REVOLVING CREDIT AGREEMENT Dated as of July 27, 2005 among PROCTER & GAMBLE INTERNATIONAL S.A.R.L. AND THE ADDITIONAL BORROWERS (AS DEFINED HEREIN) as the Borrowers and THE LENDERS PARTY HERETO as Lenders and CITIBANK, N.A. as Administrative Agent and...
U.S.
$24,000,000,000
Dated
as
of July 27, 2005
among
PROCTER
& ▇▇▇▇▇▇ INTERNATIONAL S.A.R.L.
AND
THE
ADDITIONAL BORROWERS (AS DEFINED HEREIN)
as
the
Borrowers
and
THE
LENDERS PARTY HERETO
as
Lenders
and
CITIBANK,
N.A.
as
Administrative Agent
and
CITIGROUP
GLOBAL MARKETS INC.
as
Sole
Lead Arranger and Sole Book Runner
and
JPMORGAN
CHASE BANK, N.A.
as
Syndication Agent
and
ABN
AMRO BANK N.V. AND DEUTSCHE BANK SECURITIES INC.
as
co-Documentation Agents
TABLE
OF CONTENTS
Page
|
ARTICLE
I
|
DEFINITIONS
AND ACCOUNTING TERMS
|
SECTION
1.01 Certain
Defined Terms
SECTION
1.02 Computation
of Time Periods
SECTION
1.03 Accounting
Terms
|
ARTICLE
II
|
AMOUNTS AND TERMS OF THE ADVANCES |
SECTION
2.01 The
Revolving Credit Advances
SECTION
2.02 Making
the Revolving Credit Advances
SECTION
2.03 Competitive
Bid Facility
SECTION
2.04 Facility
Fee
SECTION
2.05 Termination
or Reduction of the Commitments
SECTION
2.06 Repayment
of Advances
SECTION
2.07 Interest
on Revolving Credit Advances
SECTION
2.08 Interest
Rate Determination
SECTION
2.09 Optional
Conversion of Advances
SECTION
2.10 Prepayments
SECTION
2.11 Increased
Costs
SECTION
2.12 Illegality
SECTION
2.13 Payments
and Computations
SECTION
2.14 Taxes
SECTION
2.15 Sharing
of Payments, Etc
SECTION
2.16 Use
of
Proceeds
SECTION
2.17 Evidence
of Debt
SECTION
2.18 Call
Right of Affiliates
|
ARTICLE
III
|
CONDITIONS
TO EFFECTIVENESS AND LENDING
|
SECTION
3.01 Conditions
Precedent to Initial Borrowing
SECTION
3.02 Conditions
Precedent to Each Borrowing
SECTION
3.03 Determinations
Under Section 3.01
|
ARTICLE
IV
|
REPRESENTATIONS
AND WARRANTIES
|
SECTION
4.01 Representations
and Warranties of the Borrowers
|
ARTICLE
V
|
COVENANTS
OF THE BORROWERS
|
SECTION
5.01 Affirmative
Covenants
SECTION
5.02 Negative
Covenants
|
ARTICLE
VI
|
EVENTS
OF DEFAULT
|
SECTION
6.01 Events
of
Default
SECTION
6.02 Remedies
|
ARTICLE
VII
|
THE
AGENT
|
SECTION
7.01 Authorization
and Action
SECTION
7.02 Agent’s
Reliance, Etc
SECTION
7.03 Citibank
and
Affiliates
SECTION
7.04 Lender
Credit Decision
SECTION
7.05 Indemnification
SECTION
7.06 Successor
Agent
SECTION
7.07 Sub-Agent
SECTION
7.08 Other
Agents
|
ARTICLE
VIII
|
MISCELLANEOUS
|
SECTION
8.01 Amendments,
Etc
SECTION
8.02 Notices,
Etc
SECTION
8.03 No
Waiver;
Remedies
SECTION
8.04 Costs
and
Expenses
SECTION
8.05 Right
of
Set-off
SECTION
8.06 Binding
Effect
SECTION
8.07 Assignments
and Participations
SECTION
8.08 Confidentiality
SECTION
8.09 Judgment
Currency
SECTION
8.10 Additional
Borrowers; Assumption of Advances
SECTION
8.11 Governing
Law
SECTION
8.12 Jurisdiction
SECTION
8.13 Execution
in Counterparts
SECTION
8.14 Waiver
of
Jury Trial
SECTION
8.15 Patriot
Act
Schedules
|
Schedule
I
|
-
|
List
of Applicable Lending Offices
|
Exhibits
|
Exhibit
A-1
|
-
|
Form
of Notice of Revolving Credit
Borrowing
|
|
Exhibit
A-2
|
-
|
Form
of Notice of Competitive Bid
Borrowing
|
|
Exhibit
B
|
-
|
Form
of Assignment and Acceptance
|
|
Exhibit
C-1
|
-
|
Form
of Opinion of Luxembourg Counsel for the Initial
Borrower
|
|
Exhibit
C-2
|
-
|
Form
of Opinion of In-house Counsel for the Initial
Borrower
|
|
Exhibit
C-3
|
-
|
Form
of Opinion of Special Counsel for the Initial
Borrower
|
|
Exhibit
D
|
-
|
Form
of Borrower Accession Agreement
|
|
Exhibit
E
|
-
|
Form
of Pledge Agreement
|
|
Exhibit
F
|
-
|
Form
of Guaranty Agreement
|
|
Exhibit
G
|
-
|
Form
of Registration Rights Agreement
|
|
Exhibit
H
|
-
|
Form
of Section 2.14 Certificate
|
|
Exhibit
I-1
|
-
|
Form
of Revolving Credit Note
|
|
Exhibit
I-2
|
-
|
Form
of Competitive Bid Note
|
$24,000,000,000
Dated
as
of July 27, 2005
PROCTER
& ▇▇▇▇▇▇ INTERNATIONAL S.A.R.L.,
a
société
à responsabilité limitée
organized under the laws of the Grand Duchy of Luxembourg (the “Initial
Borrower”
and,
together with the Additional Borrowers (as hereinafter defined), collectively,
the “Borrowers”),
the
LENDERS PARTY HERETO, CITIBANK, N.A., as administrative agent for such
Lenders
(together with any successor thereto appointed pursuant to Article VII, the
“Agent”),
CITIGROUP GLOBAL MARKETS INC., as sole lead arranger and sole book
runner,
JPMORGAN CHASE BANK, N.A., as syndication agent, and ABN AMRO BANK
N.V. and
DEUTSCHE BANK SECURITIES INC., as co-documentation agents, 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):
“Act”
has
the
meaning specified in Section 8.15.
“Additional
Borrowers”
has
the
meaning specified in Section 8.10(a).
“Advance”
means
a
Revolving Credit Advance or a Competitive Bid Advance by a Lender to
a Borrower
as part of a Borrowing, and refers to a Base Rate Advance or a Eurocurrency
Rate
Advance (each of which shall be a “Type”
of
Advance).
“Affiliate”
means,
as to any Person, any other Person that, directly or indirectly, controls,
is
controlled by or is under common control with such Person or is a director
or
officer of such Person. For purposes of this definition, the term “control”
(including the terms “controlling”, “controlled by” and “under common control
with”) of a Person means the possession, direct or indirect, of the power
to
vote 10% or more of the Voting Equity of such Person.
“Affiliate
Guaranteed Borrower”
means
any Additional Borrower as to which a Guaranty Agreement by any Borrower
or any
Affiliate thereof is delivered in accordance with
Section 8.10(a)(iv).
“Agent’s
Account”
means
(a) the account of the Agent maintained thereby at Citibank, N.A., at its
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Account No. ________,
Attention: Bank Loan Syndications, (b) in the case of Advances denominated
in Euros, the account of the Sub-Agent designated in writing from time
to time
by the Agent to the Borrowers and the Lenders for such purpose, and
(c) in
any such case, such other account of the Agent as is designated in
writing from
time to time by the Agent to each of the Borrowers and the Lenders
for such
purpose.
“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 Eurocurrency Lending Office in the case
of a Eurocurrency Rate Advance and, in the case of a Competitive Bid
Advance,
the office of such Lender or any of its Affiliates notified by such
Lender to
the Agent as its Applicable Lending Office with respect to such Competitive
Bid
Advance. It is acknowledged and agreed that any Lender may have one
or more
Applicable Lending Offices with respect to Advances of any Type made
or to be
made to any Borrower and one or more other Applicable Lending Offices
with
respect to Advances of such Type made or to be made to any other
Borrower.
“Applicable
Margin”
means,
as of any date, (a) for Base Rate Advances, 0.000% per annum and
(b) for Eurocurrency Rate Advances, 0.060% per annum.
“Assignment
and Acceptance”
means
an assignment and acceptance entered into by a Lender and any Person
and
approved by the Initial Borrower and the Agent, in substantially the
form of
Exhibit
B
hereto.
“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 higher of:
(a) the
rate
of interest announced publicly by Citibank, N.A. in New York, New York,
from
time to time, as Citibank, N.A.’s base rate; and
(b)
0.50%
per
annum above the Federal Funds Rate.
“Base
Rate Advance”
means
a
Revolving Credit Advance denominated in Dollars that bears interest
as provided
in Section 2.07(a)(i).
“beneficial
owner”
has
the
meaning specified in Section 2.14(c)(v).
“Borrowers”
has
the
meaning specified in the recital of parties to this Agreement.
“Borrowing”
means
a
Revolving Credit Borrowing or a Competitive Bid Borrowing.
“Borrower
Accession Agreement”
has
the
meaning specified in Section 8.10(a).
“Business
Day”
means
a
day of the year on which banks are not required or authorized by law
to close in
New York City and, if the applicable Business Day relates to any Eurocurrency
Rate Advances, on which dealings are carried on in the London interbank
market
(or, in the case of an Advance denominated in Euros, on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System
is
open).
“Closing
Date”
has
the
meaning specified in Section 3.01.
“Collateral”
has
the
meaning specified in Section 1 of the Pledge Agreement
“Commitment”
means,
with respect to each Lender, the amount set forth opposite such Lender’s name on
the signature pages hereof or, if such Lender has entered into any
Assignment
and Acceptance, set forth for such Lender in the Register maintained
by the
Agent pursuant to Section 8.07(d), as such amount may be reduced pursuant
to Section 2.05.
“Communications”
has
the
meaning specified in Section 8.02(b).
“Company”
means
The Procter & ▇▇▇▇▇▇ Company, an Ohio corporation of which the Initial
Borrower is, as of the Closing Date, a wholly-owned Subsidiary.
“Competitive
Bid Advance”
means
an advance by a Lender to any Borrower as part of a Competitive Bid
Borrowing
and refers to a Fixed Rate Advance or a Eurocurrency Rate Advance.
“Competitive
Bid Borrowing”
means
a
borrowing consisting of simultaneous Competitive Bid Advances from
each of the
Lenders whose offer to make one or more Competitive Bid Advances as
part of such
Borrowing has been accepted under the competitive bidding procedure
described in
Section 2.03.
“Competitive
Bid Note”
has
the
meaning specified in Section 2.03(f).
“Competitive
Bid Reduction”
means,
at any time, the deemed use of each Lender’s Commitment in an amount equal to
such Lender’s Pro Rata Share of all outstanding Competitive Bid Advances at such
time.
“Confidential
Information”
means
information that the Company or any Loan Party furnishes to the Agent
or any
Lender on a confidential basis or that a reasonable Person would conclude
is
confidential or proprietary, but does not include any such information
that is
or becomes generally available to the public or that is or becomes
available to
the Agent or such Lender from a source other than any of the Loan Parties,
the
Company or any of their Affiliates or any of their respective
advisors.
“Consolidated”
refers
to the consolidation of accounts in accordance with GAAP.
“Consolidated
Assets”
means,
with respect to any Loan Party, all assets of such Loan Party and its
Included
Subsidiaries that, in accordance with GAAP, would be classified as
assets on the
balance sheet of such Loan Party determined on a Consolidated
basis.
“Convert”,
“Conversion”
and
“Converted”
each
refers to a conversion of Advances of one Type into Advances of the
other Type
pursuant to Section 2.08 or 2.09.
“Covered
Jurisdiction”
means,
with respect to any Borrower, the United States, Switzerland and Ireland.
“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 trade payables incurred
in
the ordinary course of such Person’s business), (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 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 non-contingent obligations to reimburse any Person in
respect of any amounts paid under acceptances, letters of credit or
similar
extensions of credit, (g) all 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 guaranteed directly or indirectly in
any manner by such Person, or in effect guaranteed directly or indirectly
by
such Person through an agreement (i) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such Debt, (ii) 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 Debt or to assure the holder of such Debt against loss, (iii) 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 (iv) otherwise to assure a
creditor against loss, and (i) all Debt referred to in clauses (a)
through (h) above secured by (or for which the holder of such Debt
has an
existing right, contingent or otherwise, to be secured by) any Mortgage
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.
“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.
“Dollars”
and
the
“$”
sign
each means lawful currency of the United States of America.
“Domestic
Lending Office”
means,
with respect to any Lender, the office, offices, Affiliate or Affiliates
of such
Lender specified as its “Domestic Lending Office” opposite its name on Schedule
I hereto or in the Assignment and Acceptance pursuant to which it became
a
Lender, or such other office or Affiliate of such Lender as such Lender
may from
time to time specify to each of the Borrowers and the Agent. It is
acknowledged
and agreed that any Lender may specify one or more Domestic Lending
Offices with
respect to Advances made or to be made to any Borrower and one or more
other
Domestic Lending Offices with respect to Advances made or to be made
to any
other Borrower; provided that no Lender may specify more than one Domestic
Lending Office unless it also specifies a “Principal Domestic Lending Office”,
in which case such “Principal Domestic Lending Office” shall be deemed to be its
“Domestic Lending Office” for purposes of the definition herein of “Eurocurrency
Lending Office and Section 8.02.
“EBITDA”
means,
for any Person for any period, net income (or net loss) plus the sum
of
(a) interest expense, (b) income tax expense, (c) depreciation
expense and (d) amortization expense, in each case determined for such
Person and its Consolidated Subsidiaries in accordance with GAAP for
such
period.
“EMU”
means
Economic and Monetary Union as contemplated in the Treaty of Rome.
“EMU
Legislation”
means
legislative measures of the European Union for the introduction of,
changeover
to or operation of the Euro in one or more member states, being in
part
legislative measures to implement EMU.
“Equivalent”
in
Dollars of Euros on any date means the equivalent in Dollars of Euros
determined
by using the quoted spot rate at which the Sub-Agent’s principal office in
London offers to exchange Dollars for Euros in London prior to 4:00 P.M.
(London time) (unless otherwise indicated by the terms of this Agreement)
on
such date as is required pursuant to the terms of this Agreement, and
the
“Equivalent” in Euros of Dollars means the equivalent in Euros of Dollars
determined by using the quoted spot rate at which the Sub-Agent’s principal
office in London offers to exchange Euros for Dollars in London prior
to
4:00 P.M. (London time) (unless otherwise indicated by the terms of this
Agreement) on such date as is required pursuant to the terms of this
Agreement.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended from
time to
time, and the regulations promulgated and rulings issued
thereunder.
“EURIBO
Rate”
means,
for any Interest Period, the rate per annum (rounded upward to the
nearest whole
multiple of 1/100 of 1% per annum, if such average is not such a multiple)
appearing on Page 248 of the Moneyline Telerate Service (or on any
successor or substitute page) as the London interbank offered rate
for deposits
in Euro at approximately 11:00 A.M. (London time) on the Business Day
immediately preceding the commencement of such Interest Period, for
a term
comparable to such Interest Period or, if for any reason such rate
is not
available, the average (rounded upward to the nearest whole multiple
of 1/100 of
1% per annum, if such average is not such a multiple) of the respective
rates
per annum at which deposits in Euros 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) on the Business Day immediately
preceding the first day of such Interest Period in an amount substantially
equal
to such Reference Bank’s Eurocurrency Rate Advance comprising part of such
Borrowing to be outstanding during such Interest Period and for a period
equal
to such Interest Period, subject, however, to the provisions of
Section 2.08.
“Euro”
and
“(euro)”means
the lawful currency of the European Union as constituted by the Treaty
of Rome
which established the European Community.
“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.
“Eurocurrency
Lending Office”
means,
with respect to any Lender, the office, offices, Affiliate or Affiliates
of such
Lender specified as its “Eurocurrency Lending Office” opposite its name on
Schedule I hereto or in 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, offices, Affiliate or Affiliates of such Lender
as such
Lender may from time to time specify to each of the Borrowers and the
Agent. It
is acknowledged and agreed that any Lender may specify one or more
Eurocurrency
Lending Offices with respect to Advances made or to be made to any
Borrower and
one or more other Eurocurrency Lending Offices with respect to Advances
made or
to be made to any other Borrower.
“Eurocurrency
Rate”
means,
for any Interest Period for each Eurocurrency Rate Advance comprising
part of
the same Borrowing, (a) in the case of any Advance denominated in Dollars,
the rate per annum (rounded upward to the nearest whole multiple of
1/100 of 1%
per annum) appearing on Moneyline Telerate Markets Page 3750 (or on any
successor or substitute page) as the London interbank offered rate
for deposits
in Dollars at approximately 11:00 A.M. (London time) on the Business Day
immediately preceding the first day of such Interest Period, for a
term
comparable to such Interest Period or, if for any reason such rate
is not
available, the average (rounded upward to the nearest whole multiple
of 1/100 of
1% per annum, if such average is not such a multiple) of the rate per
annum at
which deposits in Dollars is 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) on the Business Day immediately preceding the
first day of such Interest Period in an amount substantially equal
to such
Reference Bank’s Eurocurrency Rate Advance comprising part of such Borrowing to
be outstanding during such Interest Period and for a period equal to
such
Interest Period or, (b) in the case of any Advance denominated in Euros,
the EURIBO Rate. If the Moneyline Telerate Markets Page 3750 (or on any
successor or substitute page) is unavailable, the Eurocurrency Rate
for any
Interest Period for each Eurocurrency 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 on
the Business
Day immediately preceding the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
“Eurocurrency
Rate Advance”
means
a
Revolving Credit Advance denominated in either Optional Currency that
bears
interest as provided in Section 2.07(a)(ii) or a Competitive Bid Advance
denominated in either Optional Currency that bears interest by reference
to the
Eurocurrency Rate.
“Events
of Default”
has
the
meaning specified in Section 6.01.
“Excluded
Taxes”
means,
(a) with respect to any Lender or the Agent, Taxes imposed on such
Person’s
overall net income (and franchise Taxes imposed on such Person in lieu
of net
income Taxes) as a result of any present or former connection between
such
Person and the relevant taxing authority, in each case, whether in
effect as of
the date hereof or subsequently imposed as a result of a Change in
Law, and (b)
with respect to payments made by any Borrower organized in a Covered
Jurisdiction to any Person, any Taxes not imposed as a direct result
of a Change
in Law occurring after the date on which such Person became a Lender
or the
Agent.
“Existing
Agent”
means
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, in its capacity as agent under the
Existing
Credit Agreement.
“Existing
Credit Agreement”
means
the Bridge Credit Agreement dated as of January 28, 2005 between the
Initial Borrower and the Existing Agent, as amended, supplemented and
otherwise
modified by the First Amendment to Bridge Credit Agreement and Pledge
Agreement
dated as of April 14, 2005, the Second Amendment to Bridge Credit Agreement
dated as of May 4, 2005 and the Third Amendment to Bridge Credit Agreement
dated as of May 17, 2005.
“Existing
Pledge Agreement”
means
the Pledge Agreement dated as of March 28, 2005 by the Initial Borrower in
favor of the Existing Agent, as amended, supplemented and otherwise
modified by
the First Amendment to Bridge Credit Agreement and Pledge Agreement
dated as of
April 14, 2005 and the Third Amendment to Bridge Credit Agreement dated as
of May 17, 2005.
“Federal
Funds Rate”
means,
for any period, a fluctuating interest rate per annum equal for each
day during
such period to the weighted average of the rates on overnight Federal
funds
transactions with members of the Federal Reserve System arranged by
Federal
funds brokers, as published for such day (or, if such day is not a
Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of
New York,
or, if such rate is not so published for any day that is a Business
Day, the
average of the quotations for such day on such transactions received
by the
Agent from three Federal funds brokers of recognized standing selected
by
it.
“Fixed
Rate Advances”
means
a
Competitive Bid Advance denominated in either Optional Currency that
bears
interest as provided in Section 2.03(a)(i).
“GAAP”
has
the
meaning specified in Section 1.03.
“Guarantor”
means,
with respect to any Affiliate Guaranteed Borrower, the Borrower or
the Affiliate
of a Borrower that has guaranteed the obligations of such Affiliate
Guaranteed
Borrower under a Guaranty Agreement delivered in accordance with Section
8.10(a)(iv).
“Guaranty
Agreement”
means
a
guaranty agreement, in substantially the form of Exhibit
F
hereto,
made by the Initial Borrower or a Related Party in favor of the Agent
and the
Lenders.
“Hedge
Agreements”
means
interest rate swap, cap or collar agreements, interest rate future
or option
contracts, currency swap agreements, currency future or option contracts
and
other similar agreements.
“Included
Subsidiaries”
means
with respect to any Loan Party, the Subsidiaries of such Loan Parties
that such
Loan Party elects to include in the Consolidated financial statements
of such
Loan Party most recently delivered to the Agent pursuant to Section
4.01(e),
5.01(d)(i) or 5.01(d)(ii).
“Initial
Lender”
means
each financial institution identified as an Initial Lender on the signature
pages to this Agreement.
“Interest
Payment Date”
means
(a) with respect to any Base Rate Advance, (i) the last day of each
March, June, September and December during the period in which such
Base Rate
Advance is outstanding and (ii) the date such Base Rate Advance is
Converted or paid in full, and (b) with respect to any Eurocurrency Rate
Advance, (i) the last day of each Interest Period applicable to such
Eurocurrency Rate Advance and, if such Interest Period has a duration
of more
than three months, each day that occurs during such Interest Period
every three
months from the first day of such Interest Period and (ii) the date such
Eurocurrency Rate Advance is Converted or paid in full.
“Interest
Period”
means,
for each Eurocurrency Rate Advance comprising part of the same Borrowing,
the
period commencing on the date of such Eurocurrency Rate Advance or
the date of
the Conversion of any Base Rate Advance into such Eurocurrency Rate
Advance and
ending on the last day of the period selected by the Borrower requesting
a
Borrowing pursuant to the provisions below and, thereafter, with respect
to
Eurocurrency Rate Advances, 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 such Borrower pursuant to the provisions below.
The duration
of each such Interest Period shall be one week or one, two, three or
six months,
as such Borrower may, upon notice received by the Agent not later than
9:00 A.M.
(New York City time) on the Business Day immediately preceding the
first day of
such Interest Period, select; provided,
however,
that:
(a) no
Borrower may select any Interest Period that ends after the Termination
Date;
(b) Interest
Periods commencing on the same date for Eurocurrency Rate Advances
comprising
part of the same Borrowing shall be of the same duration;
(c) 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
(d) 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.
“Lenders”
means
each Initial Lender and each Person that shall become a party hereto
pursuant to
Section 8.07 and, as to any Lender, the term “Lender” includes any of its
Affiliates designated as such by such Lender located in (e.g.,
being
fiscally resident in or organized in or having a branch, office, permanent
establishment or other place of business in) a Covered
Jurisdiction.
“Loan
Documents”
means,
collectively, this Agreement, each Note, if any, each Borrower Accession
Agreement, the Registration Rights Agreement, each Guaranty Agreement
and the
Pledge Agreement.
“Loan
Parties”
means,
collectively, at any time, the Borrowers and the Guarantors at such
time.
“Material
Adverse Change”
means
any material adverse change in the financial condition or results of
operations
of the Borrowers and their Subsidiaries, taken as a whole.
“Material
Adverse Effect”
means
a
material adverse effect on (a) the financial condition or results of
operations of the Loan Parties and their Subsidiaries, taken as a whole,
(b) the rights and remedies of the Agent or the Lenders under any Loan
Document or (c) the ability of the Loan Parties to perform their
obligations under the Loan Document.
“Material
Subsidiary”
means,
at any time, any Subsidiary of the Initial Borrower having (a) assets with
a value of not less than 5% of the total value of the assets of the
Initial
Borrower and its Subsidiaries, taken as a whole, or (b) Consolidated EBITDA
of not less than 5% of the aggregate Consolidated EBITDA of the Initial
Borrower
and its Subsidiaries, taken as a whole, in each case as of the end
of or for the
most recently completed fiscal quarter of the Initial Borrower.
“Moody’s”
means
▇▇▇▇▇’▇ Investors Service, Inc.
“Mortgage”
means
any lien or security interest or other charge or encumbrance having
the effect
of a lien or security interest.
“Non-Excluded
Taxes”
has
the
meaning specified in Section 2.14(a).
“Note”
means
a
Revolving Credit Note or a Competitive Bid Note, as context may
require.
“Notice”
has
the
meaning specified in Section 8.02(c).
“Notice
of Competitive Bid Borrowing”
has
the
meaning specified in Section 2.03(a).
“Notice
of Revolving Credit Borrowing”
has
the
meaning specified in Section 2.02(a).
“Optional
Currency”
means
Dollars or Euros, as context may require.
“Permitted
Mortgages”
means
the following types of Mortgages:
(a) Mortgages
for taxes, assessments and governmental charges or levies to the extent
not
otherwise required to be paid under Section 5.01(b);
(b) Mortgages
imposed by law, including, without limitation, materialmen’s, mechanics’,
carriers’, workmen’s, storage and repairmen’s Mortgages and other similar
Mortgages arising in the ordinary course of business;
(c) pledges
or deposits to secure obligations under workers’ compensation laws, unemployment
insurance or other similar social security legislation (including,
without
limitation, in respect of employee benefit plans subject to ERISA)
or to secure
public or statutory obligations;
(d) Mortgages
securing the performance of, or payment in respect of, tenders, statutory
obligations, contract bids, government or utility obligations, payment,
performance, surety and return-of-money bonds and other similar obligations
incurred in the ordinary course of business and other obligations of
a similar
nature, whether pursuant to statutory requirements, common law or consensual
arrangements;
(e) any
interest or title of a lessor or sublessor or a licensor and any restriction
or
encumbrance to which the interest or title of such lessor, sublessor
or licensor
may be subject;
(f) licenses
and other arrangements for the use of software and other intellectual
property
by such Person;
(g) Mortgages
arising out of judgments or awards that do not constitute an Event
of Default
under Section 6.01(e) or 6.01(f);
(h) rights
of
way, easements, restrictions (including zoning restrictions), covenants,
consents, reservations, encroachments, variations, mineral reservations
and
rights, leases, licenses and other similar restrictions, charges, encumbrances
(whether or not recorded), prior rights of other Persons, and similar
obligations with respect to real property arising by operation of law
or
contained in similar instruments;
(i) Mortgages
arising from the rights of lessors under leases (including financing
statements
regarding property subject to such leases or subleases);
(j) rights
of
consignors of goods, whether or not perfected by the filing of a financing
statement under the Uniform Commercial Code of any jurisdiction (or
similar
filings and recordings under equivalent provisions of applicable law),
including, without limitation, goods which are the subject of tolling
agreements
or manufacturing and servicing agreements; and
(k) customary
rights of set-off upon deposits of cash arising as a matter of law
in favor of
banks, other depository institutions, brokers and other securities
intermediaries in which such cash is maintained in the ordinary course
of
business.
“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.
“Platform”
has
the
meaning specified in Section 8.02(b).
“Pledge
Agreement”
means
the pledge agreement, in substantially the form of Exhibit
E
hereto,
by the Initial Borrower in favor of the Agent.
“Principal
Manufacturing Property”
means
any facility (together with the land on which it is erected and fixtures
comprising a part thereof) used primarily for manufacturing or processing,
wherever located, owned or leased by any Borrower, any Subsidiary of
any
Borrower, or any Guarantor and having a gross book value in excess
of
$750,000,000, other than any such facility or portion thereof (a) which
is a
pollution control or other facility financed by obligations issued
by (i) a
state or local governmental unit pursuant to Section 103(b)(4)(E),
103(b)(4)(F)
or 103(b)(6) of the Internal Revenue Code of 1954, or any successor
provision
thereof, or (ii) the equivalent of the financing referred to in subclause
(a)(i)
above in any jurisdiction other than the United States, or (b) which,
in the
opinion of the Board of Directors of the Intial Borrower or the applicable
Loan
Party, is not of material importance to the total business conducted
by the Loan
Parties and their Subsidiaries, considered as a whole.
“Process
Agent”
has
the
meaning specified in Section 8.12.
“Pro
Rata Share”
of
any
amount means, with respect to any Lender at any time, the product of
(a) a
fraction the numerator of which is the amount of such Lender’s Unused Commitment
at such time and the denominator of which is the aggregate Unused Commitments
of
all Lenders at such time and (b) such amount.
“Reference
Banks”
means
(a) in the case of any Revolving Credit Borrowing, Citibank, N.A. and
[ ] and (b) in the case of any Competitive Bid Borrowing, two of the
Lenders making the all or part of such Competitive Bid Borrowing (as
selected by
the applicable Borrower) or if only one Lender is making such Competitive
Bid
Borrowing, such Lender
“Register”
has
the
meaning specified in Section 8.07(d).
“Registration
Rights Agreement”
means
a
registration rights agreement, in substantially the form of Exhibit G
hereto,
between the Company and the Company and the Agent.
“Related
Party”
means
a
Person (a) a majority of whose voting common equity is owned directly or
indirectly by, or is under common control with, the Initial Borrower,
and that
includes the name “Procter & ▇▇▇▇▇▇” or “P&G” in its legal name or
commonly used trade names, or (b) that directly or indirectly owns
a majority of
the voting common equity in the Initial Borrower and includes the name
“Procter
& ▇▇▇▇▇▇” or “P&G” in its legal name or commonly used trade
names.
“Required
Lenders”
means
at any time Lenders owed in excess of 50% of the then aggregate unpaid
principal
amount (based on the Equivalent in Dollars at such time) of the Revolving
Credit
Advances owing to Lenders, or, if no such principal amount is then
outstanding,
Lenders having in excess of 50% of the Commitments; provided,
however,
that if
any Lender shall be an Affiliate of any Borrower at such time, there
shall be
excluded from the determination of Required Lenders at such time the
then
aggregate unpaid principal amount (based on the Equivalent in Dollars
at such
time) of the Revolving Credit Advances owing to such Affiliate (in
its capacity
as a Lender) at such time or, if no such principal amount is then outstanding,
such Affiliate’s Commitment at such time.
“Revolving
Credit Advance”
means
an advance by a Lender to a Borrower as part of a Revolving Credit
Borrowing and
refers to a Base Rate Advance or a Eurocurrency Rate Advance.
“Revolving
Credit Borrowing”
means
a
Borrowing consisting of simultaneous Revolving Credit Advances of the
same Type
made by each of the Lenders pursuant to Section 2.01.
“Revolving
Credit Note”
has
the
meaning specified in Section 2.17(a).
“S&P”
means
Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc.
“Sub-Agent”
means
Citibank International plc.
“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 2.14(a).
“Termination
Date”
means
the earlier of (a) July 27, 2008 and (b) the date of termination
in whole of the aggregate Commitments pursuant to Section 2.05 or
6.02.
“Transaction”
means
the Company’s acquisition of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as announced in the Company’s
press release dated January 28, 2005 filed on Form 8-K with the United
States
Securities and Exchange Commission.
“Transaction
Termination Date”
means
the date of any public announcement by the Company that the Transaction
has
expired or has been terminated.
“Treaty
of Rome”
means
the Treaty of Rome of 25 March 1957, as amended by the Single ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
and the Maastricht Treaty (which was signed at Maastricht on 7 February
1992 and
came into force on 1 November 1993), as such treaty may be amended
from time to
time and as referred to in the EMU legislation.
“Type”
has
the
meaning specified in the definition of “Advance”
in
Section 1.01.
“Unused
Commitment”
means,
with respect to any Lender at any time, (a) such Lender’s Commitment at
such time, less
(b) the sum of:
(i) the
aggregate principal amount of all Revolving Credit Advances made by
such Lender
(in its capacity as a Lender) and outstanding at such time; and
(ii) the
product of (x) a fraction the numerator of which is the difference between
the amount of such Lender’s Commitment at such time minus
the
aggregate principal amount of the Revolving Credit Loans held by such
Lender at
such time and the denominator of which is the difference between the
aggregate
Commitments of all Lenders at such time minus
the
aggregate principal amount of the Revolving Credit Loans made by the
Lenders and
outstanding at such time and (y) the aggregate principal amount of
Competitive
Bid Advances made by the Lenders and outstanding at such time.
“Utilization
Fee”
means,
as of any date that the sum of the aggregate principal amount of the
Advances
(other than Competitive Bid Advances) outstanding exceeds 50% of the
aggregate
Commitments, 0.015% per annum.
“Voting
Equity”
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 generally accepted accounting principles consistent
with those
applied in the preparation of the financial statements referred to
in
Section 4.01(e) (“GAAP”).
ARTICLE
II
AMOUNTS
AND TERMS OF THE ADVANCES
SECTION
2.01 The
Revolving Credit Advances.
Each
Lender
severally agrees, on the terms and conditions hereinafter set forth,
to make
Revolving Credit Advances to each Borrower from time to time on any
Business Day
during the period from the Closing Date until the Termination Date
in an
aggregate amount (based in respect of any Advances to be denominated
in Euros by
reference to the Equivalent thereof in Dollars determined on the date
of
delivery of the applicable Notice of Revolving Credit Borrowing) not
to exceed
such Lender’s Unused Commitment at such time. Each Borrowing shall be in a
minimum amount of $10,000,000, in respect of Revolving Credit Advances
denominated in Dollars, or (euro)10,000,000, in respect of Revolving
Credit
Advances denominated in Euros (or, if less, an aggregate amount equal
to the
amount by which the aggregate amount of a proposed Competitive Bid
Borrowing
requested by any Borrower exceeds the aggregate amount of Competitive
Bid
Advances offered to be made by the Lenders and accepted by such Borrower
in
respect of such Competitive Bid Borrowing, if such Competitive Bid
Borrowing is
made on the same date as such Revolving Credit Borrowing), and shall
consist of
Revolving Credit Advances of the same Type made on the same day by
the Lenders
ratably according to their respective Commitments; provided
that
such minimum amount shall not apply with respect to any Revolving Credit
Advances made in accordance with the provisions of Section 2.04(a)(ii) or
Section 2.07(c). Within the limits of each Lender’s Commitment, each
Borrower may borrow under this Section 2.01, prepay pursuant to
Section 2.10 and reborrow under this Section 2.01.
SECTION
2.02 Making
the Revolving Credit Advances.
(a)
Each Revolving Credit Borrowing shall be made on notice, given not
later than
(i) 9:00 A.M. (New York City time) on the Business Day immediately
preceding the date of the proposed Borrowing in the case of a Revolving
Credit
Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars,
(ii) 11:00 A.M. (London time) on the second Business Day prior to the
date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances denominated
in Euros,
or (iii) 9:00 A.M. (New York City time) on the Business Day of the
date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Base Rate Advances, by any Borrower
to the Agent
(and, in the case of a Revolving Credit Borrowing consisting of Eurocurrency
Rate Advances denominated in Euros, simultaneously to the Sub-Agent),
which
shall give to each Lender prompt notice thereof by telecopier or Email.
Each
such notice of a Revolving Credit Borrowing (a “Notice
of Revolving Credit Borrowing”)
shall
be by Email, confirmed promptly by telephone, shall be in substantially
the form
of Exhibit A-1
hereto,
specifying therein the requested (A) date of such Revolving Credit
Borrowing, (B) Type and Optional Currency of Revolving Credit Advances
comprising such Revolving Credit Borrowing, (C) aggregate amount of such
Revolving Credit Borrowing, (D) in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances, the initial Interest Period
for each
such Revolving Credit Advance, (E) the account to which the proceeds of the
requested Revolving Credit Borrowing are to be transferred and (F) whether
the proceeds of such Revolving Credit Borrowing will be used 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). Each Lender
shall,
before 11:00 A.M. (New York City time) on the date of such Revolving
Credit
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 Revolving Credit 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 appropriate Borrower
by
transferring the amount thereof to the account designated by such Borrower
for
such purpose.
(b) Anything
in subsection (a) above to the contrary notwithstanding, no Borrower may
select Eurocurrency Rate Advances for any Revolving Credit Borrowing
if the
obligation of the Lenders to make Eurocurrency Rate Advances shall
then be
suspended pursuant to Section 2.08 or 2.12.
(c) Each
Notice of Revolving Credit Borrowing shall be irrevocable and binding
on the
Borrower giving such notice. In the case of any Revolving Credit Borrowing
which
the related Notice of Revolving Credit Borrowing specifies is to be
composed of
Eurocurrency Rate Advances, such 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 Revolving
Credit
Borrowing for such Revolving Credit Borrowing the applicable conditions
set
forth in Article III, including, without limitation, any loss (excluding
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
Revolving Credit Advance to be made by such Lender as part of such
Revolving
Credit Borrowing when such Revolving Credit Advance, as a result of
such
failure, is not made on such date.
(d) Unless
the Agent or the Sub-Agent, as the case may be, shall have received
notice from
a Lender prior to the date of any Revolving Credit Borrowing that such
Lender
will not make available to the Agent or the Sub-Agent, as the case
may be, such
Lender’s Pro Rata Share of such Revolving Credit Borrowing, the Agent or the
Sub-Agent, as the case may be, may assume that such Lender has made
such portion
available to the Agent or the Sub-Agent, as the case may be, on the
date of such
Revolving Credit Borrowing in accordance with subsection (a) of this
Section 2.02 and the Agent or the Sub-Agent, as the case may be, may, in
reliance upon such assumption, make available to the Borrower requesting
such
Revolving Credit Borrowing 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 or the Sub-Agent, as the case may be, such Lender and such
Borrower
severally agree to repay to the Agent or the Sub-Agent, as the case
may be,
forthwith on demand such corresponding amount together with interest
thereon,
for each day from the date such amount is made available to such Borrower
until
the date such amount is repaid to the Agent or the Sub-Agent, as the
case may
be, at (i) in the case of such Borrower, the interest rate applicable at
the time to Revolving Credit Advances comprising such Revolving Credit
Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall repay to the Agent or the Sub-Agent, as the case may be, such
corresponding amount, such amount so repaid shall constitute such Lender’s
Revolving Credit Advance as part of such Revolving Credit Borrowing
for purposes
of this Agreement.
(e) The
failure of any Lender to make the Revolving Credit Advance to be made
by it as
part of any Revolving Credit Borrowing shall not relieve any other
Lender of its
obligation, if any, hereunder to make its Revolving Credit Advance
on the date
of such Revolving Credit Borrowing, but no Lender shall be responsible
for the
failure of any other Lender to make the Revolving Credit Advance to
be made by
such other Lender on the date of any Revolving Credit Borrowing.
(f)
Any
Revolving Credit Advance made by any Applicable Lending Office of any
Lender
shall be deemed to be an Advance of such Lender for purposes of calculating
the
utilization of the Commitment of such Lender hereunder, except that
if such
Applicable Lending Office of such Lender is another Lender, such Revolving
Credit Advance shall be deemed to be an Advance of such other Lender
for
purposes of calculating the utilization of the Commitments of both
such Lenders
hereunder.
SECTION
2.03 Competitive
Bid Facility.
(a) Each
Lender severally agrees that any Borrower may make Competitive Bid
Borrowings
under this Section 2.03 from time to time on any Business Day during the
period from the Closing Date until the date occurring 30 days prior
to the then
scheduled Termination Date in the manner set forth below; provided
that,
the aggregate principal amount of the Competitive Bid Advances comprising
each
Competitive Bid Borrowing shall not exceed the aggregate Unused Commitments
of
the Lenders at such time.
(i) Any
Borrower may request a Competitive Bid Borrowing under this Section 2.03 by
delivering to the Agent (and, in the case of a Competitive Bid Borrowing
not
consisting of Fixed Rate Advances or Eurocurrency Rate Advances to
be
denominated in Dollars, simultaneously to the Sub-Agent), by telephone
or Email,
confirmed promptly in writing, or by telecopier, a notice of a Competitive
Bid
Borrowing (a “Notice
of Competitive Bid Borrowing”),
in
substantially the form of Exhibit
A-2
hereto,
specifying therein (A) the requested date of such proposed Competitive Bid
Borrowing (which shall be a Business Day), (B) the requested aggregate
amount and Optional Currency of such proposed Competitive Bid Borrowing,
(C) whether such proposed Competitive Bid Borrowing shall consist of Fixed
Rate Advances or Eurocurrency Rate Advances, (D) in the case of a
Competitive Bid Borrowing consisting of (1) Eurocurrency Rate Advances, the
requested Interest Period for each such Eurocurrency Rate Advance and
(2) Fixed Rate Advances, the requested maturity date for repayment of each
such Fixed Rate Advance (which maturity date may not be earlier than
the date
occurring seven days after the date of such proposed Competitive Bid
Borrowing
or later than the earlier of (x) 360 days after the date of such proposed
Competitive Bid Borrowing and (y) the Termination Date), (E) the
requested interest payment date or dates for each Competitive Bid Advance
comprising part of such proposed Competitive Bid Borrowing, (F) whether or
not the Competitive Bid Advances comprising such proposed Competitive
Bid
Borrowing may be prepaid and, if so, whether with or without penalty,
(G) the address and account number of such Borrower to which the proceeds
of such proposed Competitive Bid Borrowing are to be advanced, (H) whether
the proceeds of such Competitive Bid Borrowing will be used 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) and (I) the
requested other terms, if any, to be applicable to such proposed Competitive
Bid
Borrowing, not later than (I) 9:00 A.M. (New York City time) at least
two Business Days prior to the date of the proposed Competitive Bid
Borrowing,
if such Borrower shall specify in the related Notice of Competitive
Bid
Borrowing that the rates of interest to be offered by the Lenders shall
be fixed
rates per annum (the Advances comprising any such Competitive Bid Borrowing,
which shall be denominated in Dollars or Euros, being referred to herein
as
“Fixed
Rate Advances”)
(II) 9:00 A.M. (New York City time) three Business Days preceding the
date of the proposed Competitive Bid Borrowing in the case of a Competitive
Bid
Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars,
and
(III) 2:00 P.M. (New York City time) three Business Days preceding the
date of the proposed Competitive Bid Borrowing in the case of a Competitive
Bid
Borrowing consisting of Eurocurrency Rate Advances denominated in Euros.
Each
Notice of Competitive Bid Borrowing shall be irrevocable and binding
on the
Borrower that requested such Competitive Bid Borrowing. The Agent or
the
Sub-Agent, as the case may be, shall in turn promptly notify each Lender
of each
request for a Competitive Bid Borrowing received by it from any Borrower
by
sending such Lender a copy of the related Notice of Competitive Bid
Borrowing.
(ii) Each
Lender may, in its sole discretion, elect to irrevocably offer to make
one or
more Competitive Bid Advances to the Borrower requesting the Competitive
Bid
Advances as part of such proposed Competitive Bid Borrowing at a rate
or rates
of interest specified by such Lender in its sole discretion, by notifying
the
Agent or the Sub-Agent, as the case may be (which shall give prompt
notice
thereof to the Borrower requesting the Competitive Bid Borrowing),
before
12:00 P.M. (New York City time) one Business Day prior to the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing
consisting of Fixed Rate Advances, and (B) before 1:00 P.M. (New York
City time) two Business Days prior to the date of the proposed Competitive
Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Eurocurrency
Rate Advances, of the minimum amount and maximum amount of each Competitive
Bid
Advance that such Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts, subject to the proviso
of the
first sentence of this Section 2.03(a), may exceed such Lender’s
Commitment, if any), the rate or rates of interest therefor and such
Lender’s
Applicable Lending Office with respect to such Competitive Bid Advance;
provided
that if
the Agent, in its capacity as a Lender, shall, in its sole discretion,
elect to
make any such offer, it shall notify the Borrower requesting such Competitive
Bid Borrowing of such offer at least 30 minutes before the time and
on the date
on which notice of such election is to be given to the Agent or to
the
Sub-Agent, as the case may be, by the other Lenders. If any Lender
shall elect
not to make such an offer, such Lender shall so notify the Agent, before
10:00 A.M. (New York City time) or the Sub-Agent before 12:00 noon (London
time), as the case may be, on the date on which notice of such election
is to be
given to the Agent or to the Sub-Agent, as the case may be, by the
other
Lenders, and such Lender shall not be obligated to, and shall not,
make any
Competitive Bid Advance as part of such proposed Competitive Bid Borrowing;
provided
that the
failure by any Lender to give such notice shall not cause such Lender
to be
obligated to make any Competitive Bid Advance as part of such proposed
Competitive Bid Borrowing.
(iii) The
Borrower requesting any particular Competitive Bid Borrowing shall,
in turn,
before (A) 4:00 P.M. (New York City time) one Business Day prior to
the date of such proposed Competitive Bid Borrowing, in the case of
a
Competitive Bid Borrowing consisting of Fixed Rate Advances, and
(B) 4:00 P.M. (New York City time) two Business Days prior to the date
of such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid
Borrowing consisting of Eurocurrency Rate Advances, either:
(A) cancel
such Competitive Bid Borrowing by giving the Agent notice to that effect;
or
(B) accept
one or more of the offers made by any Lender or Lenders pursuant to
Section 2.03(a)(ii), in its sole discretion but subject to the next two
succeeding sentences, by giving notice to the Agent or to the Sub-Agent,
as the
case may be, of the amount of each Competitive Bid Advance (which amount
shall
be equal to or greater than the minimum amount, and equal to or less
than the
maximum amount, notified to such Borrower by the Agent or the Sub-Agent,
as the
case may be, on behalf of such Lender for such Competitive Bid Advance
pursuant
to Section 2.03(a)(ii)) to be made by each Lender as part of such
Competitive Bid Borrowing, and reject any remaining offers made by
Lenders
pursuant to Section 2.03(a)(ii) by giving the Agent or the Sub-Agent, as
the case may be, notice to that effect; provided,
however,
that
such Borrower may not accept offers that, in the aggregate, exceed
the amount of
the proposed Competitive Bid Borrowing specified in the related Notice
of
Competitive Bid Borrowing. The Borrower that requested such Competitive
Bid
Borrowing shall accept the offers made by any Lender or Lenders to
make
Competitive Bid Advances in order of the lowest to the highest rates
of interest
offered by such Lenders for a particular Competitive Bid Borrowing.
If two or
more Lenders have offered the same interest rate for a particular Competitive
Bid Borrowing, the amount to be borrowed at such interest rate will
be allocated
among such Lenders ratably according to the amount that each such Lender
offered
at such interest rate.
(iv) If
the
Borrower that requested any particular Competitive Bid Borrowing notifies
the
Agent or the Sub-Agent, as the case may be, that such Competitive Bid
Borrowing
is cancelled pursuant to Section 2.03(a)(iii)(A), the Agent or the
Sub-Agent, as the case may be, shall give prompt notice thereof to
each of the
Lenders and such Competitive Bid Borrowing shall not be made.
(v) If
the
Borrower that requested any particular Competitive Bid Borrowing accepts
one or
more of the offers made by any Lender or Lenders pursuant to
Section 2.03(a)(iii)(B) in respect of such Competitive Bid Borrowing, the
Agent or the Sub-Agent, as the case may be, shall in turn promptly
notify
(A) each Lender that has made an offer as described in
Section 2.03(a)(ii) of the date and the aggregate amount of such
Competitive Bid Borrowing and whether or not any offer or offers made
by such
Lender pursuant to Section 2.03(a)(ii) have been accepted by such Borrower
and (B) each Lender that is to make a Competitive Bid Advance as part of
such Competitive Bid Borrowing, (1) of the amount of each Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid Borrowing
and
(2) upon receipt, that the Agent or the Sub-Agent, as the case may be,
has
received forms of documents appearing to fulfill the applicable conditions
set
forth in Article III. Each Lender that is to make a Competitive Bid Advance
as part of any Competitive Bid Borrowing shall, before 12:00 Noon (New York
City time) on the date of such Competitive Bid Borrowing specified
in the notice
received from the Agent or from the Sub-Agent, as the case may be,
pursuant to
subclause (v)(A) of the immediately preceding sentence or any later time
when such Lender shall have received notice from the Agent or from
the
Sub-Agent, as the case may be, pursuant to subclause (v)(B)(2) of the
immediately preceding sentence, make available for the account of its
Applicable
Lending Office to the Agent at the applicable Agent’s Account, in same day
funds, such Lender’s portion of such Competitive Bid Borrowing. Upon fulfillment
of the applicable conditions set forth in Article III and after receipt by
the Agent of such funds, the Agent will make such funds available to
the
Borrower that requested such Borrowing at the address and the account
number
specified by such Borrower in the related Notice of Competitive Bid
Borrowing
or, if no such address and account number are specified in the related
Notice of
Competitive Bid Borrowing, at the Agent’s address referred to in
Section 8.02. Promptly after (x) each Competitive Bid Borrowing, the
Agent will notify each Lender of the amount of such Competitive Bid
Borrowing,
the corresponding Competitive Bid Reduction resulting therefrom and
the dates
upon which such Competitive Bid Reduction commenced and will terminate
and
(y) the prepayment of any Competitive Bid Borrowing by the applicable
Borrower, the Agent will notify each Lender of the amount and date
of each such
prepayment and the amount, if any, of the corresponding Competitive
Bid
Reduction remaining after giving effect thereto.
(vi) If
the
Borrower that requested any applicable Competitive Bid Borrowing notifies
the
Agent or the Sub-Agent, as the case may be, that it accepts one or
more of the
offers made by any Lender or Lenders pursuant to Section 2.03(a)(iii)(B),
such notice of acceptance shall be irrevocable and binding on such
Borrower.
Such 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 Competitive Bid Borrowing for such
Competitive
Bid Borrowing the applicable conditions set forth in Article III, including,
without limitation, any loss (excluding 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 Competitive Bid Advance
to be
made by such Lender as part of such Competitive Bid Borrowing when
such
Competitive Bid Advance, as a result of such failure, is not made on
such
date.
(b) Each
Competitive Bid Borrowing shall be in an aggregate amount of not less
than
$10,000,000, in respect of Revolving Credit Advances denominated in
Dollars, or
(euro)10,000,000, in respect of Revolving Credit Advances denominated
in Euros
and, following the making of each Competitive Bid Borrowing, the Borrowers
shall
be in compliance with the limitation set forth in the proviso
to the
first sentence of Section 2.03(a).
(c) Within
the limits and on the conditions set forth in this Section 2.03, any
Borrower may from time to time borrow under Section 2.03(a), repay pursuant
to Section 2.06(b) or prepay pursuant to Section 2.03(d), and reborrow
under Section 2.03(a).
(d) The
Borrower to which any particular Competitive Bid Borrowing is made
shall have no
right to prepay the principal amount of any Competitive Bid Advance
(or any
portion thereof) unless, and then only on the terms, specified by such
Borrower
for such Competitive Bid Advance in the related Notice of Competitive
Bid
Borrowing delivered pursuant to Section 2.03(a)(i) and, if applicable, set
forth in the Competitive Bid Note evidencing such Competitive Bid
Advance.
(e) The
Borrower to which any particular Competitive Bid Borrowing is made
shall pay
interest on the unpaid principal amount of each Competitive Bid Advance
from the
date of such Competitive Bid Advance to the date the principal amount
of such
Competitive Bid Advance is repaid in full, at the rate of interest
for and in
the Optional Currency of such Competitive Bid Advance specified by
the Lender
making such Competitive Bid Advance in its notice with respect thereto
delivered
pursuant to Section 2.03(a)(ii), payable on the interest payment date or
dates specified by such Borrower for such Competitive Bid Advance in
the related
Notice of Competitive Bid Borrowing delivered pursuant to
Section 2.03(a)(i) and, if applicable, provided in the Competitive Bid Note
evidencing such Competitive Bid Advance.
(f) Each
Borrower agrees that upon notice by any Lender to such Borrower (with
a copy of
such notice to the Agent) to the effect that a promissory note or other
evidence
of indebtedness is required or appropriate in order for such Lender
to evidence
(whether for purposes of pledge, enforcement or otherwise) any Competitive
Bid
Advance owing to, or to be made by, such Lender as part of a Competitive
Bid
Borrowing, such Borrower shall promptly execute and deliver to such
Lender a
separate promissory note, in substantially the form of Exhibit
I-2
hereto
(each, a “Competitive
Bid Note”),
payable to the order of such Lender in a principal amount equal to
the amount of
indebtedness of such Borrower resulting from such Competitive Bid
Advance.
SECTION
2.04 Facility
Fee.
(a)
The Initial Borrower agrees to pay to the Agent for the account of
each Lender a
facility fee in Dollars on the aggregate amount of such Lender’s Commitment,
from the Closing Date in the case of each Initial Lender and from the
effective
date specified in 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 0.025% per annum, payable in arrears quarterly on
the last
day of each March, June, September and December, commencing September 30,
2005, and on the Termination Date.
(b) Unless
the Initial Borrower shall have notified the Agent in writing on or
before 9:00
A.M. (New York City time) on the Business Day immediately preceding
the last day
of each March, June, September and December, commencing September 30, 2005,
and the Termination Date, that it will pay, in cash, the Facility Fee
that is
due and payable by it on such date, the Lenders will be deemed to have
made
Revolving Credit Advances on such date in an amount equal to the Facility
Fee
that would otherwise be due and payable on such date, which Revolving
Credit
Advances shall, unless the Initial Borrower has otherwise notified
the Agent in
writing on or before such Business Day, be a Eurocurrency Rate Advance
denominated in Dollars having an initial Interest Period of one month.
Each
Revolving Credit Advance made pursuant to this Section 2.04(a)(ii) shall be
deemed (A) to have made pursuant to the Commitments and shall be subject to
the limitation that the aggregate outstanding principal amount of the
Revolving
Credit Advances may at no time exceed the Commitments then in effect
and
(B) not to have been used 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).
SECTION
2.05 Termination
or Reduction of the Commitments.
(a)
Optional.
The
Initial Borrower shall have the right, upon at least three Business
Days’ notice
to the Agent, to terminate in whole or reduce ratably in part the Unused
Commitments of the Lenders, provided
that
each partial reduction shall be in the aggregate amount of $10,000,000.
(b)
Mandatory.
(i) The
Commitments shall automatically terminate on the Termination Date.
(ii) In
the
event the Transaction Termination Date occurs, the Commitments shall
be reduced
to zero on the date which is 30 Business Days after the Transaction
Termination
Date.
(iii) The
Commitments shall be automatically reduced on each date on which the
prepayment
of Advances is required to be made pursuant to Section 2.10(b)(iii) by an
amount equal to 75% of the amount of the net cash proceeds received
by the
Borrowers from any issuance of any publicly traded bonds, debentures,
or similar
debt securities described in such Section 2.10(b)(iii).
SECTION
2.06 Repayment
of Advances.
(a)
Revolving
Credit Advances.
Each
Borrower shall repay to the Agent for the ratable account of the Lenders
on the
Termination Date the aggregate principal amount of all Revolving Credit
Advances
made to it that are then outstanding.
(b) Repayment
of Competitive Bid Advances.
Each
Borrower shall repay to the Agent, for the account of each Lender that
has made
a Competitive Bid Advance, the aggregate outstanding principal amount
of each
Competitive Bid Advance made to such Borrower and owing to such Lender
on the
earlier of (i) the maturity date therefor, in the case of any such
Competitive Bid Advance that is a Fixed Advance, or the last day of
the Interest
Period therefor, in the case of any such Competitive Bid Advance that
is a
Eurocurrency Rate Advance, in each case as specified in the related
Notice of
Competitive Bid Borrowing delivered pursuant to Section 2.03(a)(i) and, if
applicable, provided in the Competitive Bid Note evidencing such Competitive
Bid
Advance, and (ii) the Termination Date.
SECTION
2.07 Interest
on Revolving Credit Advances.
(a)
Scheduled
Interest.
Subject
to the provisions of Section 2.07(c), each Borrower shall pay interest on
the unpaid principal amount of each Revolving Credit Advance made to
it that is
owing to each Lender from the date of such Revolving Credit 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 Revolving Credit Advance is a Base Rate Advance,
a rate per
annum equal at all times to the sum of (x) the Base Rate in effect from
time to time plus (y) the Applicable Margin in effect from time to time
plus (z) the Utilization Fee, if any, in effect from time to time, payable
in arrears on each Interest Payment Date with respect to such Base
Rate
Advance.
(ii) Eurocurrency
Rate Advances.
During
such periods as such Revolving Credit Advance is a Eurocurrency Rate
Advance, a
rate per annum equal at all times during each Interest Period for such
Advance
to the sum of (x) the Eurocurrency Rate for such Interest Period for such
Advance plus (y) the Applicable Margin in effect from time to time plus
(z) the Utilization Fee, if any, in effect from time to time, payable in
arrears on each Interest Payment Date with respect to such Eurocurrency
Rate
Advance.
(b) Default
Interest.
Each
Borrower shall pay interest on:
(i) any
portion of the unpaid principal amount of each Revolving Credit Advance
made to
it that is owing to each Lender 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% per annum above the rate per annum required
to be paid
on such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii)
above, as the case may be;
(ii) any
portion of the unpaid principal amount of each Competitive Bid Advance
made to
such Borrower and owing to any Lender, payable in arrears on the date
or dates
interest is payable on such Competitive Bid Advance, at a rate per
annum equal
at all times to 2% per annum above the rate per annum required to be
paid on
such Competitive Bid Advance in the offer made by such Lender pursuant
to
Section 2.03(a)(ii) and accepted by such Borrower under
Section 2.03(a)(v), and
(iii) 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% per annum above the rate per annum required to be paid
on Base Rate
Advances pursuant to clause (a)(i) above.
(c) Capitalization
of Interest.
Anything contained in this Agreement to the contrary notwithstanding,
unless the
appropriate Borrower has notified the Agent in writing on or before
9:00 A.M.
(New York City time) on the Business Day immediately preceding any
Interest
Payment Date or date of a prepayment pursuant to Section 2.10(b)(i), that
it will pay, in cash, the interest applicable to any Revolving Credit
Advance,
including any applicable Utilization Fee, that is due and payable by
it on such
Interest Payment Date in accordance with Section 2.07(a) or on such
prepayment date in accordance with Section 2.10(b)(i), as applicable, the
Lenders will be deemed to have made Revolving Credit Advances on such
Interest
Payment Date or prepayment date, as applicable, in an amount equal
to the
aggregate amount of interest, including any applicable Utilization
Fee, that
would otherwise be due and payable on such date, which Revolving Credit
Advance
shall, unless such Borrower has otherwise notified the Agent in writing
on or
before such Business Day, (i) be of the same Type and Optional Currency
as the
Advance (the “Reference
Advance”)
in
respect of which such interest (including any applicable Utilization
Fee) shall
have accrued (in each case after giving effect to any Conversion of
the
Reference Advance on such Interest Payment Date), and (ii) if such
Revolving Credit Advance is a Eurocurrency Rate Advance, have an initial
Interest Period of the same duration as the Interest Period commencing
on such
Interest Payment Date with respect to the Reference Advance. Each Revolving
Credit Advance made pursuant to this Section 2.07(c) shall be deemed
(A) to have been made pursuant to the Commitments and shall be subject
to
the limitation that the aggregate outstanding principal amount of the
Advances
may at no time exceed the Commitments then in effect, and (B) to have been
used 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)
if the related Reference Advance was used for the purpose of purchasing
or
carrying margin stock.
SECTION
2.08 Interest
Rate Determination.
(a)
Each Reference Bank agrees to furnish to the Agent timely information
for the
purpose of determining each Eurocurrency Rate. 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. The Agent shall give prompt notice to each of the
Borrowers and
the Lenders of the applicable interest rate determined by the Agent
for purposes
of Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each
Reference Bank for the purpose of determining the interest rate under
Section 2.07(a)(ii).
(b) If,
with
respect to any Eurocurrency Rate Advances, the Required Lenders in
good faith
notify the Agent that the Eurocurrency 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 Eurocurrency Rate Advances
for
such Interest Period, the Agent shall forthwith so notify each of the
Borrowers
and the Lenders, whereupon (i)(A) each Eurocurrency Rate Advance
denominated in Dollars will automatically Convert into Base Rate Advances,
and
(B) each Eurocurrency Rate Advance denominated in Euros will automatically
be exchanged for an Equivalent of Dollars and Convert into Base Rate
Advances,
and (ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurocurrency Rate Advances shall be suspended until the Agent
shall notify
each of the Borrowers and the Lenders that the circumstances causing
such
suspension no longer exist.
(c) If
any
Borrower shall fail to select the duration of any Interest Period for
any
Eurocurrency Rate Advances in accordance with the provisions contained
in the
definition of “Interest
Period”
in
Section 1.01, the Agent will forthwith so notify each of the Borrowers and
the Lenders and such Advances will automatically, on the last day of
the then
existing Interest Period therefor, Convert into Eurocurrency Rate Advances
denominated in the same Optional Currency and having an Interest Period
of one
week.
(d) On
the
date on which the aggregate unpaid principal amount of Eurocurrency
Rate
Advances comprising any Borrowing shall be reduced, by payment or prepayment
or
otherwise, to less than $10,000,000, in respect of Advances denominated
in
Dollars, or (euro)10,000,000, in respect of Advances denominated in
Euros, such
Advances shall automatically (i) if such Eurocurrency Rate Advances are
denominated in Dollars, Convert into Base Rate Advances and (ii) if such
Eurocurrency Rate Advances are denominated in Euros, be exchanged for
an
Equivalent amount of Dollars and Convert into Base Rate Advances.
(e) Upon
the
occurrence and during the continuance of any Event of Default, (i) each
Eurocurrency Rate Advance will, upon the written request of the Agent
(at the
request of the Required Lenders), on the last day of the then existing
Interest
Period therefor, (A) if such Eurocurrency Rate Advance is denominated in
Dollars, be Converted into a Base Rate Advance and (B) if such Eurocurrency
Rate Advance is denominated in Euros, be exchanged for an Equivalent
amount of
Dollars and be Converted into a Base Rate Advance and (ii) the obligation
of the Lenders to make, or to Convert Advances into, Eurocurrency Rate
Advances
shall be suspended.
(f) If
either, with respect to Eurocurrency Rate Advances denominated in Dollars,
the
Moneyline Telerate Markets Page 3750, or, with respect to Eurocurrency Rate
Advances denominated in Euros, the Page 248 of the Moneyline Telerate
Service, is unavailable and, in each such case, fewer than two Reference
Banks
furnish timely information to the Agent for determining the applicable
Eurocurrency Rate,
(i) the
Agent
shall forthwith notify the applicable Borrower and the Lenders that
the interest
rate cannot be determined for such Eurocurrency Rate Advances,
(ii) each
such
Advance will automatically, on the last day of the then existing Interest
Period
therefor, (A) if such Eurocurrency Rate Advance is denominated in Dollars,
Convert into a Base Rate Advance and (B) if such Eurocurrency Rate Advance
is denominated in Euros, be prepaid by the applicable Borrower or be
automatically exchanged for an Equivalent amount of Dollars and be
Converted
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 Eurocurrency Rate Advances or to
Convert
Advances into Eurocurrency Rate Advances shall be suspended until the
Agent
shall notify each of the Borrowers and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION
2.09 Optional
Conversion of Advances.
Any
Borrower may
subject to the provisions of Sections 2.08 and 2.12, Convert all or any
portion of Revolving Credit Advances of one Type made to it comprising
the same
Borrowing into Advances of the other Type; provided,
however,
that
(a) any such Conversion of (i) Base Rate Advances into Eurocurrency
Advances denominated in Dollars or of Eurocurrency Advances of one
Interest
Period into Eurocurrency Advances denominated in Dollars and of another
Interested Period shall be made on notice received no later than 9:00 A.M.
(New York City time) on the Business Day immediately preceding the
date of the
proposed Conversion, or (ii) in all other cases, shall be made on notice
received no later than 9:00 A.M. (New York City time) on the Business Day
of the proposed Conversion, (b) in the case of any Conversion of Eurocurrency
Rate Advances denominated in Dollars into Base Rate Advances other
than on the
last day of an Interest Period therefor, the Borrower requesting such
Conversion
shall be obligated to reimburse the Lenders in respect thereof pursuant
to
Section 8.04(c), and (c) any Conversion of Base Rate Advances into
Eurocurrency Rate Advances shall be in an amount not less than $10,000,000.
Each
such notice of a Conversion shall, within the restrictions specified
above,
specify (i) the date of such Conversion, (ii) the Dollar denominated
Advances to be Converted, and (iii) if such Conversion is into Eurocurrency
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 giving such notice.
SECTION
2.10 Prepayments.
(a)
Optional. Each
Borrower may, upon at least three Business Days notice to the Agent
stating the
proposed date and aggregate principal amount of the prepayment, and
if such
notice is given such 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
(i) each partial prepayment shall be in an aggregate principal amount of
$10,000,000, in respect of each prepayment of Advances denominated
in Dollars,
or (euro)10,000,000, in respect of each prepayment of Advances denominated
in
Euros, and in an integral multiples of $1,000,000 or (euro)1,000,000,
as
applicable, in excess thereof, and (ii) in the event of any such prepayment
of a Eurocurrency Rate Advance, such Borrower shall be obligated to
reimburse
the Lenders in respect thereof pursuant to Section 8.04(c). Notwithstanding
anything in the previous sentence to the contrary, no Borrower may
prepay any
Competitive Bid Advances other than in accordance with
Section 2.03(d).
(b) Mandatory. (i) If,
on any date, the Agent notifies the Initial Borrower that, on any Interest
Payment Date, the sum of (A) the aggregate principal amount of all Advances
denominated in Dollars plus (B) the Equivalent in Dollars (determined on
the Business Day immediately preceding such Interest Payment Date)
of the
aggregate principal amount of all Advances denominated in Euros then
outstanding
exceeds 110% of the aggregate Commitments of the Lenders on such date,
one or
more of the Borrowers (as determined by the Initial Borrower) shall,
as soon as
practicable and in any event within five Business Days after receipt
of such
notice, subject to the proviso to this sentence below, prepay the outstanding
principal amount of any Advances owing by such Borrowers in an aggregate
amount
sufficient to reduce such sum to an amount not to exceed 100% of the
aggregate
Commitments of the Lenders on such date, together with any interest
accrued to
the date of such prepayment on the aggregate principal amount of Advances
prepaid; provided, however,
that if
the aggregate principal amount of Base Rate Advances outstanding at
the time of
such required prepayment is less than the amount of such required prepayment,
the portion of such required prepayment in excess of the aggregate
principal
amount of Base Rate Advances then outstanding shall be deferred until
the
earliest to occur of the last day of the Interest Period of the outstanding
Eurocurrency Rate Advances in an aggregate amount equal to the excess
of such
required prepayment. The Agent shall give prompt notice of any prepayment
required under this Section 2.10(b)(i) to each of the Borrowers and the
Lenders, and shall provide prompt notice to each of the Borrowers of
any such
notice of required prepayment received by it from any Lender.
(ii) On
each
Business Day, each of the Borrowers shall repay the outstanding Advances
by an
amount equal to the excess of the outstanding principal amount of the
Advances
over the aggregate Commitments after giving effect to any reduction
of the
Commitments pursuant to Section 2.05 on the immediately preceding Business
Day.
(iii) Each
Borrower shall prepay an aggregate principal amount of the Advances
comprising
part of the same Borrowing in an amount equal to 75% of the amount
of net cash
proceeds received by such Borrower from each issuance in the U.S. or
European
capital markets of publicly traded bonds, debentures, or similar debt
securities
having a maturity in excess of one year.
SECTION
2.11 Increased
Costs.
(a)
If, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation enacted or issued after the
date of this
Agreement or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having
the force of
law) issued after the date of this Agreement, there shall be any material
increase in the cost to any Lender of agreeing to make or making, funding
or
maintaining Eurocurrency Rate Advances (excluding for purposes of this
Section 2.11 any such increased costs resulting from (i) Taxes (as to
which Section 2.14 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United
States or
by the foreign jurisdiction, state or any political subdivision thereof
under
the laws of which such Lender has any present or former connection,
then the
applicable Borrower shall from time to time, within 30 days of written
demand by
such Lender (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. A certificate as to the amount of such increased
cost
in reasonable detail and stating the basis upon which such amount has
been
calculated and certifying that such Lender’s method of allocating such costs is
fair and reasonable and that such Lender’s demand for payment of such costs
hereunder is not inconsistent with its treatment of other borrowers
which, as a
credit matter, are similarly situated to such Borrower and which are
subject to
similar provisions, submitted to such Borrower and the Agent by such
Lender,
shall be conclusive and binding for all purposes, absent error in the
calculation of such amount.
(b) If
any
Lender reasonably determines that compliance with any law or regulation
enacted
or issued after the date of this Agreement, or any guideline or request
from any
central bank or other governmental authority (whether or not having
the force of
law) issued after the date of this Agreement, affects or would affect
the amount
of capital required or expected to be maintained by such Lender or
any
corporation controlling such Lender and that the amount of such capital
is
materially increased by or based upon the existence of such Lender’s commitment
to lend hereunder and other commitments of this type, then, within
30 days of
written demand by such Lender (with a copy of such demand to the Agent),
the
applicable 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. A
certificate as to the amount of such increased cost in reasonable detail
and
stating the basis upon which such amount has been calculated and certifying
that
such Lender’s method of allocating such costs is fair and reasonable and that
such Lender’s demand for payment of such costs hereunder is not inconsistent
with its treatment of other borrowers which, as a credit matter, are
similarly
situated to such Borrower and which are subject to similar provisions,
submitted
to such Borrower and the Agent by such Lender, shall be conclusive
and binding
for all purposes, absent error in the calculation of such amount.
(c) Before
making any demand under this Section 2.11, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and
regulatory
restrictions) to designate a different Applicable Lending Office if
the making
of such a designation would avoid the need for, or reduce the amount
of, such
increased cost and would not, in the reasonable judgment of such Lender,
be
otherwise disadvantageous to such Lender.
(d) If
any
Lender shall subsequently recoup any costs (other than from a Borrower)
for
which such Lender has theretofore been compensated by a Borrower under
this
Section 2.11, such Lender shall remit to such Borrower an amount equal to
the amount of such recoupment.
SECTION
2.12 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 makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency
Rate
Advances in Dollars or Euros or to fund or maintain Eurocurrency Rate
Advances
in Dollars or Euros hereunder, (a) each Eurocurrency Rate Advance, as the
case may be, will automatically, upon such demand, (i) if such Eurocurrency
Rate Advance is denominated in Dollars, Convert into a Base Rate Advance
and
(ii) if such Eurocurrency Rate Advance is denominated in Euros, be
exchanged for an Equivalent amount of Dollars and Convert into a Base
Rate
Advance, and (b) the obligation of the Lenders to make Eurocurrency Rate
Advances or to Convert Advances into Eurocurrency Rate Advances shall
be
suspended until the Agent shall notify each of the Borrowers 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 Eurocurrency Lending Office if the making of
such a
designation would allow such Lender or its Eurocurrency Lending Office
to
continue to perform its obligations to make Eurocurrency Rate Advances
or to
continue to fund or maintain Eurocurrency Rate Advances and would not,
in the
judgment of such Lender, be otherwise disadvantageous to such
Lender.
SECTION
2.13 Payments
and Computations.
(a)
Each Borrower shall make each payment hereunder and under the Notes,
if any,
with respect to principal of, interest on, and other amounts relating
to,
Advances denominated in Dollars, 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
Dollars to the Agent, by deposit of such funds to the applicable Agent’s Account
in same day funds. Each Borrower shall make each payment hereunder
and under the
Notes, if any, irrespective of any right of counterclaim or set-off,
with
respect to principal of, interest on, and other amounts relating to,
Advances
denominated in Euros, not later than 11:00 A.M. (London time) on the day
when due in Euros to the Agent, by deposit of such funds to the applicable
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 2.03,
2.11, 2.14 or 8.04(c)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment
of any other
amount payable to any Lender to such Lender for the account of its
Applicable
Lending Office, in each case to be applied in accordance with the terms
of this
Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of
the information contained therein in the Register pursuant to
Section 8.07(c), from and after the effective date specified in such
Assignment and Acceptance, the Agent shall make all payments hereunder
and under
the Notes, if any, in respect of the interest assigned thereby to the
Lender
assignee thereunder, and the parties to such Assignment and Acceptance
shall
make all appropriate adjustments in such payments for periods prior
to such
effective date directly between themselves.
(b) All
computations of interest based on the Base Rate shall be made by the
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 Eurocurrency Rate or the Federal Funds Rate
and of
facility fees shall be made by the Agent or the Sub-Agent, as the case
may be,
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.
(c) Whenever
any payment hereunder or under the Notes, if any, 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
Eurocurrency Rate Advances to be made in the next following calendar
month, such
payment shall be made on the next preceding Business Day.
(d) Unless
the Agent or the Sub-Agent, as the case may be, shall have received
notice from
the appropriate Borrower prior to the date on which any payment is
due to the
Lenders hereunder that such Borrower will not make such payment in
full, the
Agent or the Sub-Agent, as the case may be, may assume that such Borrower
has
made such payment in full to the Agent or to the Sub-Agent, as the
case may be,
on such date, and the Agent or the Sub-Agent, as the case may be, 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 such Borrower shall not have so made such payment in full to
the Agent or
to the Sub-Agent, as the case may be, each Lender shall repay to the
Agent or to
the Sub-Agent, as the case may be, 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 or to the Sub-Agent, as the case may be, at (i) the
Federal Funds Rate, in the case of Advances denominated in Dollars,
or
(ii) the cost of funds incurred by the Sub-Agent, in respect of such amount
in the case of Advances denominated in Euros.
SECTION
2.14 Taxes.
(a) Each
Borrower shall only be required to pay or reimburse any Lender or the
Agent for
present or future taxes, levies, imposts, deductions, charges or withholdings
arising from or in connection with any payments made by any Borrower
under this
Agreement or any of the other Loan Documents, or any liabilities with
respect to
the foregoing (collectively, “Taxes”),
other
than Excluded Taxes. If any Borrower shall be required by law to deduct
any
Taxes from or in respect of any sum payable hereunder or under any
of the other
Loan Documents to any Lender or the Agent, (i) such Borrower shall make
such deductions in respect of Taxes, (ii) such Borrower shall pay the full
amount deducted in respect of Taxes to the relevant taxation authority
or other
governmental or regulatory authority in accordance with applicable
law, and
(iii) to the extent, there is an increase in any Taxes (other than Excluded
Taxes) imposed on such Lender or the Agent as a result of this Agreement
or any
of the other Loan Documents (such increased amount being the “Non-Excluded
Taxes”
of
such
Lender or the Agent), the sum payable by such Borrower shall be increased
as may
be necessary so that after making all required deductions of Non-Excluded
Taxes
such Lender or the Agent (as the case may be) receives an amount equal
to the
sum it would have received had no such deductions been made in respect
of
Non-Excluded Taxes. Within 30 days after the date of any payment of
Non-Excluded
Taxes by any Borrower, such Borrower shall furnish to the Agent, at
its address
referred to in Section 8.02, the original or a copy of a receipt evidencing
such payment. For purposes of this section 2.14, the term “Change in Law” shall
mean the adoption of any law, rule, regulation, court decision or precedential
administrative guidance after the date of this Agreement.
(b) Each
of
the Borrowers shall indemnify each Lender and the Agent for, and hold
each of
them harmless against, the full amount of Non-Excluded Taxes paid by
such Lender
or the Agent, as the case may be. This indemnification shall be made
within 90
days from the date on which such Lender or the Agent, as the case may
be, makes
written demand therefor and provides adequate documentary evidence
of payment
thereof.
(c) Each
Lender and the Agent shall deliver or cause to be delivered to any
requesting
Borrower required to withhold under section 1441 or 1442 or comply
with any
information reporting or backup withholding requirements of the U.S.
Internal
Revenue Code of 1986, as amended, or the regulations thereunder, the
following
properly completed and duly executed documents:
(i) if
such
Lender or the Agent is not a United States Person, a complete and executed
(A) U.S. Internal Revenue Form W-8BEN with Part II completed in which
Lender claims and validly establishes the benefits of a tax treaty
with the
United States providing for a zero or reduced rate of withholding (or
any
successor forms thereto), including all appropriate attachments or
(B) a
U.S. Internal Revenue Service Form W-8ECI (or any successor forms
thereto);
(ii) if
such
Lender or the Agent is a natural person, a complete and executed (A) U.S.
Internal Revenue Service Form W-8BEN (or any successor forms thereto)
and a
certificate, in substantially the form of Exhibit
H
hereto
(a “Section
2.14 Certificate”),
or
(B) U.S. Internal Revenue Service Form W-9 (or any successor forms
thereto);
(iii) if
such
Lender or the Agent is organized under the laws of the United States,
any State
thereof, or the District of Columbia, (A) a complete and executed U.S.
Internal Revenue Service Form W-9 (or any successor forms thereto),
including
all appropriate attachments or (B) if such Person is disregarded for
federal income tax purposes, the documents that would be required under
clause (i), (ii), this clause (iii), (iv), (v) or (vi) of this Section
2.14(c) with respect to its beneficial owner as if such beneficial
owner were a
Lender;
(iv) if
such
Lender or the Agent (A) is not organized under the laws of the United
States, any State thereof, or the District of Columbia and (B) is treated
as a corporation for U.S. federal income tax purposes, a complete and
executed
U.S. Internal Revenue Service Form W-8BEN establishing a zero rate
of
withholding (or any successor forms thereto) and a Section 2.14
Certificate;
(v) if
such
Lender or the Agent (A) is treated as a partnership or other non-corporate
entity, and (B) is not organized under the laws of the United States, any
State thereof, or the District of Columbia, (1) a complete and executed
U.S. Internal Revenue Service Form W-8IMY (or any successor forms thereto)
(including all required documents and attachments) and (2) a Section 2.14
Certificate, and, without duplication, with respect to each of its
beneficial
owners and the beneficial owners of such beneficial owners looking
through
chains of owners to individuals or entities that are treated as corporations
for
U.S. federal income tax purposes (all such owners, “beneficial
owners”),
the
documents that would be required by clause (i), (ii), (iii), (iv),
this clause
(v) and/or clause (vi) of this Section 2.14(c) with respect to each such
beneficial owner if such beneficial owner were Lender, provided,
however,
that no
such documents will be required with respect to a beneficial owner
to the extent
the actual Lender or the Agent is determined to be in compliance with
the
requirements for certification on behalf of its beneficial owner as
may be
provided in applicable U.S. Treasury Regulations, or the requirements
of this
clause (v) of Section 2.14(c) are otherwise determined to be
unnecessary (all such determinations under this clause (v) of
Section 2.14(c) to be made in the sole discretion of the Initial Borrower);
or
(vi)
(A) if
such Lender or the Agent is disregarded for U.S. federal income tax
purposes,
such Person shall deliver the document that would be required by this
clause (vi), or by clause (i), (ii), (iii), (iv), or (v) of Section
2.14(c) with respect to its sole owner if such sole owner were such
Lender or
the Agent, or (B) if such Lender or the Agent is not a United States
person and
is acting in the capacity as an “intermediary” (as defined in U.S. Treasury
Regulations), (1) a complete and executed U.S. Internal Revenue Service
Form W-8IMY (or any successor form thereto) (including all required
documents
and attachments), and (2) if such intermediary is a “non-qualified intermediary”
(as defined in U.S. Treasury Regulations), from each person upon whose
behalf
the "non-qualified intermediary" is acting, the documents that would be required
by clause (i), (ii), (iii), (iv), (v) or this clause (vi) of
Section 2.14(c) with respect to each such Person if each such Person were
Lender.
In
addition, each Lender or the Agent, shall provide any requesting Borrower
with
such other forms, certificates and documentation that such Lender or
the Agent
is legally entitled to furnish as may be necessary or appropriate to
obtain any
reduction of or exemption from any withholding or other Tax imposed
by any
governmental authority on payments made by such Borrower under any
Loan
Document.
Each
Lender and the Agent shall provide the appropriate forms, certificates
and other
documentation described in this Section 2.14(c) (x) prior to becoming a
party to this Agreement; (y) upon a Change in Law or circumstances
requiring or making appropriate a new or additional form, certificate
or
documentation; and (z) whenever reasonably requested by any of the
Borrowers or the Agent. If the forms referred to above in this
Section 2.14(c) that are provided by a Lender at the time such Lender
becomes a party to this Agreement indicate a withholding tax rate in
excess of
zero on payments under this Agreement to be received by such Lender
from a
Borrower organized in a Covered Jurisdiction, such withholding tax
at such rate
shall be treated as Excluded Taxes unless and until such Lender provides
all
such forms, duly completed and delivered, establishing that a lesser
rate
applies, whereupon such withholding tax at such lesser rate shall be
considered
Excluded Taxes solely for the periods governed by such form. If the
forms
referred to above in this Section 2.14(c) that are provided by a Lender
at the
time such Lender becomes a party to this Agreement indicate a withholding
tax
rate in excess of zero on payments under this Agreement to be received
by such
Lender from a Borrower that is not organized in a Covered Jurisdiction,
such
withholding tax at such rate shall be treated as Non-Excluded Taxes
solely for
the periods governed by such form. If,
however, on the date a Lender assigns all or a portion of its commitments
under
this Agreement to an Affiliate thereof, such Lender assignor was entitled
to
additional amounts under Section 2.14(a), then the
related
Lender assignee shall be entitled to additional amounts solely to the
extent
that amounts payable to such Lender assignee are themselves subject
to a
withholding tax imposed as a direct result of a Change in Law occurring
after
the date on which the Lender assignor became a party to this Agreement.
Any
additional Taxes imposed on any Lender as a direct result of a change
in the
Applicable Lending Office of such Lender shall be treated as Excluded
Taxes
except to the extent that (I) any such additional Non-Excluded Taxes are
imposed as a result of a Change in Law occurring after the date of
change of its
Applicable Lending Office, or (II) such change is made at the request of
the Initial Borrower in which case the additional Non-Excluded Taxes
shall be
treated as Non-Excluded Taxes imposed by reason of a Change in Law
and
indemnified pursuant to subsection (a) above.
(d) For
any
period with respect to which any Lender or the Agent has failed to
provide the
Initial Borrower with the duly completed forms, certificates or other
documents
described in Section 2.14(c) or any successor thereto (other than if such
failure is due to such Lender or the Agent, as the case may be, not
being
legally entitled to provide any such form, certificate or other document
or if
it is legally inadvisable for such Lender or the Agent, as the case
may be, to
deliver such form, certificate or other document), such Lender or the
Agent
shall not be entitled to the payment of any additional amounts pursuant
to
Section 2.14(a) or to indemnification under Section 2.14(b) with
respect to Non-Excluded Taxes by reason of such failure, and such Taxes
shall be
considered Excluded Taxes; provided,
however,
that
should any Lender or the Agent become subject to Non-Excluded Taxes
because of
its failure to deliver a form required hereunder, the appropriate Borrower
shall, at the Agent’s or such Lender’s sole expense, take such steps (consistent
with legal and regulatory restrictions) as such Lender or the Agent
shall
reasonably request to assist such Person in recovering such Non-Excluded
Taxes
from the proper governmental or regulatory authority. However, none
of the
Borrowers will be required to take any action that would be inadvisable
or
overly burdensome.
(e) Each
Lender and the Agent hereby agrees that, upon the occurrence of any
circumstances entitling such Person to any additional amounts under
Section 2.14(a) or to indemnification under Section 2.14(b), such
Lender or the Agent shall use its best efforts (consistent with its
internal
policy and legal and regulatory restrictions), at its own expense,
to designate
a different Applicable Lending Office if the making of such a change
would avoid
the need for, or reduce the amount of, any such additional amounts
or
indemnification that may thereafter accrue.
(f) If
any
Lender or the Agent entitled to additional compensation under any of
the
foregoing provisions of this Section 2.14 shall fail to designate a
different Applicable Lending Office that avoids the need for additional
compensation as provided in Section 2.14, then the Initial Borrower may
cause such Lender or the Agent to (and, if the Initial Borrower so
demands, such
Lender or the Agent shall) assign all of its rights and obligations
under this
Agreement to one or more other Persons identified by any Borrower in
accordance
with the terms of Section 8.07(a).
(g) If
any
Lender or the Agent determines that it has received a refund of or
credit
against any Taxes as to which it has been indemnified by any Borrower
or with
respect to which any Borrower has paid additional amounts pursuant
to this
Section 2.14,
it
shall pay over such refund or credit to Borrower (but only to the extent
of
amounts paid by such Borrower under this Section
2.14),
net of
all out-of-pocket expenses of such Lender or the Agent and without
interest
(other than any interest paid by the relevant governmental or regulatory
authority with respect to such refund or credit); provided,
however,
that
such Borrower, upon the request of such Lender or the Agent, agrees
to repay the
amount paid over to such Borrower to such Lender or the Agent in the
event such
Lender or the Agent is required to repay such refund to such governmental
authority or such credit is subsequently denied. Nothing in this Section
2.14(g)
shall be deemed to require the Agent or any Lender to provide copies
of tax
returns or other confidential tax information.
(i) Each
Lender and the Agent shall take all actions reasonably requested by
any Borrower
to assist such Borrower, at the sole expense of such Borrower, to recover
from
the relevant taxation authority or other governmental authority any
Taxes in
respect of which amounts were paid by such Borrower pursuant to
Section 2.14(a) or Section 2.14(b).
SECTION
2.15 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 Revolving
Credit Advances owing to it (other than pursuant to Section 2.11, 2.14 or
8.04(c)) in excess of its ratable share of payments on account of the
Revolving
Credit Advances obtained by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participations in the Revolving
Credit
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. Each of the Borrowers agrees
that any
Lender so purchasing a participation from another Lender pursuant to
this
Section 2.15 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
such
Borrower in the amount of such participation.
SECTION
2.16 Use
of
Proceeds.
The
proceeds of the Advances shall be available (and each Borrower agrees
that it
shall use such proceeds) for general corporate purposes of each Borrower
and its
Subsidiaries, including to finance acquisitions, providing backup liquidity
to
support the issuance of commercial paper and the consummation of the
Transaction.
SECTION
2.17 Evidence
of Debt.
(a)
Each Lender shall maintain in accordance with its usual practice an
account or
accounts evidencing the indebtedness of each Borrower to such Lender
resulting
from each Advance owing to such Lender from time to time, including
the amounts
of principal and interest payable and paid to such Lender from time
to time on
account thereof. Each Borrower agrees that upon notice by any Lender
to such
Borrower (with a copy of such notice to the Agent) to the effect that
a
promissory note or other evidence of indebtedness is required or appropriate
in
order for such Lender to evidence (whether for purposes of pledge,
enforcement
or otherwise) the Revolving Credit Advances owing to, or to be made
by, such
Lender, such Borrower shall promptly execute and deliver to such Lender
a
promissory note of such Borrower payable to the order of such Lender,
in
substantially the form of Exhibit I-1
hereto
(a “Revolving
Credit Note”),
in a
principal amount equal to the Commitment of such Lender.
(b)
The
Register maintained by the Agent pursuant to Section 8.07(d) shall include
a control account, and a subsidiary account for each Lender, in which
accounts
(taken together) shall be recorded (i) the date and amount of each
Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if
appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount
of any principal or interest due and payable or to become due and payable
from
each Borrower to each Lender hereunder, (iv) the amount of any sum received
by the Agent from such Borrower hereunder and each Lender’s share thereof, and
(v) whether the proceeds of each Borrowing has be used 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).
(c) Entries
made in good faith by the Agent in the Register pursuant to subsection (b)
above, and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable
from each
Borrower to, in the case of the Register, each Lender and, in the case
of such
account or accounts, such Lender, under this Agreement, absent manifest
error;
provided,
however,
that
the failure of the Agent or such Lender to make an entry, or any finding
that an
entry is incorrect, in the Register or such account or accounts shall
not limit
or otherwise affect the obligations of any Borrower under this
Agreement.
SECTION
2.18 Call
Right of Affiliates.
Any
Affiliate of a Borrower may, upon at least three Business Days’ notice to the
Agent stating the proposed date and aggregate principal amount of the
purchase,
and, if such notice is given such Affiliate shall, purchase from the
Lenders the
outstanding principal amount of Advances comprising part of the same
Borrowings
in whole or ratably in part, together with accrued interest thereon.
After
giving effect to each such purchase, the purchasing Affiliate shall
be treated
as a Lender to the extent of the rights and obligations so purchased,
except as
otherwise expressly set forth herein. Each purchase made pursuant to
this
Section 2.18 shall also be subject to Section 8.07(a).
ARTICLE
III
CONDITIONS
TO EFFECTIVENESS AND LENDING
SECTION
3.01 Conditions
Precedent to Initial Borrowing.
The
initial Borrowing of Advances under this Agreement shall be made on
and as of
the first date (the “Closing
Date”)
on
which the following conditions precedent have been satisfied:
(a) All
amounts owing by the Initial Borrower under the Existing Credit Agreement
shall
have been, or concurrently with the initial Borrowing hereunder shall
be, paid
in full, and all commitments of the lenders thereunder shall have been,
or
concurrently with the initial Borrowing hereunder shall be, terminated
in
accordance with the terms of the Existing Credit Agreement.
(b) The
Initial Borrower shall have paid all accrued fees and expenses of the
Agent
(including reasonable fees and expenses of counsel to the Agent).
(c) On
the
Closing 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 representative of the Initial Borrower, dated the Closing
Date,
stating that:
(i) The
representations and warranties contained in Section 4.01 are correct in all
material respects on and as of the Closing Date, and
(ii) No
event
has occurred and is continuing that constitutes a Default.
(d) The
Agent
shall have received on or before the Closing Date the following, each
dated such
date, in form and substance satisfactory to the Agent and in sufficient
copies
for each Lender:
(i) Certified
copies of each of the charter or other organizational documents of
the Initial
Borrower and of resolutions of the Initial Borrower approving this
Agreement and
of all documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement, together with an
English
translation of each of the foregoing documents that are not otherwise
being
provided in English.
(ii) A
certificate of an authorized representative of the Initial Borrower
certifying
the names and true signatures of the other authorized representatives
of the
Initial Borrower authorized to sign this Agreement and the other documents
to be
delivered hereunder.
(iii) The
Pledge Agreement and the Registration Rights Agreement, in each case
duly
executed and delivered by the Initial Borrower, together with (A) proper
financing statements under the Uniform Commercial Code and similar
requirements
of law that are necessary to perfect and protect the Mortgage created
or
purported to be created under the Pledge Agreement, covering all Collateral
described therein, and (B) proper termination statements under the Uniform
Commercial Code and similar requirements of law that are necessary
to terminate
or amend existing liens on all Collateral granted in favor of the Existing
Agent
under the terms of the Existing Pledge Agreement, in each case, in
appropriate
form for filing or recording.
(iv) Favorable
written opinions of counsel for the Initial Borrower, in the form of
(A) Exhibit
C-1
hereto
from Luxembourg counsel to the Initial Borrower, (B) Exhibit
C-2
hereto
from the Initial Borrower’s special counsel, and (C) Exhibit
C-3
hereto
from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Initial
Borrower.
(v) A
favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form
and substance satisfactory to the Agent.
SECTION
3.02 Conditions
Precedent to Each Borrowing.
The
obligation of each Lender to make any Advance on the occasion of each
Borrowing
(other than any deemed Revolving Credit Borrowing pursuant to
Section 2.04(b) or Section 2.07(c)) shall be subject to the conditions
precedent that:
(a) on
the
date of such Borrowing the following statements shall be true (and
each of the
giving of the applicable Notice of Revolving Credit Borrowing or Notice
of
Competitive Bid Borrowing, as applicable, and the acceptance by any
Borrower of
the proceeds of such Borrowing shall constitute a representation and
warranty by
the applicable Borrower that on the date of such Borrowing such statements
are
true):
(i) the
representations and warranties contained in Section 4.01 (except the
representations set forth in the last sentence of subsection (e) thereof
and in subsection (f) thereof) are correct in all material respects 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, as though
made on
and as of such date; and
(ii) no
event
has occurred and is continuing, or would result from such Borrowing
or from the
application of the proceeds therefrom, that constitutes a Default;
(b) the
Agent
shall have received a properly completed Part I of Federal Reserve
Form U-1,
duly executed by an authorized representative of the Initial Borrower;
and
(c) the
Agent
shall have received such other approvals, opinions or documents as
the Required
Lenders through the Agent may reasonable 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 Initial Borrower, by notice to the Lenders, designates
as
the proposed Closing Date, specifying its objection thereto.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01 Representations
and Warranties of the Borrowers.
Each
of
the Borrowers represents and warrants as to itself as follows:
(a) Such
Borrower and its Guarantor, if any, is a corporation, general partnership
or
limited liability company duly organized, validly existing and in good
standing
under the laws of the jurisdiction of its incorporation or formation
and is duly
qualified and in good standing in each jurisdiction wherein the failure
to so
qualify would have a material adverse effect on the financial condition
or
results of operations of such Borrower and its Subsidiaries, taken
as a whole.
Each of the Subsidiaries of such Borrower and its Guarantor, if any,
is duly
organized and validly existing under the laws of its jurisdiction of
incorporation or formation.
(b) The
execution, delivery and performance by such Borrower and its Guarantor,
if any,
of each Loan Document to which it is a party delivered hereunder, and
the
consummation of the transactions contemplated hereby, are within their
respective corporate or other similar organization powers, have been
duly
authorized by all necessary corporate or other similar organization
action, and
do not contravene (i) their respective charter, by-laws or other
organizational documents or (ii) law or any material contractual
restriction binding on or affecting such Borrower or such Guarantor,
as the case
may be.
(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 such Borrower
and
its Guarantor, if any, of this Agreement or any other Loan Document
to which it
is a party, except for any such authorizations, approvals, actions,
notices or
filings as have already been made or obtained and are in full force
and
effect.
(d) This
Agreement has been, and each other Loan Document when delivered hereunder
will
have been, duly executed and delivered by such Borrower and its Guarantor,
if
any, party thereto. This Agreement is, and each other Loan Document
to which it
is a party when delivered hereunder will be, the legal, valid and binding
obligation of such Borrower and its Guarantor, if any, enforceable
against it in
accordance with their respective terms.
(e) (i)The
unaudited financial statements of such Borrower and its Subsidiaries
delivered
to the Agent prior to the Closing Date, in the case of the Initial
Borrower, or
upon the effectiveness of the Borrower Accession Agreement, in the
case of each
Additional Borrower (other than an Affiliate Guaranteed Borrower),
(A) were
prepared in good faith from its internal accounting systems and (B) are in
substantially the form used by its managers and those of its Subsidiaries
for
internal review and business operations in the ordinary course.
(ii) The
financial statements of each Guarantor, if any, delivered to the Agent
pursuant
to Section 8.10(a)(iii) fairly present, subject, in the case of any
such
financial statements that are not audited, to year-end audit adjustments
and
footnote disclosure, the financial condition of such Guarantor and
its Included
Subsidiaries as at the date of such financial statements and the results
of the
operations of such Guarantor and its Included Subsidiaries for the
period ended
on such date.
(iii) Except
for the Transaction or as disclosed in writing to the Agent prior to
the Closing
Date, since December 31, 2004, there has been no Material Adverse
Change.
(f) There
is
no pending or overtly threatened action, suit, investigation, litigation
or
proceeding affecting such Borrower, any of its Subsidiaries or its
Guarantor, if
any, before any court, governmental agency or arbitrator that could
reasonably
be expected to adversely affect the legality, validity or enforceability
of any
Loan Document, or the consummation of the transactions contemplated
hereby.
(g) Such
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), and no proceeds
of any
Advance made to such Borrower will be used to extend credit to any
Person other
than another Borrower for the purpose of purchasing or carrying any
margin
stock.
(h) The
proceeds of the Advances will be used solely in accordance with
Section 2.16, the making of each Advance pursuant to this Agreement will
comply in all respects with the provisions of Regulation U issued by
the Board
of Governors of the Federal Reserve System, and any purchases of common
stock of
the Company by it shall be effected in compliance with all applicable
laws.
(i) All
written information (other than financial information, projections,
estimates
and other forward looking statements) heretofore furnished by such
Borrower and
its Guarantor, if any, to the Lenders for purposes of or in connection
with this
Agreement or any transaction contemplated hereby, taken as a whole,
in each case
as such written information may be amended, modified or supplemented
by it from
time to time, is correct in all material respects and does not omit
to state any
material fact or any fact necessary to make the statements contained
therein not
materially misleading in light of the circumstances under which such
statements
were made.
(j) Such
Borrower is not an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940,
as amended.
(k) All
of
the Advances and other obligations owing by such Borrower to the Agent
and the
other Lenders and under the Credit Agreement and the Notes, if any,
rank
pari
passu or
senior
to all of its other senior unsecured indebtedness for money
borrowed.
ARTICLE
V
COVENANTS
OF THE BORROWERS
SECTION
5.01 Affirmative
Covenants.
So
long
as any Advance shall remain unpaid or any Lender shall have any Commitment
hereunder, the Initial Borrower will, in the case of clause (e) of
this Section
5.01, and each of the Borrowers will, in all other cases under this
Section:
(a) Compliance
with Laws, Etc.
Comply,
and cause each of its Subsidiaries and its Guarantors, if any, to comply,
in all
material respects, with all applicable laws, rules, regulations and
orders,
except where the failure to so comply would not have a Material Adverse
Effect.
(b) Payment
of Taxes, Etc.
Pay and
discharge, and cause each of its Subsidiaries and its Guarantor, if
any, to pay
and discharge, before the same shall become delinquent, (i) all material
taxes, assessments and governmental charges or levies imposed upon
it or upon
its property and (ii) all material lawful claims that, if unpaid, might by
law become a Mortgage upon its property; provided,
however,
that
none of the Borrowers, the Subsidiaries of a Borrower or the Guarantors
shall be
required to pay or discharge any such tax, assessment, charge, levy
or claim
that is being contested in good faith and by proper proceedings and
as to which
appropriate reserves are being maintained, unless and until any Mortgage
resulting therefrom attaches to its property and enforcement, collection,
execution, levy or foreclosure proceedings shall have been commenced
with
respect thereto.
(c) Preservation
of Corporate Existence, Etc.
Preserve
and maintain, and cause each of its Subsidiaries and its Guarantor,
if any, to
preserve and maintain, its existence as a corporation, general partnership
or
limited liability company, as applicable, its rights (charter and statutory)
and
franchises; provided,
however,
that
(i) each of the Borrowers, each of their respective Subsidiaries and each
of the Guarantors may consummate any merger, consolidation or transfer,
sale or
lease of its assets as an entirety to any Person not prohibited under
Section 5.02(b), (ii) each of the Borrowers, each of their respective
Subsidiaries and each of the Guarantors may wind up, liquidate or dissolve
any
inactive or immaterial Subsidiary of such Person, (iii) none of the
Borrowers, the Subsidiaries of a Borrower or the Guarantors shall be
required to
preserve any right or franchise if the Board of Directors of such Borrower,
such
Subsidiary or such Guarantor shall determine that the preservation
thereof is no
longer desirable in the conduct of its business, and that the loss
thereof is
not disadvantageous in any material respect to the Loan Parties and
their
Subsidiaries, taken as a whole, or the Lenders, and (iv) each of the
Borrowers, each of their respective Subsidiaries and each of the Guarantors
may
reincorporate or otherwise change its legal form so long as (A) the
applicable Borrower provides written notice thereof to the Agent reasonably
promptly following such reincorporation or change (together with certified
copies of each amended charter or other organizational document, and,
solely in
the case of the Borrowers if the Collateral has not been released prior
to such
date in accordance with Section 10 of the Pledge Agreement, any amendments
or supplements to the Pledge Agreement necessary for the Agent, on
behalf of the
Lenders, to maintain the perfected nature of its Mortgage covering
the
Collateral), and (B) such reincorporation or change would not result in a
Material Adverse Effect.
(d) Reporting
Requirements.
Deliver
to the Agent (for distribution by the Agent to the Lenders):
(i) as
soon
as available and in any event within 60 days after the end of each
of the first
three quarters of each fiscal year of each of the Loan Parties (other
than any
Affiliate Guaranteed Borrower), a Consolidated balance sheet of such
Loan Party
and its Included Subsidiaries as of the end of such quarter and Consolidated
statements of income and cash flows of such Loan Parties and its Included
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 an authorized representative of such Loan Party
as having
been prepared in accordance with generally accepted accounting principles
and,
to the best of such Loan Party’s knowledge, as fairly presenting in all material
respects the financial condition, results of operations and cash flows
of such
Loan Party and its Included Subsidiaries for the period covered
thereby;
(ii) as
soon
as available, and in any event within 120 days after the end of each
fiscal year
of each of the Loan Parties (other than any Affiliate Guaranteed Borrower),
a
copy of the annual audit report for such year for such Loan Party and
its
Included Subsidiaries, containing the Consolidated balance sheet of
such Loan
Parties and its Included Subsidiaries as of the end of such fiscal
year and
Consolidated statements of income and cash flows of such Loan Party
and its
Included Subsidiaries for such fiscal year, in each case accompanied
by an
unqualified opinion or an opinion reasonably acceptable to the Required
Lenders
by Deloitte & Touche LLP or other independent public accountants of
recognized standing;
(iii) as
soon
as possible and in any event within five days after the occurrence
of each
Default or Event of Default continuing on the date of such statement,
a
statement of any Loan Party setting forth details of such Default or
Event of
Default and the action that one or more of the Loan Parties and their
Subsidiaries has taken and propose to take with respect thereto;
(iv) promptly
after the sending or filing thereof, copies of all reports that any
Borrower
sends to any of its securityholders, and copies of all reports and
registration
statements that such Borrower or any of its Subsidiaries files with
the
Securities and Exchange Commission or any national securities
exchange;
(v) promptly
after the commencement thereof, notice of all actions and proceedings
before any
court, governmental agency or arbitrator affecting any of the Borrowers
or any
of their Subsidiaries of the type described in Section 4.01(f);
and
(vi) such
other information respecting any of the Loan Parties or any of their
Subsidiaries as the Required Lenders through the Agent may from time
to time
reasonably request;
provided,
however,
that in
the case of clauses (i), (ii) and (iv) of this subsection (d), each
Borrower may comply with its obligations thereunder by posting the
relevant
documents to its website, to any of the other Borrowers’ websites, to
▇▇▇.▇▇▇.▇▇▇, or to such other website as notified to the Agent and
the Lenders
in lieu of delivering hard copies thereof to the Lenders.
(e) Obtaining
of Public Debt Rating.
Use
commercially reasonable efforts to obtain, as soon as reasonably practicable
and
in any event no later than July 31, 2006, a rating of the non-credit
enhanced
long-term senior unsecured debt of the initial Borrower from ▇▇▇▇▇’▇ or
S&P.
SECTION
5.02 Negative
Covenants.
So
long
as any Advance shall remain unpaid or any Lender shall have any Commitment
hereunder, none of the Borrowers shall:
(a) Restrictions
on Mortgages.
(i) Create, incur, assume or suffer to exist, or permit any of its
Subsidiaries or its Guarantor, if any, to, create, incur, assume or
suffer to
exist, any Mortgage on or with respect to any of its property and assets,
other
than:
(i) Mortgages
created under the Loan Documents;
(ii) Permitted
Mortgages;
(iii) Mortgages
existing as of the date hereof;
(iv) Mortgages
granted in favor of the Borrowers or any of their Subsidiaries on all
or any
portion of the assets of the Loan Parties and their Subsidiaries other
than up
to 75% of their Principal Manufacturing Properties, considered as a
whole;
(v) deposits
made, and letters of credit issued, to secure the performance of operating
leases of the Loan Parties and their Subsidiaries arising in the ordinary
course
of business;
(vi) Mortgages
in favor of governmental bodies to secure progress or advance
payments;
(vii) Mortgages
arising solely from precautionary filings of financing statements under
the
Uniform Commercial Code of any jurisdiction (or similar filings and
recordings
under equivalent provisions of applicable law);
(viii) any
Mortgages existing
on any property at the time such property is acquired by any Loan Party
or any
of its Subsidiaries, or on any property of any Person at the time such
Person
becomes, or is merged into, the Company or any of its Subsidiaries;
(ix) purchase
money and title retention Mortgages, capitalized leases and construction-
or
improvement-cost Mortgages;
(x) Mortgages
arising under or in connection with Hedge Agreements entered into by
any Loan
Party or any of its Subsidiaries;
(xi) Mortgages
on accounts (as defined in the applicable Uniform Commercial Code at
any time in
effect), receivables, notes, contracts or contract rights, general
intangibles,
lockboxes, (in each case related to the applicable accounts or receivables)
and
collections and proceeds therefrom created in connection with the securitization
or monetization of accounts receivable or other commercial paper programs
of the
Company and its Subsidiaries;
(xii) Mortgages
arising in connection with repurchase agreements, reverse purchase
agreements
and other similar agreements for the purchase, sale or loan of securities,
in
each case in the ordinary course of business;
(xiii) Mortgages
of all of the Loan Parties, their Subsidiaries and Guarantors, if any,
not
otherwise permitted hereunder encumbering assets not exceeding 20%
of
Consolidated Assets of the Loan Parties and their Included Subsidiaries
at any
time; and
(xiv) any
extension, refinancing, renewal or refunding of any Mortgage referred
to in
clauses (i) through (xiii) of this Section 5.02(a).
Notwithstanding
the foregoing, on and after the date that the Pledge Agreement has
been
terminated, the Borrowers and their respective Subsidiaries and Guarantors,
if
any, shall not withdraw (within
the meaning of Section 211.3(f) of Regulation U issued by the Board
of Governors
of the Federal Reserve System) assets from coverage by this Section
5.02(a)
that, solely as a consequence of such withdrawal (and not due to any
fluctuations in the value of the assets themselves) would cause the
value of the
assets subject to this Section 5.02(a) to be less than the aggregate
principal
amount of the Advances that were used 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).
(b) Consolidation,
Merger and Sale of Assets.
Consolidate or merge with or into, or transfer, sell or lease its assets
as an
entirety to, or permit any Guarantor, if any, to consolidate or merge
with or
into, or transfer, sell or lease its assets as an entirety to, any
Person,
unless the Person (if other than a Borrower or a Subsidiary of the
Company)
formed by such consolidation or into which such Borrower, or such Guarantor
is
merged or which acquires or leases the assets of such Borrower or such
Guarantor
substantially as an entirety assumes such Borrower’s or such Guarantor’s
obligations under the Loan Documents (and, upon such assumption, such
Person
shall be a Borrower or Guarantor, as applicable, for all purposes of
the Loan
Documents), or another Borrower assumes such Borrower’s obligations, or another
Guarantor assumes such Guarantor’s obligations, under the Loan Documents;
provided,
that
after giving effect to such transaction, no Default or Event of Default
shall
have occurred and be continuing, and such consolidation, merger, transfer,
sale
or lease of assets is not prohibited under the indentures pursuant
to which any
publicly held debt of such Borrower or such Guarantor was issued.
ARTICLE
VI
EVENTS
OF
DEFAULT
SECTION
6.01 Events
of Default.
Each
of
the following events shall constitute an “Event of Default” under this
Agreement:
(a) Any
Borrower shall fail to pay any principal of any Advance when the same
becomes
due and payable; or any Borrower shall fail to pay any interest on
any Advance
or make any other payment of fees payable under this Agreement or any
Note
within ten days after the same becomes due and payable; or any Loan
Party shall
fail to make any payment of any other amount payable under any Loan
Document
within ten days after the same becomes due and payable; or
(b) Any
representation or warranty made by any Loan Party (or any of its authorized
representatives) under or in connection with this Agreement or any
of the other
Loan Documents shall prove to have been incorrect in any material respect
when
made; or
(c) (i) Any
Borrower shall fail to perform or observe any term, covenant or agreement
contained in, or any Guarantor shall fail to perform or observe any
term,
covenant or agreement that any Borrower has agreed to cause such Guarantor
to
perform under, (A) Section 5.01(d) or (e) (other than
clauses (e)(i), (e)(ii) or (e)(iii)) or (B) Section 5.02, or
(ii) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in, or any Guarantor shall fail to
perform or
observe any term, covenant or agreement that any Borrower has agreed
to cause
such Guarantor to perform under, this Agreement or any of the Loan
Documents on
its part to be performed or observed if, in the case of this clause (ii),
such failure shall remain unremedied for 30 days after written notice
thereof
shall have been given to the Initial Borrower by the Agent or any Lender;
or
(d) Any
Borrower or any of its Subsidiaries or any Guarantor 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
any
Borrower or any of its Subsidiaries or any Guarantor seeking to adjudicate
it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts
under any law relating to bankruptcy, insolvency or reorganization
or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a
receiver, trustee, custodian or other similar official for it or for
any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding
shall
remain undismissed or unstayed for a period of 90 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 any Borrower or any of its Subsidiaries or any Guarantor
shall
take any corporate or other action to authorize any of the actions
set forth
above in this subsection (d); or
(e) Any
judgment or order for the payment of money in excess of $250,000,000
shall be
rendered against any Borrower, any Guarantor or any of the Material
Subsidiaries
and not satisfied and there shall be any period of 60 consecutive days
during
which a stay of enforcement of such unsatisfied 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(e) if 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 disputed the claim made for payment of, the amount of such
judgment
or order; or
(f) Any
non-monetary judgment or order shall be rendered against any Borrower
or any of
its Subsidiaries or any Guarantor that would have a Material Adverse
Effect and
not resolved, and there shall be any period of 60 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.
SECTION
6.02 Remedies.
(a) If
any
Event of Default shall occur and be continuing, 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 each of the Borrowers, declare the obligation
of each
Lender to make Advances to be terminated, whereupon the obligation
of each
Lender to make such Advances shall forthwith terminate, and (ii) shall at
the request, or may with the consent, of the Required Lenders, by notice
to each
of the Borrowers, declare the Advances, all interest thereon and all
other
amounts payable under this Agreement to be forthwith due and payable,
whereupon
the Advances, 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 each
of the
Borrowers.
(b) Notwithstanding
anything to the contrary in clause (a) of this Section 6.02, in the
event of an actual or deemed entry of an order for relief with respect
to any
Borrower under the Federal Bankruptcy Code, (i) the obligation of each
Lender to make Advances to such Borrower shall automatically be terminated
and
(ii) the Advances made to such Borrower, all interest thereon and all
amounts payable under this Agreement with respect thereto 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 each
of the
Borrowers.
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
and
the other Loan Documents as are delegated to the Agent by the terms
hereof and
thereof, together with such powers and discretion as are reasonably
incidental
thereto. As to any matters not expressly provided for by this Agreement
or the
other Loan Documents (including, without limitation, enforcement or
collection
of the Advances), 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 the other
Loan
Documents applicable law. The Agent agrees to give to each Lender prompt
notice
of each notice given to it by each of the Borrowers pursuant to the
terms of
this Agreement or the other Loan Documents.
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 or any of the other Loan Documents,
except for
its or their own negligence or willful misconduct. Without limitation
of the
generality of the foregoing, the Agent: (i) may treat the Lender that made
any Advance as the holder of the Debt resulting therefrom until the
Agent
receives and accepts an Assignment and Acceptance entered into by such
Lender,
as assignor, and any assignee thereof as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for any of the Loan
Parties), 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
(without negligence or willful misconduct) 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 or any of the other Loan Documents;
(iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions
of this
Agreement or any of the other Loan Documents on the part of any of
the Loan
Parties or to inspect the property (including the books and records)
of any of
the Loan Parties; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency
or value
of, or the perfection or priority of any lien or security interest
created or
purported to be created under or in connection with, this Agreement
or any of
the other Loan Documents or any other instrument or document furnished
pursuant
hereto or thereto; and (vi) shall incur no liability under or in respect of
this Agreement or any of the other Loan Documents by acting in good
faith upon
any notice, consent, certificate or other instrument or writing (which
may be by
telecopier or telegram) believed by it to be genuine and signed or
sent by the
proper party or parties.
SECTION
7.03 Citibank
and Affiliates.
With
respect to its Commitment, the Advances made by it and any Note or
Notes issued
to it, Citibank shall have the same rights and powers under this Agreement
as
any other Lender and may exercise the same as though it were not the
Agent; and
the term “Lender”
or
“Lenders”
shall,
unless otherwise expressly indicated, include Citibank in its individual
capacity. Citibank and its Affiliates may accept deposits from, lend
money to,
act as trustee under indentures of, accept investment banking engagements
from
and generally engage in any kind of business with, any of the Borrowers,
any of
their Subsidiaries and any Person who may do business with or own securities
of
any of the Borrowers or their Subsidiaries, all as if Citibank were
not the
Agent and without any duty to account therefor to the Lenders.
SECTION
7.04 Lender
Credit Decision.
Each
Lender acknowledges that it has, independently and without reliance
upon the
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
Borrowers), ratably according to the respective principal amounts of
the
Advances then owing to each of them (or if no Advances are at the time
outstanding or if any Advances are then owing to Persons that are not
Lenders,
ratably according to the respective amounts of their Commitments),
from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any
kind or
nature whatsoever that may be imposed on, incurred by, or asserted
against the
Agent in any way relating to or arising out of this Agreement or any
of the
other Loan Documents or any action taken or omitted by the Agent hereunder
or
thereunder (collectively, the “Indemnified
Costs”),
provided
that no
Lender shall be liable for any portion of the Indemnified Costs resulting
from
the Agent’s 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 Borrowers. 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 each
of the Borrowers 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 acceptable to the
Initial
Borrower. If no successor Agent shall have been so appointed by the
Required
Lenders and approved by the Initial Borrower, 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 and the other Loan Documents. After
any
retiring Agent’s resignation or removal hereunder as Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken
or omitted
to be taken by it while it was Agent under this Agreement and the other
Loan
Documents.
SECTION
7.07 Sub-Agent.
The
Sub-Agent has been designated under this Agreement to carry out the
duties of
the Agent. The Sub-Agent shall be subject to each of the obligations
in this
Agreement to be performed by the Sub-Agent, and each of the Borrowers
and the
Lenders agrees that the Sub-Agent shall be entitled to exercise each
of the
rights and shall be entitled to each of the benefits of the Agent under
this
Agreement as such rights and benefits relate to the performance of
its
obligations hereunder.
SECTION
7.08 Other
Agents.
Each
Lender hereby acknowledges that no syndication agent and no documentation
agent
nor any other Lender designated as any “agent”
(other
than the Agent) on the signature pages or the cover hereof has any
liability
hereunder other than in its capacity as a Lender.
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.01 Amendments,
Etc. No
amendment or waiver of any provision of this Agreement or any of the
other Loan
Documents, nor consent to any departure by any Borrower therefrom,
shall in any
event be effective unless the same shall be in writing and signed by
each of the
Borrowers and 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
Borrowers and all of the Lenders (other than any Lender that is an
Affiliate of
any Borrower), do any of the following: (a) waive any of the conditions
specified in Section 3.01, (b) increase the Commitments of the Lenders
or postpone the Termination Date, (c) reduce the principal of, or interest
on, the Revolving Credit Advances or any fees or other amounts payable
hereunder, (d) postpone any scheduled date for any payment of principal of,
or interest on, the Revolving Credit Advances or any fees or other
amounts
payable hereunder pursuant to Section 2.04, 2.06 or 2.07, (e) change
the percentage of the Commitments or of the aggregate unpaid principal
amount of
the Revolving Credit Advances, 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 other Loan
Document.
SECTION
8.02 Notices,
Etc.
(a) All
notices and other communications provided for hereunder shall be either
(x) in writing (including telecopier or telegraphic communication) and
mailed, telecopied, telegraphed or delivered, or (y) to the extent set
forth in Section 8.02(b) and in the proviso to this Section 9.02(a),
by electronic mail (in .PDF form) (“Email”),
confirmed reasonably promptly thereafter in writing, if to the Initial
Borrower,
at the address of such Person at ▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
with
a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel-Western Europe, Procter
&
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇,
Tel.
▇▇▇-▇▇-▇▇▇-▇▇▇▇, Fax ▇▇▇-▇▇-▇▇▇-▇▇▇▇, Email: [ ];
if to
any Additional Borrower to such Person at the address specified therefor
in the
applicable Borrower Accession Agreement; if to any 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 Assignment
and
Acceptance pursuant to which it became a Lender, as the case may be;
and if to
the Agent, at its address at [ ];
or, as
to any Borrower or the Agent, at such other address as shall be designated
by
such party in a written notice to the other parties and, as to each
other party,
at such other address as shall be designated by such party in a written
notice
to each of the Borrowers and the Agent; provided,
that
Notices of Revolving Credit Borrowing, Notices of Competitive Bid Borrowing
and
materials delivered pursuant to Section 5.01(d)(i), (d)(ii) and (d)(iv)
shall be delivered to the Agent as specified in Section 9.02(b) or as
otherwise specified to the Company by the Agent. All such notices and
communications shall, when mailed, telecopied or Emailed, be effective
when
deposited in the mails, telecopied or confirmed by Email, respectively,
except
that notices and communications to the Agent pursuant to Article II or III
shall not be effective until received by the Agent. Delivery by telecopier
or
facsimile of an executed counterpart of any amendment or waiver of
any provision
of this Agreement or any other Loan Document or of any Exhibit hereto or
thereto to be executed and delivered hereunder shall be effective as
delivery of
a manually executed counterpart thereof.
(b) Notices
of Revolving Credit Borrowing, Notices of Competitive Bid Borrowing
and
materials required to be delivered pursuant to Section 5.01(d)(i), (d)(ii)
and (d)(iv) may be delivered to the Agent in an electronic medium in
a format
acceptable to the Agent by Email at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇,
or such other
email address as the Agent shall specify in writing to each of the
Loan Parties.
Each of the Borrowers agrees that the Agent may make such materials,
as well as
any other written information, documents, instruments and other material
relating to each of the Borrowers, any of its Subsidiaries or any other
materials or matters relating to this Agreement, any of the other Loan
Documents
or any of the transactions contemplated hereby or thereby (collectively,
the
“Communications”)
available to the Lenders by posting such notices on Intralinks or a
substantially similar electronic system reasonably approved by the
Company (the
“Platform”).
Although the primary web portal is secured with a dual firewall and
a User
ID/Password Authorization System and the Platform is secured through
a single
user per deal authorization method whereby each user may access the
Platform
only on a deal-by-deal basis, each of the Borrowers acknowledges that
(i) the distribution of material through an electronic medium is not
necessarily secure and that there may be confidentiality and other
risks
associated with such distribution, (ii) the Platform is provided “as is”
and “as available” and (iii) neither the Agent nor any of its Affiliates
warrants the accuracy, adequacy or completeness of the Communications
or the
Platform and each expressly disclaims liability for errors or omissions
in the
Communications or the Platform. No warranty of any kind, express, implied
or
statutory, including, without limitation, any warranty of merchantability,
fitness for a particular purpose, non-infringement of third party rights
or
freedom from viruses or other code defects, is made by the Agent or
any of its
Affiliates in connection with the Platform.
(c) Each
Lender agrees that notice to it (as provided in the next sentence)
(a
“Notice”)
specifying that any Communications have been posted to the Platform
shall
constitute effective delivery of such information, documents or other
materials
to such Lender for purposes of this Agreement. Each Lender agrees (i) to
notify the Agent in writing of such Lender’s Email address to which a Notice may
be sent by electronic transmission (including by electronic communication)
on or
before the date such Lender becomes a party to this Agreement (and
from time to
time thereafter to ensure that the Agent has on record an effective
Email
address for such Lender) and (ii) that any Notice may be sent to such Email
address.
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 other Loan Document 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 provided herein and in the Pledge Agreement, when
executed
and delivered hereunder, are cumulative and not exclusive of any remedies
provided by law.
SECTION
8.04 Costs
and Expenses.
(a) The
Initial Borrower agrees to pay reasonably promptly following demand
therefor all
reasonable out-of-pocket costs and expenses of the Agent in connection
with the
preparation, execution, delivery, administration, modification and
amendment of
this Agreement, the other Loan Documents 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 with
respect thereto and with respect to advising the Agent as to its rights
and
responsibilities under this Agreement and the other Loan Documents.
Each of the
Borrowers further agrees to pay on demand all reasonable out-of-pocket
costs and
expenses of the Agent and the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement
against such Borrower (whether through negotiations, legal proceedings
or
otherwise) of this Agreement, the other Loan Documents and the other
documents
to be delivered hereunder and thereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender
in
connection with the enforcement of rights against such Borrower under
this
Section 8.04(a).
(b) Each
of
the Borrowers agrees to indemnify and hold harmless the Agent and each
Lender
and each of their Affiliates and their officers, directors, employees,
agents
and advisors (each, an “Indemnified
Party”;
and
each of the Agent and the Lenders, and their respective Affiliates
officers,
directors, employees, agents and advisors being, in relation to each
other, a
“Related
Indemnified Party”)
from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel)
that
may be incurred by or asserted or awarded against any Indemnified Party,
in each
case arising out of or in connection with or by reason of (including,
without
limitation, in connection with any investigation, litigation or proceeding
or
preparation of a defense in connection therewith) the Advances, this
Agreement
or any of the other Loan Documents, any of the transactions contemplated
herein
or therein or the actual or proposed use of the proceeds of the Advances;
provided,
however,
that no
Borrower shall have any obligation to indemnify an Indemnified Party
pursuant to
this Section 8.04(b) with respect to any claim, damage, loss, liability or
expense (i) that resulted from negligence, willful misconduct, violation of
law or the breach of any Loan Document by such Indemnified Party or
a Related
Indemnified Party, (ii) is attributable to Taxes or Other Taxes, which in
each case shall be governed solely by Section 2.14, (iii) that arises
out of a claim, litigation, arbitration or proceeding of one or more
of the
Agent and/or any of the Lenders solely against the Agent and/or any
of the other
Lenders not attributable to the actions of such Borrower or any of
its
Subsidiaries or Affiliates or (iv) that arises out of a claim, litigation,
arbitration or proceeding in which one or more of the Borrowers and/or
their
Subsidiaries or Affiliates prevail. 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 directors, shareholders or creditors
of any
Borrower or an Indemnified Party or any other Person or any Indemnified
Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. Each of the Borrowers and each of the Indemnified
Parties hereby agrees not to assert any claim against each such other
Person, on
any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Advances, this
Agreement or
any of the other Loan Documents, any of the transactions contemplated
herein or
therein or the actual or proposed use of the proceeds of the Advances.
No
Indemnified Party shall settle or otherwise pay or agree to pay any
claim,
damages, losses liabilities or expenses for which any Borrower is obligated
to
provide indemnification under this Section 8.04(b) without the prior
written consent of such Borrower.
(c) If
any
payment of principal of, or Conversion of, any Eurocurrency Rate Advance
is made
by any 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 2.08(d) or (e), 2.10 or 2.12, acceleration of the
maturity of the Advances pursuant to Section 6.02 or for any other reason,
or by an assignee to a Lender other than on the last day of the Interest
Period
for such Advance upon an assignment of rights and obligations under
this
Agreement pursuant to Section 8.07 as a result of a demand by a Borrower
pursuant to Section 8.07(a), each of the Borrowers shall, upon demand by
such Lender (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
(excluding
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 Borrowers hereunder,
the
agreements and obligations of the Borrowers contained in Sections 2.11,
2.14 and 8.04 shall survive the payment in full of principal, interest
and all
other amounts payable hereunder and under the other Loan Documents.
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 6.02 to authorize the Agent to declare the Advances due and payable
pursuant to the provisions of Section 6.02, 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 any Borrower against any and all of the
obligations
of any Borrower now or hereafter existing under this Agreement, whether
or not
such Lender shall have made any demand under this Agreement and although
such
obligations may be unmatured. Each Lender agrees promptly to notify
each of the
Borrowers 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 when it shall have been executed and
delivered
by the Initial 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 Borrowers,
the
Agent and each Lender and their respective successors and assigns,
except that
(other than in accordance with Section 5.02(b) or Section 8.10) no
Borrower shall 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) Without
the written consent of the Initial Borrower (which consent may be withheld
in
its sole and absolute discretion) and of the Agent (which consent shall
not be
unreasonably withheld), no Lender may assign all or any portion of
its rights
and obligations under this Agreement to any Person, except to an Affiliate
of
such Lender, as provided in Section 2.11, 2.14 or 2.18, or as set
forth in Section 8.07(g) or to another Lender that is an Affiliate of such
Lender. If any Lender (i) requests any payment to under Section 2.11
or Section 2.14 or (ii) gives notice to any Borrower pursuant to
Section 2.12, then, so long as no Default or Event of Default has occurred
and is continuing at such time, any Borrower may demand upon at least
three
Business Days’ notice to such Lender and the Agent that such Lender, and, upon
such demand, such Lender shall, assign all of its rights and obligations
under
this Agreement to any Person designated by such Borrower. Each assignment
pursuant to the terms of this Section 8.07(a) (A) shall be of a
constant, and not a varying, percentage of all rights and obligations
under this
Agreement (and, in the case of an assignment demanded by a Borrower,
shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights
and
obligations made concurrently with another such assignment or other
such
assignments that together cover all of the rights and obligations of
the
assigning Lender under this Agreement), except that any such assignment
of a
Commitment by a Lender to another Lender that is an Affiliate of such
Lender
need not be accompanied by an assignment of the same percentage of
any of the
assigning Lender’s Advances and any such assignment of one or more Advances by a
Lender to another Lender that is an Affiliate of such Lender need not
be
accompanied by an assignment of the same percentage the assigning Lender’s
Commitment or any of the assigning Lenders other Advances, (B) 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, shall in no event be less than $10,000,000,
and (C) shall be evidenced by evidenced by an Assignment and Acceptance
executed by each of the parties thereto and delivered to the Agent,
for its
acceptance and recording in the Register. No Lender shall be obligated
to make
any such assignment as a result of a demand by a Borrower pursuant
to this
Section 8.07(a) unless and until such Lender shall have received one or
more payments from either each of the Borrowers or one or more assignees
therefrom in an aggregate amount at least equal to the aggregate outstanding
principal amount of the Advances owing to such Lender, together with
accrued
interest thereon to the date of payment of such principal amount and
all other
amounts payable to such Lender under this Agreement. Upon such execution,
delivery, acceptance and recording, from and after the effective date
specified
in each Assignment and Acceptance, (1) 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 (2) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have been
assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights
and be
released from its obligations under this Agreement (and, in the case
of an
Assignment and Acceptance covering all or the remaining portion of
an assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease
to
be a party hereto).
(b) By
executing and delivering an Assignment and Acceptance, the Lender assignor
thereunder and the assignee thereunder confirm to and agree with each
other and
the other parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Lender makes no representation
or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement
or
any of the other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or perfection
or priority
of any lien or security interest created or purported to be created
under or in
connection with, this Agreement or any of the other Loan Documents
or any other
instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower
or the
performance or observance by any Borrower of any of its obligations
under this
Agreement or any of the other Loan Documents or any other instrument
or document
furnished pursuant hereto or thereto; (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 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 and the other Loan
Documents as
are delegated to the Agent by the terms hereof and thereof, together
with such
powers and discretion as are reasonably incidental thereto; and (vi) 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) Upon
its
receipt of an Assignment and Acceptance executed by an assigning Lender
and an
assignee in accordance with Section 8.07(a), 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
B
hereto,
(i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to
each of the Borrowers.
(d) The
Agent
shall maintain at its address referred to in Section 8.02 a copy of 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 Commitment
of, and
principal amount of the Advances owing to, each Lender from time to
time, and
whether the proceeds of each such Advanced were used 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) (the “Register”).
The
entries in the Register shall be conclusive and binding for all purposes,
absent
manifest error, and each of the Borrowers, the Agent and the Lenders
may treat
each Person whose name is recorded as a Lender in the Register as a
Lender
hereunder for all purposes of this Agreement. The Register shall be
available
for inspection by each of the Borrowers or any Lender at any reasonable
time and
from time to time upon reasonable prior notice.
(e) Each
Lender may upon not less than five Business Days’ notice to the Initial Borrower
sell participations to one or more banks or other entities in or to
all or a
portion of its rights and obligations under this Agreement (including,
without
limitation, all or a portion of its Commitment, the Advances owing
to it and any
Note or Notes held by it); provided,
however,
that
(i) such Lender’s obligations under this Agreement (including, without
limitation, its Commitment to each of the Borrowers 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) each of the Borrowers, 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 other Loan Document, or any
consent to
any departure by the Borrowers therefrom, except to the extent that
such
amendment, waiver or consent would reduce the principal of, or interest
on, the
Advances or any fees or other amounts payable hereunder, in each case
to the
extent subject to such participation, or postpone any scheduled date
for any
payment of principal of, or interest on, the Advances or any fees or
other
amounts payable hereunder, in each case to the extent subject to such
participation. If any Lender sells a participation as described in
this
Section 8.07(e), such Lender shall provide to the Agent on behalf of the
Borrowers, or maintain as agent of the Borrowers, the information described
in
Section 8.07(d) with respect to such participation and shall permit each of
the Borrowers to review such information (to the extent permitted under
applicable law) from time to time upon request. Neither the sale of
any such
participation nor the holding of such a participation by any participant
shall
increase any obligation of any Borrower under Section 2.14.
(f) Any
Lender may, in connection with any assignment or participation or proposed
assignment or proposed participation, disclose to the assignee or participant
or
proposed assignee or participant any financial statements and related
documents
delivered to the Agent in accordance with Section 4.01(e),
Section 5.01(d)(i) or Section 5.01(d)(ii); provided
that,
prior to any such disclosure, the assignee or participant or proposed
assignee
or proposed participant shall agree to preserve the confidentiality
of any
Confidential Information received by it in accordance with the terms
of
Section 8.08.
(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 any Note
or Notes held by it) in favor of any Federal Reserve Bank in accordance
with
Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION
8.08 Confidentiality.
Neither
the Agent nor any Lender shall disclose any Confidential Information
to any
other Person without the consent of each of the Borrowers, other than
(a) to the Agent’s or such Lender’s Affiliates and their officers,
directors, employees, agents and advisors and, as contemplated by 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 and (c) as requested or required by any state, federal or
foreign authority or examiner regulating banks or banking; provided,
that,
with respect to clause (b) above, the Agent and each Lender agree to
notify the
Initial Borrower promptly of any such request for the disclosure of
Confidential
Information unless such notification is prohibited by applicable law,
rule or
regulation or by judicial process.
SECTION
8.09 Judgment
Currency.
(a)
If
for the purposes of obtaining judgment in any court it is necessary
to convert a
sum due hereunder in Dollars or Euros into another currency, the parties
hereto
agree, to the fullest extent that they may effectively do so, that
the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Agent could purchase Dollars or Euros, as the case may
be, with
such other currency at Citibank’s principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment
is
given.
(b) The
obligation of each Borrower in respect of any sum due from it in any
currency
(the “Primary
Currency”)
to any
Lender or the Agent hereunder shall, notwithstanding any judgment in
any other
currency, be discharged only to the extent that on the Business Day
following
receipt by such Lender or the Agent (as the case may be), of any sum
adjudged to
be so due in such other currency, such Lender or the Agent (as the
case may be)
may in accordance with normal banking procedures purchase the applicable
Primary
Currency with such other currency; if the amount of the applicable
Primary
Currency so purchased is less than such sum due to such Lender or the
Agent (as
the case may be) in the applicable Primary Currency, each Borrower
agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify
such
Lender or the Agent (as the case may be) against such loss, and if
the amount of
the applicable Primary Currency so purchased exceeds such sum due to
any Lender
or the Agent (as the case may be) in the applicable Primary Currency,
such
Lender or the Agent (as the case may be) agrees to remit to such Borrower
such
excess.
SECTION
8.10 Additional
Borrowers; Assumption of Advances.
(a) The
Initial Borrower may request that any of the Related Parties become
party to
this Agreement as an additional borrower (an “Additional
Borrower”),
and
additionally such Related Party or a Borrower may elect that all or
any portion
of the Advances and other obligations of any Borrower under this Agreement
and
the other Loan Documents shall be assumed by any other Borrower, in
either case,
by delivering to the Agent each of the following:
(i) a
Borrower Accession Agreement, duly executed by the Initial Borrower
and such
Related Party, together with a certificate of an authorized representative
of
the Additional Borrower certifying the names and true signatures of
the other
authorized representatives of the Additional Borrower authorized to
sign the
Borrower Accession Agreement and the other documents to be delivered
hereunder;
(ii) an
opinion of counsel addressing the matters covered by opinion paragraphs
1, 2, 3,
and 4 of Exhibit
C-1,
opinion
paragraph 1 of Exhibit
C-2,
and
opinion paragraphs 1 and 2 of Exhibit
C-3
in
Section 3.01(d)(iv) (with such exceptions, assumptions and qualifications
as are customary or appropriate in light of the circumstances under
which such
opinion is given);
(iii) (A)
except in the case of any Related Party that will be an Affiliate Guaranteed
Borrower, the most recently available quarterly or annual financial
statements
of such Related Party and its Subsidiaries (which may be unaudited)
and (B) in
the case of an Affiliate Guaranteed Borrower, the most recently available
quarterly or annual financial statements of the applicable Guarantor
(which may
be unaudited); and
(iv) if,
as of
the date such Related Party becomes an Additional Borrower, such Related
Party
does not have long-term senior unsecured debt ratings of A- or better
from
S&P or A3 or better from ▇▇▇▇▇’▇, a duly executed and delivered Guaranty
Agreement from the Company or a Related Party that maintains such debt
rating at
such time.
(b) A
Related
Party in respect of which the Initial Borrower has delivered a Borrower
Accession Agreement to the Agent shall become an Additional Borrower
and, as
such, shall have all of the rights and obligations of a Borrower hereunder
with
respect to the Commitments specified to be made available to such Additional
Borrower, which shall be in a minimum amount of $500,000,000; provided,
that no
Default or Event of Default shall have occurred and be continuing or
would
result from such joinder or assumption, as applicable. Upon any assumption
of
all of the Advances and other obligations of any Borrower, then, so
long no
Notice of Revolving Credit Borrowing or Notice of Competitive Bid Borrowing
in
respect of such Borrower is outstanding at such time, such Borrower
shall no
longer be a party to this Agreement.
SECTION
8.11 Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the
laws of
the State of New York.
SECTION
8.12 Jurisdiction.
(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 any other Loan Document, 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
Borrower
agrees that service of process in any such action or proceeding brought
in any
such New York State court or in such federal court may be made upon
CT
Corporation System and its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇
▇▇▇▇▇ (the “Process
Agent”),
and
hereby further agrees that any failure of the Process Agent to give
any notice
of any such service to any Borrower shall not impair or affect the
validity of
such service or of any judgment rendered in any action or proceeding
based
thereon. 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
any other
Loan Document 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 any other Loan Document 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
8.13 Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts and by different
parties
hereto in separate counterparts, each of which when so executed shall
be deemed
to be an original and all of which taken together shall constitute
one and the
same agreement. Delivery of an executed counterpart of a signature
page to this
Agreement by telecopier shall be effective as delivery of a manually
executed
counterpart of this Agreement.
SECTION
8.14 Waiver
of Jury Trial.
Each
of
the Borrowers, 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 any
of the other Loan Documents or the actions of the Agent or any Lender
in the
negotiation, administration, performance or enforcement thereof.
SECTION
8.15 Patriot
Act.
Each
Lender
hereby notifies each of the Borrowers that, pursuant to the requirements
of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law on October
26,
2001)) (the “Act”),
it is
required to obtain, verify and record information that identifies each
Loan
Party, which information includes the name and address of each Loan
Party and
other information that will allow such Lender to identify such Loan
Party in
accordance with the Act.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by
their respective officers or representatives thereunto duly authorized,
as of
the date first above written.
PROCTER
& ▇▇▇▇▇▇ INTERNATIONAL S.A.R.L.,
as the
Initial Borrower
By _____________________________
Title:
CITIBANK,
N.A.,
as Agent
By _____________________________
Title:
AMENDMENT
AND WAIVER TO REVOLVING CREDIT AGREEMENT
As
of
July 30, 2006
Reference
is made to the Revolving Credit Agreement dated as of July 27, 2005
(as
amended, supplemented or otherwise modified prior to the date hereof, the
“Credit Agreement”) among Procter & ▇▇▇▇▇▇ International S.A.R.L., a
société
à responsabilité
limitée organized
under the laws of the Grand Duchy of Luxembourg (the “Initial Borrower”), the
Additional Borrowers party thereto, the Lenders party thereto, Citibank,
NA., as
administrative agent for such Lenders (the “Agent”), Citigroup Global Markets
Inc., as sole lead arranger and sole book runner, JPMorgan Chase Bank,
N.A., as
syndication agent, and ABN Amro Bank N.V. and Deutsche Bank Securities
Inc., as
co-documentation agents. Capitalized terms not otherwise defined in
this Amendment
and Waiver shall
have the same
meanings as specified therefor in the Credit Agreement.
PRELIMINARY
STATEMENTS
The
Lenders have agreed to make and have made loans and other extensions of
credit
to the Borrowers under the Credit Agreement. The Initial Borrower has requested
and, upon this Amendment and Waiver becoming effective, the Lenders will
have
agreed, that certain provisions of the Credit Agreement be amended and
otherwise
modified in the manner provided for herein.
NOW
THEREFORE,
in
consideration of the premises and mutual covenants contained herein, and
for
other valuable consideration the receipt of which is hereby acknowledged,
the
parties hereto hereby agree as follows:
SECTION
1, Amendment
to the
Credit Agreement.
The
Credit Agreement is hereby amended as follows:
(a) Section
1.01 of the Credit Agreement is hereby amended to add the following definitions
in the appropriate alphabetical order:
“P&G”
means
The Procter & ▇▇▇▇▇▇ Company, an Ohio corporation.
“P&G Guaranty”
means
the Guaranty dated as of August 23, 2006 made by P&G in favor of the Agent
and the Lenders.
(b) Section
1.01 of the Credit Agreement is hereby further amended (i) to add at the
end of
the definition of “Guarantor”
the
new
proviso clause “; provided, however,
that
P&G shall not constitute a Guarantor for any purposes of the Loan Documents
or any agreement, instrument, certificate or other document delivered in
connection therewith” and (ii) to add at
the
end of the definition of “Guaranty
Agreement”
the
new
proviso clause “; provided, however,
that
the P&G Guaranty shall not constitute a Guaranty Agreement for any purposes
of the Loan
Documents or any agreement, instrument, certificate or other document delivered
in connection therewith”
(c) Section
4.01(e) of the Credit Agreement is hereby amended (i) to delete clause
(i)
thereof in its entirety and (ii) to renumber clauses (ii) and (iii) thereof
as
the new clauses (i) and (ii) thereof, respectively.
(d) Section
5.01(d)
of
the
Credit Agreement is hereby amended (i) to restate clause (i) thereof in
its
entirety to read as follows:
“(i)
within the time periods specified in the rules and regulations of the Securities
and Exchange Commission, but only for so long as P&G is subject to the
periodic reporting requirements of the Securities Exchange Act of 1934,
as
amended, a Quarterly Report on Form
1
0-Q for each of the first three fiscal quarters of each fiscal year of
P&G
and an Annual Report on Form 10-K for each fiscal year of
P&G;”,
(ii) to
delete
clause (ii) thereof in its entirety and substitute therefore the new language
“(ii) [INTENTIONALLY OMITTED]” and (iii) to replace the language “in the case of
clauses (i), (ii) and (iv) of this subsection (d),” in the proviso clause at the
end of such Section with the new language “in the case of clauses (i) and (iv)
of this subsection (d),”.
(e) Section
5.01(e) of the Credit Agreement is hereby
deleted in its entirety.
(f) Section
6.01(a) of the Credit Agreement is hereby amended to add after
the
language “of any other amount payable under any Loan Document” in the fourth
line thereof the new language “, or P&G shall fail to make any payment of
any other amount payable wider the P&G Guaranty,”.
(g) Section
6.0 1(c) of the Credit Agreement is hereby amended to restate subclause
(i)(A)
thereof in its entirety to read “(A) Section 5.01(c) or (d) (other than clauses
(d)(i) or (d)(iii))”.
SECTION
2. Waiver.
The
Lenders hereby waive (a) compliance with Section 5,0
1(e)
of
the Credit Agreement at any time and from time to time on or prior to the
date
hereof and (b) any Defaults arising under Section 6.01(c) of the Credit
Agreement arising from such non-compliance.
SECTION
3. Conditions Precedent.
This
Amendment and Waiver shall become effective on and as of the date (the
“Amendment Effective Date”) on which (a) the Agent shall have received (i) an
executed counterpart of this Amendment, duly executed and delivered by
a duly
authorized officer of the Initial Borrower and (ii) executed Lender Consent
Letters (or facsimile transmissions thereof), substantially in the form
of
Exhibit A hereto (“Lender Consent Letters”), from the Required Lenders, and (b)
P&G shall have executed and delivered the P&G Guaranty, substantially in
the form of Exhibit B hereto.
SECTION
4. Reference
To And Effect On The Loan Documents.
On and
after the Amendment Effective Date, each reference in the Credit Agreement
to
“this Agreement”, “hereunder”, “hereof’ or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to “the Credit
Agreement”, “thereunder”, “thereof’ or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement,
as
amended and otherwise modified hereby. Except as amended or waived herein,
all
of the provisions of the Credit Agreement and the other Loan Documents
are and
shall remain in full force and effect in accordance with the terms thereof
and
are hereby in all respects ratified and confirmed.
SECTION
5.
Execution
in Counterparts.
This
Amendment and Waiver may be executed by one or more of the parties hereto
in any
number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of
an
executed signature page of this Amendment and Waiver by facsimile transmission
shall be effective as delivery of a manually executed counterpart hereof.
A set
of the copies of this Amendment and Waiver signed by all the parties shall
be
lodged with the Initial Borrower and the Administrative Agent.
SECTION
6. GOVERNING
LAW.
THIS
AMENDMENT AND WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO
SHALL
BE GOVERNED BY, AN]) CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF
THE STATE OF NEW YORK.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment and Waiver
to be
duly executed and delivered by their respective duly authorized officers
as of
the day and year first above written.
PROCTER
& ▇▇▇▇▇▇ INTERNATIONAL S.A.R.L
By________________________________________
Name:
Title:
CITIBANK,
N.A.
By________________________________________
Name
Title
P&G
GUARANTY
dated
as of August 23, 2006
GUARANTY
by The Procter & ▇▇▇▇▇▇ Company, an Ohio corporation (the “Company”) in
favor of the Agent and each of the Lenders (as each such Person is hereinafter
defined).
Procter
& ▇▇▇▇▇▇ International S.A.R.L., a société
à responsabilité
limitée organized
under the laws of the Grand Duchy of Luxembourg (the “Initial Borrower”) has
entered into the Revolving Credit Agreement dated as of July 27, 2005 (as
amended, supplemented and otherwise modified from time to time, the “Credit
Agreement) with the Additional Borrowers referred to therein, the Lenders
party
thereto (the “Lenders”) and Citibank, NA, as administrative agent for such
Lenders (together with any
successor
thereto appointed pursuant to Article VII of the Credit Agreement, the
“Agent”).
Capitalized terms not otherwise defined in this Guaranty shall have the
same
meanings as specified therefor in the Credit Agreement. It is a condition
precedent to the effectiveness
of the Amendment and Waiver to the Revolving Credit Agreement date as of
the
date hereof that the Company shall have executed and delivered this Guaranty.
NOW, THEREFORE, the Company agrees as follows:
Section
1. Guaranty.
The
Company unconditionally guarantees the payment of all of the obligations
of the
Borrowers, whether now or hereafter existing, under the Credit Agreement
and the
Notes, if any (collectively, the “Guaranteed Obligations”), and hereby agrees to
pay any and all reasonable expenses (including, without limitation, reasonable
fees and expenses of counsel) incurred by the Agent or any of the Lenders
in
enforcing any rights under this Guaranty in accordance with the terms hereof.
Without limiting the generality of the foregoing, the Company’s liability shall
extend to all amounts that constitute part of the Guaranteed Obligations
and
would be owed by any Borrower to the Agent or any of the other Lenders
but for
the fact that such Guaranteed Obligations are unenforceable or not allowable
due
to the existence of a bankruptcy, reorganization or similar proceeding
involving
such Borrower.
Section
2. Guaranty
Absolute.
The
Company guarantees that the Guaranteed Obligations will be paid strictly
in
accordance with the terms of Section 4, regardless of any law, regulation
or
order now or hereafter in effect in any jurisdiction affecting any of such
terms
or the rights of any Lender with respect thereto. The liability of the
Company
under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and the Company hereby irrevocably waives any defenses
it may
now have or hereafter acquire in any way relating to, any or all of the
following:
(a)
any
lack of validity or enforceability of the Credit Agreement or the Notes,
if any,
or any agreement or instrument relating thereto;
(b)
any
change in the time, manner or place of payment of, or in any other term
of, all
or any of the Guaranteed Obligations under or in respect of the Credit
Agreement
and the Notes, or any other amendment or waiver of or any consent to departure
from the Credit Agreement or the Notes, including, without limitation,
any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Borrower or any of its Subsidiaries or
otherwise;
(c)
any
taking, release or amendment or waiver of, or consent to departure from,
any
other guaranty, for all or any of the Guaranteed Obligations;
(d)
any
change, restructuring or termination of the corporate structure or existence
of
any Borrower or any of its Subsidiaries;
(e) any
failure of any Lender to disclose to any Borrower or the Company any information
relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Borrower or guarantor
now or
hereafter known to such Lender (the Company waiving any duty on the part
of the
Lenders to disclose such information);
(f) the
failure of any other Person to execute or deliver any other guaranty or
agreement or the release or reduction of liability of the Company or any
other
guarantor or surety with respect to the Guaranteed Obligations; or
(g) any
other
circumstance (including, without limitation, any statute of limitations)
or any
existence of or reliance on any representation by any Lender that might
otherwise constitute a defense available to, or a discharge of, the Company
or
any other guarantor or surety.
This
Guaranty shall continue to be effective or be reinstated, as the case may
be, if
at any time any payment of any of the Guaranteed Obligations is rescinded
or
must otherwise be returned by the Agent or any Lender upon the insolvency,
bankruptcy or reorganization of any Borrower, as though such payment had
not
been made.
Section
3. Waivers.
The
Company hereby unconditionally and irrevocably waives promptness, diligence,
notice of acceptance, presentment, demand for performance, notice of
nonperformance, default, protest, dishonor and any other notice with respect
to
any and all of the Guaranteed Obligations and this Guaranty, and any requirement
that the Agent or any of the Lenders exhaust any right or take any action
against any of the Borrowers or any other Person. The Company hereby
unconditionally waives any right to revoke this Guaranty, and acknowledges
that
this Guaranty is continuing in nature. The Company acknowledges that it
will
receive substantial direct and indirect benefits from the financing arrangements
contemplated by the Credit Agreement and that the waivers and agreements
set
forth in Section 2 are knowingly made in contemplation of such
benefits.
Section
4. Payments.
The
Company shall make each payment hereunder with respect to Guaranteed Obligations
in Dollars not later than 11:00 A.M. (New York City time) on the day that
is 30
days after the date on which the Company receives written notice from the
Agent
that any Borrower has failed to make a payment under the Credit Agreement,
including therein the date of such failure and the aggregate amount owing
by the
applicable Borrower. Such payment shall be made to the Agent by deposit
of such
funds to the Agent’s Account in same day funds. All computations of, and
determinations for, payments to be made hereunder shall be made in accordance
with Sections 2.13(b) and 2.13(c) of the Credit Agreement.
Section
5.
Representations
and Warranties of the Company. The
Company hereby represents and warrants as follows:
(a) The
execution, delivery and performance by the Company of this Guaranty, and
the
consummation of the transactions contemplated hereby, are within the corporate
or other similar organization powers of the Company, have been duly authorized
by all necessary corporate or other similar organization action, and do
not
contravene (i) the charter, by-laws or other organizational documents of
the
Company or (ii) law or any material contractual restriction binding on
or
affecting the Company.
(b) This
Guaranty has been duly executed and delivered by the Company.
(c) This
Guaranty is the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
Section
6. No
Waiver; Remedies.
No
failure on the part of the Agent or any of the Lenders to exercise, and
no delay
in exercising, any right, power or privilege hereunder shall operate as
a waiver
thereof or consent thereto; nor shall any single or partial exercise of
any such
right, power or privilege preclude any other or further exercise thereof
or the
exercise of any other right, power or privilege. The remedies herein provided
are cumulative and not exclusive of any remedies provided by applicable
law.
Section
7. Continuing
Guaranty; Release of Company.
This
Guaranty is a continuing guaranty and, subject to the next succeeding italicized
proviso clause, shall (a) remain in full force and effect until the latest
of
(i) the payment in full of all of the Guaranteed Obligations and (ii) the
Termination Date, (b) be binding upon the Company, its successors and assigns
and (c) inure to the benefit of, and be enforceable by, the Agent, on behalf
of
itself and the Lenders, and their
respective
successors, transferees and assigns.
Section
8. Jurisdiction.
The
Company hereby irrevocably and unconditionally submits, for itself and
its
property, to the nonexciusive 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 Guaranty, or for recognition or enforcement of any judgment,
and 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.
The
Company 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 Guaranty or any other Loan Document in the courts of any
jurisdiction. The Company 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 Guaranty in any New York State or federal court.
The
Company 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
9. Miscellaneous.
This
Guaranty shall be governed by, and construed in accordance with, the laws
of the
State of New York. Delivery of an executed counterpart of a signature page
to
this Guaranty by telecopier shall be effective as delivery of an originally
executed counterpart of this Guaranty. The Company 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 Guaranty
or
the actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the Company has caused this Guaranty to be duly executed
and
delivered by its officer thereunto duly authorized, as of the date first
above
written.
THE
PROCTER & ▇▇▇▇▇▇ COMPANY
By:
Name:
Title:
Address:
Telecopier:
( )