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Competitive Eurodollar
Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to
38
refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement
and (e) the words "asset" and "property" shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. THE COMMITMENTS. Subject to the terms and conditions set forth
herein, each Lender agrees to make Syndicated Loans to the Borrower from time to
time during the Availability Period in an aggregate principal amount that will
not result in (a) such Lender's Syndicated Loans exceeding such Lender's
Commitment or (b) the sum of the total Syndicated Loans plus the aggregate
principal amount of outstanding Competitive Loans plus the aggregate principal
amount of Swingline Loans exceeding the total Commitments. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Syndicated Loans.
SECTION 2.02. LOANS AND BORROWINGS.
(a) Obligations of Lenders. Each Syndicated Loan shall be made
as part of a Borrowing consisting of Loans of the same Type made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.04. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.14, (i) each
Syndicated Borrowing shall be constituted entirely of ABR Loans or of Eurodollar
Loans as the Borrower may request in accordance herewith, and (ii) each
Competitive Borrowing shall be constituted entirely of Eurodollar Loans or Fixed
Rate Loans as the Borrower may request in accordance herewith. Each Swingline
Loan shall be an ABR Loan. Each Lender at its option may make any Eurodollar
Loan by causing any domestic or foreign branch or Affiliate of such Lender 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.
(c) Minimum Amounts; Limitation on Number of Borrowings. Each
Syndicated Eurodollar Borrowing shall be in an aggregate amount of $5,000,000 or
a larger multiple of $1,000,000. Each Syndicated ABR Borrowing shall be in an
aggregate amount equal to $1,000,000 or a larger multiple of $1,000,000;
provided that a Syndicated ABR Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments. Each Competitive
Borrowing shall be in an aggregate amount equal to $5,000,000 or a larger
multiple of $1,000,000. Each Swingline Loan shall be in an amount equal to
$1,000,000 or a larger multiple of $100,000. Borrowings of more than one Class
and Type may be outstanding at the same time; provided that there shall not at
any time be more than a total of 20 Syndicated Eurodollar Borrowings
outstanding.
(d) Limitations on Interest Periods. Notwithstanding any other
provision of this Agreement, the Borrower shall not be entitled to request (or
to elect to convert to or continue as a Syndicated Eurodollar Borrowing) any
Borrowing prior to the Commitment Termination Date if the Interest Period
requested therefor would end after the Commitment Termination Date.
39
SECTION 2.03. REQUESTS FOR SYNDICATED BORROWINGS.
(a) Notice by the Borrower. To request a Syndicated Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone
(i) in the case of a Syndicated Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of the proposed
Borrowing or (ii) in the case of a Syndicated ABR Borrowing, not later than
11:00 a.m.,
New York City time, one Business Day before the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower.
(b) Content of Borrowing Requests. Each telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Syndicated Eurodollar Borrowing, the
Interest Period therefor, which shall be a period contemplated by the
definition of the term "Interest Period" and permitted under Section
2.02(d); and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
(c) Notice by the Administrative Agent to the Lenders.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
(d) Failure to Elect. If no election as to the Type of a
Syndicated Borrowing is specified, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to any requested
Syndicated Eurodollar Borrowing, then the requested Borrowing shall be made
instead as a Syndicated ABR Borrowing.
SECTION 2.04. COMPETITIVE BID PROCEDURE.
(a) Requests for Bids by the Borrower. Subject to the terms
and conditions set forth herein, from time to time during the Availability
Period the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Syndicated Loans plus the aggregate principal amount
of outstanding Competitive Loans plus the aggregate principal amount of
outstanding Swingline Loans at any time shall not exceed the total Commitments.
To request Competitive Bids, the Borrower shall notify the Administrative Agent
of such request by telephone, in the case of a Eurodollar Borrowing, not later
than 11:00 a.m.,
New York City time, four Business Days before the date of the
proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later than
10:00 a.m.,
New York City time, one Business Day before the date of the proposed
Borrowing; provided that the Borrower may submit up to (but not more than) three
Competitive Bid Requests on the same day, but a Competitive Bid Request shall
not be made within five Business Days after the date of any previous Competitive
Bid Request, unless any and all such previous Competitive Bid Requests shall
have been withdrawn or all Competitive Bids received in response thereto
rejected. Each such telephonic Competitive Bid Request shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Competitive Bid Request in a form approved by the Administrative Agent and
signed by the Borrower. Each such telephonic and written Competitive Bid Request
shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
40
(iii) whether such Borrowing is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period for such Borrowing, which shall be a
period contemplated by the definition of the term "Interest Period" and
permitted under Section 2.02(d); and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Making of Bids by Lenders. Each Lender may (but shall not
have any obligation to) make one or more Competitive Bids to the Borrower in
response to a Competitive Bid Request. Each Competitive Bid by a Lender must be
in a form approved by the Administrative Agent and must be received by the
Administrative Agent by telecopy, in the case of a Competitive Eurodollar
Borrowing, not later than 9:30 a.m.,
New York City time, three Business Days
before the proposed date of such Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m.,
New York City time, on the proposed date of
such Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender of such
rejection as promptly as practicable. Each Competitive Bid shall specify (i) the
principal amount (which shall be $5,000,000 or a larger 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 Lender is
willing to make, (ii) the Competitive Bid Rate or Competitive Bid Rates at which
the Lender is prepared to make such Loan or Loans (expressed as a percentage
rate per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period for each such Loan and the last day thereof.
(c) Notification of Bids by Administrative Agent. The
Administrative Agent shall promptly notify the Borrower by telecopy of the
Competitive Bid Rate and the principal amount specified in each Competitive Bid
and the identity of the Lender that shall have made such Competitive Bid.
(d) Acceptance of Bids by the Borrower. Subject only to the
provisions of this paragraph, the Borrower may accept or reject any Competitive
Bid. The Borrower shall notify the Administrative Agent by telephone, confirmed
by telecopy in a form approved by the Administrative Agent, whether and to what
extent it has decided to accept or reject each Competitive Bid, in the case of a
Competitive Eurodollar Borrowing, not later than 10:30 a.m., New York City time,
three Business Days before the date of the proposed Competitive Borrowing, and
in the case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City
time, on the proposed date of the Competitive Borrowing; provided, that (i) (A)
the failure of the Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (B) the Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Borrower
rejects a Competitive Bid made at a lower Competitive Bid Rate, (C) the
aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the aggregate amount of the requested Competitive Borrowing specified in
the related Competitive Bid Request, (D) to the extent necessary to comply with
clause (B) or (C) of this proviso, the Borrower may accept Competitive Bids at
the same Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (E) except pursuant
to clause (D) of this proviso, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a principal amount of
$5,000,000 or a larger multiple of $1,000,000; and (ii) if a Competitive Loan
must be in an amount less than $5,000,000 because of the provisions of clause
(D) of the first proviso of this paragraph, such Competitive Loan may be in an
amount of $1,000,000 or any multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to such clause (D) the amounts shall be
rounded to multiples of $1,000,000 in a manner determined by the Borrower. A
notice given by the Borrower pursuant to this paragraph shall be irrevocable.
(e) Notification of Acceptances by the Administrative Agent.
The Administrative Agent shall promptly notify each bidding Lender by telecopy
whether or not its Competitive Bid has been accepted (and, if so, the amount and
Competitive Bid Rate so accepted), and each successful bidder will thereupon
become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
41
(f) Bids by the Administrative Agent. If the Administrative
Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it
shall submit such Competitive Bid directly to the Borrower at least one quarter
of an hour earlier than the time by which the other Lenders are required to
submit their Competitive Bids to the Administrative Agent pursuant to paragraph
(b) of this Section.
SECTION 2.05. SWINGLINE LOANS.
(a) Agreement to Make Swingline Loans. Subject to the terms
and conditions set forth herein, the respective Swingline Lenders agrees to make
Swingline Loans to the Borrower from time to time during the Availability
Period, in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of outstanding Swingline Loans
exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures
plus the aggregate principal amount of outstanding Competitive Loans plus the
aggregate principal amount of outstanding Swingline Loans exceeding the total
Commitments; provided that the Swingline Lender shall not be required to make a
Swingline Loan (i) to refinance an outstanding Swingline Loan or (ii) on the
last Business Day of any calendar month. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Borrower may borrow, prepay
and reborrow Swingline Loans.
(b) Notice of Swingline Loans by the Borrower. To request a
Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, New
York City time, on the day of a proposed Swingline Loan. Each such notice shall
be irrevocable and shall specify the requested date (which shall be a Business
Day) and amount of the requested Swingline Loan. The Administrative Agent will
promptly advise the Swingline Lenders of any such notice received from the
Borrower. The Swingline Lenders shall make each Swingline Loan available to the
Borrower by means of a credit to the general deposit account of the Borrower
with the respective Swingline Lender by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.
(c) Participations by Lenders in Swingline Loans. The
Swingline Lender may by written notice given to the Administrative Agent not
later than 10:00 a.m., New York City time, on any Business Day require the
Lenders to acquire participations on such Business Day in all or a portion of
the Swingline Loans outstanding. Such notice to the Administrative Agent shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above
in this paragraph, to pay to the Administrative Agent, for account of each
Swingline Lender, such Lender's Applicable Percentage of such Swingline Loan or
Loans. Each Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Lender shall
comply with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to
the payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the relevant Swingline Lender the amounts so received by it from
the Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the relevant Swingline Lender. Any amounts
received by a Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by such Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof. Notwithstanding the
foregoing, a Lender shall not have any obligation to acquire a participation in
a Swingline Loan pursuant to this paragraph if a Default shall have occurred and
be continuing at the time such Swingline Loan was made and such Lender shall
have notified the Swingline Lender in writing, at least one Business Day prior
to the time such Swingline Loan was made, that such Default has occurred and
that such Lender will not acquire participations in Swingline Loans made while
such Default is continuing.
42
SECTION 2.06. FUNDING OF BORROWINGS.
(a) Funding by Lenders. Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as provided
in Section 2.05. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request or
Competitive Bid Request.
(b) Presumption by the Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such Lender, the
Federal Funds Effective Rate or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.07. INTEREST ELECTIONS.
(a) Elections by the Borrower for Syndicated Borrowings. The
Loans constituting each Syndicated Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Syndicated
Eurodollar Borrowing, shall have the Interest Period specified in such Borrowing
Request. Thereafter, the Borrower may elect to convert such Borrowing to a
Borrowing of a different Type or to continue such Borrowing as a Borrowing of
the same Type and, in the case of a Syndicated Eurodollar Borrowing, may elect
the Interest Period therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans constituting such Borrowing, and the Loans
constituting each such portion shall be considered a separate Borrowing. This
Section shall not apply to Competitive Borrowings or Swingline Borrowings, which
may not be converted or continued.
(b) Notice of Elections. To make an election pursuant to this
Section, the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Syndicated Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative Agent
and signed by the Borrower.
(c) Content of Interest Election Requests. Each telephonic
and written Interest Election Request shall specify the following information in
compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) of this paragraph shall be specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period therefor after giving effect to such election, which
shall be a period contemplated by the definition of the term "Interest
Period" and permitted under Section 2.02(d).
43
(d) Notice by the Administrative Agent to the Lenders.
Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender's
portion of each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower fails
to deliver a timely and complete Interest Election Request with respect to a
Syndicated Eurodollar Borrowing prior to the end of the Interest Period
therefor, then, unless such Borrowing is repaid as provided herein, at the end
of such Interest Period such Borrowing shall be converted to a Syndicated ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing (i) no outstanding Syndicated Borrowing may be converted
to or continued as a Syndicated Eurodollar Borrowing and (ii) unless repaid,
each Syndicated Eurodollar Borrowing shall be converted to a Syndicated ABR
Borrowing at the end of the Interest Period therefor.
SECTION 2.08. TERMINATION AND REDUCTION OF THE COMMITMENTS.
(a) Scheduled Termination. Unless previously terminated, the
Commitments shall terminate at the close of business on the Commitment
Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at
any time terminate, or from time to time reduce, the Commitments; provided that
(i) each reduction of the Commitments shall be in an amount that is $10,000,000
or a larger multiple of $5,000,000 and (ii) the Borrower shall not terminate or
reduce the Commitments if, after giving effect to any concurrent prepayment of
the Syndicated Loans in accordance with Section 2.11, the sum of the total
Syndicated Loans plus the aggregate principal amount of outstanding Competitive
Loans would exceed the total Commitments.
(c) Notice of Voluntary Termination or Reduction. The Borrower
shall notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
by the Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied.
(d) Effect of Termination or Reduction. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.
SECTION 2.09. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) Repayment. The Borrower hereby unconditionally promises to
pay the Loans as follows:
(i) to the Administrative Agent for account of the Lenders,
the then unpaid principal amount of the Syndicated Loans on the
Commitment Termination Date;
(ii) to the Administrative Agent for account of the respective
Lender, the then unpaid principal amount of each Competitive Loan of
such Lender on the last day of the Interest Period therefor and
(iii) to each Swingline Lender the then unpaid principal
amount of each Swingline Loan made by such Swingline Lender on the
earlier of the Commitment Termination Date and the first Business Day
which is 15 days after such Swingline Loan is made; provided that (A)
on each date that a Syndicated Borrowing or Competitive Borrowing is
made, the Borrower shall repay all Swingline Loans then outstanding;
and (B) on the last Business Day of any calendar month the Borrower
shall repay all Swingline Loans then outstanding in an aggregate amount
in excess of $5,000,000.
44
(b) Manner of Payment. Prior to any repayment or prepayment of
any Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings
to be paid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 11:00 a.m., New York City time, three
Business Days before the scheduled date of such repayment; provided that each
repayment of Borrowings shall be applied to repay any outstanding ABR Borrowings
before any other Borrowings. If the Borrower fails to make a timely selection of
the Borrowing or Borrowings to be repaid or prepaid, such payment shall be
applied, first, to pay any outstanding ABR Borrowings and, second, to other
Borrowings in the order of the remaining duration of their respective Interest
Periods (the Borrowing with the shortest remaining Interest Period to be repaid
first), and for these purposes, Competitive Loans shall be deemed to be in the
same Class as Syndicated Loans. Each payment of a Syndicated Borrowing shall be
applied ratably to the Loans included in such Borrowing.
(c) Maintenance of Records by Lenders. Each Lender shall
maintain in accordance with its usual practice records evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(d) Maintenance of Records by the Administrative Agent. The
Administrative Agent shall maintain records in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and each Interest
Period therefor, (ii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder for account
of the Lenders and each Lender's share thereof.
(e) Effect of Entries. The entries made in the records
maintained pursuant to paragraph (c) or (d) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
such records 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.
(f) Promissory Notes. Any Lender 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 Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.10. INTENTIONALLY LEFT BLANK.
This Section 2.10 has been intentionally left blank.
SECTION 2.11. PREPAYMENT OF LOANS.
(a) Right to Prepay Borrowings. The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to the requirements of this Section (provided that (i) any partial
prepayment shall be in an amount of at least $5,000,000 or a larger multiple of
$1,000,000 and (ii) the Borrower shall not have the right to prepay any
Competitive Loan without the prior consent of the Lender thereof).
(b) Notices, Etc. The Borrower shall notify the Administrative
Agent (and, in the case of a prepayment of a Swingline Loan, the relevant
Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Syndicated Eurodollar Borrowing or
of a Competitive Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of prepayment, (ii) in the case of prepayment of
an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business
Day before the date of prepayment or (iii) in the case of prepayment of a
Swingline Loan, not later than 12:00 noon New York City time, on the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of the Commitments as contemplated by
Section 2.08, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.08. Promptly following
receipt of any such notice relating to a Syndicated
45
Borrowing or Competitive Borrowing, the Administrative Agent shall advise the
relevant Lenders of the contents thereof. Each partial prepayment of any
Borrowing shall be in an amount that would be permitted in the case of a
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a
Syndicated Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.13 and shall be made in the manner specified in
Section 2.09(b).
SECTION 2.12. FEES.
(a) Facility Fee. The Borrower agrees to pay to the
Administrative Agent for account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the amount of the Commitment of such Lender
(whether used or unused) during the period from and including the date hereof to
but excluding the later of the date such Commitment terminates and the date such
Lender's Loans shall have been paid in full; provided that, if such Lender
continues to have any Loans outstanding after its Commitment terminates, then
such facility fee shall continue to accrue on the amount of such Lender's Loans
from and including the date on which its Commitment terminates to but excluding
the date on which such Lender's Loans shall have been paid in full. Accrued
facility fees shall be payable on each Quarterly Date and on the later of the
date the Commitments terminate and the date upon which the Loans of all of the
Lenders shall have been paid in full, provided that, if any principal of any
Loan is not paid when due, whether at stated maturity, upon acceleration or
otherwise, the facility fee in respect of such principal shall be payable on
demand. All facility fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) Utilization Fee. The Borrower agrees to pay to the
Administrative Agent for account of each Lender a utilization fee, which shall
accrue at the rate of 0.125% on the daily aggregate outstanding principal amount
of Loans (excluding Competitive Loans but including Swingline Loans) of such
Lender for each day on which the aggregate outstanding principal amount of the
Loans (including Competitive Loans and Swingline Loans) equals or exceeds an
amount equal to 50% of the Commitments. Accrued utilization fees shall be
payable on each Quarterly Date and on the later of the date the Commitments
terminate and the date upon which the Loans of all of the Lenders shall have
been paid in full, provided that, if any principal of any Loan is not paid when
due, whether at stated maturity, upon acceleration or otherwise, the utilization
fee in respect of such principal shall be payable on demand. All utilization
fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day).
(c) Administrative Agent Fees. The Borrower agrees to pay to
the Administrative Agent, for its own account, fees payable in the amounts and
at the times separately agreed upon between the Borrower and the Administrative
Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid
on the dates due, in immediately available funds, to the Administrative Agent
for distribution, in the case of facility fees or utilization fees, to the
Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances.
SECTION 2.13. INTEREST.
(a) ABR Loans. The Loans constituting each ABR Borrowing
(including each Swingline Loan) shall bear interest at a rate per annum equal to
the Alternate Base Rate plus the Applicable Rate.
(b) Eurodollar Loans. The Loans constituting each Eurodollar
Borrowing shall bear interest at a rate per annum equal to (i) in the case of a
Syndicated Eurodollar Borrowing, the Adjusted LIBO Rate for the Interest Period
for such Borrowing plus the Applicable Rate, or (ii) in the case of a
Competitive Eurodollar Borrowing, the LIBO Rate for the Interest Period for such
Borrowing plus (or minus, as applicable) the Margin applicable to such Loan.
(c) Fixed Rate Loans. Each Fixed Rate Loan shall bear interest
at a rate per annum equal to the Fixed Rate applicable to such Loan.
(d) Default Interest. Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or
46
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided above
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR
Loans as provided in paragraph (a) of this Section.
(e) Payment of Interest. Accrued interest on each Loan shall
be payable in arrears on each Interest Payment Date for such Loan and, in the
case of Syndicated Loans, upon termination of the Commitments; provided that (i)
interest accrued pursuant to paragraph (d) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other than
a prepayment of a Syndicated ABR Loan prior to the Commitment Termination Date),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Syndicated Eurodollar Borrowing prior to the end of the
Interest Period therefor, accrued interest on such Borrowing shall be payable on
the effective date of such conversion.
(f) Computation. All interest hereunder shall be computed on
the basis of a year of 360 days, except that interest computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the commencement of
the Interest Period for any Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate (in the case
of a Syndicated Eurodollar Borrowing) or the LIBO Rate (in the case of
a Competitive Eurodollar Borrowing) for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders (or, in the case of a Competitive Eurodollar Borrowing, any
Lender that is required to make a Loan included in such Borrowing) that
the Adjusted LIBO Rate (in the case of a Syndicated Eurodollar
Borrowing) or the LIBO Rate (in the case of a Competitive Eurodollar
Borrowing) for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (or Lender) of making or maintaining
their respective Loans (or its Loan) included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Syndicated Borrowing to, or
the continuation of any Syndicated Borrowing as, a Syndicated Eurodollar
Borrowing shall be ineffective and such Syndicated Borrowing (unless prepaid)
shall be continued as, or converted to, a Syndicated ABR Borrowing, (ii) if any
Borrowing Request requests a Syndicated Eurodollar Borrowing, such Borrowing
shall be made as a Syndicated ABR Borrowing and (iii) any request by the
Borrower for a Competitive Eurodollar Borrowing shall be ineffective; provided
that if the circumstances giving rise to such notice do not affect all the
Lenders, then requests by the Borrower for Competitive Eurodollar Borrowings may
be made to Lenders that are not affected thereby.
SECTION 2.15. INCREASED COSTS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans or Fixed
Rate Loans made by such Lender;
47
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement or the
Loans made by such Lender to a level below that which such Lender or such
Lender's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's policies and the policies of such Lender's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender or such Lender's holding company for any such reduction
suffered.
(c) Certificates from Lenders. A certificate of a Lender
setting forth the amount or amounts necessary to compensate such Lender or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such compensation; provided that (i) the
Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs or reductions incurred more than six months prior to the
date that such Lender notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender's intention to claim
compensation therefor; and (ii) if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
(e) Competitive Loans. Notwithstanding the foregoing
provisions of this Section 2.15, a Lender shall not be entitled to compensation
pursuant to this Section 2.15 in respect of any Competitive Loan if the Change
in Law that would otherwise entitle it to such compensation shall have been
publicly announced prior to submission of the Competitive Bid pursuant to which
such Loan was made.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the payment of any
principal of any Eurodollar Loan or Fixed Rate Loan other than on the last day
of an Interest Period therefor (including as a result of an Event of Default),
(b) the conversion of any Syndicated Eurodollar Loan other than on the last day
of an Interest Period therefor, (c) the failure to borrow, convert, continue or
prepay any Syndicated Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice is permitted to be revocable
under Section 2.11(b) and is revoked in accordance herewith), (d) the failure to
borrow any Competitive Loan after accepting the Competitive Bid to make such
Loan, or (e) the assignment as a result of a request by the Borrower pursuant to
Section 2.19 of any Syndicated Eurodollar Loan other than on the last day of an
Interest Period therefor or of any Competitive Loan, then, in any such event,
the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, the loss to any
Lender attributable to any such event shall be deemed to include an amount
determined by such Lender to be equal to the excess, if any, of (i) the amount
of interest that such Lender would pay for a deposit equal to the principal
amount of such Loan for the period from the date of such payment, conversion,
failure or assignment to the last day of the then current Interest Period for
such Loan (or, in the case of a failure to borrow, convert or continue, the
duration of the Interest Period that would have resulted from such borrowing,
conversion or continuation) if the interest rate payable on such deposit were
equal to the Adjusted LIBO Rate (in the case of a Syndicated Eurodollar Loan) or
the LIBO Rate (in the case of a Competitive Eurodollar Loan) for such Interest
Period, over (ii) the amount of interest that such Lender would earn on such
principal amount for such period if such Lender were to invest such principal
amount for such period at the interest rate that would be bid by such Lender (or
an affiliate of such Lender) for Dollar deposits from other banks in the
eurodollar market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
48
SECTION 2.17. TAXES.
(a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of the Borrower hereunder shall be made free and clear
of and without deduction for any Indemnified Taxes or Other Taxes; provided that
if the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) 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) Payment of Other Taxes by the Borrower. In addition, the
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent and each Lender, within 10 days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent or such Lender, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental
Authority, the Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS.
(a) Payments by the Borrower. The Borrower shall make each
payment required to be made by it hereunder (whether of principal, interest or
fees, or under Section 2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon,
New York City time, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent at
its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made
directly to the Swingline Lenders as expressly provided herein and payments
pursuant to Sections 2.14, 2.15, 2.16 and 9.03, which shall be made directly to
the Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments hereunder shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, interest and fees then due hereunder, such
funds shall be applied (i) first, to pay interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, to pay principal
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal then due to such parties.
49
(c) Pro Rata Treatment. Except to the extent otherwise
provided herein: (i) each Syndicated Borrowing shall be made from the Lenders,
each payment of facility fee and utilization fee under Section 2.12 shall be
made for account of the Lenders, and each termination or reduction of the amount
of the Commitments under Section 2.08 shall be applied to the respective
Commitments of the Lenders, pro rata according to the amounts of their
respective Commitments; (ii) each Syndicated Borrowing shall be allocated pro
rata among the Lenders according to the amounts of their respective Commitments
(in the case of the making of Syndicated Loans) or their respective Loans that
are to be included in such Borrowing (in the case of conversions and
continuations of Loans); (iii) each payment or prepayment of principal of
Syndicated Loans by the Borrower shall be made for account of the Lenders pro
rata in accordance with the respective unpaid principal amounts of the
Syndicated Loans held by them; and (iv) each payment of interest on Syndicated
Loans by the Borrower shall be made for account of the Lenders pro rata in
accordance with the amounts of interest on such Loans then due and payable to
the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Syndicated Loans or
participations in Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Syndicated Loans or
participations in Swingline Loans and accrued interest thereon then due than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Syndicated Loans and participations in Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Syndicated Loans and participations in
Swingline Loans; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent
shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for account of the Lenders hereunder
that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(c), 2.06(b) or 2.18(e), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for account of such Lender to
satisfy such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.15, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for account of
any Lender pursuant to Section 2.17, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.15 or 2.17, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
50
(b) Replacement of Lenders. If any Lender requests
compensation under Section 2.15, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for account of any
Lender pursuant to Section 2.17, or if any Lender defaults in its obligation to
fund Loans hereunder, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i)
the Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Commitment is being assigned, the Swingline Lenders), which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans (other than
Competitive Loans) and participations in Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.15 or payments required to be made pursuant to Section 2.17, such assignment
will result in a reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions are within the
Borrower's corporate powers and have been duly authorized by all necessary
corporate and, if required, by all necessary shareholder action. This Agreement
has been duly executed and delivered by the Borrower and constitutes a legal,
valid and binding obligation of the Borrower, enforceable in accordance with its
terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions (a) do
not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (b) will not violate any applicable
law or regulation or the charter, by-laws or other organizational documents of
the Borrower or any of its Subsidiaries or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower or any of its
Subsidiaries or assets, or give rise to a right thereunder to require any
payment to be made by any such Person, and (d) will not result in the creation
or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(a) Financial Condition. The Borrower has heretofore furnished
to the Lenders (i) its consolidated balance sheet and statements of income,
stockholders' equity and cash flows as of and for the fiscal year ended December
31, 2001, reported on by KPMG LLP, independent public accountants and (ii) its
consolidated balance sheet and statements of income, stockholders' equity and
cash flows as of and for the fiscal quarter and the portion of the fiscal year
ended June 30, 2002, certified by the chief financial officer of the Borrower.
Such financial statements present fairly, in all material respects, the actual
or pro forma, as the case may be, financial position and results of operations
and cash flows of the Borrower and its Subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to year-end audit adjustments and
the
51
absence of footnotes in the case of the statements referred to in clause (ii) of
the first sentence of this paragraph. None of the Borrower nor any of its
Subsidiaries has on the date hereof any material contingent liabilities,
liabilities for taxes, unusual forward or long-term commitments or unrealized or
anticipated losses from any unfavorable commitments, except as referred to or
reflected or provided for in said balance sheet as at June 30, 2002.
(b) No Material Adverse Change. Since June 30, 2002, there has
been no material adverse change in the business, assets, properties, operations,
prospects or condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole.
SECTION 3.05. PROPERTIES.
(a) Property Generally. Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to their businesses, taken as a whole, subject
only to Liens permitted by Section 6.01 and except for minor defects in title
that do not interfere with its ability to conduct such businesses as currently
conducted or to utilize such properties for their intended purposes.
(b) Intellectual Property. Each of the Borrower and its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to their
businesses, taken as a whole, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) Actions, Suits and Proceedings. There are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority now
pending against or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Subsidiaries (i) could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or
the Transactions.
(b) Environmental Matters. Except for the Disclosed Matters
and except with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability.
(c) Disclosed Matters. Since the date of this Agreement, there
has been no change in the status of the Disclosed Matters that, individually or
in the aggregate, has resulted in, or could reasonably be expected to result in,
a Material Adverse Effect.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the Borrower and
its Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. Neither the Borrower
nor any of its Subsidiaries is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of the Borrower and its Subsidiaries has timely
filed or caused to be filed all Tax returns and reports required to have been
filed and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which such Person has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
52
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. DISCLOSURE. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Borrower to the Lender in
connection with the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.12. USE OF CREDIT. Neither 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, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and after applying the proceeds
of any Loan hereunder, not more than 25% of the fair market value of the assets
of the Borrower and its Subsidiaries consists of Margin Stock.
SECTION 3.13. MATERIAL AGREEMENTS AND LIENS.
(a) Material Agreements. Part A of Schedule II is a complete
and correct list of each
credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement providing for or
otherwise relating to any Indebtedness or any extension of credit (or commitment
for any extension of credit) to, or guarantee by, the Borrower or any of its
Subsidiaries outstanding on the date hereof the aggregate principal or face
amount of which equals or exceeds (or may equal or exceed) $10,000,000, and the
aggregate principal or face amount outstanding or that may become outstanding
under each such arrangement is correctly described in Part A of Schedule II.
(b) Liens. Part B of Schedule II is a complete and correct
list of each Lien securing Indebtedness of any Person outstanding on the date
hereof the aggregate principal or face amount of which equals or exceeds (or may
equal or exceed) $10,000,000 and covering any property of the Borrower or any of
its Subsidiaries, and the aggregate Indebtedness secured (or that may be
secured) by each such Lien and the property covered by each such Lien is
correctly described in Part B of Schedule II.
SECTION 3.14. SUBSIDIARIES.
Set forth in Schedule V is a complete and correct list of all
of the Subsidiaries of the Borrower as of the date hereof, together with, for
each such Subsidiary, (i) the jurisdiction of organization of such Subsidiary,
(ii) each Person holding ownership interests in such Subsidiary and (iii) the
nature of the ownership interests held by each such Person and the percentage of
ownership of such Subsidiary represented by such ownership interests. Except as
disclosed in Schedule V, on the date hereof, (x) each of the Borrower and its
Subsidiaries owns, free and clear of Liens, and has the unencumbered right to
vote, all outstanding ownership interests in each Person shown to be held by it
in Schedule V, (y) all of the issued and outstanding capital stock of each such
Person organized as a corporation is validly issued, fully paid and
nonassessable and (z) there are no outstanding Equity Rights with respect to
such Person.
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to make Loans
hereunder shall not become effective until the date on which the Administrative
Agent shall have received each of the following documents, each of which shall
be satisfactory to the Administrative Agent (and to the extent specified below,
to each Lender) in form and substance (or
53
such condition shall have been waived in accordance with Section 9.02):
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Borrower. A favorable written
opinion (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of ▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Borrower, substantially in the form of Exhibit B, and covering such
other matters relating to the Borrower, this Agreement or the
Transactions as the Required Lenders shall reasonably request (and the
Borrower hereby instructs such counsel to deliver such opinion to the
Lenders and the Administrative Agent).
(c) Opinion of Special New York Counsel to JPMorgan. An
opinion, dated the Effective Date, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, special New York counsel to JPMorgan, substantially in the form of
Exhibit C (and JPMorgan hereby instructs such counsel to deliver such
opinion to the Lenders).
(d) Corporate Documents. Such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating
to the organization, existence and good standing of the Borrower, the
authorization of the Transactions and any other legal matters relating
to the Borrower, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(e) Officer's Certificate. A certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set
forth in the lettered clauses of the first sentence of Section 4.02,
(ii) that the Leverage Ratio does not exceed 3.00 to 1 and (iii) that
the Interest Coverage Ratio is not less than 2.75 to 1.
(f) Termination of Existing
Credit Agreements. The
Administrative Agent shall have received evidence that, on or prior to
the Effective Date, the Borrower shall have (i) repaid in full the
outstanding principal amount of the "Loans" under and as defined in (x)
the 364-Day
Credit Agreement dated as of November 4, 1999, as amended,
between the Borrower, the Lenders and JPMorgan, as Administrative
Agent, and (y) the Three Year
Credit Agreement dated as of November 4,
1999, as amended, between the Borrower, the Lenders and JPMorgan, as
Administrative Agent, in each case together with all accrued and unpaid
interest thereon, all fees payable in respect thereof and all other
amounts payable thereunder and (ii) canceled each of the "Commitments"
as defined in said
Credit Agreements.
(g) Other Documents. Such other documents as the
Administrative Agent or any Lender or special New York counsel to
JPMorgan may reasonably request.
The obligation of any Lender to make its initial Loan
hereunder is also subject to the payment by the Borrower of such fees as the
Borrower shall have agreed to pay to any Lender or the Administrative Agent in
connection herewith, including the reasonable fees and expenses of Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel to JPMorgan, in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the Loans hereunder (to the extent that statements for such fees and expenses
have been delivered to the Borrower).
The Administrative Agent shall notify the Borrower and the
Lenders of the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) on or prior to 3:00 p.m., New
York City time, on November 5, 2002 (and, in the event such conditions are not
so satisfied or waived, the Commitments shall terminate at such time).
54
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to make any
Loan is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set
forth in this Agreement shall be true and correct on and as of the date
of such Loan; and
(b) at the time of and immediately after giving effect to such
Loan, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in the preceding
sentence.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower will
furnish to the Administrative Agent and each Lender:
(a) promptly, but in any event no later than the earlier of
(i) 100 days after the end of each fiscal year of the Borrower or (ii)
10 days after the Annual Report (as defined below) is required to be
filed with the Securities and Exchange Commission pursuant to Section
13 or 15(d) of the Exchange Act, (A) the audited consolidated balance
sheet and related statements of operations, stockholders' equity and
cash flows of the Borrower and its Subsidiaries as of the end of and
for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, prepared in accordance with GAAP
consistently applied (the "Annual Report"), all reported on by KPMG LLP
or other independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit)
to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of
operations of the Borrower and its Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied and (B) certifications of
each of the Chief Executive Officer and Chief Financial Officer of the
Borrower substantially similar in form and substance to the
certifications required pursuant to Sections 302 and 906 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") and the
applicable rules under the Exchange Act and otherwise in accordance
with the requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the Exchange Act,
including a certification that (I) such Annual Report does not contain
any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading,
and (II) the financial statements, and other financial information
contained in the Annual Report, fairly present in all material respects
the financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries on a consolidated basis as of and for the
periods presented in accordance with GAAP consistently applied;
(b) promptly, but in any event no later than the earlier of
(i) 55 days after the end of each of the first three fiscal quarters of
each fiscal year of the Borrower or (ii) 10 days after the Quarterly
Report (as defined below) is required to be filed with the Securities
and Exchange Commission pursuant to Section 13 or 15(d) of the Exchange
Act, (A) the consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows of the Borrower and its
Subsidiaries as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for (or, in the case of the balance sheet,
as of the end of the prior fiscal year) the corresponding period or
periods of the previous fiscal year (the "Quarterly Report") and (B)
certifications of each of the Chief Executive Officer and Chief
Financial Officer of the Borrower substantially similar in form and
substance to the certifications required pursuant to Sections 302 and
906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the applicable rules under the
Exchange Act and otherwise in accordance with the requirements of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the Exchange Act, including a certification that
(I) such Quarterly Report does not contain
55
any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading,
and (II) the financial statements, and other financial information
included in the Quarterly Report, fairly present in all material
respects the financial condition, results of operations and cash flows
of the Borrower and its Subsidiaries on a consolidated basis as of and
for the periods presented in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence
of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) of this Section, a certificate of the Chief
Executive Officer and Chief Financial Officer of the Borrower (i)
certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Section
6.06 and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements
referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) of this Section, a certificate of the accounting firm
that reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such
financial statements of any Default (which certificate may be limited
to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any of its Subsidiaries with the Securities
and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national
securities exchange, or distributed by the Borrower to its shareholders
generally, as the case may be; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any of its Subsidiaries, or compliance
with the terms of this Agreement, as the Administrative Agent or any
Lender may reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any of its Affiliates that could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect
(d) the assertion of any environmental matter by any Person
against, or with respect to the activities of, the Borrower or any of
its Subsidiaries and any alleged violation of or non-compliance with
any Environmental Laws or any permits, licenses or authorizations,
other than any environmental matter or alleged violation that (either
individually or in the aggregate) could not reasonably be expected to
have a Material Adverse Effect; and
(e) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
56
SECTION 5.03. EXISTENCE; CONDUCT OF BUSINESS. The Borrower will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.02.
SECTION 5.04. PAYMENT OF OBLIGATIONS. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will, and
will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.
SECTION 5.06. BOOKS AND RECORDS; INSPECTION RIGHTS. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.07. COMPLIANCE WITH LAWS. The Borrower will, and will cause each
of its Subsidiaries to, comply with all laws, rules, regulations and orders of
any Governmental Authority, including, but not limited to, Environmental Laws
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. LIENS. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
of its Subsidiaries existing on the date hereof and set forth in Part B
of Schedule II (or, to the extent not meeting the minimum thresholds
for required listing on Schedule II pursuant to Section 3.13, in an
aggregate amount not exceeding $10,000,000); provided that (i) no such
Lien shall extend to any other property or asset of the Borrower or any
of its Subsidiaries and (ii) any such Lien shall secure only those
obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (ii) such Lien shall not
57
apply to any other property or assets of the Borrower or any
Subsidiary and (iii) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such
Person becomes a Subsidiary, as the case may be and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof; and
(d) Liens on assets acquired, constructed or improved by the
Borrower or any Subsidiary; provided that (i) such security interests
and the Indebtedness secured thereby are incurred prior to or within
365 days after such acquisition or the completion of such construction
or improvement, (ii) the Indebtedness secured thereby does not exceed
the cost of acquiring, constructing or improving such assets, (iii)
such security interests shall not apply to any other property or assets
of the Borrower or any Subsidiary and (iv) the aggregate principal
amount of Indebtedness secured by all such security interests under
this paragraph (d) shall not exceed $50,000,000.
SECTION 6.02. FUNDAMENTAL CHANGES.
(a) Mergers, Consolidations, Disposal of Assets, Etc. The
Borrower will not, nor will it permit any of its Subsidiaries to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) any of its assets, or any of the
stock of any of its Subsidiaries (in each case, whether now owned or hereafter
acquired), if the effect of any such sale of assets or stock or merger or
consolidation would be to sell, transfer, lease or otherwise dispose of all or
substantially all of the assets of the Borrower and its Subsidiaries (taken as a
whole) or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing;
(i) any Person may merge into or consolidate with the
Borrower in a transaction in which the Borrower is the surviving
corporation;
(ii) any Person may merge into or consolidate with any
Subsidiary in a transaction in which the surviving entity is a
Subsidiary; provided that if any such merger shall be between a
Subsidiary and a wholly owned Subsidiary, then the wholly owned
Subsidiary shall be the continuing or surviving corporation;
(iii) the Borrower may merge into or consolidate with any
other Person in a transaction in which such Person is the surviving
entity so long as (x) such Person assumes all of the obligations of the
Borrower under this Agreement by an instrument in form and substance
reasonably satisfactory to the Administrative Agent and (y) such Person
delivers such proof of corporate action, incumbency of officers,
opinions of counsel and other documents as is consistent with those
delivered by the Borrower pursuant to Section 4.01 on the Effective
Date or as the Administrative Agent shall have reasonably requested;
(iv) any Subsidiary may sell, transfer, lease or otherwise
dispose of its assets to the Borrower or to another Subsidiary; and
(v) any Subsidiary may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and is not materially disadvantageous to
the Lenders.
(b) Lines of Business. The Borrower will not, nor will it
permit any of its Subsidiaries to, engage to any material extent in any business
other than businesses of the type conducted by the Borrower and its Subsidiaries
on the date of execution of this Agreement and businesses reasonably related
thereto.
SECTION 6.03. SALE AND LEASEBACKS. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly, become or thereafter
remain liable as lessee or as guarantor or other surety with respect to the
lessee's obligations under any lease, whether an operating lease or a capital
lease, of any property (whether real or personal or mixed) whether now owned or
hereafter acquired, (a) which the Borrower or any of its Subsidiaries has sold
or transferred or is to sell or transfer to any other Person or (b) which the
Borrower or any such Subsidiary intends to use for substantially the same
purpose as any other property which has been or is to be sold or transferred by
the Borrower or any such Subsidiary to any Person in connection with such lease,
if in the case of clause (a) or (b) above, such sale and such lease are part of
the same transaction or a series of related transactions or are with the same
other Person; provided that the Borrower or any Subsidiary
58
may enter into any such transaction so long as the sale price of all such
transactions does not exceed $20,000,000 in the aggregate during the term of
this Agreement.
SECTION 6.04. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will
not permit any of its Subsidiaries to, sell lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) transactions in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, (b) transactions between or among the Borrower and its Subsidiaries not
involving any other Affiliate and (c) loans to employees of the Borrower or any
Subsidiary for relocation expenses or other purposes; provided that the
aggregate outstanding principal amount of the loans permitted under this clause
(c) shall not exceed $3,000,000 at any one time.
SECTION 6.05. SUBSIDIARY INDEBTEDNESS. The Borrower will not permit the
aggregate principal amount of Indebtedness of its Subsidiaries (excluding any
Indebtedness of a Subsidiary owed to the Borrower or another Subsidiary, but
including any Guarantee by a Subsidiary of Indebtedness of the Borrower) at any
time to exceed $20,000,000.
SECTION 6.06. CERTAIN FINANCIAL COVENANTS.
(a) Leverage Ratio. The Borrower will not permit the Leverage
Ratio to exceed 3.00 to 1 at any time during the term of this Agreement.
(b) Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio to be less than 2.75 to 1 at any time during the term of
this Agreement.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any facility fee or utilization fee payable under this Agreement, when
and as the same shall become due and payable, and such failure shall
continue unremedied for a period of three or more Business Days; or the
Borrower shall fail to pay any other amount (other than an amount
referred to in clause (a) of this Article) payable under this
Agreement, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of thirty or more days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any of its Subsidiaries in or in
connection with this Agreement or any amendment or modification hereof,
or in any report, certificate, financial statement or other document
furnished pursuant to or in connection with this Agreement or any
amendment or modification hereof, shall prove to have been incorrect in
any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02(a) or 5.03
(with respect to the Borrower's existence) or in Article VI;
(e) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other
than those specified in clause (a), (b) or (d) of this Article) and
such failure shall continue unremedied for a period of 30 or more days
after notice thereof from the Administrative Agent to the Borrower;
(f) the Borrower or any of its Material Subsidiaries shall
fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Material Indebtedness, when and
as the same shall become due and payable (whether at stated maturity or
on acceleration);
59
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, but without
any further lapse of time) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause
any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any of its
Material Subsidiaries or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its Material
Subsidiaries or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for a
period of 60 or more days or an order or decree approving or ordering
any of the foregoing shall be entered;
(i) the Borrower or any of its Material Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its Material
Subsidiaries or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against
it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) the Borrower or any of its Material Subsidiaries shall
become unable, admit in writing its inability or fail generally to pay
its debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $20,000,000 shall be rendered against the
Borrower or any of its Material Subsidiaries or any combination thereof
and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to attach or levy
upon any assets of the Borrower or any of its Material Subsidiaries to
enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(m) there shall have been asserted against the Borrower or any
of its Subsidiaries any claims or liabilities, whether accrued,
absolute or contingent, based on or arising from the generation,
storage, transport, handling or disposal of Hazardous Materials by the
Borrower or any of its Subsidiaries that, in the judgment of the
Required Lenders, are reasonably likely to be determined adversely to
the Borrower or any of its Subsidiaries, and the amount thereof (either
individually or in the aggregate) is reasonably likely to have a
Material Adverse Effect (insofar as such amount is payable by the
Borrower or any of its Subsidiaries but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor); or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by
60
the Borrower; and in case of any event with respect to the Borrower described in
clause (h) or (i) of this Article, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such Person 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 Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders,
and (c) except as expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
The Administrative Agent may resign at any time by notifying
the Lenders and the Borrower. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor.
If no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent's
resignation
61
shall nonetheless become effective and (1) the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and (2) the
Required Lenders shall perform the duties of the Administrative Agent (and all
payments and communications provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender directly) until
such time as the Required Lenders appoint a successor agent as provided for
above in this paragraph. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder (if not already
discharged therefrom as provided above in this paragraph). The fees payable by
the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at ▇▇▇▇▇-▇▇▇▇▇, Inc., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇ ▇. ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to JPMorgan ▇▇▇▇▇ ▇▇▇▇, ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Plaza, 8th Floor, New York, New York 10081, Attention
of ▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group (Telecopy No. (212)
552-5700), with a copy to JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (Telecopy No. (212)
270-4584);
(c) if to JPMorgan as Swingline Lender, to it at JPMorgan
▇▇▇▇▇ ▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Plaza, 8th Floor, New York, New York
10081, Attention of ▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(d) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Lender, by notice to the Borrower and the Administrative
Agent). All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS.
(a) No Deemed Waivers; Remedies Cumulative. No failure or
delay by the Administrative Agent or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be
62
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) Amendments. 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 Lenders or
by the Borrower and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall (i) increase the Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any
Loan, or any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) alter the provisions of clause (c) or (d) of Section
2.18, without the written consent of each Lender, or (v) change any of the
provisions of this Section or the percentage in the definition of the term
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender; and provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent or
the Swingline Lender hereunder without the prior written consent of the
Administrative Agent or the Swingline Lender, as the case may be.
Anything in this Agreement to the contrary notwithstanding, no
waiver or modification of any provision of this Agreement that has the effect
(either immediately or at some later time) of enabling the Borrower to satisfy a
condition precedent to the making of a Loan of any Class shall be effective
against the Lenders of such Class for purposes of the Commitments of such Class
unless the Required Lenders of such Class shall have concurred with such waiver
or modification, and no waiver or modification of any provision of this
Agreement that could reasonably be expected to adversely affect the Lenders of
any Class in a manner that does not affect all Classes equally shall be
effective against the Lenders of such Class unless the Required Lenders of such
Class shall have concurred with such waiver or modification.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.
(b) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent and each Lender, and each Related Party of
any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower
fails to pay any amount required to be
63
paid by it to the Administrative Agent or the Swingline Lender under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Swingline Lender, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Swingline Lender in its capacity as
such.
(d) Waiver of Consequential Damages, Etc. To the extent
permitted by applicable law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, the Transactions, any Loan
or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be
payable promptly after written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS.
(a) Assignments Generally. 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 Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section 9.04. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, Related
Parties of each of the Administrative Agent, the Swingline Lender and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments by Lenders.
(i) Assignments Generally. Subject to the conditions set forth
in clause (ii) below, any Lender 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 or delayed) of:
(A) the Borrower, provided that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund or, if an Event of Default under clause (a),
(b), (h) or (i) of Article VII shall have occurred and is continuing,
any other assignee;
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of any
Commitment to an assignee that is a Lender with a Commitment
immediately prior to giving effect to such assignment; and
(C) the Swingline Lender, to the extent such assignment is of
all or a portion of a Commitment or any Lender's obligations in respect
of its Swingline Exposure.
(ii) Certain Conditions to Assignments. Assignments shall be
subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount
of the assigning Lender's Commitment or Loans of any Class, the amount
of the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 unless each of the Borrower
and the Administrative Agent otherwise consent, provided that no such
consent of the Borrower shall be required if an Event of Default under
clause (a), (b), (h) or (i) of Article VII has occurred and is
continuing;
64
(B) each partial assignment of any Commitment or Class of
Loans shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement in
respect of such Commitment and Loans;
(C) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance in
substantially the form of Exhibit A hereto, together with a processing
and recordation fee of $3,500; and
(D) the assignee, if it shall not already be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.
(iii) Effectiveness of Assignments. Subject to acceptance and
recording thereof pursuant to paragraph (c) below, from and after the effective
date specified in each Assignment and Acceptance the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the rights referred to in Sections 2.14, 2.15, 2.16 and 9.03).
Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (e) below.
(c) Maintenance of Register by the Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in New York City a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Borrower,
the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Effectiveness of Assignments. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above and any written consent to such
assignment required by said paragraph (b), the Administrative Agent shall accept
such Assignment and Acceptance and record the information contained therein in
the Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph (d).
(e) Participations. Any Lender may, without the consent of the
Borrower, the Administrative Agent or the Swingline Lender, sell participations
to one or more banks or other entities (a "Participant") in all or a portion of
such Lender's rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Swingline Lender and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (f) below, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 2.14, 2.15 and 2.16 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) above. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 9.08 hereof as though it were a Lender,
provided such Participant agrees to be subject to Section 2.18(d) as though it
were a Lender hereunder.
65
(f) Limitations on Rights of Participants. A Participant shall
not be entitled to receive any greater payment under Section 2.15 or 2.17 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.17 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 2.17(e) as though it were a
Lender.
(g) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any such pledge or
assignment to a Federal Reserve Bank, and this Section 9.04 shall not apply to
any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such assignee for such Lender as a
party hereto.
(h) No Assignments to the Borrower or Affiliates. Anything in
this Section to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan held by it hereunder to the Borrower or any
of its Affiliates or Subsidiaries without the prior consent of each Lender.
SECTION 9.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract between and among the parties relating to
the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
to this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender 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 held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
66
SECTION 9.09. GOVERNING LAW; JURISDICTION; ETC.
(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. The Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in
the courts of any jurisdiction.
(c) Waiver of Venue. 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 in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Service of Process. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 9.01. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
(a) Treatment of Certain Information. The Borrower
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrower or one or more of its
Subsidiaries (in connection with this Agreement or otherwise) by any Lender or
by one or more subsidiaries or affiliates of such Lender and the Borrower hereby
authorizes each Lender to share any information delivered to such Lender by the
Borrower and its Subsidiaries pursuant to this Agreement, or in connection with
the decision of such Lender to enter into this Agreement, to any such subsidiary
or affiliate, it being understood that any such subsidiary or affiliate
receiving such information shall be bound by the provisions of paragraph (b) of
this Section as if it were a Lender hereunder. Such authorization shall survive
the repayment of the Loans, the expiration or termination of the Commitments or
the termination of this Agreement or any provision hereof.
(b) Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the
67
confidentiality of the Information (as defined below), except that Information
may be disclosed (i) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (ii) to the extent requested by any regulatory
authority, (iii) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (iv) to any other party to this
Agreement, (v) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, (vi) subject to an agreement containing provisions
substantially the same as those of this paragraph, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (vii) with the consent of the
Borrower or (viii) to the extent such Information (A) becomes publicly available
other than as a result of a breach of this paragraph or (B) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this paragraph, "Information" means
all information received from the Borrower relating to the Borrower, its
Subsidiaries or their Affiliates or their respective businesses other than any
such information that is available to the Administrative Agent or any Lender on
a nonconfidential basis prior to disclosure by the Borrower; provided that, in
the case of information received from the Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
[remainder of page intentionally blank]
68
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
▇▇▇▇▇-▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Financial
and Chief Financial Officer
69
LENDERS
JPMORGAN CHASE BANK,
individually, as Swingline Lender and as
Administrative Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Principal
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Title: Officer VP and Manager
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Senior Vice President
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
70
UMB BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
FIFTH THIRD BANK
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
SOVEREIGN BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
71
SCHEDULE I
Commitments
[See Section 1.01]
Name of Lender Commitment ($)
-------------- --------------
JPMorgan Chase Bank 16,000,000.00
Bank of America, N.A. 15,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd. 15,000,000.00
U.S. Bank National Association 15,000,000.00
▇▇▇▇▇ Fargo Bank, National Association 15,000,000.00
The Bank of New York 12,500,000.00
UMB Bank, N.A. 12,500,000.00
Fifth Third Bank 12,000,000.00
Sovereign Bank 12,000,000.00
==============
Total 125,000,000.00
72
SCHEDULE II
Material Agreements and Liens
[See Sections 3.13 and 6.01(b)]
Part A - Material Agreements
None.
Part B - Liens
None.
73
SCHEDULE III
Litigation
[See Section 1.01]
None.
74
SCHEDULE IV
Environmental Matters
[See Section 1.01]
None.
75
SCHEDULE V
Subsidiaries
[See Section 3.14]
SUBSIDIARIES OF ▇▇▇▇▇-▇▇▇▇▇, INC.
Jurisdiction of
Name of Entity Organization % Owned
-------------- ------------ -------
DiMark, Inc. New Jersey 100%
DMK, Inc. Delaware 100%(2)
The Flyer Publishing Corporation Florida 100%
▇▇▇▇▇-▇▇▇▇▇ CRM Services UK Limited England 100%
▇▇▇▇▇-▇▇▇▇▇ Data Services LLC Maryland 100%
▇▇▇▇▇-▇▇▇▇▇ Data Technologies LLC Delaware 100%
▇▇▇▇▇-▇▇▇▇▇ Delaware, Inc. Delaware 100%
▇▇▇▇▇-▇▇▇▇▇ Direct, LLC Delaware 100%(1)
▇▇▇▇▇-▇▇▇▇▇ Direct Marketing/Baltimore, Inc. Maryland 100%
▇▇▇▇▇-▇▇▇▇▇ Direct Marketing/Cincinnati, Inc. Ohio 100%
▇▇▇▇▇-▇▇▇▇▇ Direct Marketing/Dallas, L.P. Delaware 100%(6)
▇▇▇▇▇-▇▇▇▇▇ Direct Marketing/Fullerton, Inc. California 100%
▇▇▇▇▇-▇▇▇▇▇ Direct Marketing/Jacksonville, LLC Delaware 100%(10)
▇▇▇▇▇-▇▇▇▇▇ Direct Marketing/Kansas City, LLC Delaware 100%(11)
▇▇▇▇▇-▇▇▇▇▇ do Brazil Consultoria e Servicos Ltda. Brazil 100%(3)
▇▇▇▇▇-▇▇▇▇▇ IRG, Inc. Michigan 100%
▇▇▇▇▇-▇▇▇▇▇ Limited England 100%(3)
▇▇▇▇▇-▇▇▇▇▇ Market Intelligence, Inc. California 100%
▇▇▇▇▇-▇▇▇▇▇ Market Intelligence Espana LLC Colorado 100%
▇▇▇▇▇-▇▇▇▇▇ Market Intelligence Europe B.V. Netherlands 100%
▇▇▇▇▇-▇▇▇▇▇ Market Intelligence GmbH Germany 100%(4)
▇▇▇▇▇-▇▇▇▇▇ Market Intelligence Limited Ireland 100%(4)
▇▇▇▇▇-▇▇▇▇▇ Market Intelligence Limited England 100%(4)
▇▇▇▇▇-▇▇▇▇▇ Market Intelligence SAS France 100%(4)
▇▇▇▇▇-▇▇▇▇▇ Market Research, Inc. New Jersey 100%
▇▇▇▇▇-▇▇▇▇▇ Partnership, Ltd. Texas 100%(5)
▇▇▇▇▇-▇▇▇▇▇ Print, Inc. New Jersey 100%
▇▇▇▇▇-▇▇▇▇▇ Pty. Limited Australia 100%(3)
▇▇▇▇▇-▇▇▇▇▇ Response Management/Austin L.P. Delaware 100%(6)
▇▇▇▇▇-▇▇▇▇▇ Response Management/Boston, Inc. Massachusetts 100%
▇▇▇▇▇-▇▇▇▇▇ Response Management Call Centers, Inc. Delaware 100%
▇▇▇▇▇-▇▇▇▇▇ Response Management Europe Belgium 100%
▇▇▇▇▇-▇▇▇▇▇ Shoppers, Inc. California 100%
▇▇▇▇▇-▇▇▇▇▇ Stock Plan, Inc. Delaware 100%
▇▇▇▇▇-▇▇▇▇▇ Teleservices, LLC Delaware 100%(2)
H&R Communications, LLC Delaware 100%(2)
HTS, Inc. Connecticut 100%
Information for Marketing Limited (shell corporation) England 100%(7)
NSO, Inc. Ohio 100%
Printing Management Systems, Inc. Delaware 100%
Sales Support Services, Inc. New Jersey 100%(8)
Sales Support Services of Texas, Inc. Delaware 100%(9)
Southern Comprint Co. California 100%
Spectral Resources, Inc. New York 100%
76
(1) Owned by ▇▇▇▇▇-▇▇▇▇▇ Response Management Call Centers, Inc.
(2) Owned by ▇▇▇▇▇-▇▇▇▇▇ Direct, LLC
(3) Owned by ▇▇▇▇▇-▇▇▇▇▇ Data Technologies LLC
(4) Owned by ▇▇▇▇▇-▇▇▇▇▇ Market Intelligence Europe B.V.
(5) 99.5% Owned by ▇▇▇▇▇-▇▇▇▇▇ Delaware, Inc.
.5% Owned by ▇▇▇▇▇-▇▇▇▇▇ , Inc.
(6) 99% Owned by ▇▇▇▇▇-▇▇▇▇▇ Stock Plan, Inc.
1% Owned by ▇▇▇▇▇-▇▇▇▇▇ Response Management Call Centers, Inc.
(7) Owned by ▇▇▇▇▇-▇▇▇▇▇ Limited
(8) Owned by ▇▇▇▇▇-▇▇▇▇▇ Delaware, Inc.
(9) Owned by Sales Support Services, Inc.
(10) Owned by ▇▇▇▇▇-▇▇▇▇▇ Direct Marketing/Cincinnati, Inc.
(11) Owned by Printing Management Systems, Inc.
77
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Three-Year
Credit Agreement dated as
of October 18, 2002 (as amended and in effect on the date hereof, the "
Credit
Agreement"), between ▇▇▇▇▇-▇▇▇▇▇, Inc., the Lenders named therein and JPMorgan
Chase Bank, as Administrative Agent for the Lenders. Terms defined in the
Credit
Agreement are used herein with the same meanings.
The Assignor named below hereby sells and assigns, without
recourse, to the Assignee named below, and the Assignee hereby purchases and
assumes, without recourse, from the Assignor, effective as of the Assignment
Date set forth below, the interests set forth below (the "Assigned Interest") in
the Assignor's rights and obligations under the Credit Agreement, including the
interests set forth below in the Commitment of the Assignor on the Assignment
Date and Competitive Loans and Syndicated Loans owing to the Assignor which are
outstanding on the Assignment Date, together with unpaid interest accrued on the
assigned Loans to the Assignment Date, the participations in Swingline Loans
held by the Assignor on the Assignment Date, and the amount, if any, set forth
below of the fees accrued to the Assignment Date for account of the Assignor.
The Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From
and after the Assignment Date (i) the Assignee shall be a party to and be bound
by the provisions of the Credit Agreement and, to the extent of the interests
assigned by this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and (ii) the Assignor shall, to the extent of the interests
assigned by this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.17(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee
payable to the Administrative Agent pursuant to Section 9.04(b) of the Credit
Agreement.
This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
---------------
Percentage Assigned of
Facility/Commitment (set
forth, to at least 8
Principal Amount decimals, as a
Assigned (and percentage of the
identifying Facility and the
information as to aggregate
individual Commitments of all
Facility Competitive Loans) Lenders thereunder)
-------- ------------------ -------------------
Commitment Assigned: $ %
Syndicated Loans:
Competitive Loans:
Fees Assigned (if any):
78
The terms set forth above and below are hereby agreed to:
[NAME OF ASSIGNOR] , as Assignor
------------------------
By:
------------------------------------------
Name:
Title:
[NAME OF ASSIGNEE] , as Assignee
------------------------
By:
------------------------------------------
Name:
Title:
79
The undersigned hereby consent to the within assignment:
▇▇▇▇▇-▇▇▇▇▇, INC.
By:
-----------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Administrative Agent and as Swingline Lender
By:
-----------------------------------------
Name:
Title:
80
EXHIBIT B
[Form of Opinion of Counsel to the Borrower]
October 18, 2002
JPMorgan Chase Bank, as Administrative Agent,
and the Lenders party to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as special counsel to ▇▇▇▇▇-▇▇▇▇▇, Inc., a Delaware
corporation (the "Borrower"), in connection with the Three Year Credit
Agreement, dated as of October 18, 2002 (the "Credit Agreement") between the
Borrower, JPMorgan Chase Bank, as Administrative Agent, and the Lenders party
thereto. Capitalized terms not defined herein are used as defined in the Credit
Agreement. This opinion is being delivered pursuant to Section 4.01(b) of the
Credit Agreement.
For purposes of this opinion, we have reviewed the Credit Agreement. We
have also reviewed and relied upon the originals, or copies certified or
otherwise identified to our satisfaction, of corporate documents and records of
the Borrower and certificates of public officials and other documents,
certificates, instruments and agreements as in our judgment are necessary to
enable us to deliver this opinion letter. As to questions of fact material to
the opinions, we have relied upon information received from officers of the
Borrower without independent verification.
In rendering our opinions, we have assumed:
(a) the genuineness and authenticity of all signatures to all
documents submitted to us as originals (other than the Borrower's
signatures);
(b) the conformity to authentic original documents of all documents
submitted to us as certified, conformed, or photostatic copies;
(c) the correctness and accuracy of all facts set forth in all
certificates and documents delivered to us in connection with
this opinion;
(d) the Credit Agreement is enforceable against all parties thereto
(except as otherwise expressly stated with respect to the
Borrower in Paragraph 4 of the opinions expressed below); and
(e) there are no agreements or understandings among the parties that
would define, supplement or qualify the terms of the Credit
Agreement.
Based upon and subject to the foregoing and subject also to the
assumptions and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that:
1. The Borrower is a validly existing corporation in good standing
under the laws of the State of Delaware. The Borrower has all
requisite corporate power and authority to carry on its business
as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction
where such qualification is required.
81
2. The Transactions are within the corporate powers of the Borrower.
3. The Transactions have been duly authorized by all necessary
corporate action on the part of the Borrower.
4. The Credit Agreement has been duly executed and delivered by the
Borrower and constitutes the legal, valid and binding obligation
of the Borrower, enforceable against the Borrower in accordance
with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or other similar laws relating to or affecting the
enforcement of creditors' rights in general and subject to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), including, without limitation, (a) the possible
unavailability of specific performance, injunctive relief or any
other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
5. The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any
Governmental Authority, (b) will not violate the charter or
by-laws of the Borrower or, to our knowledge, any applicable law
or regulation or any order of any Governmental Authority, (c) to
our knowledge, will not violate or result in a default under any
material indenture, agreement or other instrument binding upon
the Borrower or any of its Subsidiaries or assets, or give rise
to a right thereunder to require any payment to be made by any
such Person and (d) to our knowledge, will not result in the
creation or imposition of any Lien on any asset of the Borrower
or any of its Material Subsidiaries.
6. To our knowledge, there are no actions, suits or proceedings by
or before any arbitrator or Governmental Authority now pending
against or threatened against or affecting the Borrower or any of
its Subsidiaries (a) as to which there is a reasonable
possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect (other than
Disclosed Matters) or (b) that involve the Credit Agreement or
the Transactions.
7. The Borrower is not (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.
The foregoing opinions are subject to the following qualifications and
exceptions:
(a) The foregoing opinions are limited to the Federal laws of the
United States of America, the General Corporation Law of the
State of Delaware and Texas law. To the extent the matters herein
are governed by the laws of the State of New York, we have
assumed such laws are the same as the laws of the State of Texas.
(b) The qualification of any opinion or statement herein by the use
of the words "to our knowledge", "known to us" or words of
similar import means that during the course of our representation
as described herein, no information has come to the attention of
the attorneys in this firm directly involved in the transactions
described herein which gave such attorneys actual knowledge
contrary to the position stated.
(c) In rendering the opinion set forth in Paragraph 5 hereof, we have
reviewed only those statutes and regulations that a lawyer in the
State of Texas exercising customary professional diligence would
reasonably recognize as being directly applicable to the Borrower
and the transactions contemplated by the Credit Agreement.
(d) We express no opinion with respect to any provision contained in
the Credit Agreement prohibiting oral amendments to or waivers of
provisions of such documents or limiting the effect of a course
of dealing between the parties thereto.
82
(e) This opinion letter is limited to the matters stated herein as of
the date hereof and is limited to present statutes, rules, laws
and regulations and to the facts as they currently exist. We
assume no obligation to update this opinion letter or to advise
you of any changes in our opinions in the event of changes in
applicable law or facts becoming effective or occurring after the
date hereof or if additional newly discovered information is
brought to our attention after the date hereof.
(f) We express no opinion as to usury laws.
(g) The opinions set forth in Paragraph 4 of this opinion letter to
the extent covering Texas law, are also subject to the effect of
generally applicable rules of Texas law that:
(i) provide forum selection clauses in contracts are not
necessarily binding on the court(s) in the forum
selected;
(ii) limit the enforceability of provisions releasing,
exculpating or exempting a party from, or requiring
indemnification of a party for, liability for its own
action or inaction, to the extent the action or
inaction involves gross negligence, recklessness,
willful misconduct or unlawful conduct;
(iii) may permit a party who has materially failed to render
or offer performance required by the contract to cure
that failure unless (i) permitting a cure would
unreasonably hinder the aggrieved party from making
substitute arrangements for performance, or (ii) it was
important in the circumstances to the aggrieved party
that performance occur by the date stated in the
contract;
(iv) impose limitations on attorneys' or trustees' fees;
(v) limit or affect the enforceability of provisions for
late charges, prepayment charges, or yield maintenance
charges, acceleration of future amounts due (other than
principal) without appropriate discount to present
value, liquidated damages, and "penalties";
(vi) limit or affect the enforceability of provisions that
provide for the acceleration of indebtedness upon any
transfer or change in the control, ownership, or
management of any party; and
(vii) limit or affect the enforcement of provisions of a
contract that purport to require waiver of jury trial.
This opinion letter is delivered to you solely for your benefit in
connection with the Credit Agreement. This opinion letter may not be relied on
by you for any other purpose, nor may it be furnished to, used by, circulated
to, quoted to or referred to by, any other person for any purpose without our
prior express written consent.
Very truly yours,
83
EXHIBIT C
[Form of Opinion of Special New York Counsel to JPMorgan]
October 18, 2002
To the Lenders party to the Credit
Agreement referred to below and
JPMorgan Chase Bank, as Administrative
Agent
Ladies and Gentlemen:
We have acted as special New York counsel to JPMorgan Chase
Bank ("JPMorgan") in connection with the Three-Year Credit Agreement dated as of
October 18, 2002 (the "Credit Agreement"), between ▇▇▇▇▇-▇▇▇▇▇, Inc. (the
"Borrower"), the lenders party thereto and JPMorgan, as Administrative Agent,
providing for loans to be made by said lenders to the Borrower in an aggregate
principal amount not exceeding $125,000,000. Terms defined in the Credit
Agreement are used herein as defined therein. This opinion letter is being
delivered pursuant to Section 4.01(c) of the Credit Agreement.
In rendering the opinions expressed below, we have examined
the Credit Agreement. In our examination, we have assumed the authenticity of
all documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies. When relevant
facts were not independently established, we have relied upon certificates of
governmental officials and appropriate representatives of the Borrower and upon
representations made in or pursuant to the Credit Agreement.
In rendering the opinions expressed below, we have assumed,
with respect to all of the documents referred to in this opinion letter, that:
(i) the Credit Agreement has been duly authorized by, have
been duly executed and delivered by, and (except to the extent set
forth in the opinions expressed below as to the Borrower) constitute
legal, valid, binding and enforceable obligations of, all of the
parties to the Credit Agreement;
(ii) all signatories to the Credit Agreement have been duly
authorized; and
(iii) all of the parties to the Credit Agreement are duly
organized and validly existing and have the power and authority
(corporate or other) to execute, deliver and perform the Credit
Agreement.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that the Credit Agreement constitutes the
legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or transfer or
other similar laws relating to or affecting the rights of creditors generally
and except as the enforceability of the Credit Agreement is subject to the
application of general principles of equity (regardless of whether considered in
a proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or any other
equitable remedy and (b) concepts of materiality, reasonableness, good faith and
fair dealing.
84
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 9.03 of the Credit Agreement
may be limited by laws limiting the enforceability of provisions
exculpating or exempting a party, or requiring indemnification of a
party for, liability for its own action or inaction, to the extent the
action or inaction involves gross negligence, recklessness, willful
misconduct or unlawful conduct.
(B) The enforceability of provisions in the Credit Agreement
to the effect that terms may not be waived or modified except in
writing may be limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Lender is located (other than the State
of New York) that limit the interest, fees or other charges such Lender
may impose for the loan or use of money or other credit, (ii) the last
sentence of Section 2.18(d) of the Credit Agreement, (iii) the first
sentence of Section 9.09(b) of the Credit Agreement, insofar as such
sentence relates to the subject matter jurisdiction of the United
States District Court for the Southern District of New York to
adjudicate any controversy related to the Credit Agreement or (iv) the
waiver of inconvenient forum set forth in Section 9.09(c) of the Credit
Agreement with respect to proceedings in the United States District
Court for the Southern District New York.
The foregoing opinions are limited to matters involving the
Federal laws of the United States of America and the law of the State of New
York, and we do not express any opinion as to the laws of any other
jurisdiction.
At the request of our client, this opinion letter is, pursuant
to Section 4.01(c) of the Credit Agreement, provided to you by us in our
capacity as special New York counsel to JPMorgan and may not be relied upon by
any Person for any purpose other than in connection with the transactions
contemplated by the Credit Agreement without, in each instance, our prior
written consent.
Very truly yours,
RJW/WFC
