Exhibit 10.1
U.S. $400,000,000
CREDIT AGREEMENT
Dated as of July 10, 2002
among
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
as Borrower
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
CITICORP USA, INC.
as Sole Administrative Agent
BANK OF AMERICA, N.A.
As Sole Syndication Agent
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
and
BANC OF AMERICA SECURITIES, LLC
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
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................................................... 12
SECTION 1.03. Accounting Terms.............................................................. 12
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances.................................................................. 13
SECTION 2.02. Making the Advances........................................................... 13
SECTION 2.03. Fees.......................................................................... 14
SECTION 2.04. Termination or Reduction of the Commitments................................... 14
SECTION 2.05. Repayment..................................................................... 14
SECTION 2.06. Interest...................................................................... 14
SECTION 2.07. Interest Rate Determination................................................... 15
SECTION 2.08. Optional Conversion of Advances............................................... 16
SECTION 2.09. Optional Prepayments.......................................................... 16
SECTION 2.10. Increased Costs............................................................... 16
SECTION 2.11. Illegality.................................................................... 17
SECTION 2.12. Payments and Computations..................................................... 17
SECTION 2.13. Taxes......................................................................... 18
SECTION 2.14. Sharing of Payments, Etc...................................................... 20
SECTION 2.15. Use of Proceeds............................................................... 20
SECTION 2.16. Increase in the Aggregate Commitments......................................... 20
SECTION 2.17. Extension of Termination Date................................................. 21
SECTION 2.18. Replacement of Lenders........................................................ 23
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01......................... 23
SECTION 3.02. Conditions Precedent to Each Borrowing........................................ 25
SECTION 3.03. Determinations Under Section 3.01............................................. 25
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower................................ 25
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants......................................................... 27
PAGE
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SECTION 5.02. Negative Covenants............................................................ 29
SECTION 5.03. Financial Covenants........................................................... 31
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default............................................................. 31
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action...................................................... 33
SECTION 7.02. Agent's Reliance, Etc......................................................... 33
SECTION 7.03. and Affiliates................................................................ 34
SECTION 7.04. Lender Credit Decision........................................................ 34
SECTION 7.05. Indemnification............................................................... 34
SECTION 7.06. Successor Agent............................................................... 34
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc............................................................... 35
SECTION 8.02. Notices, Etc.................................................................. 35
SECTION 8.03. No Waiver; Remedies........................................................... 35
SECTION 8.04. Costs and Expenses............................................................ 36
SECTION 8.05. Right of Set-off.............................................................. 37
SECTION 8.06. Binding Effect................................................................ 37
SECTION 8.07. Assignments and Participations................................................ 37
SECTION 8.08. Confidentiality............................................................... 38
SECTION 8.09. Governing Law................................................................. 39
SECTION 8.10. Execution in Counterparts..................................................... 39
SECTION 8.11. Jurisdiction, Etc............................................................. 40
SECTION 8.12. Waiver of Jury Trial.......................................................... 40
Schedules
Schedule 1 - List of Applicable Lending Offices
Schedule 5.02(a)(iii) - Existing Liens
Exhibits
Exhibit A - Form of Promissory Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Opinion of Vice President and General Counsel of the
Borrower
Exhibit D-2 - Form of Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Counsel for the Borrower
Exhibit E -- Form of Opinion of Borrower's Counsel (Commitment Increase)
ii
CREDIT AGREEMENT
Dated as of July 10, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC., a Delaware corporation (the "Borrower"),
the banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof, CITICORP USA, INC. ("CUSA"), a
Delaware corporation, as sole administrative agent (the "Agent") for the Lenders
(as hereinafter defined), BANK OF AMERICA, N.A., as sole syndication agent and a
Lender, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC. and BANC OF AMERICA SECURITIES, LLC, as
joint arrangers and joint lead bookrunners (each an "Arranger" and together the
"Arrangers"), 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):
"Advance" means an advance by a Lender to the Borrower pursuant
to Article II, and refers to a Base Rate Advance or a Eurodollar Rate Advance
(each of which shall be a "Type" of Advance).
"Affected Lender" has the meaning specified in Section 2.18.
"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. 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 direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Agent's Account" means the account of the Agent maintained by
the Agent at Citibank with its office at ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇▇▇▇▇.
"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.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating of S&P and ▇▇▇▇▇'▇ in
effect on such date as set forth below:
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Margin
------------------ ----------
Level 1
At least A- or A3
and not less than
BBB+ or Baa1 0.45%
▇▇▇▇▇ ▇
Less than Level 1,
but at least BBB+
or Baa1 and not
less than BBB or
Baa2 0.50%
▇▇▇▇▇ ▇
Less than Level 2,
but at least BBB
or Baa2 and not
less than BBB- or
Baa3 0.65%
▇▇▇▇▇ ▇
Less than Level 3,
but at least BBB-
or Baa3 and not
less than BB+ or
Ba1 0.80%
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇,
but at least BB+
or Ba1 and not
less than BB or Ba2 1.00%
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 1.25%
"Applicable Percentage" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating of S&P and
▇▇▇▇▇'▇ in effect on such date as set forth below:
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Percentage
------------------ ----------
Level 1
At least A- or A3 and
not less than BBB+ or 0.10%
Baa1
▇▇▇▇▇ ▇
Less than ▇▇▇▇▇ ▇,
but at least BBB+ or
Baa1 and not less
than BBB or Baa2 0.125%
▇▇▇▇▇ ▇
Less than Level 2,
but at least BBB or
Baa2 and not less
than BBB- or Baa3 0.15%
▇▇▇▇▇ ▇
Less than Level 3,
but at least BBB- or
Baa3 and not less 0.225%
than BB+ or Ba1
▇▇▇▇▇ ▇
Less than ▇▇▇▇▇ ▇,
but at least BB+ or 0.375%
Ba1 and not less than
BB or Ba2
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.50%
"Applicable Utilization Fee" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating of S&P and
▇▇▇▇▇'▇ in effect on such date as set forth below:
2
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Utilization Fee
------------------ ---------------
Level 1
At least A- or A3 and
not less than BBB+ or 0.125%
Baa1
▇▇▇▇▇ ▇
Less than ▇▇▇▇▇ ▇,
but at least BBB+ or
Baa1 and not less
than BBB or Baa2 0.125%
▇▇▇▇▇ ▇
Less than Level 2,
but at least BBB or
Baa2 and not less
than BBB- or Baa3 0.125%
▇▇▇▇▇ ▇
Less than Level 3,
but at least BBB- or
Baa3 and not less 0.125%
than BB+ or Ba1
▇▇▇▇▇ ▇
Less than ▇▇▇▇▇ ▇,
but at least BB+ or
Ba1 and not less than 0.125%
BB or Ba2
▇▇▇▇▇ ▇
Less than ▇▇▇▇▇ ▇ 0.25%
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.16(d).
"Assumption Agreement" has the meaning specified in Section
2.16(d)(ii).
"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 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of
(i) 1/2 of 1% per annum, plus (ii) the rate obtained by dividing
(A) the latest three-week moving average of secondary market
morning offering rates in the United States for three-month
certificates of deposit of major United States money market
banks, such three-week moving average (adjusted to the basis of a
year of 360 days) being determined weekly on each Monday (or, if
such day is not a Business Day, on the next succeeding Business
Day) for the three-week period ending on the previous Friday by
Citibank on the basis of such rates reported by certificate of
deposit dealers to and published by the Federal Reserve Bank of
New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage
equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors
of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including,
3
but not limited to, any emergency, supplemental or other marginal
reserve requirement) for Citibank with respect to liabilities
consisting of or including (among other liabilities) three-month
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 Advance that bears interest as
provided in Section 2.06(a)(i).
"Borrowing" means a borrowing consisting of Advances of the same
Type made on the same day by the Lenders.
"Business Day" means a day of the year (other than a Saturday or
Sunday) on which banks are not required or authorized by law to close in
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings
are carried on in the London interbank market.
"Citibank" means Citibank, N.A., a national banking association
organized and existing under the laws of the United States of America.
"Commitment" means, as to any Lender, (a) if such Lender is an
Initial Lender, the amount set forth opposite such Lender's name on the
signature pages hereof, (b) if such Lender has become a Lender hereunder
pursuant to an Assumption Agreement, the amount set forth in such
Assumption Agreement or (c) if such Lender has entered into any
Assignment and Acceptance, the amount set forth for such Lender in the
Register maintained by the Agent pursuant to Section 8.07(c), in each
case as such amount may be reduced pursuant to Section 2.04 or increased
pursuant to Section 2.16.
"Confidential Information" means information about the Borrower
and its Subsidiaries and their existing and proposed operations,
business plans, affairs, products and financial condition not generally
disclosed to, or known by, the public that the Borrower furnishes to the
Agent or any Lender pursuant to this Agreement.
"Consenting Lender" has the meaning specified in Section 2.17(b).
"Commitment Date" has the meaning specified in Section 2.16(b).
"Commitment Increase" has the meaning specified in Section
2.16(a).
"Compliance Certificate" has the meaning specified in Section
5.01(i)(i).
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.07 or 2.08.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than (i) trade payables that are payable on customary terms and
incurred in the ordinary course of such Person's business, and (ii)
deferred compensation to any employee or director of the Borrower or any
of its Subsidiaries), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
obligations of such Person created or arising under any conditional sale
or other title retention agreement with respect to property acquired by
such Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession
or
4
sale of such property), (e) all obligations of such Person as lessee
under leases that have been or should be, in accordance with GAAP,
recorded as capital leases, (f) all obligations, contingent or
otherwise, of such Person in respect of acceptances, letters of credit
or similar extensions of credit, (g) all net obligations of such Person
in respect of Hedge Agreements, (h) all Debt of others referred to in
clauses (a) through (g) above or clause (i) below and other payment
obligations (collectively, "Guaranteed Debt") guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (1) to pay or
purchase such Guaranteed Debt or to advance or supply funds for the
payment or purchase of such Guaranteed Debt, (2) to purchase, sell or
lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Guaranteed Debt or to assure the holder of such Guaranteed Debt against
loss, (3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (4)
otherwise to assure a creditor against loss, and (i) all Debt referred
to in clauses (a) through (h) above (including Guaranteed Debt) secured
by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such Debt; provided, however, that clauses (f) and
(g) shall not include up to $50,000,000 (in the aggregate) of Debt of
Persons other than the Borrower and its Subsidiaries outstanding at any
time if and to the extent that (i) such Debt evidences a lease or
purchase of goods or services by such Person from the Borrower or any
Subsidiary of the Borrower, (ii) such Debt would not otherwise
constitute Debt but for the fact that the Borrower or any Subsidiary of
the Borrower (or any property of the Borrower or any Subsidiary of the
Borrower) is subject to recourse liability for the payment or purchase
of all or a portion thereof in connection with the sale of such Debt and
(iii) such recourse liability does not exceed 15% of the sale price
thereof.
"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.
"Default Interest" has the meaning specified in Section 2.06(b).
"Defaulting Lender" means, at any time, any Lender that, at such
time, (a) has failed to make any Advance required to be made by such
Lender to the Borrower pursuant to Section 2.01 at or prior to such
time, or (b) has failed to pay any amount required to be paid by such
Lender to the Agent or any other Lender hereunder at or prior to such
time, including, without limitation, any amount required to be paid by
such Lender to (i) the Agent pursuant to Section 2.02(d) to reimburse
the Agent for the amount of any Advance made by the Agent for the
account of such Lender, (ii) any other Lender pursuant to Section 2.14
to purchase any participation in Advances owing to such other Lender,
and (iii) the Agent pursuant to Section 7.05 to reimburse the Agent for
such Lender's ratable share of any amount required to be paid by the
Lenders to the Agent as provided therein, or (c) shall take any action
or be the subject of any action or proceeding described in Section
6.01(e).
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement or
the Assignment and 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 Agent.
"EBITDA" means, for any period, net income (or net loss) for such
period plus the sum of (a) Interest Expense for such period, (b) income
and franchise tax expense for such period, (c) depreciation expense for
such period, (d) amortization expense for such period, and (e)
extraordinary charges and special, one-time charges for such period but
only to the extent not in excess of 20% of EBITDA for such period
calculated without giving effect to this clause (e), in each case
determined in accordance with GAAP.
"Effective Date" has the meaning specified in Section 3.01.
5
"Eligible Assignee" means (i) a Lender, (ii) an Affiliate of a
Lender, and (iii) any other financial institution having a combined
capital and surplus of at least $250,000,000 or other accredited
investor (as defined in Regulation D under the Securities Act), in each
case, approved by the Agent and, unless an Event of Default has occurred
and is continuing at the time any assignment is effected in accordance
with Section 8.06, the Borrower, such approval not to be unreasonably
withheld or delayed; provided, however, that neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement by, to or against the Borrower or any
Subsidiary of the Borrower or with respect to the business or properties
of the Borrower or any Subsidiary of the Borrower relating in any way to
any Environmental Law, Environmental Permit or Hazardous Materials or
arising from alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials, in each case as applicable to the
Borrower or any Subsidiary of the Borrower or with respect to the
business or properties of the Borrower or any Subsidiary of the
Borrower.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required to be obtained by the
Borrower or any Subsidiary of the Borrower or required in respect of any
business or properties of the Borrower or any Subsidiary of the Borrower
under any Environmental Law.
"Equipment for Resale" means any instrument systems and related
accessories and components manufactured or assembled by or on behalf of
the Borrower or any of its Subsidiaries that are owned by the Borrower
or such Subsidiary and held for placement or placed (pursuant to leases,
bailment arrangements or rental agreements) in facilities of the
Borrower's or such Subsidiary's customers (including distributors,
commission representatives, agents and their customers).
"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, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Borrower or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal
by the Borrower or any ERISA Affiliate from a Multiple Employer Plan
during a plan year for which it was a substantial employer, as defined
in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of
a lien under Section 302(f) of ERISA shall have been met with respect to
any Plan; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds
for the termination of, or the appointment of a trustee to administer, a
Plan.
6
"Eurocurrency Liabilities" has the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement or
the Assignment and 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 Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, the
interest rate per annum obtained by dividing (a) the offered rate in the
London interbank market for deposits in United States dollars for a term
comparable to such Interest Period, as shown on the Bridge/Telerate page
3750 as of 11:00 a.m., London time, two Business Days prior to the first
day of such Interest Period, provided that (i) if more than one offered
rate as described above appears on such Bridge/Telerate page, the rate
computed pursuant to this clause (a) shall be the arithmetic average
(rounded upward, if necessary, to the next higher 1/100 of 1%) of such
offered rates, (ii) if the Agent ceases generally to use such
Bridge/Telerate page for determining interest rates based on eurodollar
deposit rates, a comparable internationally recognized interest rate
reporting service selected by the Agent shall be used by the Agent in
lieu of such Bridge/Telerate page, and (iii) if no such offered rates as
described above appear on such Bridge/Telerate page (or such comparable
reporting service), the rate computed pursuant to this clause (a) shall
be 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 rates 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
(or, in the case of Citibank, CUSA'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. In the case of clause (a)(iii) above, the Eurodollar Rate for
any Interest Period for each Eurodollar Rate Advance comprising part of
the same Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the
Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.07.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for
all Eurodollar Rate Advances comprising part of the same Borrowing means
the reserve percentage applicable two Business Days before the first day
of such Interest Period under regulations issued from time to time by
the Board of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest
rate on Eurodollar Rate Advances is determined) having a term equal to
such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.17(b).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a
Business Day, the average of the
7
quotations for such day on such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by it.
"Fitch" means Fitch, Inc.
"Funded Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (c) all obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (d) all obligations
of such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (e) all obligations,
contingent or otherwise, of such Person in respect of acceptances,
letters of credit or similar extensions of credit, (f) all Funded Debt
of others referred to in clauses (a) through (e) above or clause (g)
below and other payment obligations (collectively, "Guaranteed Funded
Debt") guaranteed directly or indirectly in any manner by such Person,
or in effect guaranteed directly or indirectly by such Person through an
agreement (1) to pay or purchase such Guaranteed Funded Debt or to
advance or supply funds for the payment or purchase of such Guaranteed
Funded Debt, (2) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Guaranteed Funded Debt or to
assure the holder of such Guaranteed Funded Debt against loss, (3) to
supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether
such property is received or such services are rendered) or (4)
otherwise to assure a creditor against loss, and (g) all Funded Debt
referred to in clauses (a) through (f) above (including Guaranteed
Funded Debt) secured by (or for which the holder of such Funded Debt has
an existing right, contingent or otherwise, to be secured by) any Lien
on property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or
become liable for the payment of such Funded Debt; provided, however,
that clauses (f) and (g) shall not include up to $50,000,000 (in the
aggregate) of Funded Debt of Persons other than the Borrower and its
Subsidiaries outstanding at any time if and to the extent that (i) such
Funded Debt evidences a lease or purchase of goods or services by such
Person from the Borrower or any Subsidiary of the Borrower, (ii) such
Funded Debt would not otherwise constitute Funded Debt but for the fact
that the Borrower or any Subsidiary of the Borrower (or any property of
the Borrower or any Subsidiary of the Borrower) is subject to recourse
liability for the payment or purchase of all or a portion thereof in
connection with the sale of such Funded Debt and (iii) such recourse
liability does not exceed 15% of the sale price thereof.
"GAAP" means generally accepted accounting principles (consistent
with those applied in the preparation of any financial statements
referred to in Section 4.01(e) hereof) in the United States of America
as in effect on the date of this Agreement, including those set forth in
the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements of
the Financial Accounting Standards Board or in such other statement by
such other entity as approved by a significant segment of the United
States accounting profession.
"Granting Lender" has the meaning specified in Section 8.07(h).
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency or commodity future or option contracts and other
similar agreements.
"Increase Date" has the meaning specified in Section 2.16(a).
8
"Increasing Lender" has the meaning specified in Section 2.16(b).
"Information Memorandum" means the information memorandum dated
[May] 2002 used by the Agent and the Arrangers in connection with the
syndication of the Commitments.
"Interest Expense" means, for any period, the sum of (i) interest
expense, including, without limitation and without duplication, (a)
amortization of debt discount, (b) amortization of fees (including,
without limitation, fees payable in respect of Hedge Agreements) payable
in connection with the incurrence of Debt to the extent included in
interest expense, and (c) the portion of any liabilities incurred in
connection with capitalized leases allocable to interest expense, in
each case of the Borrower and its Subsidiaries on a Consolidated basis,
determined in accordance with GAAP for such period, and (ii) any
dividends paid or accrued in respect of any preferred stock of the
Borrower during such period.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same 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 or, if available by all Lenders, nine or
twelve months, as the Borrower may, upon notice received by the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided,
however, that:
(i) the Borrower may not select any Interest Period that
ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
and
(iv) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds
such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding calendar
month.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Inventory" shall have the meaning ascribed to such term under
GAAP.
"Lenders" means the Initial Lenders, each Assuming Lender that
shall become a party hereto pursuant to Section 2.16 or 2.17 and each
Person that shall become a party hereto pursuant to Section 8.06.
"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.
"Material Adverse Change" means any material adverse change (or
any event or condition which, solely with the passage of time, has a
substantial likelihood of causing or resulting in a Material Adverse
9
Change) in the business, financial condition, operations, performance or
properties of the Borrower or the Borrower and its Subsidiaries taken as
a whole.
"Material Adverse Effect" means a material adverse effect on (a)
the business, financial condition, operations, performance or properties
of the Borrower or the Borrower and its Subsidiaries taken as a whole,
(b) the rights and remedies of the Agent or any Lender under this
Agreement or any Note or (c) the ability of the Borrower to perform its
obligations under this Agreement or any Note.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate 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 any ERISA Affiliate and at least one Person other than
the Borrower and the ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.
"1997 Credit Agreement" means the credit agreement dated as of
October 31, 1997 among the Borrower, as borrower, the banks, financial
institutions and other institutional lenders listed on the signature
pages thereof as initial lenders, Citibank, N.A., as initial issuing
bank, Citicorp USA, Inc., as agent for the lender parties, and Citicorp
Securities, Inc., as arranger, as amended.
"Non-Consenting Lender" has the meaning specified in Section
2.17(b).
"Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Advances made by such Lender.
"Notice of Borrowing" has the meaning specified in Section 2.02.
"Other Taxes" has the meaning specified in Section 2.13.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', landlords', bailees', carriers',
warehousemen's, 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 60 days or, if so overdue, are
being diligently contested in good faith by appropriate proceedings and
for which adequate reserves have been established in accordance with
GAAP; (c) pledges or deposits in the ordinary course of business to
secure non-delinquent obligations incurred in the ordinary course of
business (other than for borrowed money) or non-delinquent obligations
under workers' compensation or unemployment laws or similar legislation
or to secure the performance of public regulatory obligations which are
not delinquent, bid, surety and appeal bonds, performance bonds or other
obligations of a like nature (other than for borrowed money), deposits
with utility companies or insurance carriers in the ordinary course of
business, and bankers' liens or rights of setoff with respect to bank
accounts; (d) Uniform Commercial Code financing statements (or similar
statements under foreign laws) filed for precautionary purposes in
connection with any true lease of property which is not prohibited under
this Agreement and under which the Borrower or any of its Subsidiaries
is lessee, provided that any such financing statement does not cover any
property other than the property subject to such lease and the proceeds
thereof; and Uniform Commercial Code financing statements filed in
connection with any Liens otherwise permitted under this Agreement,
provided that any such financing statements do not cover any
10
property other than the property subject to such Liens and the proceeds
thereof; (e) easements, rights of way and other non-monetary
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 (f) any Liens
arising as a result of a sale or discount in the ordinary course of
business by the Borrower or any Subsidiary of the Borrower of customer
leases or other receivables for cash in a amount not less than the fair
market value thereof (after taking into account customary reserves for
losses, yield protection, fees and similar matters), provided that such
Liens shall cover only the assets sold or the equipment subject to such
leases and the proceeds thereof.
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity,
or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Public Debt Rating" means, as of any date, the lowest rating
that has been most recently announced by either S&P or Moody's, as the
case may be, for any class of non-credit enhanced long-term senior
unsecured debt issued by the Borrower. For purposes of the foregoing,
(a) if only one of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be determined by reference to Level 6
of the relevant definition; (b) if neither S&P nor Moody's shall have in
effect a Public Debt Rating, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee will be set in accordance
with Level 6 under the definition of Applicable Margin, Applicable
Percentage or Applicable Utilization Fee, as the case may be; (c) if any
rating established by S&P or Moody's shall be changed, such change shall
be effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (d) if S&P or
Moody's shall change the basis on which ratings are established, each
reference to the Public Debt Rating announced by S&P or Moody's, as the
case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be. Anything contained herein to the contrary
notwithstanding, for purposes of determining the Applicable Margin, the
Applicable Percentage or the Applicable Utilization Fee at any time, (i)
if either S&P or Moody's shall no longer be in the business of issuing
public debt ratings, the comparable ratings of Fitch shall be
substituted for the ratings of S&P or Moody's, as the case may be, and
(ii) if neither S&P nor Moody's shall be in the business of issuing such
ratings, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee will be determined in accordance with clause
(b) above.
"Reference Banks" means Citibank, Bank of America, N.A. and Bank
One, N.A.
"Register" has the meaning specified in Section 8.06(c).
"Required Lenders" means, at any time, Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of
the Advances owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having at least a majority in interest of the
Commitments.
"Responsible Officer" means the Chairman, the Chief Executive
Officer, the President, the Chief Financial Officer, the Secretary, the
Corporate Controller or the Treasurer of the Borrower.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"Significant Subsidiary" means each Subsidiary now existing or
hereafter acquired or formed, and each successor thereto, which accounts
for more than 3% of (i) the Consolidated gross revenues of the Borrower
and its Subsidiaries, (ii) Consolidated EBITDA, or (iii) the
Consolidated assets of the Borrower and its Subsidiaries, in each case,
as of the last day of the most recently completed fiscal quarter of the
Borrower with respect to which, pursuant to clauses (i) or (ii) of
Section 5.02(i), financial statements have been, or are required to have
been, delivered by the Borrower.
11
"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 any ERISA Affiliate and no Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any ERISA Affiliate 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 fair value of the property of such Person is
greater than the total amount of liabilities, including contingent
liabilities, of such Person, (b) 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, (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's
ability to pay such debts and liabilities as they mature and (d) 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
constitutes an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"SPC" has the meaning specified in Section 8.07(h).
"Specified Officer" means any Responsible Officer, the General
Counsel of the Borrower, and any other executive officer identified as
such in the Borrower's annual report on Form 10-K filed pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
"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 (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority 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) the
interest in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in such
trust or estate 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.
"Taxes" has the meaning specified in Section 2.13.
"Termination Date" means the earlier of (a) July 10, 2005,
subject to the extension thereof pursuant to Section 2.17 and (b) the
date of termination in whole of the Commitments pursuant to Section 2.04
or 6.01; provided, however, that the Termination Date of any Lender that
is a Non-Consenting Lender to any requested extension pursuant to
Section 2.17 shall be the Termination Date in effect immediately prior
to the applicable Extension Date for all purposes of this Agreement.
"Type" shall have the meaning ascribed to such term in the
definition of the term "Advance".
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP. In the
event any "Accounting Change" (as defined below) shall occur and such changes
affect the calculation of any financial covenant set forth in Section 5.03 of
this Agreement, then the
12
Borrower and the Lenders agree to enter into negotiations in order to amend such
provisions of this Agreement so as to equitably reflect such Accounting Change
with the desired result that the criteria for evaluating the financial condition
of Borrower and its Subsidiaries shall be the same after such Accounting Change
as if such Accounting Change had not been made, and until such time as such an
amendment shall have been executed and delivered by the Borrower and Required
Lenders, (A) such financial covenants, shall be calculated as if such Accounting
Change had not been made, and (B) the Borrower shall include with each
compliance certificate and the financial statements required to be delivered
hereunder, a reconciliation that shows the differences between the financial
statements delivered (which reflect such Accounting Change) and the basis for
calculating financial covenant compliance (without reflecting such Accounting
Change). "Accounting Change" means a change in accounting principles required by
GAAP and implemented by the Borrower.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Advances to the Borrower
from time to time on any Business Day during the period from the Effective Date
until the Termination Date in an aggregate amount not to exceed at any time
outstanding such Lender's Commitment. Each Borrowing shall be in an aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and
shall consist of Advances of the same Type made on the same day by the Lenders
ratably according to their respective Commitments. Within the limits of each
Lender's Commitment, the Borrower may borrow under this Section 2.01, prepay
pursuant to Section 2.09 and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Each 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 Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances, or on the same Business Day of
the proposed Borrowing in the case of a Borrowing consisting of Base Rate
Advances, by the Borrower to the Agent, which shall give to each Lender prompt
notice thereof by facsimile transmission or electronic mail message. Each such
notice of a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed
promptly in writing, or facsimile transmission or electronic mail message, in
substantially the form of Exhibit B hereto, specifying therein the requested (i)
date of such Borrowing, (ii) Type of Advances comprising such Borrowing, (iii)
aggregate amount of such Borrowing, and (iv) in the case of a Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period for each such
Advance. Each Lender shall, before noon (New York City time) on the date of such
Borrowing, make available for the account of its Applicable Lending Office to
the Agent at the Agent's Account, in same day funds, such Lender's ratable
portion of such Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Agent
will make such funds available to the Borrower at the Agent's address referred
to in Section 8.02.
(a) Anything in Section 2.02 (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for any Borrowing if
the aggregate amount of such Borrowing is less than $5,000,000 or if the
obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.07 or 2.11 and (ii) the Eurodollar Rate Advances
may not be outstanding as part of more than seven separate Borrowings.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of 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 failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, 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 such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
13
(c) Unless the Agent shall have received notice from a Lender prior to
the date of any Borrowing that such Lender will not make available to the Agent
such Lender's ratable portion of such Borrowing, the Agent may assume that such
Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with Section 2.02(a) and the Agent may, in reliance upon
such assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such
ratable portion available to the Agent, such Lender and the Borrower severally
agree to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Agent, at
(i) in the case of the Borrower, the interest rate applicable at the time to
Advances comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender's Advance as part of
such Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees to pay
to the Agent for the account of each Lender a facility fee on the aggregate
average daily amount of such Lender's Commitment from the date hereof in the
case of each Initial Lender and from the effective date specified in the
Assumption Agreement or the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at a
rate per annum equal to the Applicable Percentage in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and
December, commencing September, 2002, and on the Termination Date.
(a) Fees of the Agent and the Arrangers. The Borrower shall pay to the
Agent and each of the Arrangers for their respective accounts such fees as may
from time to time be agreed between the Borrower and the Agent and the
Arrangers.
SECTION 2.04. Termination or Reduction of the Commitments. The
Borrower shall have the right, upon at least three Business Days' notice to the
Agent, to terminate in whole or permanently reduce ratably in part the unused
portions of the respective Commitments of the Lenders, provided that each
partial reduction shall be in the aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof.
SECTION 2.05. Repayment. The Borrower shall repay to the Agent
for the ratable account of the Lenders on the Termination Date the aggregate
principal amount of the Advances then outstanding.
SECTION 2.06. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such 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 Advance is a
Base Rate Advance, a rate per annum equal at all times to the Base Rate
in effect from time to time plus, at any time that the aggregate
principal amount of Advances outstanding exceeds 50% of the aggregate
amount of the Commitments, the Applicable Utilization Fee in effect from
time to time, payable in arrears monthly on the last day of each month
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
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such 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 plus (z) at any time that
the aggregate principal amount of Advances outstanding exceeds 50% of
the aggregate amount of the Commitments, the Applicable Utilization Fee
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
14
first day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of
an Event of Default under Section 6.01(a), the Borrower shall pay interest
("Default Interest") on (i) the unpaid principal amount of each 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 2.00% above the
interest rate required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2.00% above the interest rate required
to be paid on Base Rate Advances pursuant to clause (a)(i) above; provided,
however, that following acceleration of the Advances pursuant to Section 6.01,
Default Interest shall accrue and be payable hereunder whether or not previously
required by the Agent.
SECTION 2.07. Interest Rate Determination. (a) In the event that
the Eurodollar Rate is to be determined in accordance with clause (a)(iii) of
the definition thereof, each Reference Bank shall, upon request by the Agent,
furnish to the Agent timely information for the purpose of determining such
Eurodollar Rate. In such case, if any one or more of the Reference Banks shall
not furnish such timely information to the Agent for the purpose of determining
any such interest rate, the Agent shall determine such interest rate on the
basis of timely information furnished by the remaining Reference Banks (so long
as at least two Reference Banks shall so furnish such information). The Agent
shall give prompt notice to the Borrower and the Lenders of the applicable
interest rate determined by the Agent for purposes of Section 2.06(a)(i) or
(ii), and the rate, if any, furnished by each Reference Bank for the purpose of
determining the interest rate under Section 2.06(a)(ii).
(a) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the 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 Advances
into, Eurodollar Rate Advances shall be suspended until the Agent shall notify
the Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
(b) 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 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.
(c) 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 $5,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(d) 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 Advances into,
Eurodollar Rate Advances shall be suspended.
(e) If fewer than two Reference Banks shall timely furnish information
to the Agent for determining the Eurodollar Rate for any Eurodollar Rate
Advances (in the event that clause (a)(iii) of the definition of Eurodollar Rate
shall apply):
(i) the Agent shall forthwith notify the Borrower and the Lenders
that the interest rate cannot be determined for such Eurodollar Rate
Advances,
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(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 2.08. Conversion of Advances. The Borrower may on any
Business Day, upon notice given to the 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 2.07 and 2.11, Convert all
Advances of one Type comprising the same Borrowing into Advances of the other
Type; provided, however, that any Conversion of Eurodollar Rate Advances into
Base Rate Advances shall be made only on the last day of an Interest Period for
such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(b) and no Conversion of any Advances shall result in
more separate Borrowings than permitted under Section 2.02(b). Each such notice
of a Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
SECTION 2.09. Optional Prepayments. The Borrower may, upon same
day notice not later than 10:00 a.m., New York City time, with respect to Base
Rate Advances or at least three Business Days' notice with respect to Eurodollar
Rate Advances to the Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall, prepay
the outstanding principal amount of the 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, however, that
(x) each partial prepayment shall be in an aggregate principal amount of
$5,000,000 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 Borrower
shall be obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.04(c).
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation after the date hereof or (ii) the compliance with any guideline or
request issued or made after the date hereof by any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Advances (excluding for purposes of this Section
2.10 any such increased costs resulting from (A) Taxes or Other Taxes (as to
which Section 2.13 shall govern) and (B) changes in the basis of taxation of
overall net income or overall gross income by the United States or by the
foreign jurisdiction or state under the laws of which such Lender is organized
or has its Applicable Lending Office or any political subdivision thereof), then
the Borrower shall from time to time, within five days after written demand by
such Lender together with a calculation of the amount demanded in reasonable
detail (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender additional amounts sufficient to compensate such Lender
for such increased cost; provided, however, that the Borrower shall not be
liable under this Section 2.10(a) for the payment of any such amounts incurred
or accrued more than 90 days prior to the date on which notice of the event or
occurrence giving rise to the obligation to make such payment is given to the
Borrower hereunder; provided, further, that if the event or occurrence giving
rise to such obligation is retroactive, then the 90-day period referred to above
shall be extended to include the period of retroactive effect thereof; provided,
further, that (1) if the Borrower objects in good faith to any payment demanded
under this Section 2.10(a) on or before the date such payment is due, then the
Borrower and the Lender demanding such payment shall enter into discussions to
review the amount due, and the Borrower's obligation to pay such amount to such
Lender shall be deferred for 30 days after the original demand for payment, and
(2) if the Borrower and such Lender do not otherwise reach agreement on the
amount due during such 30-day period, the Borrower shall pay to such Lender at
the end of such 30-day period the amount certified by such Lender to be due.
Subject to the last proviso in the preceding sentence, a certificate as to such
amounts submitted to the Borrower and the Agent by any Lender shall be
conclusive and binding for all purposes, absent manifest error. If any Lender
shall request any payment from the Borrower under this Section 2.10(a) in
respect of any increased costs, such Lender agrees, upon request by the
Borrower, to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Eurodollar Lending
Office if the making of such a
16
designation would avoid or reduce any such increased costs and would not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender.
(b) If, due to either (i) the introduction of or any change in or
in the interpretation of any law or regulation after the date hereof or (ii) the
compliance after the date hereof with any guideline or request issued or made
after the date hereof by any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
amount of capital required or expected to be maintained by any Lender or any
corporation controlling such Lender as a result of or based upon the existence
of such Lender's commitment to lend hereunder and other commitments of such
type, then, within five days after written demand by such Lender together with a
calculation of the amount demanded in reasonable detail (with a copy of such
demand to the Agent), the Borrower shall pay to the Agent for the account of
such Lender from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's commitment
to lend hereunder; provided, however, that the Borrower shall not be liable
under this Section 2.10(b) for the payment of any such amounts incurred or
accrued more than 90 days prior to the date on which notice of the event or
occurrence giving rise to the obligation to make such payment is given to the
Borrower hereunder; provided, further, that if the event or occurrence giving
rise to such obligation is retroactive, then the 90-day period referred to above
shall be extended to include the period of retroactive effect thereof; provided
further that (i) if the Borrower objects in good faith to any payment demanded
under this Section 2.10(b) on or before the date such payment is due, then the
Borrower and the Lender demanding such payment shall enter into discussions to
review the amount due, and the Borrower's obligation to pay such amount to such
Lender shall be deferred for 30 days after the original demand for payment, and
(ii) if the Borrower and such Lender do not otherwise reach agreement on the
amount due during such 30-day period, the Borrower shall pay to such Lender at
the end of such 30-day period the amount certified by such Lender to be due.
Subject to the last proviso in the preceding sentence, a certificate as to such
amounts submitted to the Borrower and the Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.
(c) Any determination under this Section 2.10 in respect of CUSA
shall be made as though Citibank were a party to this Agreement in place of
CUSA.
SECTION 2.11. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation, after the date
hereof, makes it unlawful, or any central bank or other governmental authority
having jurisdiction over a Lender asserts after the date hereof that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, then, on notice thereof and demand therefor
by such Lender to the Borrower through the Agent, (a) each Eurodollar Rate
Advance will automatically, upon the later of such demand and the date required
by applicable law, Convert into a Base Rate Advance and (b) the obligation of
the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall
be suspended until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist; provided, however, that
before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Eurodollar Lending Office if the making of such a
designation would allow such Lender or its Eurodollar Lending Office to continue
to perform its obligations to make Eurodollar Rate Advances or to continue to
fund or maintain Eurodollar Rate Advances and would not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.12. Payments and Computations. (a) The Borrower shall
make each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off, not later than 11:00 A.M. (New York City time) on the
day when due in U.S. dollars to the Agent at the Agent's Account in same day
funds. The 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 Section 2.10, 2.13 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 any Assuming Lender becoming a
Lender hereunder as a result of a Commitment Increase pursuant to Section 2.16
or an extension of the Termination Date pursuant to Section 2.17, and upon the
Agent's receipt of such Lender's Assumption Agreement and recording of the
information
17
contained therein in the Register, from and after the applicable Increase Date
or Extension Date, as the case may be, the Agent shall make all payments
hereunder and under any Notes issued in connection therewith in respect of the
interest assumed thereby to the Assuming Lender. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.06(d), from and after the effective date
specified in such Assignment and Acceptance, the 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) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or under the Note
held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate and of
utilization fee (to the extent such utilization fee relates to Base Rate
Advances) shall be made by the 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 or utilization fees (to the
extent such utilization fee relates to Eurodollar Advances or shall be made by
the 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 Agent of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility fee, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the 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 Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the 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 Agent,
each Lender shall repay to the 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 Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Except as provided in Section 2.13(f),
any and all payments by the Borrower hereunder or under the Notes shall be made,
in accordance with Section 2.12, 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 Agent, taxes imposed on its overall net income, and
franchise taxes imposed in lieu thereof, by the jurisdiction under the laws of
which such Lender or the Agent is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed in lieu thereof, 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 in respect of payments hereunder or under the Notes 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 Agent, (i) except as provided in Section 2.13(f), the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.13) such Lender or the Agent 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 governmental
authority in accordance with applicable law.
(b) In addition, the Borrower shall pay when due any present or future
stamp or documentary taxes or any other excise, property or similar taxes,
charges or similar levies that arise from any payment made hereunder or under
the Notes or any other documents to be delivered hereunder or from the
execution, delivery or registration of,
18
performance under or otherwise with respect to, this Agreement or the Notes or
any other documents to be delivered hereunder (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for and hold
it harmless against the full amount of Taxes or Other Taxes and for the full
amount of taxes of any kind imposed or asserted by any jurisdiction on amounts
payable under this Section 2.13, imposed on or paid by such Lender or the Agent,
as the case may be, and any liability (including penalties, additions to tax,
interest and expenses) arising therefrom or with respect thereto. These
indemnification payments shall be made within 30 days from the date on which
such Lender or the Agent makes written demand therefor, accompanied by a
calculation in reasonable detail of the amount demanded and evidence of the
Taxes, Other Taxes or taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.13 imposed or paid by the Agent or any Lender.
(d) Within 30 days after the date of any payment of Taxes, by the
Borrower pursuant to this Section 2.13, the Borrower shall furnish to the Agent,
at its address referred to in Section 8.02, evidence reasonably satisfactory to
the Agent of such payment.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender, and on the date of the Assignment
and Acceptance or Assumption Agreement pursuant to which it becomes a Lender in
the case of each other Lender, and from time to time thereafter as reasonably
requested in writing by the Borrower (but only so long as such Lender remains
lawfully able to do so), shall provide each of the Agent and the Borrower with
two original Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate, or
any successor or other form prescribed by the Internal Revenue Service,
certifying that such Lender is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to this Agreement or the
Notes. In addition to the forms described in the immediately preceding sentence,
each Lender organized under the laws of a jurisdiction outside the United States
shall, upon the request of the Borrower or the Agent in writing, (i) provide
each of the Agent and the Borrower with two further copies of such forms or
other appropriate certification of such forms on or before the date that any
such form expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form delivered to the Borrower, and (ii)
obtain such extensions of the time for the filing and renew such forms and
certifications thereof as may be reasonably requested by the Borrower or the
Agent. If the form (or forms) 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 unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form; provided, however, that, if at the date of the Assignment and Acceptance
or Assumption Agreement pursuant to which a Lender assignee becomes a party to
this Agreement, the Lender assignor was entitled to payments under subsection
(a) of this Section 2.13 in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date. For
purposes of this subsection (e), the term "United States" shall have the meaning
specified in Section 7701 of the Internal Revenue Code.
(f) For any period with respect to which a Lender has failed to provide
the Borrower with the appropriate form described in Section 2.13(e) or failed to
seek an extension of the time for filing such successor form as required in
writing to do so by the Agent or the Borrower in accordance with Section 2.13(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 subsection (e) above), such Lender shall not be
entitled to indemnification under Section 2.13(a) or (c) with respect to Taxes
imposed by the United States by reason of such failure; provided, however, that,
should a Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps (at such Lender's
expense) as the Lender shall reasonably request to assist the Lender to recover
such Taxes.
(g) In the event that an additional payment is made under Section
2.13(a) or (c) for the account of any Lender or Agent, such Lender or Agent, as
applicable, shall determine whether it has received or been granted a Tax
Benefit (as defined hereinafter), and if such Lender or Agent, as applicable, in
its sole discretion, determines that it has finally and irrevocably received or
been granted a credit against or release or remission for, or repayment of, any
19
tax paid or payable by or for it in respect of or calculated with reference to
such payment or the deduction or withholding giving rise to such payment (a "Tax
Benefit"), such Lender or Agent shall, to the extent that it determines that it
can do so without prejudice to the retention of the amount of such credit,
relief, remission or repayment pay to the Borrower such amount as such Lender
shall, in its sole discretion, have determined to be attributable to such Tax
Benefit and which will leave such Lender (after such payment) in no worse
position than it would have been in if the Borrower had not been required to
make such payment, deduction or withholding. Nothing herein contained shall
interfere with the right of a Lender to arrange its tax affairs in whatever
manner it thinks fit nor oblige any Lender or Agent to claim any tax credit or
to disclose any information relating to its tax affairs or any computations in
respect thereof or require any Lender or Agent to do anything that would
prejudice its ability to benefit from any other credits, reliefs, remissions or
repayments to which it may be entitled.
(h) If the Borrower is required to pay any amount to any Lender or the
Agent pursuant to subsection (a), (b), or (c) of this Section 2.13, then such
Lender or the Agent shall use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office so as to eliminate (or, if elimination is not
reasonably possible, to minimize) any such additional payment by the Borrower
which may thereafter accrue, if such change in the sole judgment of such Lender
or the Agent, as the case may be, is not otherwise disadvantageous to such
Lender or the Agent.
(i) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower and each
Lender and Agent contained in this Section 2.13 shall survive the repayment of
the Advances and the other obligations hereunder or under the Notes and the
termination of the Commitments hereunder.
SECTION 2.14. 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 Advances owing to it (other
than pursuant to Section 2.10, 2.13 or 8.04(c)) in excess of its ratable share
of payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such 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 2.14
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.
SECTION 2.15. Use of Proceeds. The proceeds of the Advances shall
be available (and the Borrower agrees that it shall use such proceeds) solely
for general corporate purposes of the Borrower.
SECTION 2.16. Increase in the Aggregate Commitments. (a) The
Borrower may, at any time but in any event not more than once in any calendar
year prior to the Termination Date, by notice to the Agent, request that the
aggregate amount of the Commitments be increased by an amount of $50,000,000 or
an integral multiple of $1,000,000 in excess thereof (each a "Commitment
Increase"), effective as of a date that is at least 90 days prior to the
scheduled Termination Date then in effect (the "Increase Date") as specified in
the related notice to the Agent; provided, however, that (i) in no event shall
the aggregate amount of the Commitments at any time exceed $600,000,000, (ii) on
the date of any request by the Borrower for a Commitment Increase and on the
related Increase Date, the applicable conditions set forth in Section 3.02 shall
be satisfied, and (iii) on the Commitment Date (as defined below) and after
giving effect to the Commitment Increase, the Borrower's Public Debt Ratings
shall be at least BBB by S&P or Baa2 by ▇▇▇▇▇'▇.
(b) The Agent shall promptly notify the Lenders of a request by the
Borrower for a Commitment Increase, which notice shall include (i) the proposed
amount of such requested Commitment Increase, (ii) the proposed Increase Date,
and (iii) the date by which Lenders wishing to participate in the Commitment
Increase must commit to an increase in the amount of their respective
Commitments (the "Commitment Date").
20
Each Lender that is willing to participate in such requested Commitment Increase
(each an "Increasing Lender") shall, in its sole discretion, give written notice
to the Agent on or prior to the Commitment Date of the amount by which it is
willing to increase its Commitment. If the Lenders notify the Agent that they
are willing to increase the amount of their respective Commitments by an
aggregate amount that exceeds the amount of the requested Commitment Increase,
the requested Commitment Increase shall be allocated among the Lenders willing
to participate therein in proportion to the amounts offered by such Lenders or
as otherwise agreed among each such Lender, the Borrower and the Agent.
(c) Promptly following each Commitment Date, the Agent shall
notify the Borrower as to the amount, if any, by which the Lenders are willing
to participate in the requested Commitment Increase. If the aggregate amount by
which the Lenders are willing to participate in any requested Commitment
Increase on any such Commitment Date is less than the requested Commitment
Increase, then the Borrower may extend offers to one or more Eligible Assignees
to participate in any portion of the requested Commitment Increase that has not
been committed to by the Lenders as of the applicable Commitment Date; provided,
however, that the Commitment of each such Eligible Assignee shall be in an
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(d) On each Increase Date, each Eligible Assignee that accepts an
offer to participate in a requested Commitment Increase in accordance with
Section 2.16(b) (each such Eligible Assignee and each Eligible Assignee that
agrees to an extension of the Termination Date in accordance with Section
2.17(c) being referred to herein as an "Assuming Lender") shall become a Lender
party to this Agreement as of such Increase Date and the Commitment of each
Increasing Lender for such requested Commitment Increase shall be increased by
the applicable amount determined in accordance with Section 2.16(b) as of such
Increase Date; provided, however, that the Agent shall have received on or
before such Increase Date the following, each dated such date:
(i) certified copies of resolutions of the Board of Directors of
the Borrower approving the Commitment Increase and the corresponding
modifications to this Agreement;
(ii) an opinion of counsel for the Borrower (which may be
in-house counsel), in substantially the form of Exhibit E hereto;
(iii) an assumption agreement from each Assuming Lender, if any,
in form and substance satisfactory to the Borrower and the Agent (each
an "Assumption Agreement"), duly executed by such Assuming Lender, the
Agent and the Borrower; and
(iv) confirmation from each Increasing Lender of the increase in
the amount of its Commitment in a writing satisfactory to the Borrower
and the Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.16(d), and subject to the
conditions specified in Section 2.16(d), the Agent shall notify the Lenders
(including, without limitation, each Assuming Lender) and the Borrower, on or
before 1:00 P.M. (New York City time), by facsimile transmission or electronic
mail message, of the occurrence of the Commitment Increase to be effected on
such Increase Date and shall record in the Register the relevant information
with respect to each Increasing Lender and each Assuming Lender on such date.
SECTION 2.17. Extension of Termination Date. (a) At least 45 days
but not more than 60 days prior to any anniversary of the Effective Date, the
Borrower, by written notice to the Agent, may request an extension of the then
scheduled Termination Date for a period of one year. The Agent shall promptly
notify each Lender of such request, and each Lender shall in turn, in its sole
discretion, not more than 30 or less than 20 days prior to such anniversary
date, notify the Borrower and the Agent in writing as to whether such Lender
will consent to such extension. If any Lender shall fail to notify the Agent and
the Borrower in writing of its consent to any such request for extension of the
Termination Date at least 20 days prior to such anniversary date, such Lender
shall be deemed to be a Non-Consenting Lender with respect to such request. The
Agent shall notify the Borrower not later than 15 days prior to the applicable
anniversary date of the decision of the Lenders regarding the Borrower's request
for an extension of the Termination Date.
21
(b) If all the Lenders consent in writing to any such request in
accordance with Section 2.17(a), the Termination Date in effect at such time
shall, effective as at such Termination Date (the "Extension Date"), be extended
for one year; provided that on each Extension Date the applicable conditions set
forth in Article III shall be satisfied. If less than all of the Lenders consent
in writing to any such request in accordance Section 2.17(a), the Termination
Date in effect at such time shall, effective as at the applicable Extension Date
and subject to Section 2.17(d), be extended as to those Lenders that so
consented (each a "Consenting Lender") but shall not be extended as to any other
Lender (each a "Non-Consenting Lender"). To the extent that the Termination Date
is not extended as to any Lender pursuant to this Section 2.17 and the
Commitment of such Lender is not assumed in accordance with Section 2.17(c) on
or prior to the applicable Extension Date, the Commitment of Lender shall
automatically terminate in whole on such unextended Termination Date (and, for
the avoidance of doubt, all outstanding principal of, and accrued interest on,
indebtedness due such Lender under this Agreement, together with all fees and
other amount payable hereunder, shall be paid in full to the Agent for the
benefit of such Non-Consenting Lender on such unextended Termination Date)
without any further notice or other action by the Borrower, such Lender or any
other Person; provided that such Lender's rights under Sections 2.10, 2.13 and
8.04, and its obligations under Section 7.05, shall survive the Termination Date
for such Lender as to matters occurring prior to such date. It is understood and
agreed that no Lender shall have any obligation whatsoever to agree to any
request made by the Borrower for any requested extension of the Termination
Date.
(c) If less than all of the Lenders consent to any such request
pursuant to Section 2.17(a), the Agent shall promptly so notify the Consenting
Lenders, and each Consenting Lender may, in its sole discretion, give written
notice to the Agent not later than 10 days prior to the Termination Date of the
amount of the Non-Consenting Lenders' Commitments for which it is willing to
accept an assignment. If the Consenting Lenders notify the Agent that they are
willing to accept assignments of Commitments in an aggregate amount that exceeds
the amount of the Commitments of the Non-Consenting Lenders, such Commitments
shall be allocated among the Consenting Lenders willing to accept such
assignments in proportion to the amounts offered by such Lenders or as otherwise
agreed among each such Lender, the Borrower and the Agent. If after giving
effect to the assignments of Commitments described above there remains any
Commitments of Non-Consenting Lenders, the Borrower may arrange for one or more
Consenting Lenders or other Eligible Assignees as Assuming Lenders to assume,
effective as of the Extension Date, any Non-Consenting Lender's Commitment and
all of the obligations of such Non-Consenting Lender under this Agreement
thereafter arising, without recourse to or warranty by, or expense to, such
Non-Consenting Lender; provided, however, that the amount of the Commitment of
any such Assuming Lender as a result of such substitution shall in no event be
less than $5,000,000 unless the amount of the Commitment of such Non-Consenting
Lender is less than $1,000,000, in which case such Assuming Lender shall assume
all of such lesser amount; and provided, further that:
(i) any such Consenting Lender or Assuming Lender shall have paid
to such Non-Consenting Lender (A) the aggregate principal amount of, and
any interest accrued and unpaid to the effective date of the assignment
on, the outstanding Advances, if any, of such Non-Consenting Lender plus
(B) any accrued but unpaid facility fees owing to such Non-Consenting
Lender as of the effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements
and indemnities payable to such Non-Consenting Lender and all other
accrued and unpaid amounts owing to such Non-Consenting Lender hereunder
as of the effective date of such assignment shall have been paid to such
Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 8.06(a) for such
assignment shall have been paid;
provided, further that such Non-Consenting Lender's rights under Sections 2.10,
2.13 and 8.04, and its obligations under Section 7.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date, (A) each such Assuming Lender,
if any, shall have delivered to the Borrower and the Agent an Assumption
Agreement, duly executed by such Assuming Lender, such Non-Consenting Lender,
the Borrower and the Agent, (B) any such Consenting Lender shall have delivered
confirmation in writing satisfactory to the Borrower and the Agent as to the
increase in the amount of its Commitment and (C) each Non-
22
Consenting Lender being replaced pursuant to this Section 2.17 shall have
delivered to the Agent any Note or Notes held by such Non-Consenting Lender.
Upon the payment or prepayment of all amounts referred to in clauses (i), (ii)
and (iii) of the immediately preceding sentence, each such Consenting Lender or
Assuming Lender, as of the Extension Date, will be substituted for such
Non-Consenting Lender under this Agreement and shall be a Lender for all
purposes of this Agreement, without any further acknowledgment by or the consent
of the other Lenders, and the obligations of each such Non-Consenting Lender
hereunder shall, by the provisions hereof, be released and discharged.
(d) If (after giving effect to any assignments or assumptions
pursuant to Section 2.17(c)) Lenders having Commitments equal to at least 50% of
the Commitments in effect immediately prior to the Extension Date consent in
writing to a requested extension (whether by execution or delivery of an
Assumption Agreement or otherwise), not later than one Business Day prior to
such Extension Date, the Agent shall so notify the Borrower, and, subject to the
satisfaction of the applicable conditions in Article III, the Termination Date
then in effect shall be extended for the additional one-year period as described
in Section 2.17(a), and all references in this Agreement, and in the Notes, if
any, to the "Termination Date" shall, with respect to each Consenting Lender and
each Assuming Lender for such Extension Date, refer to the Termination Date as
so extended. Promptly following each Extension Date, the Agent shall notify the
Lenders (including, without limitation, each Assuming Lender) of the extension
of the scheduled Termination Date in effect immediately prior thereto and shall
thereupon record in the Register the relevant information with respect to each
such Consenting Lender and each such Assuming Lender.
SECTION 2.18. Replacement of Lenders. If any Lender (a) requests
the payment of additional amounts under Sections 2.10 or 2.13, (b) is unable to
make Eurodollar Rate Advances in accordance with Section 2.11, (c) is a
Defaulting Lender, or (d) refuses to consent to a proposed amendment, waiver or
other modification which requires the consent of all Lenders and has been
approved by Required Lenders (any such Lender, an "Affected Lender"), then
Borrower may, at its option replace such Lender with an Eligible Assignee (which
may be another Lender or an Affiliate of a Lender) which executes and delivers
to the Affected Lender an Assignment and Acceptance with respect to the
Commitments of the Affected Lender, and in such case the Affected Lender shall
execute and deliver to such replacement lender an Assignment and Acceptance and,
in consideration of the purchase, at par, without premium or penalty, of the
Note of such Affected Lender and the assumption of its obligations hereunder,
assign to the replacement lender its Commitments and outstanding Advances
hereunder. In the event of an assignment under this Section, the processing fee
referred to in Section 8.06 hereof shall be paid by the Borrower, provided, that
no such fee shall be paid if the assignment is to an existing Lender.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 2001.
(b) There shall exist no action, suit, investigation, litigation
or proceeding affecting the Borrower or any of its Subsidiaries pending
or threatened before any court, governmental agency or arbitrator that
(i) could be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions
contemplated hereby.
(c) Nothing shall have come to the attention of the Lenders
during the course of their due diligence investigation to lead them to
believe that the Information Memorandum was or has become misleading,
incorrect or incomplete in any material respect; without limiting the
generality of the foregoing, the Lenders shall have been given such
access to the management, records, books of account, contracts and
properties of the Borrower and its Subsidiaries as they shall have
requested.
23
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lenders) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Lenders
that restrains, prevents or imposes materially adverse conditions upon
the transactions contemplated hereby.
(e) The Borrower shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and expenses of
the Agent, the Arrangers and the Lenders (including the accrued fees and
expenses of counsel to the Agent).
(g) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated
the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(h) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory
to the Agent and (except for the Notes) in sufficient copies for each
Lender:
(i) Duly executed counterparts of this Agreement and
Notes payable to the order of each of the Lenders, respectively.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes,
and of all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to this
Agreement and the Notes.
(iii) 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.
(iv) Copies of the Consolidated balance sheet of the
Borrower and its Subsidiaries as at December 31, 2001, and the
related Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of KPMG LLP, independent public
accountants, and the Consolidated balance sheet of the Borrower
and its Subsidiaries as at March 31, 2002, and the related
Consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for the three months then ended, duly
certified by the chief financial officer of the Borrower.
(v) A favorable opinion of each of (A) the Vice President
and General Counsel to the Borrower, and (B) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Borrower, in substantially the forms of Exhibits
D-1 and D-2 hereto, respectively, and as to such other matters as
any Lender through the Agent may reasonably request.
(vi) A favorable opinion of Shearman & Sterling, counsel
for the Agent, in form and substance satisfactory to the Agent.
(vii) Such other information, certificates and documents
as the Agent may reasonably request on behalf of itself or any
Lender.
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(i) The Borrower shall have terminated in whole the
respective commitments of the lenders under the 1997 Credit
Agreement and all outstanding principal of, and accrued interest
on, the indebtedness outstanding thereunder, together with all
fees and other amounts payable thereunder, shall have been paid
in full or will be paid in full upon disbursement of the initial
Advances hereunder.
SECTION 3.02. Conditions Precedent to Each Borrowing, Commitment
Increase and Extension Date. The obligation of each Lender to make an Advance on
the occasion of each Borrowing, each Commitment Increase pursuant to Section
2.16 and each extension of Commitments pursuant to Section 2.17 shall be subject
to the conditions precedent that the Effective Date shall have occurred, and on
the date of such Borrowing, or on the applicable Increase Date or Extension
Date, as the case may be, (a) the following statements shall be true (and each
of the giving of the applicable Notice of Borrowing, request for Commitment
Increase or request for Commitment Extension, and the acceptance by the Borrower
of the proceeds of such Borrowing, or such increase or extension, as the case
may be, shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing, or on such Increase Date or Extension Date, as the
case may be, such statements are true):
(i) the representations and warranties contained in Section 4.01
are true and correct on and as of the date of such Borrowing, before and
after giving effect to such Borrowing and to the application of the
proceeds therefrom, or on and as of such Increase Date or Extension
Date, as the case may be, as though made on and as of such date (except
to the extent such representations and warranties relate to an earlier
date, in which case as though made on and as of such earlier date); and
(ii) no event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom,
or from such Commitment Increase or Extension Date, as the case may be,
that constitutes a Default;
(b) in the case of a Commitment Increase, the Agent shall have received from the
Borrower, in exchange for surrendered Notes, new Notes payable to the order of
each Lender in the amount of its respective Commitment, and (c) the Agent shall
have received such other approvals, opinions or documents as any Lender through
the Agent may reasonably request.
SECTION 3.03. 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 Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes, and the consummation of the transactions
contemplated hereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not (i)
contravene the Borrower's charter or by-laws, (ii) violate any law,
rule, regulation, order, writ, judgment, injunction, decree,
determination or award binding on the Borrower or any property of the
Borrower or (iii) conflict with or result in a breach of any contractual
restriction binding on or affecting the Borrower, except, in the
25
case of (ii) or (iii) above, to the extent that such contravention could
not reasonably be expected to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery and
performance by the Borrower of this Agreement or the Notes.
(d) 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, subject
to the effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
the rights or remedies of creditors generally and the effect of general
principles of equity, whether enforcement is considered in a proceeding
in equity or at law.
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2001, and the related Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of KPMG LLP,
independent public accountants, and the Consolidated unaudited balance
sheet of the Borrower and its Subsidiaries as at March 31, 2002, and the
related Consolidated unaudited statements of income and cash flows of
the Borrower and its Subsidiaries for the three months then ended, duly
certified by the chief financial officer of the Borrower, copies of
which have been furnished to each Lender, fairly present in all material
respects, subject, in the case of said balance sheet as at March 31,
2002, and said statements of income and cash flows for the three months
then ended, to year-end audit adjustments, the Consolidated financial
condition of the Borrower and its Subsidiaries as at such dates and the
Consolidated results of the operations of the Borrower and its
Subsidiaries for the periods ended on such dates, all in accordance with
generally accepted accounting principles consistently applied. Since
December 31, 2001, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of any Specified
Officer, threatened action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental Action,
against the Borrower or any of its Subsidiaries or affecting the
properties of the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) would be reasonably likely to
have a Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(g) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System ("Regulation U")), and no proceeds of any Advance
will be used to purchase or carry any margin stock or to extend credit
to others for the purpose of purchasing or carrying any margin stock.
(h) Neither the Borrower nor any of its 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
making of any Advances, nor the application of the proceeds or repayment
thereof by the Borrower will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange Commission
thereunder.
(i) Neither the Information Memorandum, as supplemented by the
Borrower to the Lenders (or to the Agent for distribution to the
Lenders) in writing prior to the date hereof, nor any other information,
exhibit or report furnished by the Borrower or any of its Subsidiaries
in writing to the Agent or any Lender in connection with the negotiation
of this Agreement or pursuant to the terms of this Agreement, contains
any untrue statement of a material fact or omits to state a material
fact necessary to make the statements made therein not misleading in the
light of the circumstances under which the Information Memorandum or
such other information, exhibit or report was delivered.
26
(j) Neither the Borrower nor any of its Subsidiaries is in
violation of any applicable law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award, including ERISA
and Environmental Laws, the violation of which is reasonably likely to
have a Material Adverse Effect.
(k) The Borrower and the Borrower and its Subsidiaries taken as a
whole are and, after the receipt and application of each of the Advances
in accordance with the terms of this Agreement, will be Solvent.
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) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
Regulation U, ERISA and Environmental Laws, if failure to so comply
could reasonably be expected to have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be
required to pay or discharge any such tax, assessment, charge or claim
(A) that is being contested in good faith and by proper proceedings and
as to which appropriate reserves are being maintained or (B) if the
failure to pay or discharge any such tax, assessment, charge or claim
could not reasonably be expected to have a Material Adverse Effect.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Significant Subsidiaries to preserve and
maintain, (i) its corporate existence and (ii) its rights (charter and
statutory), permits, licenses, approvals, privileges and franchises in
each jurisdiction where necessary or where failure to do so could
reasonably be expected to have a Material Adverse Effect; provided,
however, that the Borrower and its Subsidiaries may consummate any
merger, consolidation, liquidation, dissolution or winding up permitted
under Section 5.02(b) and provided, further that neither the Borrower
nor any of its Subsidiaries shall be required to preserve any right or
franchise if the officers authorized by the Board of Directors of the
Borrower or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Borrower or such Subsidiary, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to the Borrower,
such Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time during normal
business hours and from time to time, on reasonable prior notice to the
Borrower, permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiaries with
any of their officers or directors and, in the company of a Responsible
Officer or his designee, with their independent certified public
accountants; provided, however, that when a Default exists, the Agent or
any Lender (or any of their respective
27
representatives or independent contractors), may do any of the foregoing
at the expense of the Borrower at any time during normal business hours
and without advance notice.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are useful or necessary in the conduct of its business
in good working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary than
it would obtain in a comparable arm's-length transaction with a Person
not an Affiliate; provided, however, that this Section 5.01(h) shall not
apply to transactions between or among the Borrower and its Subsidiaries
in the ordinary course of the Borrower's or such Subsidiary's business
to the extent not otherwise prohibited under this Agreement.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 50 days
after the end of each of the first three quarters of each fiscal
year of the Borrower, the Consolidated balance sheet 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 a
Responsible Officer as having been prepared in accordance with
generally accepted accounting principles, together with a
certificate of a Responsible Officer as to compliance with the
terms of this Agreement and setting forth, in a form reasonably
satisfactory to the Agent, the calculations necessary to
demonstrate compliance with Section 5.03 (a "Compliance
Certificate"), provided that in the event of any change in
generally accepted accounting principles used in the preparation
of such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 5.03,
a statement of reconciliation conforming such financial
statements to GAAP;
(ii) as soon as available and in any event within 95 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 the Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year
and Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such fiscal year, in each case
accompanied by an opinion of KPMG LLP or other independent public
accountants acceptable to the Required Lenders (without
qualification as to going concern or scope of audit), together
with a Compliance Certificate, provided that in the event of any
change in generally accepted accounting principles used in the
preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with
Section 5.03, a statement of reconciliation conforming such
financial statements to GAAP;
(iii) as soon as available and in any event no later than
45 days after the end of each fiscal year of the Borrower,
forecasts prepared by management of the Borrower, in form
reasonably satisfactory to the Agent, of balance sheets, income
statements and cash flow statements on a quarterly basis for the
fiscal year following such fiscal year then ended and on an
annual basis for each fiscal year thereafter until the
Termination Date;
(iv) as soon as possible and in any event within two
Business Days after any Responsible Officer obtains knowledge of
the occurrence of any Default or any event, development or
occurrence reasonably likely to have a Material Adverse Effect
continuing on the
28
date of such statement, a statement of a Responsible Officer
setting forth details of such Default or other event and the
action that the Borrower has taken and proposes to take with
respect thereto;
(v) promptly after the sending or filing thereof, copies
of all reports that the Borrower sends to any of its
securityholders, and copies of all reports and registration
statements that the Borrower or any Subsidiary files with the
Securities and Exchange Commission or any national securities
exchange;
(vi) promptly after, and in any event within two Business
Days after a Specified Officer obtains knowledge of, the
commencement thereof, notice of all actions and proceedings
before any court, governmental agency or arbitrator affecting the
Borrower or any of its Subsidiaries of the type described in
Section 4.01(f);
(vii) not later than 15 days prior to the consummation by
the Borrower or any Subsidiary of the Borrower of any purchase or
other acquisition or any sale, transfer or other disposition of
any assets (including, without limitation, shares of capital
stock or other equity interests in any other Person), whether by
direct acquisition or transfer, by merger or other corporate
transaction or otherwise, and whether in a single transaction or
series of related transactions, in any such case having a value
in excess of $200,000,000, notice of such transaction or series
of transactions; and
(viii) such other information respecting the Borrower or
any of its Subsidiaries as any Lender through the Agent may from
time to time reasonably request.
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
Subsidiaries to create or suffer to exist, any Lien on or with respect
to any of its properties, whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any right to
receive income (except by a Subsidiary in favor of the Borrower or any
of its Subsidiaries), other than:
(i) Permitted Liens,
(ii) purchase money Liens (including capital leases) upon
or in any real or personal property (tangible or intangible)
acquired or held by the Borrower or any Subsidiary to secure the
purchase price of such property or to secure Debt incurred solely
for the purpose of financing the acquisition, construction or
improvement of such property, or Liens existing on such property
at the time of its acquisition (other than any such Liens created
in contemplation of such acquisition that were not incurred to
finance the acquisition of such property) or extensions, renewals
or replacements of any of the foregoing for the same or a lesser
amount, provided, however, that no such Lien shall extend to or
cover any properties of any character other than the property
being acquired, constructed or improved and the proceeds thereof
and no such extension, renewal or replacement shall extend to or
cover any properties not theretofore subject to the Lien being
extended, renewed or replaced and the proceeds thereof, provided,
further that the aggregate principal amount of the indebtedness
secured by the Liens referred to in this clause (ii) shall not
exceed 100% of the fair market value of property so acquired at
the time of acquisition.
(iii) the Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the time
such Person is merged into or consolidated with the Borrower or
any Subsidiary of the Borrower or becomes a Subsidiary of the
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Borrower or on assets acquired by the Borrower or any Subsidiary
of the Borrower existing at the time that such assets are
acquired; provided that such Liens were not created in
contemplation of such merger, consolidation or acquisition and do
not extend to any assets other than those of the Person so merged
into or consolidated with the Borrower or such Subsidiary or
acquired by the Borrower or such Subsidiary, and proceeds
thereof,
(v) possessory rights of customers of the Borrower and
its Subsidiaries in Equipment for Resale arising under leases,
bailment arrangements and rental agreements entered into in the
ordinary course of business of the Borrower or such Subsidiary,
(vi) Liens upon specific items of Inventory and the
proceeds thereof securing the obligations of the Borrower or any
of its Subsidiaries in respect of bankers' acceptances issued or
created for the account of the Borrower or such Subsidiary to
facilitate the purchase, shipment or storage of such Inventory,
(vii) Liens arising in connection with trade letters of
credit issued to secure the purchase of Inventory in the ordinary
course of business of the Borrower and its Subsidiaries, provided
that such Liens shall cover only the documents in respect of
which such letters of credit were issued, the goods covered
thereby and the insurance proceeds of such goods,
(viii) Liens arising out of judgments or awards (other
than any judgment described in Section 6.01(f) or (g) hereof and
constituting an Event of Default thereunder) in respect of which,
within 30 days after the imposition thereof, the Borrower or any
of its Subsidiaries shall in good faith be prosecuting an appeal
or proceedings for review and shall have secured a subsisting
stay of execution pending such appeal or proceedings for review,
provided it shall have set aside on its books adequate reserves,
in accordance with GAAP, with respect to such judgment or award,
(ix) security and other deposits made by the Borrower or
any Subsidiary of the Borrower under the terms of any lease or
sublease of property entered into by the Borrower or any such
Subsidiary in the ordinary course of business,
(x) voluntary Liens in favor of the PBGC arising in
connection with any insufficiency resulting from the actions of,
and with respect to any Plan of the Borrower or any ERISA
Affiliate, securing Obligations not exceeding $50,000,000,
(xi) other Liens securing Debt in an aggregate principal
amount not to exceed $50,000,000 at any time outstanding,
(xii) Sales or discounts in the ordinary course of
business by the Borrower or any Subsidiary of the Borrower of
customer leases or other receivables for cash in an amount not
less than the fair market value thereof (after taking into
account customary reserves for losses, yield protection, fees and
similar matters), and
(xiii) the replacement, extension or renewal of any Lien
permitted by clause (iii) or (iv) above upon or in the same
property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount by more than
the sum of accrued and unpaid interest and normal and customary
costs, fees and expenses payable in connection therewith or
change in any direct or contingent obligor) of the Debt secured
thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to, any Person, or permit any
of its Subsidiaries to do so, except that (i) any Subsidiary of the
Borrower may merge or consolidate with or into, or dispose of assets to,
any other Subsidiary of the Borrower, (ii) any Subsidiary of the
Borrower may merge into or dispose of assets to the Borrower, (iii) the
Borrower may merge with any other Person so long as the Borrower is the
30
surviving corporation, and (iv) any Subsidiary of the Borrower may merge
into or dispose of its assets to any other Person so long as such merger
or disposition does not involve all or substantially all of the assets
of the Borrower and its Subsidiaries taken as a whole; provided, in each
case, that no Default shall have occurred and be continuing at the time
of such proposed transaction or would result therefrom. Any voluntary
liquidation, dissolution or winding up of any Subsidiary of the Borrower
shall be deemed to be a merger for purposes of this subsection.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any significant change in accounting
policies or reporting practices, except as required by generally
accepted accounting principles or any applicable law, rule or
regulation, except that any Subsidiary may change its fiscal year to
that of the Borrower.
(d) Change in Nature of Business. Permit the material business
activities, taken as a whole, of the Borrower and its Subsidiaries to be
altered in any substantial and material way.
(e) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options
or futures contracts or any similar speculative transactions except to
hedge the exposure of the Borrower or its Subsidiaries to the underlying
commodity, interest rate or foreign currency.
(f) Subsidiary Debt. Permit its Subsidiaries to incur Debt to a
Person other than the Borrower or any of its Subsidiaries in excess of
$250 million, in the aggregate, at any time outstanding.
SECTION 5.03. Financial Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Leverage Ratio. Maintain, at the end of each fiscal quarter
of the Borrower, a ratio of Consolidated Funded Debt as of such date to
Consolidated EBITDA for the four fiscal quarters ending on such date of
not greater than 3.25:1.00.
(b) Interest Coverage Ratio. Maintain, at the end of each fiscal
quarter of the Borrower, a ratio of Consolidated EBITDA to Interest
Expense of not less than 3.5:1.0 for the four fiscal quarters ending on
such date.
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 of fees or other
amounts payable under this Agreement or any Note within three Business
Days after the same becomes due and payable; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or by the Borrower (or any of its officers) in
connection with this Agreement shall prove to have been incorrect in any
material respect when made or deemed made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (e), (h) or (i),
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 the earlier of (i) knowledge thereof by any Specified
31
Officer and (ii) the date on which written notice thereof shall have
been given to the Borrower by the Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal or notional amount of at least $50,000,000 in the aggregate
(but excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof (except for any secured debt that becomes due by reason of the
sale or other disposition of the asset securing such debt provided such
debt is repaid at the time of such sale or disposition); or
(e) The Borrower or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by
or against the Borrower or any of its Subsidiaries seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors (except for any such
liquidation or winding up of any Subsidiary of the Borrower permitted
under this Agreement), or seeking the entry of an order for relief or
the appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by
it), either such proceeding shall remain undismissed or unstayed for a
period of 30 days, or any of the actions sought in such proceeding
(including, without limitation, the 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 Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in this
subsection (e); or
(f) Judgments or orders for the payment of money in excess of
$50,000,000 in the aggregate shall be rendered against the Borrower or
any of its Subsidiaries and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order or (ii)
there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided, however, that any such
judgment or order shall not be an Event of Default under this Section
6.01(f) to the extent that and for so long as (i) the amount of such
judgment or order is covered by a valid and binding policy of insurance
between the defendant and the insurer covering payment thereof and (ii)
such insurer, which shall be rated at least "A" by A.M. Best Company,
has been notified of, and has not declined the claim made for payment
of, the amount of such judgment or order; or
(g) Any non-monetary judgment or order shall be rendered against
the Borrower or any of its Subsidiaries that is reasonably likely to
have a Material Adverse Effect, and there shall be any period of 10
consecutive Business Days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect; or
(h) (i) Any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange Act
of 1934), directly or indirectly, of Voting Stock of the Borrower (or
other securities convertible into such Voting Stock) representing 35% or
more of the combined voting power of all Voting Stock of the Borrower;
or (ii) during any period of up to 12 consecutive months, commencing
before or after the date of this Agreement, individuals who at the
beginning of such 12-month period were directors of the Borrower shall
cease for any reason to constitute a majority of the board of directors
of the
32
Borrower; or (iii) any Person or two or more Persons acting in concert
shall have acquired by contract or otherwise, or shall have entered into
a contract or arrangement that, upon consummation, will result in its or
their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower;
or
(i) The Borrower or any of its ERISA Affiliates shall incur, or,
in the reasonable opinion of the Required Lenders, shall be reasonably
likely to incur liability in excess of $50,000,000 in the aggregate as a
result of one or more of the following: (i) the occurrence of any ERISA
Event; (ii) the partial or complete withdrawal of the Borrower or any of
its ERISA Affiliates from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan; or
(j) The Borrower asserts, or a final non-appealable determination
is rendered by a court of competent jurisdiction to the effect, that
this Agreement or any of the Notes is invalid or unenforceable.
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required 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 Required 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, however, 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 AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the 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 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 Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The 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. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assumption Agreement entered into by an Assuming Lender as provided in
Section 2.16 or 2.17, as the case may be, or 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 8.06; (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, observance or satisfaction of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or
the existence at any time of any Default or to inspect the property (including
the books and records) of the Borrower;
33
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by facsimile
transmission or electronic mail message) believed by it to be genuine and signed
or sent by the proper party or parties.
SECTION 7.03. CUSA and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, CUSA 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 Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include CUSA in its
individual capacity. CUSA 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 CUSA were not the
Agent and without any duty to account therefor to the Lenders. The Agent shall
have no duty to disclose any information obtained or received by it or any of
its Affiliates relating to the Borrower or any of its Subsidiaries to the extent
such information was obtained or received in any capacity other than as Agent.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the 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 own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the 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
Agent (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, claims, 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 the Agent in any way relating to or arising out of this Agreement or any
action taken or omitted by the Agent under this Agreement (collectively, the
"Indemnified Costs"), provided that no Lender shall be liable for any portion of
the Indemnified Costs resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including counsel fees) incurred by the 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 Agent is not reimbursed for such expenses by the
Borrower. In the case of any investigation, litigation or proceeding giving rise
to any Indemnified Costs, this Section 7.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a
third party.
SECTION 7.06. Successor Agent. The Agent may resign at any time
by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent, provided that the appointment of any such successor Agent shall
be subject to the consent of the Borrower (not to be unreasonably withheld or
delayed) so long as no Event of Default has occurred and is continuing. If no
successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
of notice of resignation or the Required Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a commercial bank organized under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent,
34
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 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 Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) except as otherwise
provided herein, increase the Commitments of the Lenders or any Lender's
percentage thereof, (c) reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, (d) except as otherwise provided
herein, postpone any date fixed for any payment of principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the number of Lenders, that shall be required for the Lenders or any
of them to take any action hereunder or (f) amend this Section 8.01; and
provided, further that no amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Agent under this Agreement or any
Note.
SECTION 8.02. Notices, Etc. (a) All notices, requests, demands,
and other communications relating this Agreement which any party is required or
desires to give to the other shall be in writing, shall be sent by United States
mail, commercial delivery service, facsimile transmission, or electronic mail
and shall be addressed to the party to receive the notice as specified in this
Section. Any party may change its address for notices by sending a Notice
pursuant to this Section 8.02.
(b) Notices to be sent to the Borrower via United States mail,
delivery service or facsimile transmission shall be addressed to the Borrower at
its address at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Treasurer (Facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to the same
address, Attention: General Counsel (Facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇). Notices to
be delivered to any Initial Lender shall be addressed to the Initial Lender at
its Domestic Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending Office specified in the Assumption
Agreement or the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Agent, at its address at ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇ (Facsimile no.: (302)
894-6120), with a copy to ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇)].
Each party shall designate an address for the delivery of electronic mail
messages at the written request of any other party.
(c) Notices sent by United States Mail shall be sent by first
class mail, registered or certified, postage prepaid, and properly addressed and
shall be deemed to have been given on the date actually received or the fifth
day after mailing, whichever is earlier. Notices sent by commercial delivery
service shall be sent using a service that provides traceability of packages and
shall be deemed given on the date actually received or on the third business day
after the date they are picked up by the delivery service. Notices given by
facsimile transmission shall be deemed given on the next business day after the
date transmitted, provided a confirming signed original is mailed to the party
to whom the notice is addressed on the date it is transmitted. Electronic mail
messages shall be deemed given to the addressee of such message only upon
receipt of a reply electronic mail message confirming receipt; provided,
however, that an automated "out of office" or similar reply message shall not be
deemed to confirm receipt.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the 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.
35
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay
on demand all costs and expenses of the Agent and the Arrangers in connection
with the preparation, execution, delivery, administration, modification and
amendment of this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, (A) all due diligence, syndication
(including printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent and the Arrangers with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement. The Borrower further agrees to pay on
demand all costs and expenses of the 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
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 Agent, each
Arranger 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 liabilities, obligations, claims, damages, losses,
penalties, actions, judgments, suits, costs, disbursements and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or (ii) the actual or alleged presence of Hazardous
Materials on any property of the Borrower or any of its Subsidiaries or any
Environmental Action relating in any way to the Borrower or any of its
Subsidiaries, except to the extent such liability, obligation, claim, damage,
loss, penalty, action, judgment, suit, cost, disbursement or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct,
in each case regardless of whether the event giving rise to such liability shall
have occurred prior to, on or after the date hereof. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 8.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, equityholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated.
Notwithstanding any other provisions to the contrary herein, no obligation to
indemnify and hold harmless any Indemnified Party under this Section arises from
a failure by such Indemnified Party to comply with any laws, regulations, rules
or orders that may apply to its business, or a failure by such Indemnified Party
to possess the capacity to participate in the transactions contemplated by this
Agreement or to take all actions necessary to authorize its participation in
such transactions. The Borrower also agrees not to assert any claim for special,
indirect, consequential or punitive damages against the Agent, any Lender, any
of their Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability arising out of or otherwise
relating to the Notes, this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Advances.
(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, as a result of a
payment or Conversion pursuant to Section 2.07(d) or (e), 2.09 or 2.11,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, the Borrower shall, within seven days following demand by such
Lender accompanied by a calculation in reasonable detail of the amount demanded
(with a copy of such demand to the Agent), pay to the 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 2.10, 2.13 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
36
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Notes due and payable pursuant to the provisions of
Section 6.01, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender or such Affiliate to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement and the Note held by such Lender, whether or not such
Lender shall have made any demand under this Agreement or such Note and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Lender and its Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Section 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the 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 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. (a) Each Lender may
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 Advances owing to it and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all rights and obligations under this Agreement, (ii)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, (iii) each such assignment shall be to an Eligible Assignee, and (iv)
the parties to each such assignment shall execute and deliver to the Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance,
together with any 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, (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 (other than its rights under
Sections 2.11, 2.14 and 8.04 to the extent any claim thereunder relates to an
event arising prior to such assignment) 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; (iv) such assignee will, independently and without
reliance upon the 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
37
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the 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
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in Section 8.02
a copy of each Assumption Agreement and each Assignment and 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
Advances owing to, each 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 Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the Agent
in exchange for the surrendered Note a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Note to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit A
hereto.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
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 Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the 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.
(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.
(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 Note 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) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle
sponsored, administered or managed by the Granting Lender (a "SPC"),
38
identified as such in writing from time to time by the Granting Lender to the
Agent and the Borrower, the option to provide to the Borrower all or any part of
any Advance that such Granting Lender would otherwise be obligated to make to
the Borrower pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to make any Advance, (ii) no SPC shall,
solely by reason of any such grant or any Advance made by such SPC thereunder,
be deemed to be a Lender hereunder, and (iii) the Granting Lender shall not be
relieved of any of its obligations under this Agreement by reason of any such
grant and, if an SPC elects not to exercise such option or otherwise fails to
provide all or any part of such Advance, the Granting Lender shall be obligated
to make such Advance pursuant to the terms hereof. The making of an Advance by
an SPC hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Advance were made by such Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPC, it
will not institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof with
respect to any claim arising out of, or relating to, this Agreement or any Note
or the performance or non-performance of any obligation thereunder. In addition,
notwithstanding anything to the contrary contained in this Section 8.07(h), any
SPC may (A) with notice to, but without (except as provided below) the prior
written consent of, the Borrower and the Agent and without paying any processing
fee therefor, assign all or a portion of its interests in any Advances to the
Granting Lender or, with the consent of the Borrower and the Agent, to any
financial institutions providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Advances and (B)
disclose on a confidential basis (subject to the same terms as set forth in
Section 8.08 with respect to the disclosure of any Confidential Information to
assignees and participants) any non-public information relating to its Advances
to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC. For the avoidance of
doubt, notwithstanding anything in this Section 8.07(h) to the contrary, no SPC
nor any institution providing liquidity and/or credit support to, or for the
account of, such SPC shall be entitled to the benefits of a Lender under this
Agreement, including, but not limited to, the benefits under Sections 2.10 or
2.13 or any indemnification provisions, and the Granting Lender shall for all
purposes, including any consent, approval or waiver hereunder, continue to be
the Lender entitled to all the rights and benefits of a Lender under this
Agreement, and bound by the obligations of a Lender hereunder, provided that in
any case any such SPC (or any assignee thereof) shall be entitled to receive
payments due in respect of any Advance made by such SPC hereunder. The Granting
Lender hereby agrees to indemnify and hold harmless the Borrower from any
additional cost or expense incurred by the Borrower in connection with the
transactions contemplated by this Section 8.07(h) with respect to any grant made
by such Granting Lender to any SPC . This section may not be amended without the
written consent of the SPC.
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender
shall disclose any Confidential Information to any other Person without the
consent of the Borrower, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and, as
contemplated by Section 8.07(f), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any law,
rule or regulation or judicial process; provided that unless specifically
prohibited by applicable law or court order each Lender and the Agent shall use
reasonable efforts to endeavor to notify the Borrower of any request of any
governmental authority (other than any such request in connection with an
examination of the financial condition or operation of such Lender or the Agent)
for disclosure of any confidential information prior to disclosure thereof and
(c) as requested or required by any state, federal or foreign authority or
examiner regulating banks or banking. Before the Agent or any Lender discloses
any Confidential Information to any actual or prospective assignees and
participants, the Agent or Lender wishing to disclose the Confidential
Information shall obtain the written agreement of the proposed recipient to keep
the information confidential. Each such written agreement shall state that it is
for the benefit of and may be enforced by Borrower and a copy of the written
agreement signed by the proposed recipient shall be sent to Borrower.
SECTION 8.09. Governing Law. This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
39
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 facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. 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.
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the
Agent and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
40
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.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.,
as Borrower
By
--------------------------------
Name:
Title:
CITICORP USA, INC.,
as Administrative Agent
By
--------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
as Syndication Agent
By
--------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
as Arranger
By
--------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES, LLC,
as Arranger
By
--------------------------------
Name:
Title:
41
Initial Lenders
Commitment
CITICORP USA, INC.
By
--------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By
--------------------------------
Name:
Title:
BANK ONE, N.A.
By
--------------------------------
Name:
Title:
FLEET NATIONAL BANK
By
--------------------------------
Name:
Title:
42
MELLON BANK, N.A.
By
--------------------------------
Name:
Title:
ABN AMRO BANK NV
By
--------------------------------
Name:
Title:
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By
--------------------------------
Name:
Title:
By
--------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By
--------------------------------
Name:
Title:
43
CREDIT SUISSE FIRST BOSTON
By
--------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By
--------------------------------
Name:
Title:
▇▇▇▇▇ FARGO BANK, N.A.
By
--------------------------------
Name:
Title:
Total of the Commitments
44
EXHIBIT A
FORM OF
PROMISSORY NOTE
U.S.$ Dated: , 20
--------------- --------------- --
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (each as defined in the Credit Agreement
referred to below) the principal sum of U.S.$[amount of the Lender's Commitment
in figures] or, if less, the aggregate principal amount of the Advances made by
the Lender to the Borrower pursuant to the Credit Agreement dated as of July 10,
2002 among the Borrower, the Lender and certain other lenders parties thereto,
and Citicorp USA, Inc., as Agent for the Lender and such other lenders (as
amended or modified from time to time, the "Credit Agreement"; the terms defined
therein being used herein as therein defined) outstanding on the Termination
Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citicorp USA, Inc., as Agent, at ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in same day funds. Each Advance owing to the
Lender by the Borrower pursuant to the Credit Agreement, and all payments made
on account of principal thereof, shall be recorded by the Lender and, prior to
any transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
By
--------------------------
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF
PRINCIPAL PAID OR UNPAID PRINCIPAL
DATE AMOUNT OF ADVANCE PREPAID BALANCE NOTATION MADE BY
---------------------- -------------------- -------------------- -------------------- -------------------
EXHIBIT B
FORM OF
NOTICE OF BORROWING
Citicorp USA, Inc., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ____________________
[Date]
Ladies and Gentlemen:
The undersigned, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., refers to the Credit
Agreement, dated as of July 10, 2002 (as amended or modified from time to time,
the "Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, certain Lenders parties thereto and Citicorp
USA, Inc., as Agent for said Lenders, and hereby gives you notice, irrevocably,
pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby
requests a Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Borrowing (the "Proposed
Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________, 20__.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
(iv) [The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Borrowing is __________ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section 4.01
of the Credit Agreement are correct, before and after giving effect to
the Proposed Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date (except to the extent such
representations and warranties relate to an earlier date, in which case
as though made on and as of such earlier date); and
(B) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
By
--------------------------
Title:
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of July 10,
2002 (as amended or modified from time to time, the "Credit Agreement") among
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., a Delaware corporation (the "Borrower"), the Lenders (as
defined in the Credit Agreement) and Citicorp USA, Inc., as agent for the
Lenders (the "Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in
and to the Assignor's rights and obligations under the Credit Agreement
as of the date hereof equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the
Credit Agreement. After giving effect to such sale and assignment, the
Assignee's Commitment and the amount of the Advances owing to the
Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with the Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower
or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Note held by
the Assignor and requests that the Agent exchange such Note for a new
Note payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto or new Notes payable
to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and the Assignor in an amount
equal to the Commitment retained by the Assignor under the Credit
Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements
referred to in Section 4.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the
Assignor or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints
and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers
and discretion as are reasonably incidental thereto; (v) agrees that it
will perform in accordance with their terms all of the obligations that
by the terms of the Credit Agreement are required to be performed by it
as a Lender; and (vi) attaches any U.S. Internal Revenue Service forms
required under Section 2.13 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance and recording by the
Agent. The effective date for this Assignment and Acceptance (the
"Effective Date") shall be the date of acceptance hereof by the Agent,
unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its obligations
under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the
Credit Agreement and the Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal,
interest and facility fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and the Notes for periods prior to the
Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number
of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of Schedule 1 to
this Assignment and Acceptance by facsimile transmission shall be
effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $_______________
Aggregate outstanding principal amount of Advances $_______________
assigned:
Principal amount of Note payable to Assignee: $_______________
Principal amount of Note payable to Assignor: $_______________
Effective Date(1): _______________, 20__
[NAME OF ASSIGNOR], as Assignor
By
--------------------------------
Title:
Dated: _______________, 20__
[NAME OF ASSIGNEE], as Assignee
By
--------------------------------
Title:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted [and Approved](2) this
day of , 20
---------- --------------- --
, as Agent
-------------------------
By
--------------------------------
Title:
[Approved this day of , 20
---------- --------------- --
--------
(1) This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
(2) Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
[NAME OF BORROWER]
By ](1)
--------------------------------
Title:
--------
(1) Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
2