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Exhibit 10(g)
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U.S. $400,000,000
CREDIT AGREEMENT
Dated as of August 14, 1997,
Among
SOLUTIA INC.,
(formerly known as Queeny Chemical Company)
as Borrower
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THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Syndication Agent
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and
CITIBANK, N.A.,
as Administrative Agent
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[Exhibits D and E are photocopies of the opinions as delivered.]
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T A B L E O F C O N T E N T S
Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms................................................................... 1
SECTION 1.02. Computation of Time Periods............................................................. 18
SECTION 1.03. Accounting Terms and Determinations..................................................... 18
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances.......................................................................... 19
SECTION 2.02. Making the A Advances................................................................... 19
SECTION 2.03. The B Advances.......................................................................... 21
SECTION 2.04. Fees.................................................................................... 24
SECTION 2.05. Termination, Reduction and Extensions of the Commitments................................ 25
SECTION 2.06. Repayment of Advances; Term Loans....................................................... 27
SECTION 2.07. Interest on A Advances.................................................................. 27
SECTION 2.08. Interest Rate Determination; Changes in Rating Systems.................................. 28
SECTION 2.09. Optional Conversion of A Advances....................................................... 29
SECTION 2.10. Prepayments, Etc........................................................................ 30
SECTION 2.11. Increased Costs......................................................................... 30
SECTION 2.12. Illegality.............................................................................. 32
SECTION 2.13. Payments and Computations............................................................... 34
SECTION 2.14. Notations on the A Notes................................................................ 35
SECTION 2.15. Taxes................................................................................... 35
SECTION 2.16. Sharing of Payments, Etc................................................................ 37
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Initial Borrowing............................................... 38
SECTION 3.02. Conditions Precedent to Each A Borrowing................................................ 40
SECTION 3.03. Conditions Precedent to Each B Borrowing................................................ 40
SECTION 3.04. Determinations Under Section 3.01....................................................... 41
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
(i)
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Section Page
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SECTION 4.01. Representations and Warranties of the Borrower.......................................... 41
SECTION 4.02. Representation and Warranty of the Lenders.............................................. 45
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants................................................................... 45
SECTION 5.02. Negative Covenants...................................................................... 49
SECTION 5.03. Financial Covenants..................................................................... 52
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default....................................................................... 52
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action................................................................ 54
SECTION 7.02. Administrative Agent's Reliance, Etc.................................................... 55
SECTION 7.03. Citibank and Affiliates................................................................. 55
SECTION 7.04. Lender Credit Decision.................................................................. 55
SECTION 7.05. Indemnification......................................................................... 56
SECTION 7.06. Successor Administrative Agent.......................................................... 56
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc......................................................................... 57
SECTION 8.02. Notices, Etc............................................................................ 58
SECTION 8.03. No Waiver, Remedies..................................................................... 59
SECTION 8.04. Costs and Expenses...................................................................... 59
SECTION 8.05. Right of Set-off........................................................................ 60
SECTION 8.06. Binding Effect.......................................................................... 60
SECTION 8.07. Assignments and Participations, Register................................................ 60
SECTION 8.08. Governing Law........................................................................... 64
SECTION 8.09. Execution in Counterparts............................................................... 64
SECTION 8.10. Jurisdiction, Etc....................................................................... 65
SCHEDULES
Schedule 1 - Certain Existing Liens
(ii)
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EXHIBITS
Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit B-1 - Form of Notice of A Borrowing
Exhibit B-2 - Form of Notice of B Borrowing
Exhibit B-3 - Form of Notice of Election of Term Option
Exhibit C-1 - Form of Assignment and Acceptance
Exhibit C-2 - Form of Assumption and Acceptance
Exhibit D - Form of Opinion of General Counsel for the Borrower
Exhibit E - Form of Opinion of Special New York Counsel to the
Administrative Agent
(iii)
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CREDIT AGREEMENT dated as of August 14, 1997 among QUEENY
CHEMICAL COMPANY, a Delaware corporation whose name is to be changed (the
"Borrower"), the banks (each an "Initial Lender" and, collectively, the "Initial
Lenders") listed on the signature pages hereof, BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Syndication Agent (in such capacity, together with
its successors in such capacity, the "Syndication Agent") and CITIBANK, N.A.
("Citibank"), as administrative agent (in such capacity, together with its
successors in such capacity, the "Administrative Agent") as herein provided.
Prior to the date hereof, Monsanto Company ("Monsanto") formed
the Borrower, as a wholly owned Subsidiary of Monsanto, to hold and operate
Monsanto's chemicals business. Monsanto has proposed to distribute 100% of the
outstanding common stock of the Borrower to Monsanto's shareholders in a
tax-free transaction (the "Spin-Off"). The Borrower has requested that the
Lenders make loans to it in an aggregate principal amount not exceeding
$400,000,000 at any one time outstanding solely to finance the working capital
needs and other general corporate purposes of the Borrower, including to support
the Borrower's commercial paper program, and the Lenders are prepared to make
such loans upon the terms and conditions hereof. Accordingly, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"A Advance" means an advance by a Lender to the Borrower as
part of an A Borrowing and refers to a Base Rate Advance or a
Eurodollar Rate Advance, each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A
Advances of the same Type made by each of the Lenders pursuant to
Section 2.01.
"A Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-1
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the A Advances made by such Lender.
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"Acceptance" means an Assignment and Acceptance and/or an
Assumption and Acceptance.
"Adjusted EBITDA" means, for any period, the sum, for the
Borrower and its Consolidated Subsidiaries (determined on a
Consolidated basis without duplication in accordance with GAAP), of the
following: (a) net income (calculated before taxes, Interest Expense,
extraordinary and unusual items and income or loss attributable to
equity in Affiliates (other than Affiliates that are Specified Joint
Ventures or Consolidated Subsidiaries)) for such period plus (b)
depreciation and amortization (to the extent deducted in determining
net income) for such period; provided that charges taken (including
cash charges in an aggregate amount not exceeding $60,000,000) and
reserves established by the Borrower and its Consolidated Subsidiaries
(whether in connection with the Spin-Off or otherwise) on or prior to
December 31, 1998 in an aggregate amount not exceeding $225,000,000
shall be added back to net income for such period (to the extent such
charges and reserves were deducted in determining net income for such
period).
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with
Citibank at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Account No. ▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
"Administrative Questionnaire" means an administrative
questionnaire in a form supplied by the Administrative Agent.
"Advance" means an A Advance or a B Advance.
"Affected Lender" has the meaning specified in Section 2.12.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
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"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance and, in the case of a B Advance, the office
of such Lender notified by such Lender to the Administrative Agent as
its Applicable Lending Office with respect to such B Advance.
"Applicable Margin" means, for any A Advance that is a
Eurodollar Rate Advance: (a) prior to the Term-Out Effective Date,
0.245% per annum; and (b) from and after the Term-Out Effective Date,
for any period during which the Rated Securities are within any Rating
Level set forth below, the rate set forth below opposite the reference
to such Rating Level:
Rating Level Applicable Margin (p.a.)
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Rating ▇▇▇▇▇ ▇ 0.200%
Rating ▇▇▇▇▇ ▇ 0.225%
Rating ▇▇▇▇▇ ▇ 0.250%
Rating ▇▇▇▇▇ ▇ 0.325%
Rating ▇▇▇▇▇ ▇ 0.350%
Rating ▇▇▇▇▇ ▇ 0.400%;
provided that, if the ratings of the Rated Securities established by
S&P and ▇▇▇▇▇'▇ shall fall within different Rating Levels, the
Applicable Margin shall be determined by reference to the higher of the
two Rating Levels (except that, if the lower such Rating Level is more
than one Rating Level below the higher such Rating Level, the
Applicable Margin shall be determined by reference to the Rating Level
that is one Rating Level higher than the lower such Rating Level). Each
change in the Applicable Margin resulting from a Rating Level Change
shall be effective on the effective date of such Rating Level Change.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C-1 hereto.
"Assumption and Acceptance" means an assumption and acceptance
entered into by an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C-2 hereto.
"B Advance" means an advance by a Lender to the Borrower as
part of a B Borrowing resulting from the auction bidding procedure
described in Section 2.03.
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"B Borrowing" means a borrowing consisting of simultaneous B
Advances from each of the Lenders whose offer to make one or more B
Advances as part of such borrowing has been accepted by the Borrower
under the auction bidding procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from a B Advance made by such Lender.
"B Reduction" has the meaning specified in Section 2.01.
"Bank of America" means Bank of America National Trust and
Savings Association.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or,
if there is no nearest 1/16 of 1%, to the next higher 1/16 of
1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities)
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three-month U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such three-week
period of the annual assessment rates estimated by Citibank
for determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of Citibank in
the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an A Advance that bears interest as
provided in Section 2.07(a)(i).
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Combination" means any reorganization, merger or
consolidation or sale or other disposition of all or substantially all
of the assets of the Borrower or the acquisition of assets or stock of
another corporation.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"Capitalized Lease Obligation" means, with respect to any
Person for any period, an obligation of such Person to pay rent or
other amounts under a lease that is required to be capitalized for
financial reporting purposes in accordance with GAAP; and the amount of
such obligation shall be the capitalized amount shown on the balance
sheet of such Person as determined in accordance with GAAP.
"Change of Control" means the occurrence of any of the
following events:
(a) the acquisition by any individual, entity or group (within
the meanings of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person or Group") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 30% or more of either (i)
the then outstanding shares of common stock of the Borrower (the
"Outstanding Borrower Common Stock") or (ii) the combined voting power
of the then outstanding voting securities of the Borrower entitled to
vote generally in the election of directors (the "Outstanding Borrower
Voting Securities"); provided that, for purposes of this paragraph (a),
the following acquisitions shall not constitute a Change of
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Control: (i) any acquisitions directly from the Borrower, (ii) any
acquisition by the Borrower, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Borrower
or any corporation controlled by the Borrower or (iv) any acquisition
by any corporation pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of paragraph (c) below; or
(b) individuals who, as of the date hereof, constitute the
Board of Directors of the Borrower (the "Incumbent Board") cease for
any reason to constitute at least a majority of the Board of Directors
of the Borrower; provided that any individual becoming a director
subsequent to the date hereof whose election, or nomination for
election by the Borrower's shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual
whose initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board of Directors;
or
(c) consummation by the Borrower of a Business Combination, in
each case unless following such Business Combination: (i) all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Borrower Common
Stock and Outstanding Borrower Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly,
more than 50% of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a
result of such transaction owns the Borrower or all or substantially
all of the Borrower's assets either directly or through one or more
Subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding
Borrower Common Stock and Outstanding Borrower Voting Securities, as
the case may be, (ii) no Person or Group (excluding any corporation
resulting from such Business Combination or any employee benefit plan
(or related trust) of the Borrower or such corporation resulting from
such Business Combination) beneficially owns, directly or indirectly,
30% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business Combination or
the combined voting power of the then outstanding voting
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securities of such corporation except to the extent that such ownership
existed prior to the Business Combination and (iii) at least a majority
of the members of the board of directors of the corporation resulting
from such Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement, or of the action of
the Board of Directors, providing for such Business Combination; or
(d) approval by the shareholders of the Borrower of a complete
liquidation or dissolution of the Borrower.
The Spin-Off shall be deemed not to constitute a Change of Control for
purposes hereof.
"Citibank" has the meaning specified in the recital of parties
to this Agreement.
"Closing Date" means the earliest date as of which the
conditions precedent to effectiveness set forth in Section 3.01 shall
have been satisfied or waived.
"Commitment" means, as to each Lender, the obligation of such
Lender to make A Advances in an aggregate principal amount at any one
time outstanding up to but not exceeding the amount set opposite the
name of such Lender on the signature pages hereof under the caption
"Commitment" or, in the case of a Person that becomes a Lender pursuant
to an assignment permitted under Section 8.07, or pursuant to an
assumption of obligations under Section 2.05(c), as specified in the
Register (as such Commitment may be reduced from time to time pursuant
hereto). The original aggregate principal amount of the Commitments is
$400,000,000.
"Commitment Termination Date" means August 13, 1998 or, in the
case of any Lender whose Commitment is extended pursuant to Section
2.05(c), the date to which such Commitment is extended; provided in
each case that if any such date is not a Business Day, the relevant
Commitment Termination Date of such Lender shall be the immediately
preceding Business Day. When the term "Commitment Termination Date" is
used herein without reference to any particular Lender, such term
shall, in such instance, be deemed to be a reference to the latest
Commitment Termination Date of any of the Lenders then in effect
hereunder.
"Consolidated" refers to the consolidation of the accounts of
the Borrower and its Subsidiaries in accordance with generally accepted
accounting principles, including principles of consolidation,
consistent with those applied in
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the preparation of the financial statements referred to in Section
4.01(e)(ii).
"Consolidated Net Tangible Assets" means, at any time, for the
Borrower and its Consolidated Subsidiaries (determined on a
Consolidated basis without duplication in accordance with GAAP),
Consolidated Tangible Assets at such time after deducting therefrom all
current liabilities, other than current liabilities in respect of (a)
notes and loans payable, (b) current maturities of long-term debt and
(c) current maturities of the principal component of Capitalized Lease
Obligations.
"Consolidated Net Worth" means, at any time, the sum for the
Borrower and its Consolidated Subsidiaries (determined on a
Consolidated basis without duplication in accordance with GAAP), the
amount of capital stock plus the amount of surplus and retained
earnings (or, in the case of a surplus or retained earnings deficit,
minus the amount of such deficit).
"Consolidated Subsidiary" means a Subsidiary of the Borrower,
the accounts of which in accordance with generally accepted accounting
principles are consolidated with those of the Borrower.
"Consolidated Tangible Assets" means, at any time, for the
Borrower and its Consolidated Subsidiaries (determined on a
Consolidated basis without duplication in accordance with GAAP), the
aggregate amount of all assets (less applicable reserves and other
properly deductible items) after deducting therefrom all goodwill,
trade names, trademarks, patents, unamortized debt discount and
expenses (to the extent included in said aggregate amount of assets)
and other like intangibles.
"Convert", "Conversion" and "Converted" each refers to a
conversion of A Advances of one Type into A Advances of the other Type
pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication: (a)
indebtedness of such Person for borrowed money, (b) obligations of such
Person evidenced by bonds, debentures, notes or other similar
instruments, (c) obligations of such Person to pay the deferred
purchase price of property or services (other than trade accounts
payable arising, and accrued expenses incurred, in the ordinary course
of business so long as such trade accounts payable are payable on
customary trade terms or on other trade terms that are more
advantageous to the Borrower), (d) Capitalized Lease Obligations of
such Person and (e) obligations of such Person under direct or indirect
guaranties in respect of, and
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obligations (contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in
clauses (a) through (d) above.
"Debt to Adjusted EBITDA Ratio" means, at any date, the ratio
of:
(a) Debt of the Borrower and its Consolidated
Subsidiaries on a Consolidated basis as of such date to
(b) (i) Adjusted EBITDA for the Rolling Period ending
on or most recently ended prior to such date multiplied by
(ii) a fraction, the numerator of which is equal to four and
the denominator of which is equal to the number of calendar
quarters in such Rolling Period.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" in
the Administrative Questionnaire of such Lender or in the Acceptance
pursuant to which it became a Lender, or such other office of such
Lender as such Lender may from time to time specify to the Borrower and
the Administrative Agent.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$5,000,000,000; (iv) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof,
and having total assets in excess of $3,000,000,000; (v) a commercial
bank organized under the laws of any other country that is a member of
the Organization for Economic Cooperation and Development or has
concluded special lending arrangements with the International Monetary
Fund associated with its General Arrangements to Borrow or of the
Cayman Islands, or a political subdivision of any such country, and
having total assets in excess of $5,000,000,000, so long as such bank
is acting through a branch or agency located in the country in which it
is organized or another country that is described in this clause (v);
(vi) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or other
entity) that is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and having
total assets in excess of $3,000,000,000; and (vii) any other Person
approved
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by the Administrative Agent and the Borrower, such approval not to be
unreasonably withheld or delayed; provided that neither the Borrower
nor an Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Laws" means any and all applicable laws and
regulations relating to the protection of the environment, including
laws relating to emissions, discharges, releases, spills and disposal
of material into the environment (e.g., air, surface water, groundwater
and the land).
"Environmental Permit" means any permit, license or other
governmental approval required under any Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, that would have a Material
Adverse Effect with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC; (b)
the application for a minimum funding waiver with respect to a Plan;
(c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan pursuant to Section 4041(c) of ERISA; (d)
the cessation of operations at a facility of the Borrower or any of its
ERISA Affiliates in the circumstances described in Section 4062(e) of
ERISA; (e) the failure by the Borrower or any of its ERISA Affiliates
to make a payment to a Plan if the conditions for the imposition of a
lien under Section 302(f)(1) of ERISA are satisfied; (f) the adoption
of an amendment to a Plan requiring the provision of security to such
Plan, pursuant to Section 307 of ERISA; or (g) the institution by the
PBGC of proceedings to terminate a Plan, pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in Section
4042 of ERISA that could constitute grounds for the termination of, or
the appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar
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Lending Office" in the Administrative Questionnaire of such Lender or
in the Acceptance pursuant to which it became a Lender (or, if no such
office is specified, its Domestic Lending Office), or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurodollar Rate
Advance comprising part of such Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. The Eurodollar Rate for any Interest Period
for each Eurodollar Rate Advance comprising part of the same Borrowing
shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative Agent
from the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means an A Advance that bears
interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
▇▇
- ▇▇ -
"▇▇▇▇▇▇▇▇ ▇▇▇" means the Securities Exchange Act of 1934, as
amended.
"Excluded Representations" means the representations and
warranties set forth in Section 4.01(e)(iii), Section 4.01(f)
(excluding clause (ii) thereof) and the second sentence of Section
4.01(c).
"Facility Fee" has the meaning specified in Section 2.04(a).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Final Maturity Date" means the date that is the earlier of
(x) the first anniversary of the Term-Out Effective Date and (y) the
date specified in the related Notice of Election of Term Option;
provided that if such date is not a Business Day, then the Final
Maturity Date shall be the immediately preceding Business Day.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Floating Rate Advances" has the meaning specified in Section
2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Information" has the meaning specified in Section 4.01(j)(i).
"Interest Coverage Ratio" means, at any date, the ratio of (a)
Adjusted EBITDA for the Rolling Period ending on or most recently ended
prior to such date to (b) Interest Expense for such Rolling Period.
"Interest Expense" means, for any period, the sum, for the
Borrower and its Consolidated Subsidiaries (determined on
17
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a consolidated basis without duplication in accordance with GAAP), of
all interest in respect of Debt (including, without limitation, the
interest component of any payments in respect of Capitalized Lease
Obligations) accrued or capitalized during such period (whether or not
actually paid during such period).
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same A Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided that:
(i) prior to the Commitment Termination Date, the
Borrower may not select any Interest Period that ends after
the Commitment Termination Date;
(ii) the Borrower may not select any Interest Period
that ends after the Final Maturity Date;
(iii) Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the same A
Borrowing shall be of the same duration;
(iv) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding
Business Day; and
(v) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
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"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Lenders" means the Initial Lenders listed on the signature
pages hereof and each institution that shall become a party hereto
pursuant to Section 2.05(c) or Section 8.07(a), (b) or (d).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Majority Lenders" means at any time Lenders owed at least
66-2/3% of the then aggregate unpaid principal amount of the A Advances
owing to Lenders, or, if no such principal amount is then outstanding,
Lenders having at least 66-2/3% of the Commitments.
"Margin Stock" has the meaning specified in Regulation U of
the Board of Governors of the Federal Reserve System.
"Material Adverse Effect" means a material adverse effect on
(a) the financial condition or results of operations of the Borrower
and its Subsidiaries, taken as a whole (it being understood that the
transactions relating to the Spin-Off described in the Proxy Statement
shall not be deemed to constitute such a material adverse effect) or
(b) the legality, validity or enforceability of this Agreement or any
Note.
"Material Contract" means any contractual, legal or other
obligation binding upon the Borrower or a Material Subsidiary under
which a default in payment by the Borrower or such Material Subsidiary
would have a Material Adverse Effect.
"Material Subsidiary" means, at any time, any Consolidated
Subsidiary that, on a consolidated basis with its Subsidiaries, has:
(a) at least 5% (in the case of Queeny U.K. and
Queeny Belgium) or 10% (in the case of each other Consolidated
Subsidiary) of the total Consolidated assets of the Borrower
and its Consolidated Subsidiaries (determined as of the last
day of the most recent fiscal quarter of the Borrower); or
19
- 15 -
(b) at least 5% (in the case of Queeny U.K. and
Queeny Belgium) or 10% (in the case of each other Consolidated
Subsidiary) of the Consolidated net sales of the Borrower and
its Consolidated Subsidiaries for the twelve-month period
ending on the last day of the most recent fiscal quarter of
the Borrower.
"Monsanto" has the meaning specified in the Preliminary
Statements hereof.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any of its ERISA
Affiliates is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower (or its predecessor's chemicals business) or
any of its ERISA Affiliates and at least one Person other than the
Borrower (or its predecessor's chemicals business) and its ERISA
Affiliates or (b) was so maintained and in respect of which the
Borrower (or its predecessor's chemicals business) or any of its ERISA
Affiliates could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning specified in Section
2.02(a).
"Notice of B Borrowing" has the meaning specified in Section
2.03(a)(i).
"Notice of Election of Term Option" has the meaning specified
in Section 2.06(a).
"Ownership Interest" in (or of) any corporation, partnership,
joint venture, limited liability company, trust or estate means (a)
issued and outstanding capital stock having ordinary voting power in
the election of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class
or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) an interest in the capital
20
- 16 -
or profits of such partnership, joint venture or limited liability
company or (c) a beneficial interest in such trust or estate.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Post-Closing Date Information" has the meaning specified in
Section 4.01(j)(iv).
"Principal Property" means any building, structure or other
facility, together with the land upon which it is erected and fixtures
comprising a part thereof, used primarily for manufacturing, the gross
book value of which on the date as of which such determination is being
made exceeds 1% of the gross property, plant and equipment of the
Borrower as shown in its Consolidated financial statements, provided
that any property which, in the opinion of the Borrower, is not of
material importance to the business of the Borrower and its
Consolidated Subsidiaries, taken as a whole, shall not be deemed to be
a Principal Property.
"Proxy Statement" means the proxy statement of Monsanto filed
with the Securities and Exchange Commission on July 14, 1997 relating
to the Spin-Off, as amended from time to time (without prejudice to
Section 5.02(e)).
"Queeny Belgium" means Monsanto Chemicals Europe S.A., an
indirect wholly owned Consolidated Subsidiary of the Borrower whose
name is to be changed after the date hereof.
"Queeny U.K." means Monsanto Chemicals U.K. Limited, an
indirect wholly owned Consolidated Subsidiary of the Borrower whose
name is to be changed after the date hereof.
"Rated Securities" means, at any time, the long-term senior
unsecured, unguaranteed debt securities of the Borrower outstanding at
such time.
"Rating Level" means Rating Level 1, Rating Level 2, Rating
Level 3, Rating Level 4, Rating Level 5 or Rating Level 6. For purposes
hereof, Rating Level 1 shall be deemed to be
21
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the highest Rating Level and Rating Level 6 shall be deemed to be the
lowest Rating Level.
"Rating Level 1" means a rating of the Rated Securities better
than or equal to A2 by Moody's or better than or equal to A by S&P.
"Rating Level 2" means a rating of the Rated Securities equal
to A3 by Moody's or A- by S&P.
"Rating Level 3" means a rating of the Rated Securities equal
to Baa1 by Moody's or BBB+ by S&P.
"Rating ▇▇▇▇▇ ▇" means a rating of the Rated Securities equal
to Baa2 by Moody's or BBB by S&P.
"Rating ▇▇▇▇▇ ▇" means a rating of the Rated Securities equal
to Baa3 by Moody's or BBB- by S&P.
"Rating ▇▇▇▇▇ ▇" means a rating of the Rated Securities less
than Baa3 by Moody's and less than BBB- by S&P. If Moody's or S&P shall
not have in effect a rating for the Rated Securities at any time, then
the Rated Securities shall be deemed to be rated by Moody's or S&P, as
the case may be, in Rating Level 6.
"Rating Level Change" means a change in the rating of the
Rated Securities by either or both of Moody's and S&P (other than as a
result of a change in the rating system of such rating agency) that
results in the change from one Rating Level to another, which Rating
Level Change shall be effective on the date on which the relevant
change in the rating of the Rated Securities is first announced by
Moody's or S&P, as the case may be.
"Reference Banks" means Citibank, Bank of America and Societe
Generale; provided that the Borrower may at any time substitute another
Lender as one of the Reference Banks, but such substitution shall
terminate after 30 days if within such period the Majority Lenders
shall have notified the Administrative Agent of their objection to such
substitution.
"Register" has the meaning specified in Section 8.07(c).
"Registration Statement" means the registration statement on
Form 10 of the Borrower to effect the registration of the Borrower's
common stock pursuant to the Exchange Act, as amended from time to time
(without prejudice to Section 5.02(e)).
"Rolling Period" means:
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(a) with respect to determinations made prior to September 30,
1997, the period commencing on January 1, 1997 and ending on June 30,
1997;
(b) with respect to determinations made on or after September
30, 1997 but prior to December 31, 1997, the period commencing on
January 1, 1997 and ending on September 30, 1997; and
(c) with respect to determinations made on or after December
31, 1997, the period of four consecutive calendar quarters ending on or
most recently ended prior to such date.
"S&P" means Standard & Poor's Ratings Services, presently a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower (or its predecessor's chemicals business) or
any of its ERISA Affiliates and no Person other than the Borrower (or
its predecessor's chemicals business) and its ERISA Affiliates or (b)
was so maintained and in respect of which the Borrower (or its
predecessor's chemicals business) or any of its ERISA Affiliates could
have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
"Solvent" means, with respect to any Person on a particular
date, that on such date (a) the present fair salable value of the
assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they
become absolute and matured, (b) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature and (c)
such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's
property would be unreasonably small in relation to such business or
such transaction.
"Specified Joint Venture" means a joint venture or other
Person (other than a Consolidated Subsidiary of the Borrower) of which
(or in which) at least 50% of the Ownership Interests thereof is at the
time directly or indirectly owned by the Borrower, by the Borrower and
one or more of its Consolidated Subsidiaries or by one or more of the
Borrower's Consolidated Subsidiaries, provided that the Borrower's
joint venture partners in such joint venture or other Person do not, in
the aggregate, control (or possess the ability to control) such
23
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joint venture or other Person. For purposes of this definition, a
"joint venture partner" means a Person that owns any Ownership
Interests in the related joint venture or other Person and that is not
the Borrower or one of its Consolidated Subsidiaries.
"Spin-Off" has the meaning specified in the Preliminary
Statements to this Agreement.
"Spin-Off Documents" means, collectively, (a) the Proxy
Statement, (b) the Registration Statement, (c) the Distribution
Agreement dated as of a date on or prior to the Closing Date by and
between Monsanto and the Borrower, (d) the Employee Benefits and
Compensation Allocation Agreement dated as of a date on or prior to the
Closing Date by and between Monsanto and the Borrower and (e) the Tax
Sharing and Indemnification Agreement dated as of a date on or prior to
the Closing Date by and between Monsanto and the Borrower, in each case
as amended from time to time (without prejudice to Section 5.02(e)).
"Spin-Off Properties" means the properties and businesses
contemplated to be transferred to or purchased by the Borrower and its
Subsidiaries under the Spin-Off Documents.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of the Ownership Interests thereof is at the
time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of
such Person's other Subsidiaries.
"Syndication Agent" has the meaning specified in the recital
of parties to this Agreement.
"Taxes" has the meaning specified in Section 2.15(a).
"Term-Out Effective Date" has the meaning assigned to such
term in Section 2.06(a).
"Threshold Amount" means, at any time: (a) if the Borrower's
Consolidated Net Worth at such time is greater than zero, $35,000,000;
and (b) at any other time, $25,000,000.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even
24
- 20 -
if the right so to vote has been suspended by the happening of such a
contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms and Determinations. All
accounting terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles consistent with those
applied in the preparation of the financial statements referred to in Section
4.01(e)(ii) ("GAAP"). All determinations of Adjusted EBITDA, Consolidated Net
Tangible Assets, Consolidated Net Worth, Consolidated Tangible Assets and
Interest Expense shall be made on the basis of the financial statements most
recently delivered pursuant to Section 4.01(e)(i) and Sections 5.01(i)(i), (ii)
and (iii). In the event that, after the date of this Agreement, there are any
changes in GAAP, the Lenders will consider a request by the Borrower to amend
this Agreement to take account of such changes.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make A Advances to the
Borrower from time to time on any Business Day during the period from the
Closing Date to and including the Commitment Termination Date in an aggregate
amount not to exceed at any time outstanding the amount of such Lender's
Commitment; provided that the aggregate amount of the Commitments of the Lenders
shall be deemed used from time to time to the extent of the aggregate amount of
the B Advances then outstanding and such deemed use of the aggregate amount of
the Commitments shall be allocated among the Lenders ratably according to their
respective Commitments (such deemed use of the aggregate amount of the
Commitments being a "B Reduction"). Each A Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof,
or the aggregate amount of the unused portion of the Lenders' Commitments;
provided that any A Borrowing in an aggregate amount less than $10,000,000 shall
consist solely of Base Rate Advances. In addition, each A Borrowing shall
consist of A Advances of the same Type and having the same Interest Period made
on the same day by the Lenders ratably according to their
25
- 21 -
respective Commitments. Within the limits of each Lender's Commitment, the
Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.10
and, on or prior to the Commitment Termination Date, reborrow under this Section
2.01.
SECTION 2.02. Making the A Advances.
(a) Each A Borrowing shall be made on notice, given not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed A Borrowing (in the case of an A Borrowing to be comprised of
Eurodollar Rate Advances), or by 11:00 A.M. (New York City time) on the day of
the proposed A Borrowing (in the case of an A Borrowing to be comprised of Base
Rate Advances), by the Borrower to the Administrative Agent, which shall give to
each Lender prompt notice thereof by telecopier or by telex. Each such notice of
an A Borrowing (a "Notice of A Borrowing") shall be by telecopier or by telex,
confirmed immediately in writing, in substantially the form of Exhibit B-1
hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type
of A Advances comprising such A Borrowing, (iii) aggregate amount of such A
Borrowing, and (iv) in the case of an A Borrowing consisting of Eurodollar Rate
Advances, the initial Interest Period for each such A Advance. Each Lender shall
on the date of such A Borrowing, before 11:00 A.M. (New York City time), in the
case of an A Borrowing to be comprised of Eurodollar Rate Advances, and before
1:00 P.M. (New York City time), in the case of an A Borrowing to be comprised of
Base Rate Advances, make available for the account of its Applicable Lending
Office to the Administrative Agent at its address referred to in Section 8.02,
in same day funds, such Lender's ratable portion of such A Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower at the Administrative Agent's
aforesaid address.
(b) Anything in subsection (a) above to the contrary
notwithstanding, the Borrower may not select Eurodollar Rate Advances for any A
Borrowing if the obligation of the Lenders to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.12 (except as otherwise
provided in Section 2.12(b)(ii)).
(c) Each Notice of A Borrowing shall be binding on the
Borrower. In the case of any A Borrowing that the related Notice of A Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any revocation of such Notice of A Borrowing by the Borrower or
any failure to fulfill on or before the date specified in such Notice of A
Borrowing for such A Borrowing the applicable conditions set forth in Article
III, including, without limitation, any loss, cost
26
- 22-
or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the A Advance to be made by such
Lender as part of such A Borrowing when such A Advance, as a result of such
revocation or failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any A Borrowing (in the case of an A
Borrowing to be comprised of Eurodollar Rate Advances) and not later than 12:00
Noon (New York City time) on the Business Day of the proposed A Borrowing (in
the case of an A Borrowing to be comprised of Base Rate Advances) that such
Lender will not make available to the Administrative Agent such Lender's ratable
portion of such A Borrowing, the Administrative Agent may assume that such
Lender has made such portion available to the Administrative Agent on the date
of such A Borrowing in accordance with subsection (a) of this Section 2.02 and
the Administrative Agent may, in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount; provided that nothing in
this subsection (d) shall be construed to relieve any Lender from any obligation
hereunder to make available to the Administrative Agent its ratable portion of
such A Borrowing in accordance with subsection (a) of this Section 2.02. If and
to the extent that such Lender shall not have so made such ratable portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Borrower, the
interest rate applicable at such time to the A Advances comprising such A
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's A Advance as part of such A
Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made
by it as part of any A Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its A Advance on the date of such A
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the A Advance to be made by such other Lender on the date of any
A Borrowing.
SECTION 2.03. The B Advances.
(a) Each Lender severally agrees that the Borrower may make B
Borrowings under this Section 2.03 from time to time on any Business Day during
the period from the Closing Date until the date occurring seven days prior to
the Commitment Termination Date in the manner set forth below; provided that,
following the making of
27
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each B Borrowing, (X) the aggregate amount of the B Advances of all Lenders then
outstanding shall not exceed the aggregate amount of the Commitments of the
Lenders, and (Y) the aggregate amount of all Advances then outstanding shall not
exceed the aggregate amount of the Commitments of the Lenders.
(i) The Borrower may request a B Borrowing under this
Section 2.03 by delivering to the Administrative Agent, by telecopier
or telex, confirmed immediately in writing, a notice of a B Borrowing
(a "Notice of B Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein:
(1) the date of such proposed B Borrowing;
(2) the aggregate amount of such proposed B
Borrowing;
(3) the maturity date for repayment of each B Advance
to be made as part of such B Borrowing (which maturity date
may not be earlier than the date occurring thirty days after
the date of such B Borrowing or later than the Commitment
Termination Date);
(4) the interest payment date or dates relating
thereto; and
(5) whether such B Borrowing is to be comprised of
Fixed Rate Advances or Floating Rate Advances; and
(6) any other terms to be applicable to such B
Borrowing,
not later than 10:00 A.M. (New York City time) (A) at least one
Business Day prior to the date of the proposed B Borrowing, if the
Borrower shall specify in the Notice of B Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates per annum
(the B Advances comprising any such B Borrowing being referred to
herein as "Fixed Rate Advances") and (B) at least four Business Days
prior to the date of the proposed B Borrowing, if the Borrower shall
instead specify in the Notice of B Borrowing the basis to be used by
the Lenders in determining the rates of interest to be offered by them
(the B Advances comprising such B Borrowing being referred to herein as
"Floating Rate Advances"). The Administrative Agent shall in turn
promptly notify each Lender of each request for a B Borrowing received
by it from the Borrower by sending such Lender a copy of the related
Notice of B Borrowing.
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(ii) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more B Advances to
the Borrower as part of such proposed B Borrowing at a rate or rates of
interest specified by such Lender in its sole discretion, by notifying
the Administrative Agent (which shall give prompt notice thereof to the
Borrower), before 10:00 A.M. (New York City time) on the date of such
proposed B Borrowing, in the case of a B Borrowing consisting of Fixed
Rate Advances and three Business Days before the date of such proposed
B Borrowing, in the case of a B Borrowing consisting of Floating Rate
Advances, of the minimum amount and maximum amount of each B Advance
which such Lender would be willing to make as part of such proposed B
Borrowing (which amounts may, subject to the proviso to the first
sentence of this Section 2.03(a), exceed such Lender's Commitment, if
any), the rate or rates of interest therefor and such Lender's
Applicable Lending Office with respect to such B Advance; provided that
if the Administrative Agent in its capacity as a Lender shall, in its
sole discretion, elect to make any such offer, it shall notify the
Borrower of such offer before 9:00 A.M. (New York City time) on the
date on which notice of such election is to be given to the
Administrative Agent by the other Lenders. If any Lender shall elect
not to make such an offer, such Lender shall so notify the
Administrative Agent, before 10:00 A.M. (New York City time) on the
date on which notice of such election is to be given to the
Administrative Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any B Advance as part of such B
Borrowing; provided that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any B Advance as
part of such proposed B Borrowing.
(iii) The Borrower shall, in turn, before 12:00 Noon (New
York City time) on the date of such proposed B Borrowing, in the case
of a B Borrowing consisting of Fixed Rate Advances, and before 1:00
P.M. (New York City time) three Business Days before the date of such
proposed B Borrowing, in the case of a B Borrowing consisting of
Floating Rate Advances, either:
(x) cancel such B Borrowing by giving the
Administrative Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in order
of the lowest to highest rates of interest or margins (or, if
two or more Lenders bid at the same rate of interest, and the
amount of accepted offers is less than the aggregate amount of
such offers, the amount to be borrowed from such Lenders as
part of such B Borrowing shall be allocated among such Lenders
pro rata on the
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basis of the maximum amount offered by such Lenders at such
rates or margin in connection with such B Borrowing), by
giving notice to the Administrative Agent of the amount of
each B Advance (which amount shall be equal to or greater than
the minimum amount, and equal to or less than the maximum
amount, notified to the Borrower by the Administrative Agent
on behalf of such Lender for such B Advance pursuant to
paragraph (ii) above) to be made by each Lender as part of
such B Borrowing, and reject any remaining offers made by
Lenders pursuant to paragraph (ii) above by giving the
Administrative Agent notice to that effect.
(iv) If the Borrower notifies the Administrative Agent
that such B Borrowing is canceled pursuant to paragraph (iii)(x) above,
the Administrative Agent shall give prompt notice thereof to the
Lenders and such B Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers
made by any Lender or Lenders pursuant to paragraph (iii)(y) above, the
Administrative Agent shall in turn promptly notify (A) each Lender that
has made an offer as described in paragraph (ii) above, of the date and
aggregate amount of such B Borrowing and whether or not any offer or
offers made by such Lender pursuant to paragraph (ii) above have been
accepted by the Borrower, (B) each Lender that is to make a B Advance
as part of such B Borrowing, of the amount of each B Advance to be made
by such Lender as part of such B Borrowing, and (C) each Lender that is
to make a B Advance as part of such B Borrowing, upon receipt, that the
Administrative Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a B Advance as part of such B Borrowing shall, before
1:00 P.M. (New York City time) on the date of such B Borrowing
specified in the notice received from the Administrative Agent pursuant
to clause (A) of the preceding sentence or any later time when such
Lender shall have received notice from the Administrative Agent
pursuant to clause (C) of the preceding sentence, make available for
the account of its Applicable Lending Office to the Administrative
Agent at the Administrative Agent's Account, in same day funds, such
Lender's portion of such B Borrowing. Upon fulfillment of the
applicable conditions set forth in Article III and after receipt by the
Administrative Agent of such funds, the Administrative Agent will make
such funds available to the Borrower at the Administrative Agent's
address referred to in Section 8.02. Promptly after each B Borrowing
the Administrative Agent will notify each Lender of the amount of the B
Borrowing, the consequent B Reduction and the dates upon which such B
Reduction commenced and will terminate.
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(b) Each B Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof, or the
aggregate amount of the unused portion of the Lenders' Commitments and,
following the making of each B Borrowing, the Borrower shall be in compliance
with the limitations set forth in the proviso to the first sentence of
subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay pursuant to subsection (d) below, and reborrow under this Section 2.03;
provided that a B Borrowing shall not be made within three Business Days of the
date of any other B Borrowing.
(d) The Borrower shall repay to the Administrative Agent for
the account of each Lender that has made a B Advance, on the maturity date of
each B Advance (such maturity date being that specified by the Borrower for
repayment of such B Advance in the related Notice of B Borrowing delivered
pursuant to subsection (a)(i) above and provided in the B Note evidencing such B
Advance), the then unpaid principal amount of such B Advance. The Borrower shall
not have the right to prepay any B Advance.
(e) The Borrower shall pay interest on the unpaid principal
amount of each B Advance from the date of such B Advance to the date the
principal amount of such B Advance is paid in full, at the rate of interest for
such B Advance specified by the Lender making such B Advance in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above, payable (i) on
the interest payment date or dates specified by the Borrower for such B Advance
in the related Notice of B Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the B Note evidencing such B Advance, and (ii) on the date
such B Advance shall be paid in full. Upon the occurrence and during the
continuance of any Event of Default, the Borrower shall pay interest on the
amount of unpaid principal of each B Advance owing to a Lender, payable in
arrears on the date or dates interest is payable thereon, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on such B Advance under the terms of the B Note evidencing such B Advance unless
otherwise agreed in such B Note.
(f) The indebtedness of the Borrower resulting from each B
Advance made to the Borrower as part of a B Borrowing shall be evidenced by a
separate B Note of the Borrower payable to the order of the Lender making such B
Advance.
(g) The Borrower shall pay to the Administrative Agent for its
own account the Competitive Bid Administration Fee described in Section 2.04(b)
with each request for a B Borrowing whether or not any B Borrowing is in fact
made.
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SECTION 2.04. Fees.
(a) Facility Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee (the
"Facility Fee") on the aggregate amount (whether used or unused) of such
Lender's Commitment from the date hereof (in the case of each Initial Lender)
and from the effective date specified in the Acceptance pursuant to which it
became a Lender (in the case of each other Lender) until the Commitment
Termination Date of such Lender at a rate per annum equal to 0.080% per annum.
The Facility Fee shall be payable quarterly in arrears on the last Business Day
of each March, June, September and December and, for each Lender, on the
Commitment Termination Date of such Lender.
(b) Competitive Bid Administration Fee. The Borrower shall pay
to the Administrative Agent for its own account a fee in an amount heretofore
agreed between the Borrower and the Administrative Agent with each request for a
B Borrowing whether or not any B Borrowing is in fact made.
SECTION 2.05. Termination, Reduction and Extensions of the
Commitments.
(a) Commitment Reductions. The Commitment of each Lender
shall be automatically reduced to zero on the Commitment Termination Date of
such Lender. In addition, the Borrower shall have the right, upon at least three
Business Days' notice to the Administrative Agent, to terminate in whole or
reduce ratably in part the unused portions of the respective Commitments of the
Lenders, provided that (i) the aggregate amount of the Commitments of the
Lenders shall not be reduced to an amount which is less than the aggregate
principal amount of the Advances then outstanding; and (ii) each partial
reduction shall be in an aggregate amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof. Once terminated, a Commitment cannot be
reinstated.
(b) Closing Date. On October 31, 1997, the Commitment of each
Lender shall be automatically reduced to zero if the Closing Date shall not have
occurred on or prior to such date.
(c) Commitment Extensions.
(i) The Borrower may, by notice to the Administrative Agent
(which shall promptly notify the Lenders) not more than 60 days and not
less than 40 days prior to the Commitment Termination Date then in
effect hereunder (the "Existing Commitment Termination Date"), request
that each Lender extend such Lender's Commitment Termination Date for
an additional 364 days from the Existing Commitment Termination Date.
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(ii) Each Lender, acting in its sole and individual
discretion, shall, by notice to the Administrative Agent given not more
than 30 days immediately prior to the Existing Commitment Termination
Date but in any event no later than the date (the "Notice Date") that
is 20 days prior to the Existing Commitment Termination Date, advise
the Administrative Agent whether or not such Lender agrees to such
extension (and each Lender that determines not to so extend its
Commitment Termination Date (a "Non-Extending Lender") shall notify the
Administrative Agent (which shall notify the other Lenders) of such
fact promptly after such determination (but in any event no later than
the Notice Date) and any Lender that does not so advise the
Administrative Agent on or before the Notice Date shall be deemed to be
a Non-Extending Lender. The election of any Lender to agree to such
extension shall not obligate any other Lender to so agree.
(iii) The Administrative Agent shall notify the Borrower of
each Lender's determination under this Section 2.05(c) no later than
the date 15 days prior to the Existing Commitment Termination Date (or,
if such date is not a Business Day, on the next preceding Business
Day).
(iv) The Borrower shall have the right on or before the
Existing Commitment Termination Date to replace each Non-Extending
Lender with, and add as "Lenders" under this Agreement in place
thereof, one or more Eligible Assignees (each, an "Additional
Commitment Lender") with the approval of the Administrative Agent and
the Syndication Agent (which approvals shall not be unreasonably
withheld), each of which Additional Commitment Lenders shall have
entered into an Assumption and Acceptance pursuant to which such
Additional Commitment Lender shall, effective as of the Existing
Commitment Termination Date, undertake a Commitment (and, if any such
Additional Commitment Lender is already a Lender, its Commitment shall
be in addition to such Lender's Commitment hereunder on such date).
(v) If (and only if) the total of the Commitments of the
Lenders that have agreed so to extend their Commitment Termination Date
and the additional Commitments of the Additional Commitment Lenders
shall be more than 51% of the aggregate amount of the Commitments in
effect immediately prior to the Existing Commitment Termination Date,
then, effective as of the Existing Commitment Termination Date, the
Commitment Termination Date of each Extending Lender and of each
Additional Commitment Lender shall be extended to the date falling 364
days after the Existing Commitment Termination Date (except that, if
such date is not a Business Day, such Commitment Termination Date as so
extended shall be the next preceding Business Day) and each Additional
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Commitment Lender shall thereupon become a "Lender" for all purposes of
this Agreement.
(vi) Notwithstanding the foregoing, the extension of the
Commitment Termination Date pursuant to this Section 2.05(c) shall not
be effective with respect to any Lender unless:
(x) no Default shall have occurred and be continuing
on either of the date of the notice requesting such extension
or the Existing Commitment Termination Date;
(y) each Non-Extending Lender shall have been paid in
full by the Borrower all amounts owing to such Lender
hereunder on or before the Commitment Termination Date of such
Lender; and
(z) the Borrower shall not have delivered a Notice of
Election of Term Option pursuant to Section 2.06(a).
SECTION 2.06. Repayment of Advances; Term Loans.
(a) A Advances. The Borrower shall repay the principal amount
of each A Advance made by each Lender, and each A Advance made by such Lender
shall mature, on the Commitment Termination Date of such Lender; provided that
the Borrower may, subject to:
(i) the delivery to the Administrative Agent of a notice (a
"Notice of Election of Term Option") in substantially the form of
Exhibit B-3 hereto not more than 30 days nor less than 15 days prior to
the Commitment Termination Date then in effect (the "Term-Out Effective
Date"),
(ii) the condition that, both on the date on which such Notice
of Election of Term Option is given and on the Term-Out Effective Date,
no Default shall have occurred and be continuing, and
(iii) the condition that the aggregate principal amount of
outstanding the A Advances shall be not less than $10,000,000,
elect to repay the A Advances of all (but not less than all) of the Lenders on
the Final Maturity Date; and, if the Borrower does make such election in
accordance with this Section 2.06(a), the Borrower shall repay the principal
amount of each A Advance made by each Lender, and each A Advance made by such
Lender shall mature, on the Final Maturity Date.
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(b) B Advances. The Borrower shall repay the principal amount
of each B Advance made by each Lender as provided in Section 2.03(e).
SECTION 2.07. Interest on A Advances.
(a) Scheduled Interest. The Borrower shall pay interest on the
unpaid principal amount of each A Advance owing to each Lender from the date of
such A Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. During such periods as such A Advance
is a Base Rate Advance, a rate per annum equal at all times to the Base
Rate in effect from time to time, payable in arrears quarterly on the
last day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) Eurodollar Rate Advances. During such periods as such A
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such A Advance to the sum of (x)
the Eurodollar Rate for such Interest Period for such Advance plus (y)
the Applicable Margin in effect from time to time, payable in arrears
on the last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of
such Interest Period and on the date such Eurodollar Rate Advance shall
be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of any Event of Default, the Borrower shall pay interest on the
unpaid principal amount of each A Advance owing to each Lender, payable in
arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate
per annum equal at all times to 2% per annum above the rate per annum required
to be paid on such A Advance pursuant to clause (a)(i) or (a)(ii) above.
SECTION 2.08. Interest Rate Determination; Changes in Rating
Systems.
(a) Each Reference Bank agrees to furnish to the
Administrative Agent timely information for the purpose of determining each
Eurodollar Rate. If any one or more of the Reference Banks shall not furnish
such timely information to the Administrative Agent for the purpose of
determining any such interest rate, the Administrative Agent shall determine
such interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes
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of Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference
Bank for the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Majority Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance, and (ii) the
obligation of the Lenders to make, or to Convert A Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $10,000,000, such Advances
shall automatically Convert into Base Rate Advances and on and after such date
the right of the Borrower to Convert such A Advances shall terminate.
(e) Upon the occurrence and during the continuance of any
Event of Default, (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert A Advances
into, Eurodollar Rate Advances shall be suspended.
(f) If fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the Eurodollar Rate for
any Eurodollar Rate Advances,
(i) the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be determined
for such Eurodollar Rate Advances,
(ii) each such A Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert
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into a Base Rate Advance (or if such Advance is then a Base Rate
Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert A
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(g) If the rating system of either ▇▇▇▇▇'▇ or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Borrower and the Administrative Agent (on
behalf of the Lenders) shall negotiate in good faith to amend the references to
specific ratings in this Agreement to reflect such changed rating system or the
non-availability of ratings from such rating agency (provided that any such
amendment to such specific ratings shall in no event be effective without the
approval of the Majority Lenders).
SECTION 2.09. Optional Conversion of A Advances. The Borrower
may on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Sections 2.08 and
2.12, Convert all A Advances of one Type comprising the same Borrowing into A
Advances of the other Type; provided that any Conversion of Eurodollar Rate
Advances into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances. Each such notice of a
Conversion shall, within the restrictions specified above, specify (i) the date
of such Conversion, (ii) the A Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such A Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments, Etc.
(a) Optional Payments of A Advances. The Borrower may, upon
notice to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the proposed date in the case of Base
Rate Advances and at least two Business Days prior to the proposed date in the
case of Eurodollar Rate Advances, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of the A Advances comprising part
of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided that (x) each partial prepayment shall be in an aggregate principal
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and (y) in the event of any such prepayment of a Eurodollar Rate Advance, the
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Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant
to Section 8.04(c).
(b) Change of Control. If any Change of Control shall occur,
then, upon notice to the Borrower by the Administrative Agent (acting at the
request, or with the consent, of the Majority Lenders) to such effect and
stating that the same is a "Change of Control Prepayment Notice", the
Commitments shall be automatically reduced to zero and the Borrower shall prepay
the Advances in full.
SECTION 2.11. Increased Costs.
(a) If due to either (i) the introduction of or any change in
or in the interpretation of any law or regulation or (ii) the compliance with
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law), in each case, after the date hereof,
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or Floating Rate
Advances, then such Lender may from time to time give notice of such
circumstances to the Borrower (with a copy to the Administrative Agent);
provided that each Lender agrees, before giving any such notice, to use its best
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased costs and would not be disadvantageous to such Lender. The amount
sufficient to compensate such Lender in light of such increase in costs to such
Lender or any corporation controlling such Lender shall be determined by such
Lender in good faith on a basis that allocates the amounts sufficient to
compensate such Lender in light of such increase ratably among all applicable
Advances. A certificate specifying the event referred to in this Section
2.11(a), the amount sufficient to compensate such Lender and the basis of its
computation (which shall be reasonable), submitted in good faith to the Borrower
and the Administrative Agent by such Lender, shall be conclusive and binding for
all purposes absent manifest error. Each Lender agrees to provide reasonably
prompt notice to the Borrower of the occurrence of any event referred to in the
first sentence of this Section 2.11(a).
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) after the date
hereof affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type, then,
such Lender may from time to time give notice of such
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circumstances to the Borrower (with a copy to the Administrative Agent);
provided that each Lender agrees, before giving any such notice, to use its best
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, the
cost to the Lender of such increase in the amount of capital maintained by such
Lender and would not be disadvantageous to such Lender. The amount sufficient to
compensate such Lender in light of such increase in the amount of capital
maintained by such Lender or any corporation controlling such Lender shall be
determined by such Lender in good faith to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder. A certificate specifying the
event referred to in this Section 2.11(b), the amount sufficient to compensate
such Lender and the basis of its computation (which shall be reasonable),
submitted in good faith to the Borrower and the Administrative Agent by such
Lender, shall be conclusive and binding for all purposes absent manifest error.
Each Lender agrees to provide reasonably prompt notice to the Borrower of the
occurrence of any event referred to in the first sentence of this Section
2.11(b).
(c) The Borrower shall, within five days of receiving a notice
from any Lender pursuant to clause (a) or (b) of this Section 2.11, elect (and
shall notify such Lender and the Administrative Agent of such election) to:
(i) pay to the Administrative Agent for the account of such
Lender, from time to time commencing on the date of notice by such
Lender and as specified by such Lender, (A) the amount such Lender has
set forth in the certificate which such Lender has delivered to the
Borrower pursuant to clause (a) of this Section 2.11 or (B) the amount
such Lender has set forth in the certificate which such Lender has
delivered to the Borrower pursuant to clause (b) of this Section 2.11;
or
(ii) if no Default shall have occurred and be continuing,
require that such Lender assign to the Borrower's designated assignee
or assignees, in accordance with the terms of Section 8.07, all
Advances then owing to such Lender and all rights and obligations of
such Lender hereunder; provided that (A) each such assignment shall be
either an assignment of all of the rights and obligations of the
assigning Lender under this Agreement or an assignment of a portion of
such rights and obligations made concurrently with another such
assignment or assignments which together cover all of the rights and
obligations of the assigning Lender under this Agreement, (B) no Lender
shall be obligated to make any such assignment as a result of a demand
by the Borrower pursuant to this Section 2.11(c) unless and until such
Lender shall have received one
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or more payments from either the Borrower or one or more assignees in
an aggregate amount at least equal to the aggregate outstanding
principal amount of the A Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal
amount, all Facility Fees and other fees payable to such Lender and all
other amounts payable to such Lender under this Agreement (including,
but not limited to, any increased costs or other additional amounts
(computed in accordance with this Section 2.11), and any Taxes,
incurred by such Lender prior to the effective date of such assignment
and amounts payable under Section 8.04(a)) and (C) each such assignment
shall be made pursuant to an Assignment and Acceptance; provided that
such assignment shall not be effective if, after giving effect to such
assignment, the aggregate amount of the Commitments so assigned or
terminated under this Section 2.11, Section 2.12(b) and Section 2.15(g)
during the term of this Agreement would exceed 25% of the aggregate
amount of the Commitments as of the Closing Date. Upon such payments
and prepayments, the obligations of such Lender hereunder, by the
provisions hereof, shall be released and discharged; provided that such
Lender's rights under Sections 2.11, 2.15 and 8.04(b), and its
obligations under Section 7.05, shall survive such release and
discharge as to matters occurring prior to the date of termination of
such Lender's Commitment.
SECTION 2.12. Illegality.
(a) Notwithstanding any other provision of this Agreement, if
any Lender (any such Lender being referred to herein as an "Affected Lender")
shall notify the Administrative Agent that the introduction of or any change in
or in the interpretation of any law or regulation makes it unlawful, or any
central bank or other governmental authority asserts that it is unlawful, for
any Lender or its Eurodollar Lending Office to perform its obligations hereunder
to make Eurodollar Rate Advances or Floating Rate Advances or to fund or
maintain Eurodollar Rate Advances or Floating Rate Advances hereunder, the
obligation of the Lenders to make, or to Convert A Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist; provided that such suspension shall not become effective in the
event the Borrower requires the assignment of the Affected Lender's Advances
owing to it and its other rights and obligations hereunder pursuant to clause
(b)(ii) below. The Borrower's right to require an assignment in accordance with
clause (b)(ii) below shall not be effective to the extent that Lenders
representing a majority of the Commitments then outstanding shall be "Affected
Lenders".
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(b) The Borrower shall, within five days of receiving a notice
from any Affected Lender pursuant to clause (a) of this Section 2.12, elect (and
shall notify such Affected Lender and the Administrative Agent of such election)
to:
(i) prepay in full all Eurodollar Rate Advances or Floating
Rate Advances then outstanding, together with interest thereon, unless
the Borrower, within five Business Days of notice from the
Administrative Agent Converts all Eurodollar Rate Advances or Floating
Rate Advances of all Lenders then outstanding into Base Rate Advances
in accordance with Section 2.09; or
(ii) if no Default shall have occurred and be continuing,
require that such Affected Lender assign to the Borrower's designated
assignee or assignees, in accordance with the terms of Section 8.07,
all Advances then owing to such Affected Lender and all rights and
obligations of such Affected Lender hereunder; provided that (A) each
such assignment shall be either an assignment of all of the rights and
obligations of the assigning Affected Lender under this Agreement or an
assignment of a portion of such rights and obligations made
concurrently with another such assignment or assignments which together
cover all of the rights and obligations of the assigning Affected
Lender under this Agreement, (B) no Affected Lender shall be obligated
to make any such assignment as a result of a demand by the Borrower
pursuant to this Section 2.12(b) unless and until such Affected Lender
shall have received one or more payments from either the Borrower or
one or more assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the A Advances owing to such
Affected Lender, together with accrued interest thereon to the date of
payment of such principal amount, all Facility Fees and other fees
payable to such Affected Lender and all other amounts payable to such
Affected Lender under this Agreement (including, but not limited to,
any increased costs or other additional amounts (computed in accordance
with Section 2.11), and any Taxes, incurred by such Affected Lender
prior to the effective date of such assignment and amounts payable
under Section 8.04(a)) and (C) each such assignment shall be made
pursuant to an Assignment and Acceptance; provided that such assignment
shall not be effective if, after giving effect to such assignment, the
aggregate amount of the Commitments so assigned or terminated under
this Section 2.12(b), Section 2.11 and Section 2.15(g) during the term
of this Agreement would exceed 25% of the aggregate amount of the
Commitments as of the Closing Date. Upon such payments and prepayments,
the obligations of such Affected Lender hereunder, by the provisions
hereof, shall be released and discharged; provided that such Affected
Lender's rights under Sections 2.11, 2.15 and 8.04(b), and its
obligations
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under Section 7.05, shall survive such release and discharge as to
matters occurring prior to the date of termination of such Affected
Lender's Commitment.
SECTION 2.13. Payments and Computations.
(a) The Borrower shall make each payment hereunder and under
the Notes not later than 12:00 noon (New York City time) on the day when due in
U.S. dollars to the Administrative Agent at the Administrative Agent's Account
in same day funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or
Facility Fees ratably (other than amounts payable pursuant to Sections 2.03,
2.04(b), 2.05(c), 2.11, 2.12, 2.15 or 8.04(c)) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 8.07(c) from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate or the Federal Funds Rate and of Facility Fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or Facility Fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or Facility Fee, as
the case may be; provided that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances or Floating Rate Advances
to be made in the next following calendar month, such payment shall be made on
the next preceding Business Day.
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(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.14. Notations on the A Notes. All A Advances made by
each Lender to the Borrower pursuant to this Agreement and all payments made on
account of principal thereof shall be recorded by such Lender and, prior to any
assignment by such Lender of the A Note issued to it, all unpaid A Advances
shall be endorsed on the grid attached to such A Note; provided, however, that
the failure of such Lender to make any such notations shall not limit or
otherwise affect the Borrower's obligations to such Lender with respect to such
A Advances. Upon the payment in full of any Lender's A Advances then outstanding
and the termination in full of such Lender's Commitment, such Lender shall
cancel and return such Lender's A Note to the Borrower and be fully responsible
for any claims or liabilities arising in connection with or resulting from any
sale of participations therein.
SECTION 2.15. Taxes.
(a) Any and all payments by the Borrower hereunder or under
the Notes shall be made, in accordance with Section 2.13, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Administrative Agent, taxes
imposed on its income, and franchise taxes imposed on it in lieu of income
taxes, by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
income, and franchise taxes imposed on it in lieu of income taxes, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Lender or the
Administrative Agent, (i) the sum payable
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shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.15) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.15) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be made within 30 days from the date such Lender or
the Administrative Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing payment
thereof. In the case of any payment hereunder or under the Notes by or on behalf
of the Borrower through an account or branch outside the United States or on
behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement (in the case of each Initial Lender) and on the date of the
Acceptance pursuant to which it becomes a Lender (in the case of each other
Lender), and from time to time thereafter if requested in writing by the
Borrower (but only so long as such Lender remains lawfully able to do so), shall
provide the Borrower with Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor or other form prescribed
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by the Internal Revenue Service, certifying that such Lender is exempt from or
entitled to a reduced rate of United States withholding tax on payments of
interest pursuant to this Agreement or the Notes. If the form provided by a
Lender at the time such Lender first becomes a party to this Agreement indicates
a United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from "Taxes" as defined in Section
2.15(a). If any form or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required by the versions of Internal Revenue Service
Form 1001 or 4224 in effect on the date hereof, that the Lender reasonably
considers to be confidential, the Lender shall give notice thereof to the
Borrower and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender has failed
to provide the Borrower with the appropriate form described in Section 2.15(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.15(a) with
respect to Taxes imposed by the United States; provided that should a Lender
become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
(g) So long as no Default shall have occurred and be
continuing, if the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder or under any Note to any Lender or shall
be required to indemnify any Lender for any Taxes under Section 2.15(c) (each
such Lender, a "Specified Lender"), the Borrower may, within five days of
receiving a notice from any Specified Lender pursuant to clause (a) of this
Section 2.15, elect (and shall notify such Specified Lender and the
Administrative Agent of such election) to require that such Specified Lender
assign to the Borrower's designated assignee or assignees, in accordance with
the terms of Section 8.07, all Advances then owing to such Specified Lender and
all rights and obligations of such Specified Lender hereunder; provided that (A)
each such assignment shall be either an assignment of all of the rights and
obligations of the assigning Specified Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or assignments which together cover all of the rights
and obligations of the assigning Specified Lender under this Agreement, (B) no
Specified Lender shall be obligated to make any such assignment as a result of a
demand by the Borrower pursuant to this Section 2.15(g) unless and until such
Specified Lender shall have received
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one or more payments from either the Borrower or one or more assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the A Advances owing to such Specified Lender, together with accrued interest
thereon to the date of payment of such principal amount, all Facility Fees and
other fees payable to such Specified Lender and all other amounts payable to
such Specified Lender under this Agreement (including, but not limited to, any
increased costs or other additional amounts (computed in accordance with Section
2.11), and any Taxes, incurred by such Specified Lender prior to the effective
date of such assignment and amounts payable under Section 8.04(a)) and (C) each
such assignment shall be made pursuant to an Assignment and Acceptance; provided
that such assignment shall not be effective if, after giving effect to such
assignment, the aggregate amount of the Commitments so assigned or terminated
under this Section 2.15(g), Section 2.11 and Section 2.12 during the term of
this Agreement would exceed 25% of the aggregate amount of the Commitments as of
the Closing Date. Upon such payments and prepayments, the obligations of such
Specified Lender hereunder, by the provisions hereof, shall be released and
discharged; provided that such Specified Lender's rights under Sections 2.11,
2.12, 2.15 and 8.04(b), and its obligations under Section 7.05, shall survive
such release and discharge as to matters occurring prior to the date of
termination of such Specified Lender's Commitment.
SECTION 2.16. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the A Advances owing to it (other
than pursuant to Sections 2.05(c), 2.11, 2.12, 2.15 or 8.04(c)) in excess of its
ratable share of payments on account of the A Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participation in the A Advances owing to them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them;
provided that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from each Lender shall be
rescinded and each such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount equal to such
Lender's ratable share (according to the proportion of (i) the amount of such
Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.16 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
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ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Initial Borrowing. The
obligation of each Lender to make an Advance on the occasion of the initial
Borrowing is subject to the condition precedent that the Administrative Agent
shall have received, on or prior to October 31, 1997, the following, each
(unless otherwise specified below) dated the Closing Date, in form and substance
satisfactory to the Administrative Agent (and, to the extent specified below,
each Lender) and (except for the Notes) in sufficient copies for each Lender:
(a) A Notes. The A Notes to the order of the Lenders,
respectively.
(b) Charter Documents, Etc.
(1) Certified copies of (x) the charter and by-laws
of the Borrower, (y) the resolutions of the Board of Directors
of the Borrower authorizing and approving this Agreement and
the Notes, and (z) all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes.
(2) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement and the Notes and the other documents to be
delivered hereunder.
(3) A certificate from the Secretary of State of the
State of Delaware dated a date reasonably close to the Closing
Date as to the good standing of and charter documents filed by
the Borrower.
(c) Opinions.
(1) A favorable opinion of the General Counsel of the
Borrower, substantially in the form of Exhibit D.
(2) A favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, special New York counsel for the Administrative Agent,
substantially in the form of Exhibit E.
(d) Solvency. A certificate of a senior financial officer of
the Borrower to the effect that the Borrower (both individually and
collectively with its Consolidated Subsidiaries) is Solvent.
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(e) Spin-Off Matters.
(1) Spin-Off Resolutions, Etc. Certified copies of
the resolutions of the Board of Directors of Monsanto and the
Borrower authorizing and approving the Spin-Off and the
transactions contemplated thereby.
(2) Spin-Off Documents, Etc. Certified copies of each
Spin-Off Document, each as amended and in effect on the
Closing Date.
(3) Spin-Off Effectiveness, Etc. Evidence that (i)
all Spin-Off Properties (other than intangible properties and
contract rights that, in the aggregate, are immaterial to the
business of the Borrower and its Subsidiaries, taken as a
whole) have been (or simultaneously with the occurrence of the
Closing Date shall be) transferred to or purchased by the
Borrower and its Subsidiaries in accordance with the Spin-Off
Documents; and (ii) the Spin-Off shall otherwise have been (or
simultaneously with the occurrence of the Closing Date shall
be) consummated in all material respects in accordance with
the terms of the Spin-Off Documents (without any waiver or
amendment that is materially adverse to the Borrower and/or
the Lenders in connection with the financing not consented to
by the Lenders), and in compliance with applicable law.
(f) Representations, Etc. A certificate signed by a duly
authorized officer of the Borrower stating that:
(1) the representations and warranties contained in
Section 4.01 are correct on and as of the Closing Date, and
(2) no event has occurred and is continuing that
constitutes a Default.
(g) Other. Such other approvals, opinions and documents
relating to material ERISA, environmental and Spin-Off matters as the
Administrative Agent or any Lender may, through the Administrative
Agent, reasonably request.
SECTION 3.02. Conditions Precedent to Each A Borrowing. The
obligation of each Lender to make an A Advance on the occasion of each A
Borrowing shall be subject to the conditions precedent that the Closing Date
shall have occurred and on the date of such A Borrowing:
(a) the following statements shall be true (and each of the
giving of the applicable Notice of A Borrowing and the
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acceptance by the Borrower of the proceeds of such A Borrowing shall
constitute a representation and warranty by the Borrower that on the
date of such A Borrowing such statements are true):
(i) the representations and warranties contained in
Section 4.01 (except the Excluded Representations) are correct
on and as of the date of such A Borrowing, before and after
giving effect to such A Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date;
and
(ii) no event has occurred and is continuing, or
would result from such A Borrowing or from the application of
the proceeds therefrom, that constitutes a Default; and
(b) the Administrative Agent shall have received such other
approvals, opinions or documents as any Lender through the
Administrative Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The
obligation of each Lender that is to make a B Advance on the occasion of each B
Borrowing to make such B Advance as part of such B Borrowing is subject to the
conditions precedent that the Closing Date shall have occurred and (a) the
Administrative Agent shall have received the Notice of B Borrowing with respect
thereto, (b) on or before the date of such B Borrowing, but prior to such B
Borrowing, the Administrative Agent shall have received a B Note payable to the
order of such Lender for each of the one or more B Advances to be made by such
Lender as part of such B Borrowing, in a principal amount equal to the principal
amount of the B Advance to be evidenced thereby and otherwise on such terms as
were agreed to for such B Advance in accordance with Section 2.03, and (c) on
the date of such B Borrowing the following statements shall be true (and each of
the giving of the applicable Notice of B Borrowing and the acceptance by the
Borrower of the proceeds of such B Borrowing shall constitute a representation
and warranty by the Borrower that on the date of such B Borrowing such
statements are true):
(i) the representations and warranties contained in
Section 4.01 (except the Excluded Representations) are correct
on and as of the date of such B Borrowing, before and after
giving effect to such B Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date;
and
(ii) no event has occurred and is continuing, or
would result from such B Borrowing or from the application of
the proceeds therefrom, that constitutes a Default.
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SECTION 3.04. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the proposed
Closing Date (as notified by the Borrower or the Administrative Agent to the
Lenders) specifying its objection thereto. The Administrative Agent shall
promptly notify the Lenders of the occurrence of the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Incorporation; Good Standing. The Borrower is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware.
(b) Corporate Authority; No Breach. The execution, delivery
and performance by the Borrower of this Agreement and the Notes, and
the consummation of the Spin-Off and the other transactions
contemplated hereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or bylaws or (ii) law or any
contractual restriction binding on or affecting the Borrower.
(c) No Consents or Approvals. No authorization or approval or
other action by, and no notice to or filing with, any governmental
authority or regulatory body or any other third party is required for
the due execution, delivery and performance by the Borrower of this
Agreement or the Notes, other than those authorizations, approvals,
notices, filings and actions that have been obtained, filed or taken on
or before the Closing Date by the Borrower. No authorization or
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is
required for the consummation of the Spin-Off or the transactions
contemplated thereby, except for the authorizations, approvals,
actions, notices and filings (i) the failure to obtain would not have a
Material Adverse Effect or (ii) which have been (or, prior to the
Closing Date, will be) duly obtained, taken, given or made and are in
full force and effect.
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(d) Enforceable Obligations, Etc. This Agreement has been, and
each of the Notes when delivered hereunder will have been, duly
executed and delivered by the Borrower. This Agreement is, and each of
the Notes when delivered hereunder will be, the legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with their respective terms.
(e) Financial Statements, Etc.
(i) The pro forma statement of financial position of the
Borrower as at March 31, 1997, and the pro forma statements of income
of the Borrower for the three months ended March 31, 1997 and for the
year ended December 31, 1996, in each case as presented in the Proxy
Statement (a copy of which has been furnished to each Lender) present
fairly, in all material respects (subject, in the case of such
statement of financial position as at March 31, 1997 and such statement
of income for the three-months then ended, to year-end audit
adjustments) the pro forma financial condition of the Borrower as at
such date (determined as if the Spin-Off had occurred on such date) and
the pro forma results of operations of the Borrower for the periods
ended on such dates (determined as if the Spin-Off had occurred as of
the beginning of the periods presented); it being understood that,
although the pro forma adjustments made in the preparation of such
statements were made based upon methods and data the Borrower believes
to be reasonable and accurate, actual results (had the Spin-Off
occurred on the dates referred to above) during the period covered by
such financial statements could have differed from those set forth in
such financial statements.
(ii) The historical statement of financial position of the
Borrower as at December 31, 1996 and the related historical statements
of income and cash flows of the Borrower for the twelve months then
ended, accompanied by an opinion of Deloitte & Touche LLP, independent
public accountants, and the historical balance sheet of the Borrower as
at March 31, 1997 and the related historical statements of income and
cash flows of the Borrower for the three months then ended, as
presented in the Proxy Statement (copies of which have been made
available to each Lender) present fairly, in all material respects
(subject, in the case of said balance sheet as at March 31, 1997, and
said statements of income and cash flows for the three months then
ended, to year-end audit adjustments) the historical financial
condition of the Borrower as at such dates and the historical results
of the operations of the Borrower for the periods ended on such dates,
all in accordance with generally accepted accounting principles applied
on a consistent basis (other than the change in accounting for certain
environmental remediation
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liabilities as discussed in footnote 2 on page F-25 of the Proxy
Statement).
(iii) Since December 31, 1996, there has been no material
adverse change in the financial condition or results of operations of
the Borrower and its Subsidiaries, taken as a whole (it being
understood that the transactions relating to the Spin-Off described in
the Proxy Statement shall not be deemed to constitute such a material
adverse change).
(f) No Litigation, Etc. Except as set forth in the Proxy
Statement, there is no pending or, to the best of the Borrower's
knowledge, threatened action or proceeding affecting the Borrower or
any of its Consolidated Subsidiaries before any court, or governmental
agency or arbitrator which (i) would have a Material Adverse Effect,
(ii) purports to affect, or would affect, the legality, validity or
enforceability of this Agreement or any Note or (iii) would affect the
legality, validity or enforceability of the consummation of the
Spin-Off or the other transactions contemplated thereby.
(g) ERISA. No ERISA Event that would have a Material Adverse
Effect has occurred or is reasonably expected to occur with respect to
any Plan. As of the Closing Date, neither the Borrower nor any ERISA
Affiliate participates in any Multiple Employer Plan or in any
Multiemployer Plan with respect to which the Borrower or any ERISA
Affiliate has any Withdrawal Liability or other liability (other than
the ordinary liability of a sponsor for contributions to or benefits
under such Plan) that, in either case, would have a Material Adverse
Effect.
(h) Environmental Laws. The Borrower (i) is in substantial
compliance with any and all applicable Environmental Laws, (ii) has (to
the best of its knowledge) received, applied for or been assigned all
required Environmental Permits and (iii) is in substantial compliance
with all terms and conditions of any such Environmental Permits, except
where any such noncompliance with Environmental Laws, failure to
receive, apply for or be assigned an Environmental Permit, or failure
to comply with the terms and conditions of an Environmental Permit,
would not have a Material Adverse Effect.
(i) Investment Company; Public Utility. Neither the Borrower
nor any of its Material Subsidiaries is an "investment company", or an
"affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended. Neither the Borrower nor any of its
52
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Material Subsidiaries is a "holding company", or an "affiliate" of a
"holding company" or a "subsidiary company" of a "holding company",
within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
(j) Accuracy of Information.
(i) All written information, reports, financial statements,
exhibits and schedules (except as to assumptions, statements, estimates
and projections with respect to anticipated future performance or
events) concerning the operations, business, financial condition,
properties and prospects of the Borrower and its Subsidiaries
("Information") furnished by or on behalf of the Borrower to the
Administrative Agent, the Syndication Agent or any Lender on or prior
to the Closing Date in connection with the negotiation, preparation or
delivery of this Agreement or included herein or delivered pursuant to
Article III, when taken as a whole, as of the date of such Information,
does not contain any untrue statement of material fact or, to the best
of the Borrower's knowledge, omit to state any material fact necessary
to make the statements therein, in light of the circumstances in which
they were made, not misleading.
(ii) All Post-Closing Date Information furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender after
the Closing Date, when taken as a whole, as of the date of such
Post-Closing Date Information, will not contain any untrue statement of
material fact or, to the best of the Borrower's knowledge, omit to
state any material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading.
(iii) Financial projections and pro forma adjustments
contained in the Information may be based on estimates and assumptions
about circumstances and events that have not taken place at the time of
delivery thereof; although such information reflects the Borrower's
good faith projections and estimates as of the date thereof, based upon
methods and data the Borrower believes to be reasonable and accurate,
actual results during the period covered by such projections and pro
forma adjustments may differ materially from the projections and pro
forma adjustments.
(iv) For purposes of this Section 4.01(j), "Post-Closing Date
Information" means:
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(x) all Information furnished by the Borrower and its
Subsidiaries after the date hereof under Sections 5.01(i)(i)
through (viii), inclusive; and
(y) all Information furnished by the Borrower and its
Subsidiaries after the date hereof under Section 5.01(i)(ix),
provided that the request for such information is made in
writing and delivered to the Borrower, at the address
specified in Section 8.02, to the attention of the Borrower's
Treasurer and stating that such request is being made in
connection with this Agreement.
(k) Margin Stock. The Borrower is not principally engaged in
the business of extending credit for the purpose of purchasing or
carrying Margin Stock, and no proceeds of any Advance will be used for
any purpose which violates the provisions of the regulations of the
Board of Governors of the Federal Reserve System. After applying the
proceeds of each Advance, not more than 25% of the value of the assets
of the Borrower and the Borrower's Subsidiaries (as determined in good
faith by the Borrower) that are subject to Section 5.02(a) will consist
of or be represented by Margin Stock. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative
Agent and each Lender a statement in conformity with the requirements
of Federal Reserve Form U-1 referred to in Regulation U, the statements
made in which shall be such, in the opinion of each Lender, as to
permit the transactions contemplated hereby in accordance with
Regulation U.
SECTION 4.02. Representation and Warranty of the Lenders. Each
Lender represents and warrants that in good faith it has not relied, and will
not rely, upon any Margin Stock as collateral in the making and maintaining of
its Advances hereunder.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Preservation of Corporate Existence, Etc. Do or cause to
be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and statutory) and
franchises, provided that the Borrower shall not be required to
preserve any such right or franchise if it shall determine that the
preservation thereof is no
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longer desirable in the conduct of its business. Cause each Material
Subsidiary of the Borrower to do or cause to be done all things
necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of such
Material Subsidiary, except in each case if the Borrower shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Borrower and its Subsidiaries, taken as
a whole.
(b) Compliance with Laws, Etc. Comply, and cause each of its
Consolidated Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and all applicable
Environmental Laws, except such noncompliance as would not have a
Material Adverse Effect.
(c) Payment of Taxes. Duly pay and discharge, and cause each
of its Consolidated Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges whatsoever and by whomsoever
imposed upon it or against its properties prior to the date on which
penalties are attached thereto, unless and to the extent only that the
same (i) shall be contested in good faith and by appropriate
proceedings by the Borrower or (ii) are not of material importance to
the business, financial condition or operating results of the Borrower
and its Consolidated Subsidiaries.
(d) Payment of Material Obligations, Etc. Pay, and cause each
of its Material Subsidiaries to pay, all obligations under Material
Contracts. Perform, and cause each of its Material Subsidiaries to
perform, each other obligation (other than obligations that the
Borrower determines, in good faith and upon the advice of its counsel,
not to be binding on it) of the Borrower or such Material Subsidiary,
as the case may be, under the Material Contracts except where the
failure to do so would not (either individually or in the aggregate)
have a Material Adverse Effect.
(e) Visitation. Permit, and cause each of its Material
Subsidiaries to permit, the Administrative Agent or any of the Lenders
or any agents or representatives thereof (at any reasonable time and as
may be reasonably requested from time to time and, so long as no
Default shall have occurred and is continuing, upon reasonable advance
notice):
(i) to visit the properties of the Borrower and any
of its Material Subsidiaries in the presence of an appropriate
officer or representative of the Borrower;
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(ii) if any Default shall have occurred and then be
continuing, to examine and make copies of and abstracts from
the records and books of account of the Borrower and any of
its Material Subsidiaries (other than trade secrets and
information and materials subject to confidentiality
agreements with third parties) in the presence of an
appropriate officer or representative of the Borrower); and
(iii) to discuss the affairs, finances and accounts
of the Borrower and any of its Material Subsidiaries with any
of their officers or directors and with their independent
certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Consolidated
Subsidiaries to keep, proper books of record and account, in which full
and correct entries shall be made of all financial transactions and the
assets and business of the Borrower and each such Consolidated
Subsidiary in accordance with generally accepted accounting standards
in effect from time to time.
(g) Properties. Cause all Principal Properties to be
maintained and kept in good condition, repair and working order, and
cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereto, in each case as in the judgment
of the Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at
all times, provided that nothing in this paragraph (g) shall prevent
the Borrower or any of its Subsidiaries from discontinuing the
operation and maintenance of any such Principal Properties or from
omitting to make any repairs, renewals, replacements, betterments or
improvements if such discontinuance or omission is, in the judgment of
the Borrower, desirable in the conduct of the business of the Borrower
and its Subsidiaries taken as a whole.
(h) Maintenance of Insurance. From and after the Closing Date,
maintain insurance, and cause each of its Consolidated Subsidiaries to
maintain insurance, with financially sound and reputable insurers, with
respect to such of its properties, against such risks, casualties and
contingencies and in such types and amounts as are consistent with
sound business practice, it being understood that this paragraph (h)
shall not prevent the use of deductible or excess loss insurance and
shall not prevent (i) the Borrower or any of its Subsidiaries from
acting as a self-insurer or maintaining insurance with another
Subsidiary or Subsidiaries of the Borrower so long as such action is
consistent with sound business practice or (ii) the Borrower from
obtaining
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and owning insurance policies covering activities of its Consolidated
Subsidiaries.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event by no later
than 80 days after the end of the fiscal quarters ending on
June 30, 1997 and September 30, 1997, pro forma Consolidated
balance sheets of the Borrower and its Subsidiaries as of the
end of such quarter (determined as if the Spin-Off had
occurred on December 31, 1996), and pro forma Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for such quarter and for the period commencing at
the end of the previous fiscal year and ending with the end of
such quarter (in each case determined as if the Spin-Off had
occurred on December 31, 1996), duly certified (subject to
year-end audit adjustments) by the Controller, Assistant
Controller or other authorized financial officer of the
Borrower as presenting fairly, in all material respects, the
pro forma financial position of the Borrower and its
Subsidiaries as at said dates and for such periods, together
with (A) a certificate of said officer stating that no Default
has occurred and is continuing or, if a Default has occurred
and is continuing, a statement as to the nature thereof, and
(B) a schedule in form and substance satisfactory to the
Administrative Agent of the computations used by the Borrower
in determining compliance with the covenants contained in
Section 5.03 (it being understood that, although the pro forma
adjustments made in the preparation of such statements shall
be made based upon methods and data the Borrower believes to
be reasonable and accurate, actual results (had the Spin-Off
occurred on the dates referred to above) during the periods
covered by such financial statements could have differed from
those set forth in such financial statements).
(ii) as soon as available and in any event within 60
days after the end of each of the first three quarters of each
fiscal year of the Borrower (commencing with the fiscal year
of the Borrower beginning January 1, 1998), Consolidated
balance sheets of the Borrower and its Subsidiaries as of the
end of such quarter and Consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to
year-end audit adjustments) by the Controller, Assistant
Controller or other authorized financial officer of the
Borrower as having been prepared in accordance with GAAP,
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together with (A) a certificate of said officer stating that
no Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature
thereof, and (B) a schedule in form and substance satisfactory
to the Administrative Agent of the computations used by the
Borrower in determining compliance with the covenants
contained in Section 5.03;
(iii) as soon as available and in any event within 120
days after the end of each fiscal year of the Borrower, a copy
of the annual audit report for such year for the Borrower and
its Subsidiaries, containing Consolidated balance sheets of
the Borrower and its Subsidiaries as of the end of such fiscal
year and Consolidated statements of income, shareowners'
equity and cash flows of the Borrower and its Subsidiaries for
such fiscal year, in each case accompanied by an opinion
acceptable to the Majority Lenders by Deloitte & Touche LLP or
other independent public accountants of recognized national
standing, together with (a) a certificate of the Controller,
Assistant Controller or other authorized financial officer of
the Borrower stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a
statement as to the nature thereof, and (B) a schedule in form
and substance satisfactory to the Administrative Agent of the
computations used by the Borrower in determining compliance
with the covenants contained in Section 5.03;
(iv) as soon as possible and in any event within five
Business Days after the determination by the Borrower that a
Default has occurred and is continuing on the date of such
statement, a statement of either the Chief Financial Officer,
Treasurer, Controller, Assistant Controller or other
authorized financial officer of the Borrower setting forth
details of such Default and the action that the Borrower has
taken and proposes to take with respect thereto;
(v) promptly and in any event within 30 days after the
Borrower knows or has reason to know that any ERISA Event that
would have a Material Adverse Effect has occurred, a statement
of an authorized financial officer of the Borrower describing
such ERISA Event and the action, if any, that the Borrower or
such ERISA Affiliate has taken and proposes to take with
respect thereto;
(vi) promptly and in any event within ten Business Days
after receipt thereof by the Borrower or any of its ERISA
Affiliates, copies of each notice from the PBGC
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stating its intention to terminate any Plan or to have a
trustee appointed to administer any such Plan;
(vii) promptly and in any event within 45 days after the
receipt thereof by the Borrower or any of its ERISA
Affiliates, a copy of the latest annual actuarial report for
each Plan if the ratio of the fair market value of the assets
of such Plan to its current liability (as defined in Section
412 of the Internal Revenue Code) is less than 80%;
(viii) as soon as possible and in any event within five
days after the determination by the Borrower that a Change of
Control has occurred, the Borrower shall deliver to the
Administrative Agent (which shall forward a copy thereof to
each Lender promptly) notice thereof, together with such other
information as the Administrative Agent or any Lender (through
the Administrative Agent) may reasonably request; and
(ix) such other information (excluding trade secrets)
respecting the financial condition and operations of the
Borrower and its Subsidiaries as the Administrative Agent or
any Lender may from time to time reasonably request (which
information shall constitute "Post-Closing Date Information"
only to the extent provided in Section 4.01(j)).
(j) Use of Proceeds. Use the proceeds of the Advances
hereunder solely to finance the working capital needs and other general
corporate purposes of the Borrower (including to support the Borrower's
commercial paper program, to finance acquisitions, treasury stock
purchases and capital investments), in each case in compliance with all
applicable legal and regulatory requirements; provided that neither the
Administrative Agent nor any Lender shall have any responsibility as to
the use of any such proceeds.
(k) Protection and Enforcement of Material Rights Under
Spin-Off Documents. Perform and observe all of the material terms and
provisions of each Spin-Off Document to be performed or observed by it,
maintain each such Spin-Off Document in full force and effect and
enforce its material rights under such Spin-Off Document, in each case
in the manner and to the extent the Borrower believes to be in the best
interests of its business.
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SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Consolidated Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties (other than, in the case of the Borrower, the
Borrower's treasury stock), whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any right to receive income in
order to secure Debt, other than:
(i) (A) Liens for taxes, assessments, governmental
charges or levies or other amounts owed to governmental entities other
than for borrowed money; (B) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 30
days or that are being contested in good faith; (C) pledges or deposits
to secure obligations under workers' compensation laws or similar
legislation or to secure public or statutory obligations; (D)
easements, rights of way and other encumbrances on title to real
property that do not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of such property
for its present purposes; and (E) Liens in favor of a landlord arising
in the ordinary course of business,
(ii) purchase money Liens upon or in any property,
assets or stock acquired or held by the Borrower or any Subsidiary in
the ordinary course of business to secure the purchase price or
construction cost of such property or to secure Debt incurred solely
for the purpose of financing the acquisition or construction of such
property whether incurred prior or subsequent to such acquisition or
construction, or Liens existing on such property at the time of its
acquisition (other than any such Lien created in contemplation of such
acquisition) or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided that no such Lien
shall extend to or cover any property other than the property being
acquired, and no such extension, renewal or replacement shall extend to
or cover any property not theretofore subject to the Lien being
extended, renewed or replaced,
(iii) Liens securing Debt, judgments and ERISA claims
existing on the date hereof and identified on Schedule 1, and other
Liens existing on the date hereof,
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(iv) other Liens or assignments in an aggregate
principal amount at any time outstanding not to exceed 10% of
Consolidated Net Tangible Assets,
(v) the replacement, extension or renewal of any Lien
permitted by clauses (ii) and (iii) above upon or in the same property
theretofore subject thereto or the replacement, extension or renewal
(without increase in the amount or change in any direct or contingent
obligor) of the amount secured thereby, and
(vi) intercompany Liens.
(b) Mergers, Etc. Merge or consolidate with or into (or permit
any of its Material Subsidiaries to merge or consolidate with or into), or
convey, transfer, lease or otherwise dispose of (or permit any of its Material
Subsidiaries to convey, transfer, lease or otherwise dispose of), whether in one
transaction or in a series of related transactions, all or substantially all of
the assets (whether now owned or hereafter acquired) of the Borrower or such
Material Subsidiary to, any Person, except that:
(i) any Material Subsidiary of the Borrower may merge or
consolidate with or into (or convey, transfer, lease or otherwise
dispose of any or all the assets of such Material Subsidiary to) the
Borrower or any wholly owned Material Subsidiary of the Borrower;
provided that the Borrower or a wholly owned Material Subsidiary is the
survivor of any such merger or consolidation; and
(ii) the Borrower may merge or consolidate with or into any
other Person so long as (x) immediately after giving effect to such
transaction, no Default would exist and (y) the Borrower is the
surviving corporation.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or reporting
practices, except as required or permitted by generally accepted accounting
principles.
(d) Change in Nature of Business. Change the nature of the
business of the Borrower and its Subsidiaries, taken as a whole, such that such
business differs materially from the lines of business engaged in on the Closing
Date and lines of business related thereto; provided that the foregoing shall
not prohibit the Borrower and its Subsidiaries from engaging in other lines of
business (or investing in joint ventures engaged in other lines of business) so
long as the aggregate book value of assets of the Borrower and its Subsidiaries
directly relating to such other lines of business does not exceed 20% of the
aggregate book value of the Consolidated assets of the Borrower and its
Consolidated
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Subsidiaries as at the last day of the fiscal quarter most recently ended prior
to the date of determination.
(e) Amendment of Spin-Off Documents. Cancel or terminate any
Spin-Off Document or consent to or accept any cancellation or termination
thereof; amend, modify or change in any manner any material term or condition of
any Spin-Off Document; or agree in any manner to any other amendment,
modification or change of any material term or condition of any Spin-Off
Document; provided that this paragraph (e) shall not restrict the ability of the
Borrower to take any of the actions described in this paragraph (e) if such
actions would not be materially adverse to the interests of the Lenders.
(f) Margin Stock. Permit more than 25%, after the making of
each Advance and giving effect to the use of the proceeds thereof, of the value
of the assets of the Borrower and its Subsidiaries (as determined in good faith
by the Borrower) that are subject to Section 5.02(a) to consist of or be
represented by Margin Stock.
(g) Transactions with Affiliates. Other than the Spin-Off
Documents and the transactions contemplated thereby and transactions with
Specified Joint Ventures, enter into, or permit any of its Subsidiaries to enter
into, any transaction with an Affiliate of the Borrower (other than the
Borrower's Subsidiaries) that would be material in relation to the Borrower and
its Subsidiaries, taken as a whole, even if otherwise permitted under this
Agreement, except on terms determined by the Borrower to be fair and reasonable
to the Borrower and its Subsidiaries and in the best interests of the Borrower
(considered as a whole in conjunction with all other existing arrangements and
relationships with such Affiliate).
SECTION 5.03. Financial Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower shall not:
(a) Debt to Adjusted EBITDA. Permit the Debt to Adjusted
EBITDA Ratio at any time to exceed 3.50 to 1.00.
(b) Interest Coverage Ratio. Permit the Interest Coverage
Ratio at any time to be less than 4.50 to 1.00.
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable; or the Borrower shall
fail to pay any interest on any Advance or make any other payment under
this Agreement or any Note within five Business Days after the same
becomes due and payable; or
(b) Any representation or warranty made or deemed to have been
made by the Borrower herein or in connection with this Agreement shall
prove to have been incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Sections 5.01(a), 5.01(i)(iv),
5.01(j), 5.02 or 5.03; or (ii) the Borrower shall fail to perform or
observe any other term, covenant or agreement contained in this
Agreement on its part to be performed or observed if such failure shall
remain unremedied for 30 days after written notice thereof shall have
been given to the Borrower by the Administrative Agent or any Lender
(other than any failure by the Borrower to comply with the terms of
Section 5.01(i)(v), (vi) or (vii)); or
(d) the Borrower or any of its Material Subsidiaries shall
fail to pay any principal of, premium or interest on or any other
amount payable in respect of any Debt that is outstanding in a
principal or notional amount of at least the Threshold Amount (or such
lower amount as provided for in the proviso to this clause (d)) in the
aggregate (but excluding Debt outstanding hereunder) of the Borrower or
such Material Subsidiary (as the case may be), when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and such failure shall continue
after the applicable grace period, if any, specified in the applicable
agreement; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt
or otherwise to cause, or to permit the holder or holders (or an agent
or trustee on its or their behalf) thereof to cause, such Debt to
mature; or any such Debt shall be declared to be due and payable or
required to be prepaid or
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redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof; provided that if the
Borrower in any agreement or instrument relating to any such Debt,
shall have agreed to, or shall agree to, a lesser threshold of the kind
specified this clause (d) with respect to itself or any of its Material
Subsidiaries, then, in such event, the amount provided for above shall
be reduced to such lesser amount(s) with respect to such entity; or
(e) Any judgment or order for the payment of money in excess
of the Threshold Amount shall be rendered against the Borrower or any
of its Material Subsidiaries and not timely satisfied or discharged,
and either (i) proceedings to attach or levy upon any assets of the
Borrower or such Material Subsidiary shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period
of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(f) The Borrower or any of its Material Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any of its Material
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a
period of 60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property)
shall occur; or the Borrower or any of its Material Subsidiaries shall
take any corporate action to authorize any of the actions set forth
above in this subsection (e);
(g) Any ERISA Event that would result in a Lien in an amount
in excess of $30,000,000 on the properties or assets of
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the Borrower or any of its Subsidiaries shall have occurred and shall
not have been remedied within 90 days;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided that in the event of an
actual or deemed entry of an order for relief with respect to the Borrower under
the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances
shall automatically be terminated and (B) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Administrative Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority Lenders,
and such instructions shall be binding upon all Lenders and all holders of
Notes; provided that the Administrative Agent shall not be required to take any
action that exposes the Administrative Agent to personal liability or that is
contrary to this Agreement or applicable law. The Administrative Agent agrees to
give to each Lender prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken
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or omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Administrative Agent: (i) may
treat the payee of any Note as the holder thereof until the Administrative Agent
receives and accepts an Assignment and Acceptance entered into by the Lender
that is the payee of such Note, as assignor, and an Eligible Assignee, as
assignee, as provided in Section 8.07; (ii) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, this
Agreement or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopier, telegram or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Notes issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if
Citibank were not the Administrative Agent and without any duty to account
therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate, made
its
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own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify
the Administrative Agent and the Syndication Agent (each, an "Agent") (in each
case to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of the Notes then held by each of them (or if no
Notes are at the time outstanding or if any Notes are held by Persons that are
not Lenders, ratably according to the respective amounts of their Commitments),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by such Agent under this Agreement, provided that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Administrative Agent in connection with
the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Administrative Agent is not reimbursed for such expenses
by the Borrower.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving five Business Days'
written notice thereof to the Lenders and the Borrower and may be removed at any
time with or without cause (i) by the Majority Lenders with the Borrower's
approval, which approval shall not unreasonably be withheld, or (ii) by the
Borrower, subject to the approval of the Majority Lenders, which approval shall
not unreasonably be withheld. Upon any such resignation or removal, the Borrower
shall have the right to appoint a successor Administrative Agent, subject to the
Majority Lenders' approval, which approval shall not be unreasonably withheld;
provided that upon and during the continuance of an Event of Default, the
Majority Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's giving of notice of resignation or the
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Majority Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized or licensed
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided that:
(a) no amendment, waiver or consent shall, unless in writing
and signed by all the Lenders, do any of the following:
(1) waive any of the conditions specified in Section
3.01 or 3.02;
(2) increase the Commitments of the Lenders or
subject the Lenders to any additional obligations (other than
as permitted by Sections 2.05(c) to the extent any Lender
consents thereunder);
(3) reduce the principal of, or interest on, the A
Notes or any fees or other amounts payable hereunder;
(4) postpone any date fixed for any payment of
principal of, or interest on, the A Notes or any fees or other
amounts payable hereunder (excluding any amounts payable in
connection with the B Notes);
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(5) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the A Notes, or the
number of Lenders, that shall be required for the Lenders or
any of them to take any action hereunder; or
(6) amend this Section 8.01;
(b) no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note;
(c) no amendment, waiver or consent shall, unless in writing
and signed by the Syndication Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the
Syndication Agent under this Agreement or any Note; and
(d) this Section 8.01 shall not apply to changes in
Commitments pursuant to Section 2.05, 2.11 or any other Section of this
Agreement.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier)
and mailed, telecopied or delivered by hand:
(a) if to the Borrower:
Queeny Chemical Company
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to the Administrative Agent:
Citibank, N.A.
▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇;
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(c) if to the Syndication Agent:
Bank of America NT & SA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇; and
(d) if to any Lender, at the Domestic Lending Office specified
in the Administrative Questionnaire of such Lender,
or, as to the Borrower, the Administrative Agent or the Syndication Agent, at
such other address as shall be designated by such party in a written notice to
the other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall be deemed to
have been duly given or made (i) in the case of hand deliveries, when delivered
by hand, (ii) in the case of mailed notices, when received, and (iii) in the
case of telecopier notice, when transmitted and confirmed during normal business
hours (or, if delivered after the close of normal business hours, at the
beginning of business hours on the next Business Day), except that notices and
communications to the Administrative Agent pursuant to Article II or VII shall
not be effective until received by the Administrative Agent.
SECTION 8.03. No Waiver, Remedies. No failure on the part of
any Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses.
(a) The Borrower agrees to pay on demand all out-of-pocket
costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery, modification and amendment of this Agreement,
the Notes and the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and expenses of counsel for the Administrative
Agent with respect thereto and with respect to advising the Administrative Agent
as to its rights and responsibilities under this Agreement. The Borrower further
agrees to pay on demand all
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costs and expenses of the Administrative Agent and the Lenders, if any
(including, without limitation, reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Agreement, the Notes and the other documents to be
delivered hereunder, including, without limitation, reasonable fees and expenses
of counsel for the Administrative Agent and each Lender in connection with the
enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Syndication Agent and each Lender and each of their
Affiliates and their officers, directors, employees, agents and advisors (each,
an "Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with the actual or proposed use of the proceeds of the Advances, in
each case whether or not such investigation, litigation or proceeding is brought
by the Borrower, its directors, shareholders or creditors or an Indemnified
Party or any other Person or any Indemnified Party is otherwise a party thereto
and whether or not the transactions contemplated hereby are consummated, except
to the extent such claim, damage, loss, liability or expense is found by a court
of competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, a
prepayment or Conversion pursuant to Sections 2.05(c), 2.08(d) or (e), 2.10 or
2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, the Borrower shall, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender any amounts required to compensate such Lender for
any additional losses, costs or expenses that it may reasonably incur as a
result of such payment or Conversion, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.11, 2.15 and 8.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes.
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SECTION 8.05. Right of Set-off. Nothing herein shall derogate any
Lender's right, if any, if and to the extent payment owed to such Lender is not
made when due hereunder or under any B Note held by such Lender, to set off from
time to time against any or all of the Borrower's deposit (general or special,
time or demand, provisional or final) accounts with such Lender any amount so
due. Each Lender agrees promptly to notify the Borrower after any such set-off
and application made by such Lender, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Lender under this Section 8.05 are in addition to other rights and
remedies which such Lender may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Initial
Lender that such Initial Lender has executed it and thereafter shall be binding
upon and inure to the benefit of the Borrower, the Administrative Agent and each
Lender and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations, Register.
(a) Each Lender may (and shall if requested to do so by the Borrower
pursuant to Section 2.11, Section 2.12 or 2.15) assign to one or more Persons
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the A Advances owing to
it and the A Note held by it, but excluding the B Advances owing to it and the B
Note or B Notes held by it (other than with respect to an assignment pursuant to
Section 2.11, 2.12 or 2.15)); provided that:
(i) other than in the case of an assignment to an Affiliate of such
Lender or assignments of the type described in subsection (g) below, such
Lender shall have obtained the prior written consent of the Borrower, the
Syndication Agent and the Administrative Agent, no such consent to be
unreasonably withheld;
(ii) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement;
(iii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender, or an assignment by a
Lender to an Affiliate of such Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning
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Lender being assigned pursuant to each such assignment (determined as of
the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof;
(iv) each such assignment shall be to an Eligible Assignee; and
(v) the parties to each such assignment shall execute and deliver to
the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any A Note subject
to such assignment and a processing and recordation fee of $3,500.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution and delivery thereof to
the Administrative Agent, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance;
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(iv) such assignee will, independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to
be performed by it as a Lender.
By executing and delivering an Assumption and Acceptance, the Person
assuming a Commitment hereunder confirms to and agrees with the parties hereto
as follows: (i) neither the Administrative Agent, the Syndication Agent nor any
other Lender makes any representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such Person
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assumption and Acceptance; (iii) such Person will,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (iv) such Person confirms that it is an Eligible
Assignee; (v) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vi) such Person agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred
to in Section 8.02 a copy of each Acceptance delivered to and accepted by it and
a register for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the A Advances owing to each such Lender
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Lenders
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may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon the Administrative Agent's receipt of an Acceptance
(executed, in the case of an Assignment and Acceptance, by an assigning Lender
and an assignee representing that it is an Eligible Assignee and accompanied by
any A Note subject to such assignment, and executed, in the case of an
Assumption and Acceptance, by the Person assuming a Commitment hereunder), the
Administrative Agent shall, if such Acceptance has been completed and is in
substantially the form of Exhibit C-1 or C-2, as applicable, (i) accept such
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.
Within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent:
(x) In the case of an assignment, in exchange for the surrendered A
Note a new A Note payable to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it pursuant to such Acceptance
and, if the assigning Lender has retained a Commitment hereunder, a new A
Note to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new A Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered A Note, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit
A hereto.
(y) In the case of an assumption of a Commitment hereunder, a new A
Note payable to the order of the Person so assuming a Commitment
hereunder, in an amount equal to the Commitment assumed by it pursuant to
such Acceptance. Such new A Note shall be dated the effective date of such
Acceptance and shall otherwise be in substantially the form of Exhibit A
hereto.
(e) Each Lender may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it); provided
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such
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Lender shall remain the holder of any such Note for all purposes of this
Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, and (v) no
participant under any such participation shall have any right to approve any
amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by the Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation. Upon the
sale of a participation pursuant to this Section 8.07(e), such Lender shall
promptly provide notice to the Borrower of the sale of a participation (other
than a sale of a participation pursuant to Section 2.16); provided that the
failure by such Lender to provide such notice shall not invalidate the sale of
such participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information relating to the
Borrower received by it from such Lender; provided further that the Borrower
shall have consented in advance to the disclosure of any non-public information.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
(h) Each Lender agrees that it will not assign any Note or Notes or
sell any participation in any manner or under any circumstances that would
require registration, qualification or filings under the securities laws of the
United States of America, of any state or of any country.
SECTION 8.08. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
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SECTION 8.09. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.10. Jurisdiction, Etc.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or the
Notes, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State 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 any party may otherwise have to bring any
action or proceeding relating to this Agreement or the Notes in the courts of
any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
QUEENY CHEMICAL COMPANY
By/s/ ▇.▇. ▇▇▇▇▇▇
------------------------------------------
Title: VICE PRESIDENT AND TREASURER
CITIBANK, N.A.,
as Administrative Agent
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Title: ATTORNEY-IN-FACT
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Syndication Agent
By/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: VICE PRESIDENT
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Commitment INITIAL LENDERS
---------- ---------------
$39,166,666.67 CITIBANK, N.A.
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: ATTORNEY-IN-FACT
$39,166,666.67 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: VICE PRESIDENT
$23,333,333.33 THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Title: DEPUTY GENERAL MANAGER
$23,333,333.33 THE CHASE MANHATTAN BANK
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: MANAGING DIRECTOR
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$23,333,333.33 KREDIETBANK N.V.,
GRAND CAYMAN BRANCH
By/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: VICE PRESIDENT
By/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: VICE PRESIDENT
$23,333,333.33 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: ASSOCIATE
$23,333,333.33 NATIONSBANK, N.A.
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: SENIOR VICE PRESIDENT
$23,333,333.33 THE NORTHERN TRUST COMPANY
By/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: VICE PRESIDENT
$23,333,333.33 ROYAL BANK OF CANADA
By/s/ ▇.▇. ▇▇▇▇▇▇
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Title: SENIOR MANAGER
80
- 76 -
$23,333,333.33 WACHOVIA BANK, N.A.
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: VICE PRESIDENT
$15,000,000.00 BANKBOSTON, N.A.
By/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: VICE PRESIDENT, MULTINATIONAL BANKING
$15,000,000.00 COMMERZBANK AKTIENGESELLSCHAST
CHICAGO BRANCH
By/s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: VICE PRESIDENT
By/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: ASSISTANT TREASURER
$15,000,000.00 CREDIT AGRICOLE
By/s/ ▇▇▇▇▇ ▇▇▇▇▇, F.V.P.
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Title: HEAD OF CORPORATE BANKING CHICAGO
$15,000,000.00 THE FIRST NATIONAL BANK OF CHICAGO
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: SENIOR VICE PRESIDENT
81
- 77 -
$15,000,000.00 MARINE MIDLAND BANK
By/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: VICE PRESIDENT
$15,000,000.00 MELLON BANK, N.A.
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VICE PRESIDENT
$15,000,000.00 MERCANTILE BANK N.A.
By/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: VICE PRESIDENT
$15,000,000.00 SOCIETE GENERALE, CHICAGO BRANCH
By/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: VICE PRESIDENT
$15,000,000.00 THE SUMITOMO BANK, LIMITED,
CHICAGO BRANCH
By/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: JOINT GENERAL MANAGER
$400,000,000 Total of Commitments
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