EXECUTION COPY
FIVE-YEAR
CREDIT AGREEMENT
among
▇▇▇▇▇▇▇ KODAK COMPANY,
THE BANKS NAMED HEREIN,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Syndication Agent
and
CITIBANK, N.A.
as Administrative Agent,
_______________
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Co-Advisors, Co-Lead Arrangers and
Co-Bookrunners
Dated as of July 13, 2001
$1,225,000,000
CREDIT AGREEMENT, dated as of July 13, 2001 among
▇▇▇▇▇▇▇ KODAK COMPANY, a New Jersey corporation (the
"Borrower", whether or not any Borrowing has taken place
hereunder), the Banks (as hereinafter defined) ▇.▇. ▇▇▇▇▇▇
SECURITIES INC. ("JPMorgan"), as Syndication Agent (in such
capacity, the "Syndication Agent"), and, CITIBANK, N.A.
("Citibank"), as Administrative Agent acting in the manner
and to the extent described in Section 11 (in such capacity,
the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, subject to and upon the terms and
conditions herein set forth, the Banks are willing to make
available to the Borrower the credit facilities provided for
herein, which credit facilities have been arranged by the Co-
Lead Arrangers (as hereinafter defined);
NOW, THEREFORE, IT IS AGREED:
SECTION 1. DEFINITIONS.
(a) As used herein, the following terms shall have the meanings
herein specified unless the context otherwise requires. Defined
terms in this Agreement shall include in the singular number the
plural and in the plural number the singular:
"Absolute Rate" shall mean an interest rate
(rounded to the nearest .0001) expressed as a decimal.
"Absolute Rate Borrowing" shall mean a Competitive
Bid Borrowing with respect to which the Borrower has
requested that the Banks offer to make Competitive Bid Loans
at Absolute Rates.
"Administrative Agent" shall have the meaning
provided in the first paragraph of this Agreement and shall
include any successor administrative agent appointed in
accordance with Section 11.9.
"Administrative Agent Fee Letter" shall have the
meaning provided in Section 2.3(g).
"Affiliate" shall mean, with respect to any Person,
any other Person directly or indirectly controlling
(including but not limited to all directors and executive
officers of such Person), controlled by or under direct or
indirect common control with such Person. A Person shall be
deemed to control a corporation if such Person, directly or
indirectly, controls the management and policies of such
corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agents" shall mean, collectively, the
Administration Agent and the Syndication Agent.
"Agreement" shall mean this Credit Agreement as the
same may hereafter be amended, restated, supplemented or
otherwise modified from time to time in accordance with its
terms.
"Applicable Commission Rate" shall mean, for any
period the applicable rate computed as follows as of the last
day of such period: (i) a rate per annum equal to 0.14% if on
such date the Borrower's outstanding Long-Term Indebtedness
is rated AA or higher by Standard & Poor's and Aa2 or higher
by Moody's, (ii) a rate per annum equal to 0.135% if on such
date clause (i) is inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated AA- or higher by
Standard & Poor's and Aa3 or higher by Moody's, (iii) a rate
per annum equal to 0.175% if on such date clauses (i) and
(ii) are inapplicable and the Borrower's outstanding Long-
Term Indebtedness is rated A+ or higher by Standard & Poor's
and A1 or higher by Moody's, (iv) a rate per annum equal to
0.215% if on such date clauses (i) through (iii) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated A by Standard & Poor's and A2 by
Moody's, (v) a rate per annum equal to 0.225% if on such date
clauses (i) through (iv) are inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated A- by Standard &
Poor's and A3 by Moody's, (vi) a rate per annum equal to
0.35% if on such date clauses (i) through (v) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated BBB+ or higher by Standard and Poor's
and Baa1 or higher by Moody's, (vii) a rate per annum equal
to 0.45% if on such date clauses (i) through (vi) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated BBB or higher by Standard & Poor's and
Baa2 or higher by Moody's, (viii) a rate per annum equal to
0.525% if on such date clauses (i) through (vii) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated BBB- or higher by Standard & Poor's and
Baa3 or higher by Moody's, and (ix) a rate equal to 0.75% if
on such date clauses (i) through (viii) are inapplicable and
the Borrower's Long-Term Indebtedness is rated lower than
BBB- by Standard & Poor's and lower than Baa3 by Moody's;
provided that where there is a difference between the
Standard & Poor's rating and the ▇▇▇▇▇'▇ rating, the rating
used herein will be the higher of the two ratings; provided
further that all references to any rating agency shall be
deemed to be deleted in the event that the Borrower's
outstanding Long-Term Indebtedness is no longer rated by such
agency, and clause (ix) shall be deemed to apply if such Long-
Term Indebtedness is no longer rated by either agency.
"Applicable Facility Fee Rate" shall mean, for any
period the applicable rate computed as follows as of the last
day of such period: (i) a rate per annum equal to 0.06% if on
such date the Borrower's outstanding Long-Term Indebtedness
is rated AA or higher by Standard & Poor's and Aa2 or higher
by Moody's, (ii) a rate per annum equal to 0.065% if on such
date clause (i) is inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated AA- or higher by
Standard & Poor's and Aa3 or higher by Moody's, (iii) a rate
per annum equal to 0.075% if on such date clauses (i) and
(ii) are inapplicable and the Borrower's outstanding Long-
Term Indebtedness is rated A+ or higher by Standard & Poor's
and A1 or higher by Moody's, (iv) a rate per annum equal to
0.085% if on such date clauses (i) through (iii) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated A by Standard & Poor's and A2 by
Moody's, (v) a rate per annum equal to 0.10% if on such date
clauses (i) through (iv) are inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated A- by Standard &
Poor's and A3 by Moody's, (vi) a rate per annum equal to
0.15% if on such date clauses (i) through (v) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated BBB+ or higher by Standard and Poor's
and Baa1 or higher by Moody's, (vii) a rate per annum equal
to 0.175% if on such date clauses (i) through (vi) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated BBB or higher by Standard & Poor's and
Baa2 or higher by Moody's, (viii) a rate per annum equal to
0.225% if on such date clauses (i) through (vii) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated BBB- or higher by Standard & Poor's and
Baa3 or higher by Moody's, and (ix) a rate equal to 0.25% if
on such date clauses (i) through (viii) are inapplicable and
the Borrower's Long-Term Indebtedness is rated lower than
BBB- by Standard & Poor's and lower than Baa3 by Moody's;
provided that where there is a difference between the
Standard & Poor's rating and the ▇▇▇▇▇'▇ rating, the rating
used herein will be the higher of the two ratings; provided
further that all references to any rating agency shall be
deemed to be deleted in the event that the Borrower's
outstanding Long-Term Indebtedness is no longer rated by such
agency, and clause (ix) shall be deemed to apply if such Long-
Term Indebtedness is no longer rated by either agency.
"Applicable Margin" shall mean, with respect to any
Interest Period for each Eurodollar Loan, (i) 0.14% if on the
date such Loan is made the Borrower's outstanding Long-Term
Indebtedness is rated AA or higher by Standard & Poor's and
Aa2 or higher by Moody's, (ii) 0.135% if on the date such
Loan is made clause (i) is inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated AA- or higher by
Standard & Poor's and Aa3 or higher by Moody's, (iii) 0.175%
if on the date such Loan is made clauses (i) and (ii) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated A+ or higher by Standard & Poor's and
A1 or higher by Moody's, (iv) 0.215% if on the date such Loan
is made clauses (i) through (iii) are inapplicable and the
Borrower's outstanding Long-Term Indebtedness is rated A by
Standard & Poor's and A2 by Moody's, (v) 0.225% if on the
date such Loan is made clauses (i) through (iv) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated A- by Standard & Poor's and A3 by
Moody's, (vi) 0.35% if on such date clauses (i) through (v)
are inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated BBB+ or higher by Standard and Poor's
and Baa1 or higher by Moody's,(vii) 0.45% if on the date such
Loan is made clauses (i) through (vi) are inapplicable and
the Borrower's outstanding Long-Term Indebtedness is rated
BBB or higher by Standard & Poor's and Baa2 or higher by
Moody's, (viii) 0.525% if on such date clauses (i) through
(vii) are inapplicable and the Borrower's outstanding Long-
Term Indebtedness is rated BBB- or higher by Standard &
Poor's and Baa3 or higher by Moody's, and (ix) 0.75% if on
the date such Loan is made clauses (i) through (viii) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated lower than BBB- by Standard & Poor's
and lower than Baa3 by Moody's; provided that where there is
a difference between the Standard & Poor's rating and the
▇▇▇▇▇'▇ rating, the rating used herein will be the higher of
the two ratings; provided further that for purposes of this
definition all references to any rating agency shall be
deemed to be deleted in the event that the Borrower's
outstanding Long-Term Indebtedness is no longer rated by such
agency, and clause (ix) shall be deemed to apply if such Long-
Term Indebtedness is no longer rated by either agency.
"Assessment Rate" shall mean, for any day, the
annual assessment rate in effect on such day that is payable
by a member of the Bank Insurance Fund classified as "well-
capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning
of 12 C.F.R. Part 327 (or any successor provision) to the
Federal Deposit Insurance Corporation for insurance by such
Corporation of time deposits made in dollars at the offices
of such member in the United States; provided that if, as a
result of any change in any law, rule or regulation, it is no
longer possible to determine the Assessment Rate as
aforesaid, then the Assessment Rate shall be such annual rate
as shall be determined by the Administrative Agent to be
representative of the cost of such insurance to the Banks.
"Assignee" shall have the meaning provided in
Section 12.4(c).
"Attributable Debt" shall mean, with respect to any
arrangement subject to the provisions of Section 9.4, the
lesser of (a) the fair value of the Principal Property that
has been or is to be sold or transferred in connection with
such arrangement, as determined by the Board of Directors of
the Borrower, or (b) the present value (discounted at an
annual rate of nine per cent (9%) compounded semi-annually)
of the obligation of the lessee under such arrangement for
net rental payments during the remaining term of the lease
(including any period for which such lease has been
extended).
"Authorized Officer" shall mean the Chairman, a
President, any Vice President, the Controller, the Secretary
or the Treasurer of the Borrower, and such other persons
designated by the Borrower in writing to the Administrative
Agent and acceptable to the Administrative Agent.
"Bank" shall mean the persons listed as such on
Schedule 1 hereto (including Purchasing Banks that become
Banks hereunder pursuant to Section 12.4).
"Bankruptcy Code" shall mean Title 11 of the United
States Code entitled "Bankruptcy," as amended from time to
time, and any successor statute or statutes.
"Base CD Rate" shall mean the sum of (a) the Three-
Month Secondary CD Rate multiplied by the Statutory Reserve
Rate plus (b) the Assessment Rate.
"Base Rate" shall mean, at any particular date, the
higher of (i) the rate of interest publicly announced by the
Administrative Agent from time to time as its prime rate, as
in effect from time to time,(ii) the rate that is 1% in
excess of the Base CD Rate and (iii) the rate that is less than
of 1% in excess of the Federal Funds Rate. The reference rate is a
reference rate and does not necessarily represent the lowest
or best rate actually charged to any customer. The Administra-
tion Agent may make commercial loans or other loans at rates
of interest at, above or below the reference rate.
"Base Rate Loans" shall mean Loans bearing interest
at the rates provided in Section 2.8(a).
"Borrower" shall have the meaning provided in the
first paragraph of this Agreement.
"Borrowing" shall mean the incurrence by the
Borrower of (i) Revolving Loans consisting of one Type of
Loan from one or more of the Banks on a given date (or
resulting from conversions or continuations on a given date),
having in the case of Eurodollar Loans the same Interest
Period (except as otherwise provided in Section 2.11 or
2.12), (ii) Competitive Bid Loans or (iii) Swing Line Loans.
"Business Day" shall mean (i) for all purposes
other than as covered by clause (ii) below, any day excluding
Saturday, Sunday and any day which shall be in the City of
New York a legal holiday or a day on which banking
institutions are authorized or required by law or other
government actions to close and (ii) with respect to all
notices and determinations in connection with, and payments
of principal and interest on, Eurodollar Loans, any day which
is a Business Day described in clause (i) and which is also a
day for trading by and between banks in Dollar deposits in
the interbank Eurodollar market.
"Capitalized Lease" shall mean any lease of
property, real, personal or mixed, the obligations under
which are capitalized on the consolidated balance sheet of
the Borrower and its Subsidiaries in accordance with GAAP.
"Capitalized Lease Obligations" shall mean all
obligations of the Borrower and its Subsidiaries under or in
respect of Capitalized Leases.
"Category A Letter of Credit Outstandings" shall
mean Letter of Credit Outstandings relating to Letters of
Credit issued for the purpose described in clause (a) of the
definition of "Letter of Credit."
"Category B Letter of Credit Outstandings" shall
mean Letter of Credit Outstandings relating to Letters of
Credit issued for the purpose described in clause (b) of the
definition of "Letter of Credit."
"Change in Control" shall mean a change in control
of the Borrower of a nature that would be required to be
reported (assuming such event has not been "previously
reported") in response to Item 1(a) of the Current Report on
Form 8-K, as in effect on the Effective Date, pursuant to
Section 13 or 15(d) of the Exchange Act; provided that,
without limitation, a Change in Control shall be deemed to
have occurred at such time as (i) any "person" within the
meaning of Section 14(d) of the Exchange Act, other than the
Borrower, a Subsidiary of the Borrower, or any employee
benefit plan(s) sponsored by the Borrower or any Subsidiary
of the Borrower, is or has become the "beneficial owner," as
defined in Rule 13d-3 under the Exchange Act, directly or
indirectly, of 20% or more of the combined voting power of
the outstanding securities of the Borrower ordinarily having
the right to vote at the election of directors, or (ii)
individuals who constituted the Board on December 31, 2000
(the "Incumbent Board") have ceased for any reason to
constitute at least a majority thereof; provided further that
any person becoming a director subsequent to December 31,
2000 whose election, or nomination for election by the
Borrower's shareholders, was approved by a vote of at least
three-quarters (3/4) of the directors comprising the
Incumbent Board (either by a specific vote or by approval of
the proxy statement of the Borrower in which such person is
named as a nominee for director without objection to such
nomination) shall be, for purposes of this definition,
considered as though such person were a member of the
Incumbent Board.
"Chase" shall mean The Chase Manhattan Bank.
"Citibank" shall have the meaning provided in the
first paragraph of this Agreement.
"Class", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are Revolving Loans, Competitive
Bid Loans or Swingline Loans.
"Code" shall mean the Internal Revenue Code of
1986, as amended from time to time, and any successor
statute.
"Co-Lead Arrangers" shall mean JPMorgan and ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
"Commitment" shall mean, at any time for any Bank,
the amount set forth opposite such Bank's name on Schedule 1
hereto under the heading "Commitment," as such amount may be
reduced or increased from time to time pursuant to the terms
of this Agreement.
"Competitive Bid Borrowing" shall mean a Borrowing
of Competitive Bid Loans pursuant to Section 2.3.
"Competitive Bid Loan" shall have the meaning set
forth in Section 2.3.
"Competitive Bid Note" shall have the meaning
provided in Section 2.7(b).
"Consolidated EBITDA" shall mean, for any period,
Consolidated Net Income for such period plus, without
duplication and to the extent reflected as a charge in the
statement of such Consolidated Net Income for such period,
the sum of (a) income tax expense, (b) interest expense,
amortization or writeoff of debt discount with respect to
Indebtedness (including the.6 Loans), (c) depreciation and
amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization
costs, (e) any extraordinary expenses or losses (including,
whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period,
losses on sales of assets outside of the ordinary course of
business and restructuring charges), and (f) any other non-
cash charges that will not at any time result in any cash
payment, and minus, to the extent included in the statement
of such Consolidated Net Income for such period, the sum of
(i) interest income, (ii) any extraordinary income or gains
(including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for
such period, gains on the sales of assets outside of the
ordinary course of business and reversals of restructuring
charges) and (iii) any other non-cash income that will not at
any time result in any cash payment, all as determined on a
consolidated basis.
"Consolidated Interest Coverage Ratio" shall mean
for any period, the ratio of (a) Consolidated EBITDA for such
period to (b) Consolidated Interest Expense for such period.
"Consolidated Interest Expense" shall mean, for any
period, total interest expense (including that attributable
to Capitalized Lease Obligations) of the Borrower and its
Subsidiaries for such period with respect to all outstanding
Indebtedness of the Borrower and its Subsidiaries (including
all commission, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance
financing and net costs under hedging agreements in respect
of such Indebtedness to the extent such net costs are
allocable to such period in accordance with GAAP).
"Consolidated Net Income" shall mean, for any
period, the consolidated net income (or loss) of the Borrower
and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP; provided that there shall be excluded
(a) the income (or deficit) of any Person accrued prior to
the date it becomes a Subsidiary of the Borrower or is merged
into or consolidated with the Borrower or any of its
Subsidiaries, (b) the income (or deficit) of any Person
(other than a Subsidiary of the Borrower and a Person in
which the Borrower or a Subsidiary of the Borrower owns 50%
of the equity) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent
that any such income is actually received by the Borrower or
such Subsidiary in the form of dividends or similar
distributions and (c) the undistributed earnings of any
Subsidiary of the Borrower and any other Person in which the
Borrower or a Subsidiary of the Borrower owns 50% of the
equity, to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary or
other Person is not at the time permitted by the terms of any
contractual obligation or any law applicable to such
Subsidiary or other Person.
"Consolidated Net Tangible Assets" shall mean, at
any particular time, ▇▇▇▇▇▇▇-dated Tangible Assets at such
time after deducting therefrom all current liabilities,
except for (i) notes and loans payable, (ii) current
maturities of long-term debt and (iii) current maturities of
the principal component of Capitalized Lease Obligations, all
as set forth on the most recent consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries and computed
in accordance with GAAP.
"Control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of
the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative
thereto.
"Consolidated Subsidiaries" shall mean all
Subsidiaries of the Borrower which are consolidated with the
Borrower for financial reporting purposes in accordance with
GAAP.
"Consolidated Tangible Assets" shall mean, at any
particular time, the aggregate amount of all assets (less
applicable reserves and other properly deductible items)
after deducting therefrom all goodwill, trade names,
trademarks, patents, unamortized debt discount and expenses
(to the extent included in said aggregate amount of assets)
and other like intangibles, as set forth on the most recent
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries and computed in accordance with
GAAP.
"Credit Exposure" shall have the meaning provided
in Section 12.4(b).
"Default" shall mean any event, act or condition
which, with notice or lapse of time, or both, would
constitute an Event of Default.
"Dollars" or "$" shall mean dollars of the United
States of America.
"Domestic Subsidiary" shall mean any Subsidiary of
the Borrower incorporated under the laws of the United States
of America or any state thereof.
"Effective Date" shall have the meaning provided in
Section 12.9.
"Environmental Affiliate" shall mean, with respect
to any Person, any other Person whose liability for any
Environmental Claim such Person has or may have retained,
assumed or otherwise become liable for (contingently or
otherwise), either contractually or by operation of law.
"Environmental Approvals" shall mean any permit,
license, approval, ruling, variance, exemption or other
authorization required under applicable Environmental Laws.
"Environmental Claim" shall mean, with respect to
any Person, any notice, claim, demand or similar
communication (written or oral) by any other Person alleging
potential liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damages,
property damages, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence,
or release into the environment, of any Material of
Environmental Concern at any location, whether or not owned
by such Person or (ii) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"Environmental Laws" shall mean all federal, state,
local and foreign laws and regulations relating to pollution
or protection of human health or the environment (including,
without limitation, ambient air, surface water, ground water,
land surface or subsurface strata), including without
limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of Materials of
Environmental Concern, or otherwise relating to the manufac-
ture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Materials of Environmental
Concern.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time. Section
references to ERISA are to ERISA, as in effect at the date of
this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted
therefor.
"ERISA Controlled Group" shall mean a group
consisting of any ERISA Person and all members of a
controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control with such
Person that, together with such Person, are treated as a
single employer under regulations of the PBGC.
"ERISA Person" shall have the meaning set forth in
Section 3(9) of ERISA for the term "person."
"ERISA Plan" shall mean (i) any Plan that (x) is
not a Multiemployer Plan and (y) has Unfunded Benefit
Liabilities in excess of $1,000,000 and (ii) any Plan that is
a Multiemployer Plan.
"Eurodollar Loans" shall mean Revolving Loans
bearing interest at the rates provided in Section 2.8(b).
"Eurodollar Rate" shall mean, with respect to each
Interest Period for a Eurodollar Loan or a Spread Borrowing
based on the Eurodollar Rate, the rate determined by the
Administrative Agent to be (i)(a) the rate appearing on Page
3750 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such
Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest
rates applicable to dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period and (b) in the event that
the rate referenced in the preceding clause (a) is not
available at such time for any reason, the rate (rounded
upwards, if necessary, to the next 1/16 of 1%) at which
dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00
a.m., London time, two Business Days prior to the
commencement of such Interest Period, divided by (ii) a
percentage equal to 1 minus the then average stated maximum
rate (stated as a decimal) of all reserve requirements
(including without limitation any marginal, emergency,
supplemental, special or other reserves) applicable to any
member bank of the Federal Reserve System in respect of
Eurocurrency liabilities as defined in Regulation D (or any
successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided
in Section 10.
"Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time, and any successor
statute or statutes.
"Federal Funds Rate" shall mean, 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 which is a Business Day, the average of
the quotations for such day on such transactions received by
the Administrative Agent from three federal funds brokers of
recognized standing selected by the Administrative Agent.
"Federal Reserve Board" shall mean the Board of
Governors of the Federal Reserve System as constituted from
time to time.
"Fee Letters" shall mean the Administrative Agent
Fee Letter and the Syndication Agent Fee Letter.
"Final Maturity Date" shall mean the fifth
anniversary of the Effective Date.
"GAAP" shall mean generally accepted accounting
principles in effect in the United States of America as of
the date of this Agreement.
"Governmental Authority" shall mean any nation or
government, any state, provincial, local, municipal or other
political subdivision thereof and any entity or
instrumentality (of any nature whatsoever) exercising
executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government and
includes, without limitation, any pension board.
"Indebtedness" of any Person shall mean, without
duplication, (i) all indebtedness (including principal,
interest, fees and charges) of such Person for borrowed money
or, to the extent it would appear as a liability in
accordance with GAAP, for the deferred purchase price (or a
portion thereof) of property or services (other than trade
payables incurred in the ordinary course of business of such
Person), (ii) all indebtedness of such Person evidenced by a
note, bond, debenture or similar instrument, (iii) the
principal component of all Capitalized Lease Obligations of
such Person and all obligations of such Person under any
other lease to the extent that the then present value of the
minimum rental commitment thereunder should, in accordance
with GAAP, be capitalized on a balance sheet of the lessee,
(iv) the face amount of all letters of credit issued for the
account of such Person and, without duplication, all
unreimbursed amounts drawn thereunder, (v) all indebtedness
of any other Person secured by any Lien on any property owned
by such Person, whether or not such indebtedness has been
assumed, (vi) payment obligations under any interest rate
protection agreements (including without limitation, any
interest rate swaps, caps, floors, collars and similar
agreements) and currency swaps and similar agreements, (vii)
payment obligations under any facility for the sale or
financing of receivables and (viii) any indebtedness of any
other Person of the character referred to in clauses (i)
through (vii) with respect to which such Person has become
liable by way of any guarantee, similar contingent obligation
or other arrangement which has the effect of assuring
payment.
"Indemnitee" shall have the meaning set forth in
Section 12.1(c).
"Interest Period" shall have the meaning provided
in Section 2.9.
"Interest Rate Basis" shall mean the Eurodollar
Rate and/or such other basis for determining an interest rate
as the Borrower and the Administrative Agent shall agree from
time to time.
"Issuing Banks" shall mean the Banks at any time
listed as such on Schedule 3 hereto as such schedule may be
modified from time to time with the consent of the Borrower,
the Administrative Agent and the Syndication Agent.
"Issuing Bank Commitment" shall mean, at any time
for each Issuing Bank, the amount set forth opposite such
Issuing Bank's name on Schedule 3 hereto.
"JPMorgan" shall have the meaning provided in the
first paragraph of this Agreement.
"Lending Office" shall mean, for each Bank, the
office specified opposite such Bank's name on the signature
pages hereof with respect to each Type of Loan, or such other
office as such Bank may designate in writing from time to
time to the Borrower and the Administrative Agent with
respect to such Type of Loan.
"Letter of Credit" shall mean any standby letter of
credit issued for the purpose of (a) supporting (i) workmen's
compensation liabilities of the Borrower, (ii) the
obligations of third party insurers of the Borrower arising
by virtue of the laws of any jurisdiction requiring third
party insurers to obtain such letters of credit, (iii) other
obligations of the Borrower identified to and approved by the
Administrative Agent with the consent of the Required Banks,
and (b) bonding monetary judgments rendered against the
Borrower by a court or courts pending appeal.
"Letter of Credit Exposure" shall mean, with
respect to each Bank, its Pro Rata Share of the aggregate
Letter of Credit Outstandings.
"Letter of Credit Outstandings" shall mean, as at
any date of determination, the sum of (i) the maximum
aggregate amount which at such date is available to be drawn
(assuming the conditions for drawing thereunder have been
met) under all Letters of Credit issued pursuant to Section 3
for the account of the Borrower then outstanding plus (ii)
the aggregate amount of all drawings under Letters of Credit
which have been honored and not theretofore reimbursed.
"Lien" shall mean any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), or preferential payment
arrangement, priority or other security agreement of any kind
or nature whatsoever, including, without limitation, any
conditional sale or other title retention agreement, any
financing lease having substantially the same effect as any
of the foregoing and the filing of any financing statement or
similar instrument under the Uniform Commercial Code or
comparable law of any jurisdiction, domestic or foreign.
"Loans" shall mean and include Revolving Loans,
Competitive Bid Loans and Swing Line Loans.
"Long-Term Indebtedness" shall mean long-term
Indebtedness that is not subordinated to any other
Indebtedness and is not secured or supported by a guarantee,
letter of credit or other form of credit enhancement.
"Margin Stock" shall have the meaning provided such
term in Regulation U.
"Material Adverse Effect" shall mean a material
adverse effect upon (i) the operations or condition
(financial or otherwise) of the Borrower and its Subsidiaries
taken as a whole or (ii) the ability of the Borrower to
perform, or of the Administrative Agent or any of the Banks
to enforce, any of the Obligations, provided that for
purposes of Section 7.6, the term "Material Adverse Effect"
shall mean a material adverse effect upon the operations or
condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole which results in an inability
of the Borrower to perform, or of the Administrative Agent or
any of the Banks to enforce, any of the obligations,
liabilities, or indebtedness of any nature of the Borrower
from time to time owing to the Administrative Agent, the
Issuing Banks or any Bank under or in connection with this
Agreement or any Note. Wherever in this Agreement there is a
reference to any situation which may or may not reasonably be
expected to have a Material Adverse Effect, in the event that
no determination with an affirmative or negative outcome is
reasonably capable of being made with respect thereto, the
Administrative Agent may, after consultation with the
Borrower and the Banks concerning such situation, deem such
situation to be one which may reasonably be expected to have
a Material Adverse Effect.
"Material Subsidiary" shall mean each Subsidiary of
the Borrower which meets any of the following conditions: (a)
the Borrower and its other Subsidiaries' investments in and
advances to such Subsidiary exceed 10% of the total assets of
the Borrower and its Subsidiaries consolidated as of the end
of the most recently completed fiscal year, (b) the
Borrower's and its other Subsidiaries' proportionate share of
the total assets (after intercompany eliminations) of such
Subsidiary exceeds 10% of the total assets of the Borrower
and its Subsidiaries consolidated as of the end of the most
recently completed fiscal year, or (c) the Borrower's and its
other Subsidiaries' equity in the income from the continuing
operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principles of
such Subsidiary exceeds 10% of such income of the Borrower
and its Subsidiaries consolidated for the most recently
completed year.
"Materials of Environmental Concern" shall mean and
include chemicals, pollutants, contaminants, wastes, toxic
substances, petroleum and petroleum products.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service,
Inc. or any of its successors.
"Multiemployer Plan" shall mean a Plan which is a
"multiemployer plan" as defined in Section 4001(a)(3) of
ERISA.
"Notes" shall have the meaning provided in Section
2.7(b).
"Notice of Borrowing" shall have the meaning
provided in Section 2.2(a).
"Notice of Competitive Bid Borrowing" shall have
the meaning provided in Section 2.3(b).
"Notice of Continuation or Conversion" shall have
the meaning provided in Section 2.10(b).
"Notice of Swing Line Borrowing" shall have the
meaning provided in Section 2.5(a).
"Obligations" shall mean all amounts owing to the
Agents, the Issuing Banks, the Swing Line Lenders or any Bank
pursuant to the terms of this Agreement or any Note.
"Participant" shall have the meaning provided in
Section 12.4(b).
"Payment Date" shall mean the last Business Day of
each January, April, July and October of each year.
"Payment Office" shall mean the office of Citibank
as Administrative Agent located at ▇ ▇▇▇▇'▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, or such other office of the Administrative Agent as
the Administrative Agent may hereafter designate in writing
as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation established under ERISA, or any successor
thereto.
"Person" shall mean and include any individual,
partnership, joint venture, firm, corporation, association,
trust or other enterprise or entity or any government or
political subdivision or agency, department or
instrumentality thereof.
"Plan" shall mean any employee benefit plan covered
by Title IV of ERISA, the funding requirements of which: (i)
were the responsibility of the Borrower or a member of its
ERISA Controlled Group at any time within the five years
immediately preceding the date hereof, (ii) are currently the
responsibility of the Borrower or a member of its ERISA
Controlled Group, or (iii) hereafter become the
responsibility of the Borrower or a member of its ERISA
Controlled Group, including any such plans as may have been,
or may hereafter be, terminated for whatever reason.
"Principal Property" shall mean any manufacturing
plant or manufacturing facility which is (a) owned by the
Borrower or any Principal Subsidiary, (b) located within the
continental United States, and (c) in the opinion of the
Board of Directors of the Borrower material to the total
business conducted by the Borrower and the Principal
Subsidiaries taken as a whole.
"Principal Subsidiary" shall mean any Subsidiary of
the Borrower (a) substantially all the property of which is
located within the continental United States and (b) which
owns any Principal Property.
"Pro Rata Share" shall mean, with respect to each
Bank, a fraction (expressed as a percentage), the numerator
of which shall be the aggregate amount of such Bank's
Commitment and the denominator of which shall be the Total
Commitment (without giving effect to any termination of the
Total Commitment or any Bank's Commitment).
"Purchasing Bank" shall have the meaning provided
in Section 12.4(d).
"Refinanced Indebtedness" shall mean the
Indebtedness of the Borrower under the Credit Agreement,
dated as of November 13, 1996, among the Borrower, Kodak
International Finance Limited, the banking institutions
signatory thereto and Bank of America, National Trust and
Saving Association and Chase as Co-Administrative Agents, as
amended, restated, supplemented or otherwise modified from
time to time.
"Regulation D," "Regulation U" and "Regulation X"
shall mean, respectively, Regulation D, Regulation U and
Regulation X of the Federal Reserve Board.
"Reply Date" shall have the meaning provided in
Section 2.3(c).
"Reportable Event" shall have the meaning set forth
in Section 4043(b) of ERISA (other than a Reportable Event as
to which the provision of 30 days' notice to the PBGC is
waived under applicable regulations), or is the occurrence of
any of the events described in Section 4068(f) or 4063(a) of
ERISA.
"Required Banks" shall mean Banks whose Commitments
aggregate 51% or more of the Total Commitment or, at any time
after the Total Commitment has been terminated in its
entirety, Banks holding 51% or more of the sum of (i) the
principal amount of all Loans then outstanding and (ii) the
aggregate Letter of Credit Exposure at such time.
"Revolving Loans" shall have the meaning provided
in Section 2.1(a).
"Revolving Note" shall have the meaning provided in
Section 2.7(b).
"Spread" shall mean a percentage per annum in
excess of, or less than, an Interest Rate Basis.
"Spread Borrowing" shall mean a Competitive Bid
Borrowing with respect to which the Borrower has requested
that the Banks offer to make Competitive Bid Loans at a
Spread over or under a specified Interest Rate Basis.
"Standard & Poor's" shall mean Standard & Poor's
Ratings Group, a division of the ▇▇▇▇▇▇-▇▇▇▇ Corporation or
any of its successors.
"Statutory Reserve Rate" shall mean a fraction
(expressed as a decimal), the numerator of which is the
number one and the denominator of which is the number one
minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Federal
Reserve Board to which the Administrative Agent is subject
with respect to the Base CD Rate, for new negotiable
nonpersonal time deposits in dollars of over $100,000 with
maturities approximately equal to three months. The Statutory
Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsidiary" shall mean, with respect to any Person
(the "parent") at any date, any corporation, limited
liability company, partnership, association or other entity
the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if
such financial statements were prepared in accordance with
GAAP as of such date, as well as any other corporation,
limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of
the ordinary voting power or, in the case of a partnership,
more than 50% of the general partnership interests are, as of
such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.
"Swing Line Commitment" shall mean, at any time for
each Swing Line Lender, the amount set forth opposite such
Swing Line Lender's name on Schedule 2 hereto as the same may
be reduced pursuant to Section 2.4(c).
"Swing Line Borrowing" shall mean a Borrowing of
Swing Line Loans pursuant to Section 2.4.
"Swing Line Exposure" shall mean, with respect to
each Bank at any time, its Pro Rata Share of the aggregate
outstanding principal amount of Swing Line Loans at such
time.
"Swing Line Lenders" shall mean the Banks listed as
such on Schedule 2 hereto (including Purchasing Banks that
become Swing Line Lenders hereunder pursuant to
Section 12.4).
"Swing Line Loan" shall have the meaning provided
in Section 2.4(a).
"Swing Line Note" shall have the meaning provided
in Section 2.7(b).
"Swing Line Percentage" shall mean, at any time,
with respect to each Swing Line Lender, a fraction (expressed
as a percentage), the numerator of which shall be the
aggregate amount of such Swing Line Lender's Swing Line
Commitment and the denominator of which shall be the Total
Swing Line Commitment.
"Syndication Agent" shall have the meaning provided
in the first paragraph of this Agreement.
"Syndication Agent Fee Letter" shall mean the
letter agreement, dated May 24, 2001, among the Borrower,
Chase and the Syndication Agent.
"Taxes" shall have the meaning provided in Section
2.14.
"Three-Month Secondary CD Rate" shall mean, for any
day, the secondary market rate for three-month certificates
of deposit reported as being in effect on such day (or, if
such day is not a Business Day, the next preceding Business
Day) by the Federal Reserve Board through the public
information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the
Federal Reserve Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such
day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of
major money center banks in New York City received at
approximately 10:00 a.m., New York City time, on such day
(or, if such day is not a Business Day, on the next preceding
Business Day) by the Administrative Agent from three
negotiable certificate of deposit dealers of recognized
standing selected by it.
"Termination Event" shall mean (i) a Reportable
Event, or (ii) the initiation of any action by the Borrower,
any member of the Borrower's ERISA Controlled Group or any
ERISA Plan fiduciary to terminate an ERISA Plan or the
treatment of an amendment to an ERISA Plan as a termination
under ERISA, or (iii) the institution of proceedings by the
PBGC under Section 4042 of ERISA to terminate an ERISA Plan
or to appoint a trustee to administer any ERISA Plan.
"Total Commitment" shall mean, at any time, the sum
of the Commitments of each of the Banks at such time.
"Total Swing Line Commitment" shall mean, at any
time, the sum of the Swing Line Commitments of each of the
Swing Line Lenders at such time.
"Transferee" shall have the meaning provided in
Section 12.4(g).
"Transfer Supplement" shall have the meaning
provided in Section 12.4(d).
"Type" shall mean any type of Loan determined with
respect to the interest option applicable thereto, i.e.,
whether a Base Rate Loan or Eurodollar Loan.
"Unfunded Benefit Liabilities" shall mean with
respect to any Plan at any time, the amount (if any) by which
(i) the present value of all benefit liabilities under such
Plan as defined in Section 4001(a)(16) of ERISA, exceeds (ii)
the fair market value of all Plan assets allocable to such
benefits, all determined as of the then most recent valuation
date for such Plan (on the basis of reasonable assumptions
under such Plan).
"Utilization Percentage" shall have the meaning
provided in Section 4.1(b).
(b) The financial statements to be furnished to the
Administrative Agent and the Banks pursuant hereto shall be made
and prepared in accordance with GAAP consistently applied
throughout the periods involved and consistent with GAAP as used
in the preparation of the financial statements referred to in
Section 8.1, and, except as otherwise specifically provided
herein, all computations determining compliance with Section 9
hereof shall utilize GAAP.
SECTION 2. AMOUNT AND TERMS OF CREDIT.
2.1 Revolving Loan Commitments. (a) Subject to and upon the
terms and conditions and in reliance upon the representations and
warranties of the Borrower herein set forth, each Bank severally
and not jointly agrees, at any time and from time to time on and
after the Effective Date and prior to the Final Maturity Date, to
make a revolving loan or loans (collectively, the "Revolving
Loans") to the Borrower, which Revolving Loans (i) shall, at the
option of the Borrower, be made as part of one or more
Borrowings, each of which Borrowings shall, unless otherwise
specifically provided herein, consist entirely of Base Rate Loans
or Eurodollar Loans, (ii) subject to the terms and conditions set
out in Section 6, may be repaid and reborrowed in accordance with
the provisions hereof, and (iii) shall not exceed for any Bank an
aggregate outstanding principal amount at any time equal to the
Commitment of such Bank at such time, as reduced by the sum of
(x) the outstanding principal amount of Revolving Loans made by
such Bank at such time plus (y) the amount of the Letter of
Credit Exposure of such Bank at such time plus (z) the amount of
the Swing Line Exposure of such Bank at such time.
Notwithstanding the foregoing, no Revolving Loans shall be made
hereunder if immediately after giving effect thereto and the use
of proceeds thereof, the sum of (A) the aggregate principal
amount of Loans outstanding at such time plus (B) the aggregate
Letter of Credit Outstandings would exceed the Total Commitment.
Each Bank's Commitment shall expire, and each Revolving Loan
shall mature, on the Final Maturity Date, without further action
being required on the part of the Administrative Agent or any
Bank.
(b) The aggregate principal amount of each Borrowing of
Revolving Loans by the Borrower shall be not less than
$100,000,000 and, if greater, shall be in an integral multiple of
$5,000,000. Notwithstanding the foregoing limitations, (i) there
shall be no minimum Borrowing amount for Borrowings consisting of
Base Rate Loans made to repay Swing Line Loans or to pay drawings
under Letters of Credit pursuant to a deemed Borrowing under
Section 2.5(c) or 3.3, and (ii) the Borrower may borrow an
amount, if less than the minimum amount otherwise necessary to
make such Borrowing, equal to the entire undrawn portion of the
Total Commitments less the aggregate Letter of Credit
Outstandings.
2.2 Notice of Revolving Loan Borrowing. (a) Whenever the
Borrower desires to make a Borrowing of Revolving Loans hereunder
(other than a conversion pursuant to Section 2.10), it shall give
the Administrative Agent (i) at least one Business Day's prior
written notice (or telephonic notice confirmed promptly in
writing, any such written notice or confirmation being in the
form of Exhibit A-1 hereto) before the requested date of the
making of any such Borrowing consisting of Base Rate Loans and
(ii) at least three Business Days' prior written notice (or
telephonic notice confirmed promptly in writing) before the
requested date of the making of any such Borrowing consisting of
Eurodollar Loans, each such notice to be given at the Payment
Office prior to 11:00 a.m. (New York City time) on the date
specified. Each such notice or confirmation thereof (each a
"Notice of Borrowing") shall be irrevocable and shall specify (x)
the aggregate principal amount of the Revolving Loans to be made
pursuant to such Borrowing, (y) the date of Borrowing (which
shall be a Business Day) and (z) whether such Borrowing shall
consist of Base Rate Loans or Eurodollar Loans and, in the case
of Eurodollar Loans, the initial Interest Period to be applicable
thereto.
(b) Promptly after receipt of a Notice of Borrowing, the
Administrative Agent shall provide each Bank with a copy thereof
and inform each Bank of such Bank's Pro Rata Share of the Loans
requested thereunder.
2.3 Competitive Bid Loans. (a) Subject to and upon the terms
and conditions and in reliance upon the representations and
warranties of the Borrower herein set forth, each Bank severally
and not jointly agrees that the Borrower may incur a loan or
loans (each a "Competitive Bid Loan" and collectively, the
"Competitive Bid Loans") pursuant to a Competitive Bid Borrowing
from time to time on and after the Effective Date and prior to
the Final Maturity Date, or, if earlier, the date of the
termination or expiration of the Commitments; provided that no
Competitive Bid Loans shall be made hereunder if, after giving
effect to any Competitive Bid Borrowing and the use of the
proceeds thereof, the sum of (i) the aggregate principal amount
of Loans outstanding at any time plus (ii) the Letter of Credit
Outstandings would exceed the Total Commitment. Within the
foregoing limits and subject to the conditions set out in Section
6, Competitive Bid Loans may be repaid and reborrowed in
accordance with the provisions hereof. No Competitive Bid Loan
shall be entitled to be converted into any other type of Loan.
(b) Whenever the Borrower desires to make a Borrowing of
Competitive Bid Loans hereunder, it shall give the Administrative
Agent, not later than 11:00 a.m. (New York City time) on the
fourth Business Day prior to the date of such proposed
Competitive Bid Borrowing, a written notice in the form of
Exhibit A-2 hereto (a "Notice of Competitive Bid Borrowing"),
such notice to specify in each case (i) the date (which shall be
a Business Day) and the aggregate amount of the proposed
Competitive Bid Borrowing (which shall not be less than
$100,000,000 and, if greater, shall be in an integral multiple of
$5,000,000), (ii) the Interest Period and maturity date for
repayment of each Competitive Bid Loan to be made as part of such
Competitive Bid Borrowing (which maturity date shall be the last
day of the Interest Period relating thereto, and may not be later
than the Final Maturity Date), (iii) the interest payment date or
dates relating thereto, (iv) whether the proposed Competitive Bid
Borrowing is to be an Absolute Rate Borrowing or a Spread
Borrowing, and if a Spread Borrowing, the Interest Rate Basis,
and (v) any other terms to be applicable to such Competitive Bid
Borrowing. Promptly after receipt of a Notice of Competitive Bid
Borrowing, the Administrative Agent shall provide each Bank with
a copy thereof.
(c) Each Bank shall, if in its sole discretion it elects to do
so, irrevocably offer to make one or more Competitive Bid Loans
to the Borrower as part of such proposed Competitive Bid
Borrowing at a rate or rates of interest specified by such Bank
in its sole discretion and determined by such Bank independently
of each other Bank, by notifying the Administrative Agent (which
shall give prompt notice thereof to the Borrower), before 10:00
a.m. (New York City time) on the date (the "Reply Date") which is
(x) in the case of an Absolute Rate Borrowing, the Business Day
before and (y) in the case of a Spread Borrowing, three Business
Days before, the date of such proposed Competitive Bid Borrowing,
of the minimum amount and maximum amount of each Competitive Bid
Loan which such Bank would make as part of such proposed
Competitive Bid Borrowing (which amounts may, subject to the
proviso to the first sentence of Section 2.3(a), exceed such
Bank's Commitment), the rate or rates of interest therefor and
such Bank's Lending Office with respect to such Competitive Bid
Loan; provided that if the Administrative Agent in its capacity
as a Bank shall, in its sole discretion, elect to make any such
offer, it shall notify the Borrower of such offer before 9:30
a.m. (New York City time) on the Reply Date. If any Bank shall
elect not to make such an offer, such Bank shall so notify the
Administrative Agent, before 10:00 a.m. (New York City time) on
the Reply Date, and such Bank shall not be obligated to, and
shall not, make any Competitive Bid Loan as part of such
Competitive Bid Borrowing; provided that the failure by any Bank
to give such notice shall not cause such Bank to be obligated to
make any Competitive Bid Loan as part of such proposed
Competitive Bid Borrowing.
(d) The Borrower shall, in turn, before (x) in the case of
Absolute Rate Borrowings, Noon (New York City time) or (y) in the
case of Spread Borrowings, 1:00 p.m. (New York City time) on the
Reply Date, either
(1) cancel such Competitive Bid Borrowing by giving
the Administrative Agent notice to that effect, or
(2) accept one or more of the offers made by any
Bank or Banks pursuant to clause (c) above by giving
notice (in writing or by telephone promptly confirmed in
writing) to the Administrative Agent of the amount of
each Competitive Bid Loan (which amount shall be equal
to or greater than the minimum amount, and equal to or
less than the maximum amount, notified to the Borrower
by the Administrative Agent on behalf of such Bank for
such Competitive Bid Borrowing pursuant to clause (c)
above) to be made by each Bank as part of such
Competitive Bid Borrowing, and reject any remaining
offers made by Banks pursuant to clause (c) above by
giving the Administrative Agent notice to that effect;
provided that acceptance of offers may only be made on
the basis of ascending Absolute Rates (in the case of an
Absolute Rate Borrowing) or Spreads (in the case of a
Spread Borrowing), in each case commencing with the
lowest rate so offered; provided further, however, if
offers are made by two or more Banks at the same rate
and acceptance of all such equal offers would result in
a greater principal amount of Competitive Bid Loans
being accepted than the aggregate principal amount
requested by the Borrower, the Borrower shall have the
right in its sole discretion to accept one or more such
equal offers in their entirety and reject the other
equal offer or offers or to allocate acceptance among
all such equal offers (but giving effect to the minimum
and maximum amounts specified for each such offer
pursuant to clause (c) above).
(e) If the Borrower notifies the Administrative Agent that such
Competitive Bid Borrowing is cancelled pursuant to clause (d)(1)
above, the Administrative Agent shall give prompt notice thereof
to the Banks and such Competitive Bid Borrowing shall not be
made.
(f) If the Borrower accepts one or more of the offers made by
any Bank or Banks pursuant to clause (d)(2) above, the
Administrative Agent shall in turn promptly notify (x) each Bank
that has made an offer as described in clause (c) above, of the
date and aggregate amount of such Competitive Bid Borrowing and
whether or not any offer or offers made by such Bank pursuant to
clause (c) above have been accepted by the Borrower and (y) each
Bank that is to make a Competitive Bid Loan as part of such
Competitive Bid Borrowing, of the amount of each Competitive Bid
Loan to be made by such Bank as part of such Competitive Bid
Borrowing.
(g) The Borrower agrees to pay the Administrative Agent for its
own account a competitive bid auction fee, payable on the date of
each Competitive Bid Borrowing with respect to each Competitive
Bid Loan, in the amounts set forth in the letter agreement, dated
May 23, 2001 (the "Administrative Agent Fee Letter"), between the
Borrower, the Administrative Agent and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
2.4 Swing Line Loans. (a) Subject to and upon the terms and
conditions and in reliance upon the representations and
warranties of the Borrower herein set forth, each Swing Line
Lender severally and not jointly agrees, at any time and from
time to time on and after the Effective Date and prior to the
Final Maturity Date, to make a revolving loan or loans
(collectively, the "Swing Line Loans") to the Borrower, which
Swing Line Loans, at the option of the Borrower, shall be made as
part of one or more Swing Line Borrowings and shall not exceed at
any time such Swing Line Lender's Swing Line Commitment; provided
that no Swing Line Loan.18 shall be made hereunder if, after
giving effect to any Swing Line Borrowing and the use of proceeds
thereof, the sum of (i) the aggregate outstanding principal
amount of Loans plus (ii) the aggregate Letter of Credit
Outstandings would exceed the Total Commitment. Notwithstanding
the foregoing, no Swing Line Loans shall be made hereunder if,
after giving effect to any Swing Line Borrowing and the use of
proceeds thereof, the aggregate outstanding principal amount of
Swing Line Loans would exceed the Total Swing Line Commitment or
to the extent that the Swing Line Exposure of any Bank would
exceed the Commitment of such Bank at such time, as reduced by
the sum of (x) the outstanding principal amount of Revolving
Loans and Competitive Bid Loans made by such Bank at such time
plus (y) the amount of the Letter of Credit Exposure of such Bank
at such time. Each Swing Line Lender's Swing Line Commitment
shall terminate on the Final Maturity Date without further action
being required on the part of the Administrative Agent or any
Swing Line Lender.
(b) Swing Line Loans may, subject to the terms and conditions
set forth in Section 6, be repaid and reborrowed. All Swing Line
Loans shall be made as Base Rate Loans and shall not be entitled
to be converted into Eurodollar Loans. Swing Line Loans made on
any date shall be in an aggregate minimum amount of $50,000,000
and integral multiples of $5,000,000 in excess of that amount.
(c) If after giving effect to any assignment pursuant to Section
12.4(c) or (d) or reduction in Commitments pursuant to Section
4.3 or Section 4.4, the remaining Commitment of any Swing Line
Lender is less than its Swing Line Commitment, the Swing Line
Commitment of such Swing Line Lender shall be reduced by an
amount equal to such difference and the Swing Line Percentages of
the Swing Line Lenders shall be adjusted accordingly.
2.5 Notice of Swing Line Borrowing; Conversions of and
Participations in Swing Line Loans. (a) Whenever the Borrower
desires to make a Borrowing of Swing Line Loans under Section
2.4, it shall give the Administrative Agent and each Swing Line
Lender no later than 1:00 p.m. (New York City time) on the
proposed date for such Borrowing telephonic (confirmed promptly
in writing) or written notice (any such written notice or
confirmation being in the form of Exhibit A-3 hereto) of such
Borrowing (a "Notice of Swing Line Borrowing"), which shall be
irrevocable and shall specify (i) the aggregate principal amount
of the Swing Line Loans to be made pursuant to such Borrowing,
(ii) the date of such Borrowing (which shall be a Business Day),
(iii) the maturity date for such Swing Line Loan (which shall be
on demand and in any event no later than seven days after the
making thereof or, if earlier, the Final Maturity Date) and (iv)
that such Swing Line Loan shall be a Base Rate Loan.
(b) Promptly after receipt of a Notice of Swing Line Borrowing,
the Administrative Agent shall provide each Bank with a copy
thereof (or telephonic notice of the contents thereof confirmed
promptly by providing a copy thereof) and inform each Swing Line
Lender of its Swing Line Percentage of the Swing Line Loans
requested thereunder.
(c) Any Swing Line Lender shall in its sole and absolute
discretion be entitled to require a Borrowing of Revolving Loans
hereunder, the proceeds of which shall be applied to the pro rata
prepayment of all Swing Line Loans then outstanding by giving
notice (by telephone promptly confirmed in writing or in writing)
to the Administrative Agent, the Borrower and the Banks to such
effect, which notice shall set forth the aggregate outstanding
principal amount of such Swing Line Loans. Upon the giving of
such notice, the Borrower shall be deemed to have timely given a
Notice of Borrowing to the Administrative Agent requesting
Revolving Loans which are Base Rate Loans on the Business Day
following such notice, and the Banks shall, on such date, make
Revolving Loans which are Base Rate Loans in the amount of such
Swing Line Loans, the proceeds of which shall be applied by the
Administrative Agent to.19 the prepayment of such Swing Line
Loans; provided that for the purposes solely of such Borrowing
the conditions precedent set forth in Section 6.2 shall not be
applicable. Unless the Borrower shall have notified the
Administrative Agent and each Swing Line Lender prior to 11:00
a.m. (New York City time) on the date which is six days following
the date on which any Swing Line Loan has been made by any Swing
Line Lender that the Borrower intends to reimburse the Swing Line
Lenders with funds other than the proceeds of Revolving Loans,
the Administrative Agent shall give such notice on behalf of the
Swing Line Lenders.
(d) Upon the giving of notice to the following effect to the
Administrative Agent and each Bank by any Swing Line Lender in
its sole and absolute discretion, any deemed Notice of Borrowing
given under Section 2.5(c) pursuant to which no Borrowing has
been made shall be deemed cancelled and each Bank shall be deemed
to, and hereby agrees to, have irrevocably purchased from each
Swing Line Lender a participation in Swing Line Loans made by
such Swing Line Lender in an aggregate outstanding principal
amount equal to such Bank's Pro Rata Share of the aggregate
principal amount of such Swing Line Loans, and shall make
available to such Swing Line Lender an amount equal to its
respective participation in such Swing Line Lender's Swing Line
Loans in Dollars and immediately available funds, at the office
of such Swing Line Lender specified by notice to the
Administrative Agent and each Bank in such notice, not later than
1:00 p.m. (New York City time) on the second Business Day after
the giving of such notice. In the event that any Bank fails to
make available to such Swing Line Lender the amount of such
Bank's participation as provided in this Section 2.5(d), such
Swing Line Lender shall be entitled to recover such amount on
demand from such Bank together with interest at the interbank
compensation rate set by the Administrative Agent for three
Business Days and thereafter at the Base Rate, and such Swing
Line Lender shall, until such time as all such amounts have been
paid, be deemed to have outstanding a Swing Line Loan in the
amount of such unpaid participation for all purposes of this
Agreement other than those provisions requiring Banks to purchase
an interest therein. Each Swing Line Lender shall distribute to
each other Bank which has paid all amounts payable by it under
this Section 2.5(d) with respect to Swing Line Loans made by such
Swing Line Lender such other Bank's Pro Rata Share of all
payments received by such Swing Line Lender in respect of such
Swing Line Loans when such payments are received.
(e) The obligations of the Banks under Section 2.5(d) shall be
unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement under all
circumstances including, without limitation, the fact that a
Default or an Event of Default shall have occurred and be
continuing or any other circumstance or happening whatsoever.
2.6 Disbursement of Funds. (a) No later than Noon (New York
City time) on the date specified for each Borrowing of Revolving
Loans or Competitive Bid Loans and (ii) 2:00 p.m. (New York City
time) on the date specified for each Borrowing of Swing Line
Loans, each Bank required to participate therein will, subject to
the terms and conditions of this Agreement, make available its
Pro Rata Share, in the case of a Borrowing of Revolving Loans,
its share as specified in Section 2.3(d), or its Swing Line
Percentage, in the case of a Borrowing of Swing Line Loans, of
the Loans requested to be made on such date in Dollars and
immediately available funds at the Payment Office by such Bank;
provided that in the case of a Borrowing of Swing Line Loans no
Bank shall have delivered a notice to each Swing Line Lender
(with a copy to the Administrative Agent) to the effect that one
or more of the applicable conditions set forth in Section 6 are
not then satisfied. After the Administrative Agent's receipt of
the proceeds of such Loans in immediately available funds, the
Administrative Agent will make available to the Borrower by
depositing in the Borrower's account at the Payment Office the
aggregate of the amounts so made available by the Banks in
immediately available funds. In the event that the Loans made by
a Bank mature or are being prepaid on the date of a requested
Borrowing, such Bank shall apply the proceeds of the Loans, if
any, it is then making to the extent thereof, to the repayment of
such maturing or prepaid Loans, such Loans and prepayments
intended to be a contemporaneous exchange.
(b) Unless the Administrative Agent shall have been notified by
any Bank prior to the date of a Borrowing that such Bank does not
intend to make available to the Administrative Agent such Bank's
portion of the Loans to be made on such date, the Administrative
Agent may assume that such Bank has made such amount available to
the Administrative Agent on such date and the Administrative
Agent may, in its sole discretion and in reliance upon such
assumption, but shall not be obligated to, make available to the
Borrower a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such
Bank on the date of Borrowing, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such
Bank. If such Bank does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the Borrower, and the
Borrower shall pay such corresponding amount (to the extent such
amount is not collected from such Bank) to the Administrative
Agent promptly, and in any event no later than the next
succeeding Business Day. The Administrative Agent shall also be
entitled to recover from such Bank or the Borrower, as the case
may be, interest on such corresponding amount in respect of each
day from the date such corresponding amount was made available by
the Administrative Agent to the Borrower at a rate per annum
equal to the interbank compensation rate set by the
Administrative Agent or its actual cost of funds, whichever is
higher. Nothing herein shall be deemed to relieve any Bank from
its obligation to fulfill its commitments hereunder or to
prejudice any rights which the Borrower may have against any Bank
as a result of any default by such Bank hereunder.
(c) In the event that a Borrowing of Revolving Loans or Swing
Line Loans is requested to be made pursuant to this Agreement,
if, after giving effect thereto and the use of proceeds thereof,
the sum of (x) the outstanding principal amount of Revolving
Loans and Competitive Bid Loans made by such Bank at such time
plus (y) the amount of the Letter of Credit Exposure of such Bank
at such time plus (z) the amount of the Swing Line Exposure of
such Bank at such time, would exceed such Bank's Commitment, such
Bank shall, immediately upon but in any event within one Business
Day of receipt of a Notice of Borrowing or Notice of Swing Line
Borrowing, notify the Administrative Agent, the Borrower, and, in
the case of a Borrowing of Swing Line Loans, each Swing Line
Lender of the amount of such excess, and such Bank shall not be
obligated to make Loans pursuant to such Borrowing to the extent
of such excess, or, in the case of a Borrowing of Swing Line
Loans, each Swing Line Lender shall not be obligated to make
Swing Line Loans to the extent of its Swing Line Percentage of
such excess.
2.7 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative
Agent for the account of each Bank the then unpaid principal
amount of each Revolving Loan on the Final Maturity Date, (ii) to
the Administrative Agent for the account of each Bank the then
unpaid principal amount of each Competitive Bid Loan on the last
day of the Interest Period applicable to such Loan and (iii) to
the Swingline Lender the then unpaid principal amount of each
Swingline Loan on the earlier of the Final Maturity Date and the
first date after such Swingline Loan is made that is the seventh
day after such Swingline Loan is made.
(b) The Borrower's obligation to pay the principal of, and
interest on, all of the Loans made by a Bank shall, upon the
request of such Bank (i) in the case of Revolving Loans be
evidenced by a promissory note (collectively, the "Revolving
Notes"), (ii) in the case of Competitive Bid Loans be evidenced
by a promissory note (collectively, the "Competitive Bid Notes")
and (iii) in the case of Swing Line Loans, be evidenced by a
promissory note (collectively, the "Swing Line Notes," and
together with the Revolving Notes and Competitive Bid Notes, the
"Notes"), duly executed and delivered by the Borrower
substantially in the forms of Exhibits B-1, B-2 and B-3 hereto,
respectively, in each case with blanks appropriately completed in
conformity herewith. The Borrower shall promptly issue Notes to a
Bank upon the request of such Bank. Any Notes issued to each Bank
by the Borrower shall (i) be payable to the order of such Bank
and be dated the Effective Date, (ii) be in a stated principal
amount, in the case of the Revolving Notes, equal to the
Commitment of such Bank, in the case of the Competitive Bid
Notes, equal to the aggregate outstanding principal amount of
Competitive Bid Loans made by such Bank, in the case of Swing
Line Notes, equal to the Swing Line Commitment of such Bank and
in any such case, be payable in the aggregate principal amount of
the Loans evidenced thereby, (iii) mature on the Final Maturity
Date and be subject to mandatory prepayment as provided herein,
(iv) bear interest as provided in the appropriate clause of
Section 2.8 in respect of the Loans evidenced thereby and (v) be
entitled to the benefits of this Agreement.
(c) Each Bank shall note on its internal records each Loan made
by such Bank and payment thereon; provided that the failure to
make, or an error in making, a notation with respect to any Loan
shall not limit or otherwise affect the obligation of the
Borrower hereunder or under the applicable Note. Such notations
shall constitute prima facie evidence of the accuracy of the
information contained therein. Promptly upon the Borrower's
request (with a copy to the Administrative Agent), each Bank
shall provide to the Borrower copies of such notations. Although
each Note shall be dated the Effective Date, interest in respect
thereof shall be payable only for the periods during which any
amount thereunder is outstanding and although the stated amount
of each Revolving Note shall be equal to the relevant Bank's
Commitment, and the stated amount of each Swing Line Note shall
be equal to the relevant Swing Line Lender's Swing Line
Commitment, each Note shall be enforceable, with respect to the
Borrower's obligation to pay the principal amount thereof, only
to the extent of the outstanding principal amount of Loans
evidenced thereby.
(d) The Administrative Agent shall maintain at its Payment
Office (i) records of the names and addresses of the Banks and
(ii) accounts in which it shall record (x) the amount of each
Loan made hereunder, the Class and Type thereof and the Interest
Period applicable thereto, (y) the amount of any principal or
interest due and payable or to become due and payable from the
Borrower to each Bank hereunder and (z) the amount of any sum
received by the Administrative Agent hereunder for the account of
the Banks and each Bank's share thereof. The entries made in the
accounts maintained pursuant to this Section 2.7(d) shall be
prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of the
Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this
Agreement. Such records shall be available for inspection by the
Borrower or any Bank at any reasonable time and from time to time
upon reasonable prior notice.
2.8 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan
from the date of the respective Borrowing until maturity (whether
by acceleration or otherwise) at a rate per annum which shall be
equal to the Base Rate as in effect from time to time, such rate
to change as and when the Base Rate changes.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date of the
respective Borrowing until maturity (whether by acceleration or
otherwise) at a rate per annum which shall be equal to the sum of
(x) the relevant Eurodollar Rate plus (y) the Applicable Margin.
(c) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Competitive Bid Loan from the date of
the respective Borrowing until maturity (whether by acceleration
or otherwise) at the rate or rates per annum specified pursuant
to Section 2.3(c) by the Bank making such Loan and accepted by
the Borrower pursuant to Section 2.3(d)(2).
(d) The Administrative Agent, upon determining the interest rate
for any Borrowing of Eurodollar Loans for any Interest Period,
shall promptly notify by telephone (confirmed in writing) or in
writing, the Borrower and the Banks thereof.
(e) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and all other overdue
amounts owing hereunder shall bear interest for each day from the
date such payment was due to but not including the date paid in
full at a rate per annum equal to two per cent (2%) per annum in
excess of the Base Rate in effect from time to time, payable on
demand; provided that no Loan shall bear interest after maturity
(whether by acceleration or otherwise) at a rate per annum less
than two per cent (2%) in excess of the rate of interest
applicable thereto at maturity.
(f) Interest on each Loan shall accrue from and including the
date of the Borrowing thereof to but excluding the date of any
repayment thereof (provided that any Loan borrowed and repaid on
the same day shall accrue one day's interest) and shall be
payable (i) in respect of each Base Rate Loan other than a Swing
Line Loan, quarterly in arrears on each Payment Date, (ii) in
respect of each Swing Line Loan, on the maturity date thereof,
(iii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable to such Loan and, in the case of an
Interest Period of six months or nine months, on the date
occurring every three months after the first day of such Interest
Period, (iv) in the case of Competitive Bid Loans, as provided in
Section 2.3 and (v) in respect of all Loans, on any prepayment or
conversion thereof (on the amount prepaid or converted), at
maturity (whether by acceleration or otherwise) and, after
maturity, on demand.
(g) All computations of interest on (i) Eurodollar Loans and
Competitive Bid Loans and interest payable pursuant to Section
2.6(b) shall be made on the basis of a year of 360 days for the
actual number of days occurring in the period for which such
interest is payable and (ii) Base Rate Loans and interest payable
pursuant to Section 3.5 (a)(i) or 2.8 (e) shall be made on the
basis of a year of 365 days (or 366 days in leap year) for the
actual number of days occurring in the period for which such
interest is payable. Each determination by the Administrative
Agent of an interest rate hereunder shall, except for manifest
error, be final, conclusive and binding for all purposes.
2.9 Interest Periods. The Borrower shall, in each Notice of
Borrowing or Notice of Continuation or Conversion in respect of
the making of, conversion into or continuation of, a Borrowing of
Eurodollar Loans, or in each Notice of Competitive Bid Borrowing
in respect of a Borrowing of Competitive Bid Loans, select the
interest period (each, an "Interest Period") to be applicable to
such Borrowing, which Interest Period shall, at the option of the
Borrower, be a one, two, three, six or, if available, nine month
period, and in the case of a Competitive Bid Loan, a period of
one to 360 days; provided that:
(i) any Interest Period for any Loan shall commence on the date
of such Loan;
(ii) the initial Interest Period for any Borrowing of or
conversion to Eurodollar Loans shall commence on the date of such
Borrowing or conversion and each Interest Period occurring
thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;
(iii) if any Interest Period relating to a Borrowing
consisting of Eurodollar Loans or Competitive Bid Loans having
the Eurodollar Rate as the Interest Rate Basis begins on a day
for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided that if any Interest
Period for a Eurodollar Loan or Competitive Bid Loan having the
Eurodollar Rate as the Interest Rate Basis would otherwise expire
on a day which is not a Business Day but is a day of the month
after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
and
(v) no Interest Period in respect of any Loan shall extend
beyond the Final Maturity Date.
2.10 Conversions or Continuations. (a) Subject to the other
provisions hereof, the Borrower shall have the option (i) to
convert pro rata on any Business Day all or a portion equal to at
least $100,000,000 (or if greater, an integral multiple of
$20,000,000) of the outstanding principal amount of any Revolving
Loan or Revolving Loans made pursuant to one or more Borrowings
from one or more Types of Loans into one Borrowing of another
Type, or (ii) to continue all or any part of the outstanding
Eurodollar Loans made pursuant to one Borrowing; provided that
(x) except as otherwise provided in Section 2.11, Eurodollar
Loans may be converted into Loans of another Type only on the
last day of an Interest Period applicable thereto and (y) Loans
of any Type may only be converted into or continued as Eurodollar
Loans if no Default or Event of Default has occurred and is
continuing.
(b) In order to select to convert or continue a Revolving Loan
under this Section 2.10, the Borrower shall deliver an
irrevocable notice thereof by telephone (confirmed promptly in
writing) or in writing (a "Notice of Continuation or Conversion")
to the Administrative Agent at the Payment Office prior to 11:00
a.m. (New York City time) at least three Business Days prior to
the date of such conversion or continuation specifying whether a
continuation or conversion is requested, the Loans to be so
converted or continued and, if to be converted into or continued
as Eurodollar Loans, the Interest Period to be initially
applicable thereto. Notwithstanding the foregoing, if a Default
or Event of Default is in existence at the time any Interest
Period in respect of any Borrowing of Eurodollar Loans is to
expire, such Loans may not be continued as Eurodollar Loans but
instead shall be automatically converted on the expiration date
of such Interest Period into a Borrowing of Base Rate Loans. If
upon the expiration of any Interest Period, the Borrower has
failed to elect a new Interest Period to be applicable to the
respective Borrowing of Eurodollar Loans as provided above, the
Borrower shall be deemed to have elected to convert the Borrowing
into a Borrowing of Base Rate Loans effective as of the
expiration date of such current Interest Period.
2.11 Interest Rate Unascertainable, Increased Cost, Illegality,
etc. (a) In the event that the Administrative Agent, in the case
of clause (i) below, or any Bank, in the case of clauses (ii) and
(iii) below, shall in good faith have reasonably determined
(which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any
Interest Period, that by reason of any changes arising after the
date of this Agreement affecting the interbank Eurodollar market
adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the
definition of Eurodollar Rate; or
(ii) at any time, that the relevant Eurodollar Rate applicable to
its Loans shall not represent the effective pricing to such Bank
for funding or maintaining the affected Loans, or such Bank shall
incur increased costs or reductions in the amounts received or
receivable hereunder in respect thereof, because of (x) any
change since the date of this Agreement in any applicable law or
governmental rule, regulation, guideline or order or any
interpretation thereof by any governmental agency or authority
and including the introduction of any new law or governmental
rule, regulation, guideline or order (such as, for example, but
not limited to, a change in official reserve requirements),
whether or not having the force of law and whether or not failure
to comply therewith would be unlawful or (y) other circumstances
affecting such Bank or the interbank Eurodollar market or the
position of such Bank in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan or Competitive Bid Loan having the Eurodollar
Rate as the Interest Rate Basis has become unlawful by compliance
by such Bank in good faith with any law, governmental rule,
regulation, guideline or order enacted or adopted after the date
of this Agreement (whether or not having the force of law), or
has become impracticable as a result of a contingency occurring
after the date of this Agreement which materially and adversely
affects the interbank Eurodollar market;
then, and in any such event, the Administrative Agent or such
Bank, as the case may be, shall, promptly after making such
determination, give notice (by telephone promptly confirmed
in writing) to the Borrower and (if applicable) to the
Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the
other Banks). Thereafter (x) in the case of clause (i) above,
Eurodollar Loans shall no longer be available until such time
as the Administrative Agent notifies the Borrower and the
Banks that the circumstances giving rise to such notice by
the Administrative Agent no longer exist, and any Notice of
Borrowing, Notice of Competitive Bid Borrowing or Notice of
Conversion or Continuation given by the Borrower with respect
to any Borrowing of Eurodollar Loans or Competitive Bid Loans
having the Eurodollar Rate as the Interest Rate Basis which
have not yet been incurred shall be deemed cancelled and
rescinded by the Borrower, (y) in the case of clause (ii)
above, the Borrower shall pay to such Bank, within five
Business Days of written demand therefor with a copy to the
Administrative Agent, such additional amounts (in the form of
an increased rate of, or a different method of calculating,
interest or otherwise as the Bank in its sole discretion
shall determine) as shall be required to compensate such Bank
for such increased costs or reduction in amounts receivable
hereunder (a written notice as to additional amounts owed
such Bank, showing the basis for the calculation thereof,
submitted to the Borrower by the Bank shall, absent manifest
error, be final and conclusive and binding upon all of the
parties hereto) and (z) in the case of clause (iii) above,
the Borrower shall take one of the actions specified in
clause (b) below as promptly as possible.
(b) At any time that any Eurodollar Loans are affected by the
circumstances described in clause (a) above, the Borrower may
(and, in the case of a Eurodollar Loan affected pursuant to
clause (a)(iii) above, shall) either (i) if the affected
Eurodollar Loan has not yet been made but is then the subject of
a Notice of Borrowing or a Notice of Conversion or Continuation,
be deemed to have cancelled and rescinded such notice, or (ii) if
the affected Eurodollar Loan is then outstanding, require the
affected Bank to convert each such Eurodollar Loan into a Base
Rate Loan at the end of the applicable Interest Period or such
earlier time as may be required by law by giving the
Administrative Agent telephonic notice (promptly confirmed in
writing) thereof on the Business Day that the Borrower was
notified by the Bank pursuant to clause (a) above; provided that
if more than one Bank is affected at any time, then all affected
Banks must be treated in the same manner pursuant to this clause
(b).
(c) In the event that the Administrative Agent determines at any
time following its giving of notice based on the conditions
described in clause (a)(i) above that none of such conditions
exist, the Administrative Agent shall promptly give notice
thereof to the Borrower and the Banks, whereupon the Borrower's
right to request Eurodollar Loans from the Banks and the Banks'
obligation to make Eurodollar Loans shall be restored.
(d) In the event that a Bank determines at any time following
its giving of a notice based on the conditions described in
clause (a)(iii) above that none of such conditions exist, such
Bank shall promptly give notice thereof to the Borrower and the
Administrative Agent, whereupon the Borrower's right to request
Eurodollar Loans from such Bank and such Bank's obligation to
make Eurodollar Loans shall be restored.
2.12 Capital Adequacy. (a) If any Bank determines in good faith
that compliance with any applicable law, rule, regulation,
guideline, request or directive, whether or not having the force
of law, from a governmental authority, central bank or comparable
agency, concerning capital adequacy or reserves, or any change
therein or in interpretation or administration thereof by any
governmental authority, central bank or comparable agency has or
will have the effect of reducing the rate of return on the
capital or assets of such Bank or any Person controlling such
Bank as a consequence of such Bank's commitments or obligations
hereunder, then from time to time within 15 days after demand
therefor by such Bank (with a copy to the Administrative Agent),
the Borrower will pay to such Bank such additional amounts as
will compensate such Bank or Person for such reduction. Each
Bank, upon determining that any increased costs will be payable
pursuant to this Section 2.12, will give prompt written notice
thereof to the Borrower, which notice shall show the basis for
calculation of such increased costs, although the failure to give
any such notice shall not release or diminish any of the
Borrower's obligations to pay increased costs pursuant to this
Section. To the extent that the notice required by the
immediately preceding sentence is given by any Bank more than 180
days after the occurrence of the event giving rise to additional
costs of the type described in this Section 2.12, such Bank shall
not be entitled to compensation under this Section 2.12 for any
amounts incurred or accrued prior to the giving of such notice to
the Borrower.
(b) If the Borrower shall, as a result of the requirements of
subsection (a) above or Section 2.14, be required to pay any Bank
the additional costs referred to therein and the Borrower, in its
sole discretion, shall deem such additional amounts to be
material, the Borrower shall have the right to substitute another
bank satisfactory to the Administrative Agent for such Bank which
has certified the additional costs to the Borrower, and the
Administrative Agent shall use reasonable efforts to assist the
Borrower to locate such substitute bank. Any such substitution
shall be on terms and conditions satisfactory to the
Administrative Agent and until such time as such substitution
shall be consummated, the Borrower shall continue to pay such
additional costs. Upon any such substitution, the Borrower shall
pay or cause to be paid to the Bank that is being replaced, all
principal, interest (to the date of such substitution) and other
amounts owing hereunder to such Bank and such Bank will be
released from liability hereunder.
2.13 Funding Losses. The Borrower shall compensate each Bank,
upon such Bank's delivery of a written request therefore, with a
copy to the Administrative Agent, (which request shall set forth
in reasonable detail the basis for requesting such amounts and
which request shall, absent manifest error, be final, conclusive
and binding upon all of the parties hereto), for all losses,
expenses and liabilities (including, without limitation, any
interest paid by such Bank to lenders of funds borrowed by it to
make or carry its Eurodollar Loans to the extent not recovered by
such Bank in connection with the re-employment of such funds and
including loss of anticipated profits) which such Bank may
sustain: (i) if for any reason (other than a default by such
Bank) a Borrowing of, or conversion (or deemed conversion) from
or into, or continuation of, Eurodollar Loans, or a Borrowing of
Competitive Bid Loans, does not occur on the date specified
therefor in a Notice of Borrowing, a Notice of Continuation or
Conversion or a Notice of Competitive Bid Borrowing (whether or
not cancelled, rescinded or otherwise withdrawn); (ii) if, for
any reason, any repayment (including, without limitation, payment
after acceleration) of any of its Eurodollar Loans or Competitive
Bid Loans or conversion of its Eurodollar Loans occurs on a date
which is not the last day of an Interest Period applicable
thereto; (iii) if any prepayment of any of its Eurodollar Loans
or Competitive Bid Loans is not made on any date specified in a
notice of prepayment given by the Borrower; or (iv) as a
consequence of (x) any default by the Borrower to repay its Loans
when required by the terms of this Agreement or a Note of such
Bank or (y) an election made or action required to be taken
pursuant to Section 2.11(b).
2.14 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges,
fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any governmental
authority excluding, in the case of the Administrative Agent and
each Bank, net income and franchise, gross receipts or other
taxes imposed on net income, in each case imposed on the
Administrative Agent or such Bank by the jurisdiction under the
laws of which the Administrative Agent or such Bank is organized
or qualified to do business (other than in situations where the
basis of the imposition of such tax is the activity of the
Borrower or any of its Affiliates in such jurisdiction) or any
political subdivision or taxing authority thereof or therein, or
by any jurisdiction in which such Bank's Lending Office is
located or any political subdivision or taxing authority thereof
or therein (all such non-excluded taxes, levies, imposts,
deductions, charges or withholdings being hereinafter called
"Taxes"). If any Taxes are required to be deducted or withheld
from any amounts payable to the Administrative Agent or any Bank
hereunder or under any Notes, the amounts so payable to the
Administrative Agent or such Bank shall be increased to the
extent necessary to yield to the Administrative Agent or such
Bank (after payment of all Taxes including Taxes payable with
respect to the additional amounts payable under this Section)
interest or any such other amounts payable hereunder at the rates
or in the amounts specified in this Agreement and any Notes.
Whenever any Taxes are payable by the Borrower, as promptly as
possible thereafter, the Borrower shall send to the
Administrative Agent for its own account or for the account of
such Bank, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Banks for any incremental taxes,
interest or penalties that may become payable by the
Administrative Agent or any Bank as a result of any such failure.
The agreements in this Section 2.14(a) shall survive the
termination of this Agreement and the payment of any Notes and
all other Obligations and are subject to the provisions of
Section 2.14(b).
(b) Each Bank that is not incorporated under the laws of the
United States of America or a state thereof (including each
Purchasing Bank that becomes a party to this Agreement pursuant
to Section 12.4(d)) agrees that, prior to the first date on which
any Loan is made or Letter of Credit is issued hereunder, or, in
the case of a Purchasing Bank, prior to the date it becomes a
Bank hereunder, it will deliver to the Borrower and the
Administrative Agent two duly completed copies of United States
Internal Revenue Service Form W-8BEN or W-8ECI or successor
applicable form, as the case may be, certifying in each case that
such Bank is entitled to receive payments under this Agreement
and any Notes payable to it, without deduction or withholding of
any United States federal income taxes. Each Bank which delivers
to the Borrower and the Administrative Agent a Form W-8BEN or W-
8ECI pursuant to the preceding sentence further undertakes to
deliver to the Borrower and the Administrative Agent two further
copies of the said Form W-8BEN or W-8ECI (if required by law), or
successor applicable forms, or other manner of certification, as
the case may be, on or before the date that any such form expires
or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered
by it to the Borrower, and such extensions or renewals thereof as
may reasonably be requested by the Borrower, certifying that such
Bank is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes, unless in any such case an event (including, without
limitation, any change in treaty, law or regulation) has occurred
prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would
prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank advises the Borrower that
it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
2.15 Sharing of Payments, etc. Each of the Banks agrees that if
it should receive any amount hereunder (whether by voluntary
payment, by realization upon security, by the exercise of the
right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under this Agreement, or
otherwise) which is applicable to the payment of any Obligations,
of a sum which with respect to the related sum or sums received
by other Banks is in a greater proportion than the total of such
Obligations then owed and due to such Bank bears to the total of
such Obligations then owed and due to all of the Banks
immediately prior to such receipt, then such Bank receiving such
excess payment shall purchase for cash without recourse or
warranty from the other Banks an interest in such Obligations
owing to such Banks in such amount as shall result in a
proportional participation by all of the Banks in such amount;
provided that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be
rescinded and the purchase price restored to the extent of such
recovery, but without interest. The Borrower agrees that any Bank
so purchasing a participation from another Bank 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 Bank
were the direct creditor of the Borrower in the amount of such
participation.
2.16 Change of Lending Office. Each Bank agrees that it will use
its best efforts (subject to overall policy considerations of
such Bank) to designate an alternate Lending Office for any
Eurodollar Loans or Competitive Bid Loans affected by the matters
or circumstances described in Sections 2.11 and 2.12 (provided
that such designation is made on such terms that such Bank
suffers no economic, legal, regulatory or other disadvantage,
determined by such Bank in its sole discretion) with the object
of avoiding the consequences of the event giving rise to the
operation of any such Section. Nothing in this Section 2.16 shall
affect or postpone any of the obligations of the Borrower or the
right of any Bank provided in this Agreement.
SECTION 3. LETTER OF CREDIT SUBFACILITY.
3.1 Letters of Credit. (a) Subject to and upon the terms and
conditions and in reliance upon the representations and
warranties of the Borrower set forth in this Agreement, in
addition to requesting that the Banks make Loans pursuant to
Section 2, the Borrower may from time to time request, in
accordance with the provisions of this Section 3.1, that on and
after the Effective Date and prior to the Final Maturity Date,
any one of the Issuing Banks issue a Letter or Letters of Credit
for the account of the Borrower at such time in an amount not to
exceed such Issuing Bank's Issuing Bank Commitment; provided that
any Letter of Credit issued by such Issuing Bank shall be in a
form customarily used by such Issuing Bank or in any other form
approved by such Issuing Bank; provided, further, that (i) each
Letter of Credit shall expire at or prior to the close of
business on the earlier of (x) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or
extension) and (y) the date that is thirty days prior to the
Final Maturity Date, provided, that any Letter of Credit with a
one-year term may provide for the renewal thereof for additional
one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above), (ii) each Letter of Credit
issued by an Issuing Bank shall have a stated amount of at least
$25,000,000 and (iii) the Borrower shall not request the issuance
of any Letter of Credit if, after giving effect to such issuance,
(w) the aggregate Category A Letter of Credit Outstandings would
exceed $250,000,000, (x) the aggregate Category B Letter of
Credit Outstandings would exceed $250,000,000, (y) to the extent
that the Letter of Credit Exposure of any Bank would exceed the
Commitment of such Bank at such time, as reduced by the sum of
(1) the aggregate principal amount of Revolving Loans and
Competitive Bid Loans made by such Bank at such time plus (2) the
amount of the Swing Line Exposure of such Bank at such time or
(z) the sum of the aggregate Letter of Credit Outstandings plus
the aggregate outstanding principal amount of all Loans would
exceed the Total Commitment.
(b) Each Letter of Credit may provide that the Issuing Bank may
(but shall not be required to) pay the beneficiary thereof upon
the occurrence of an Event of Default and the acceleration of the
maturity of the Loans or, if payment is not then due to the
beneficiary, provide for the deposit of funds in an account to
secure payment to the beneficiary and that any funds so deposited
shall be paid to the beneficiary of the Letter of Credit if
conditions to such payment are satisfied or returned to the
Issuing Bank for distribution to the Banks (or, if all
Obligations shall have been indefeasibly paid in full, to the
Borrower) if no payment to the beneficiary has been made and the
final date available for drawings under the Letter of Credit has
passed. Each payment or deposit of funds as provided in this
paragraph shall be treated for all purposes of this Agreement as
a drawing duly honored by the Issuing Bank under the related
Letter of Credit.
3.2 Notice of Issuance; Agreement to Issue. (a) Whenever the
Borrower desires the issuance of a Letter of Credit, it shall
deliver to the Administrative Agent a written notice in the form
of Exhibit C hereto (a "Notice of Letter of Credit Issuance") no
later than 11:00 a.m. (New York City time) at least ten Business
Days, or such shorter period (which shall not be less than 5
Business Days) as may be agreed to by the designated Issuing Bank
in any particular instance, in advance of the proposed date of
issuance. Each such notice shall specify (i) the proposed date of
issuance (which shall be a business day under the laws of the
jurisdiction of the designated Issuing Bank), (ii) the face
amount of the Letter of Credit, (iii) the expiration date of the
Letter of Credit, (iv) the Issuing Bank designated by the
Borrower to issue the requested Letter of Credit and (v) the name
and address of the beneficiary with respect to such Letter of
Credit, and attaching a precise description of the documents and
a verbatim text of any certificate to be presented by the
beneficiary of such Letter of Credit, which if presented by such
beneficiary prior to the expiration date of the Letter of Credit,
would require the Issuing Bank to make payment under the Letter
of Credit; provided that the Issuing Bank may require changes in
any such documents and certificates in accordance with its
customary letter of credit practices and; provided, further, that
no Letter of Credit shall require payment against a conforming
draft to be made thereunder on the same Business Day that such
draft is presented if such presentation is made after 11:00 a.m.
(New York City time). In determining whether to pay under any
Letter of Credit, the Issuing Bank shall be responsible only to
determine that the documents and certificates required to be
delivered under its Letter of Credit have been delivered and that
they comply on their face with the requirements of its Letter of
Credit. Promptly after receipt of a Notice of Letter of Credit
Issuance, the Administrative Agent shall notify each Bank of such
Bank's respective participation therein, determined in accordance
with Section 3.2(b). Each Issuing Bank shall furnish to the
Administrative Agent a specimen copy of any Letter of Credit
issued by such Issuing Bank and any related documents and
certificates promptly upon its issuance pursuant to this
Agreement, and the Administrative Agent shall furnish copies
thereof to any Bank promptly upon its request therefor.
(b) Each Issuing Bank agrees, subject to the terms and
conditions set forth in this Agreement, and so long as it shall
not have received any notice from any Bank pursuant to the
immediately succeeding sentence, to issue for the account of the
Borrower a Letter of Credit in a face amount equal to the face
amount requested under paragraph (a) above following its receipt
of the notice required by Section 3.2(a). Immediately upon the
issuance of each Letter of Credit, each Bank shall be deemed to,
and hereby agrees to, have irrevocably purchased from the Issuing
Bank a participation in such Letter of Credit and any drawing
thereunder in an amount equal to such Bank's Pro Rata Share of
the maximum amount which is or at any time may become available
to be drawn thereunder; provided that no such Bank shall have
delivered a notice to such Issuing Bank (with a copy to the
Administrative Agent which shall be promptly forwarded to the
other Banks) to the effect that one or more of the applicable
conditions set forth in Section 6 are not then satisfied or that
the issuance of such Letter of Credit or purchase of a
participation therein by such Bank would violate Section 3.6(b).
3.3 Payment of Amounts Drawn Under Letters of Credit. (a) In
the event of any request for drawing under any Letter of Credit
by the beneficiary thereof, the Issuing Bank shall notify the
Borrower, the Administrative Agent and the Banks on or before the
date on which such Issuing Bank intends to honor such drawing,
and the Borrower shall reimburse such Issuing Bank on the day on
which such drawing is honored in an amount in same day funds
equal to the amount of such drawing; provided that, anything
contained in this Agreement to the contrary notwithstanding, (i)
amounts held by the Administrative Agent in the accounts provided
for in Section 5.2(a) or 10.2 shall be applied first to satisfy
such reimbursement obligation, (ii) unless the Borrower shall
have notified the Administrative Agent and such Issuing Bank
prior to 11:00 a.m. (New York City time) on the Business Day
immediately prior to the date on which such drawing is honored
that the Borrower intends to reimburse such Issuing Bank for the
amount of such drawing with funds other than the proceeds of
Revolving Loans, the Borrower shall be deemed to have timely
given a Notice of Borrowing to the Administrative Agent
requesting Revolving Loans which are Base Rate Loans on the date
on which such drawing is honored in an amount equal to the amount
of such drawing, and (iii) the Banks shall, by 1:00 p.m. (New
York City time) on the date of such drawing, make Revolving Loans
which are Base Rate Loans in the amount of such drawing, the
proceeds of which shall be applied directly by the Administrative
Agent to reimburse such Issuing Bank for the amount of such
drawing (provided that for the purposes solely of such Borrowing
the conditions precedent set forth in Section 6.2 shall not be
applicable, it being understood and agreed that the Banks'
obligation to make such Revolving Loans shall be absolute and
unconditional); and provided, further, that, if for any reason,
proceeds of Revolving Loans are not received by such Issuing Bank
on such date in an amount equal to the amount of such drawing,
the Borrower shall reimburse such Issuing Bank, on the business
day (under the laws of the jurisdiction of such Issuing Bank)
immediately following the date of such drawing, in an amount in
Dollars and immediately available funds equal to the excess of
the amount of such drawing over the amount of such Revolving
Loans, if any, which are so received, plus accrued interest on
such amount at the rate set forth in Section 3.5(a)(i).
Any such payments by the Borrower which are made
later than 11:00 a.m. (New York City time) shall be deemed to
have been made on the next succeeding Business Day. Whenever
any payment to be made under this Section 3.3 shall be stated
to be due on a day.30 which is not a Business Day, the due
date thereof shall be extended to the next succeeding
Business Day.
(b) Each Bank shall indemnify and hold harmless the
Administrative Agent and each Issuing Bank from and against any
and all losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, costs and
expenses (including, without limitation, reasonable attorney's
fees and expenses) resulting from any failure on the part of such
Bank to provide, on the same day of any drawing under a Letter of
Credit, the Administrative Agent with such Bank's Pro Rata Share
of the amount of any drawing under such Letter of Credit in
accordance with the provisions of Section 3.3(a).
3.4 Payment by Banks. In the event that the Borrower shall fail
to reimburse an Issuing Bank as provided in Section 3.3 by
borrowing Revolving Loans or otherwise in an amount equal to the
amount of any drawing honored by such Issuing Bank under a Letter
of Credit issued by it, such Issuing Bank shall promptly notify
each Bank of the unreimbursed amount of such drawing and of such
Bank's respective participation therein. Each Bank shall make
available to such Issuing Bank an amount equal to its respective
participation in Dollars and immediately available funds, at the
office of such Issuing Bank specified in such notice, not later
than 1:00 p.m. (New York City time) on the business day (under
the laws of the jurisdiction of such Issuing Bank and a Business
Day) after the date notified by such Issuing Bank. In the event
that any Bank fails to make available to such Issuing Bank the
amount of such Bank's participation in such Letter of Credit as
provided in this Section 3.4, such Issuing Bank shall be entitled
to recover such amount on demand from such Bank together with
interest at the interbank compensation rate set by the
Administrative Agent for three Business Days and thereafter at
the Base Rate. Nothing in this Section 3.4 shall be deemed to
prejudice the right of any Bank to recover from such Issuing Bank
any amounts made available by such Bank to such Issuing Bank
pursuant to this Section 3.4 in the event that the payment with
respect to a Letter of Credit by such Issuing Bank in respect of
which payment was made by such Bank constituted gross negligence
or willful misconduct on the part of such Issuing Bank. Each
Issuing Bank shall distribute to each other Bank which has paid
all amounts payable by it under this Section 3.4 with respect to
any Letter of Credit issued by such Issuing Bank such other
Bank's Pro Rata Share of all payments received by such Issuing
Bank from the Borrower in reimbursement of drawings honored by
such Issuing Bank under such Letter of Credit when such payments
are received (including interest payable under Section 3.5(a)(i)
with respect to the period commencing on the date of the funding
of such participation).
3.5 Compensation. (a) The Borrower agrees to pay the following
amounts to each Issuing Bank in respect of each Letter of Credit
issued by it:
(i) with respect to drawings made under any Letter of Credit,
interest, payable on demand, on the amount paid by such Issuing
Bank in respect of each such drawing from the date of the drawing
(unless repaid on such date) through the date such amount is
reimbursed by the Borrower (including any such reimbursement out
of the proceeds of Revolving Loans pursuant to Section 3.3) at a
rate which is at all times equal to two per cent (2%) in excess
of that otherwise payable under this Agreement for Base Rate
Loans;
(ii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each drawing made thereunder, documentary
and processing charges in accordance with each Issuing Bank's
standard schedule for such charges in effect at the time of such
issuance, amendment, transfer or drawing, as the case may be (as
set forth in a certificate of such Issuing Bank delivered to the
Administrative Agent and the Borrower); and
(iii) an annual letter of credit fee at a rate per annum
equal to 0.06% on the average daily amount of Letter of Credit
Outstandings with respect to Letters of Credit issued by each
Issuing Bank, payable on the Payment Date to occur in July, 2001
and thereafter payable quarterly in arrears on each subsequent
Payment Date prior to the later of the Final Maturity Date and
the date on which such Letter of Credit Outstandings have been
reduced to zero, and on such date. All computations of such fee
shall be computed on the basis of the number of days elapsed
(including the first day but excluding the last day) over a year
of 360 days.
(b) The Borrower agrees to pay to the Administrative Agent for
distribution to each Bank in proportion to each Bank's Pro Rata
Share, a letter of credit commission at a rate per annum equal to
the Applicable Commission Rate on the average daily amount of
Letter of Credit Outstandings, payable in arrears on the Payment
Date to occur in July, 2001 and thereafter payable quarterly in
arrears on each subsequent Payment Date prior to the later of the
Final Maturity Date and the date on which the Letter of Credit
Outstandings have been reduced to zero, and on such date. All
computations of the letter of credit commission shall be computed
on the basis of the number of days elapsed (including the first
day but excluding the last day) over a year of 360 days. Promptly
upon receipt by the Administrative Agent of any amount described
in this Section 3.5(b), the Administrative Agent shall distribute
to each Bank its Pro Rata Share of such amount.
3.6 Additional Payments; Illegality. (a) If by reason of (x)
any change in applicable law, regulation, rule, regulatory
requirement, guideline, request or directive, whether or not
having the force of law, or any change in the interpretation or
application thereof by any judicial or other applicable
governmental or regulatory authority, (y) compliance by any Bank
in good faith with any direction, request or mandatory guideline
of any applicable governmental or monetary authority including,
without limitation, Regulation D:
(i) such Bank shall be subject to any tax, levy, charge or
withholding of any nature or to any variation thereof or to any
penalty with respect to the maintenance or fulfillment of its
obligations under this Section 3, whether directly or by such
being imposed on or suffered by such Bank;
(ii) any reserve, deposit or similar requirement is or shall be
applicable, imposed or modified in respect of any participations
purchased by such Bank in any Letter of Credit (or in respect of
such Bank's commitment to purchase such a participation); or
(iii) there shall be imposed on such Bank any other condition
regarding this Section 3, any Letter of Credit or any
participation therein;
and the result of the foregoing is to directly or indirectly
increase the cost to such Bank of committing to purchase,
purchasing or maintaining any participation in any Letter of
Credit, or to reduce the amount receivable in respect thereof
by such Bank, then and in any such case such Bank may,
without duplication of any payments required to be made
pursuant to Section 2.11, 2.12, 2.14 or 12.1, at any time
after the additional cost is incurred or the amount received
is reduced, notify the Borrower and the Borrower shall pay to
such Bank within five Business Days of written demand
therefor, such additional amounts as shall be required to
compensate such Bank for such increased costs or reduction in
amounts receivable hereunder (a written notice as to
additional amounts owed such Bank showing the basis for the
calculation thereof, submitted to the Borrower by such Bank
shall, absent manifest error, be final and conclusive and
binding upon all parties hereto).
(b) Notwithstanding any other provision contained in this
Agreement, no Issuing Bank shall be obligated to issue any Letter
of Credit, nor shall any Bank be obligated to purchase its
participation in any Letter of Credit to be issued hereunder if
the issuance of such Letter of Credit or purchase of such
participation shall have become unlawful or prohibited by
compliance by such Issuing Bank or Bank in good faith with any
law, governmental rule, guideline, request, order, injunction,
judgment or decree (whether or not having the force of law);
provided that in the case of the obligation of a Bank to purchase
such participation, such Bank shall have notified any Issuing
Bank for the related Letter of Credit to such effect pursuant to
Section 3.2(b).
3.7 Obligations Absolute. The obligation of the Borrower to
reimburse each Issuing Bank for drawings made under the Letters
of Credit issued by such Issuing Bank for the account of the
Borrower and the Banks' obligations under Section 3.3, shall be
unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement under all
circumstances including, without limitation, the following
circumstances:
(a) any lack of validity or enforceability of any Letter of
Credit;
(b) the existence of any claim, set-off, defense or other right
which the Borrower or any Subsidiary or Affiliate of the Borrower
may have at any time against a beneficiary or any transferee of
any Letter of Credit (or any persons or entities for whom any
such beneficiary or transferee may be acting), any Bank or any
other Person, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction
(including, without limitation, any underlying transaction
between the Borrower or any of its Subsidiaries or Affiliates and
the beneficiary for which the Letter of Credit was procured);
provided that nothing in this Section 3.7 shall affect the right
of the Borrower to seek relief against any beneficiary,
transferee, Bank or any other Person in an action or proceeding
or to bring a counterclaim in any suit involving such Persons;
(c) any draft, demand, certificate or any other document
presented under any Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein
being untrue or inaccurate in any respect;
(d) payment by such Bank under any Letter of Credit against
presentation of a demand, draft or certificate or other document
which does not comply with the terms of such Letter of Credit;
(e) any other circumstance or happening whatsoever, which is
similar to any of the foregoing; or
(f) the fact that a Default or an Event of Default shall have
occurred and be continuing.
3.8 Indemnification; Nature of Issuing Banks' Duties. In
addition to amounts payable as elsewhere provided in this Section
3, without duplication, the Borrower hereby agrees to protect,
indemnify, pay and save each Issuing Bank harmless from and
against any and all claims, demands, liabilities, damages,
losses, costs, charges and reasonable expenses (including
reasonable attorneys' fees and disbursements and, after a
Default, allocated costs of internal counsel) which such Issuing
Bank may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit for the
account of the Borrower other than as a result of the gross
negligence or willful misconduct of such Issuing Bank or (ii) the
failure of such Issuing Bank to honor a drawing under any Letter
of Credit due to an act or omission (whether rightful or
wrongful) of any present or future de jure or de facto government
or governmental authority.
As between the Borrower and each Issuing Bank, the
Borrower assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by such Issuing Bank,
by the respective beneficiaries of such Letters of Credit,
other than losses resulting from the gross negligence or
willful misconduct of such Issuing Bank. In furtherance and
not in limitation of the foregoing, no Issuing Bank shall be
responsible: (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effects of any document
submitted by any party in connection with the application for
and issuance of such Letters of Credit, even if it should in
fact prove to be in any or all respects insufficient,
inaccurate, fraudulent or forged or otherwise invalid; (ii)
for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign
any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason; (iii)
for failure of the beneficiary of any such Letter of Credit
to comply fully with conditions required in order to draw
upon such Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex, telecopy or
otherwise, whether or not they be in cipher; (v) for good
faith errors in interpretation of technical terms; (vi) for
any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of any such Letter of
Credit; and (viii) for any consequences arising from causes
beyond the control of such Issuing Bank, including, without
limitation, any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto
government or governmental authority. None of the above shall
affect, impair, or prevent the vesting of any such Issuing
Bank's rights or powers hereunder.
In furtherance and extension and not in limitation
of the specific provisions hereinabove set forth, any action
taken or omitted by any Issuing Bank under or in connection
with the Letters of Credit issued by it or the related
certificates, if taken or omitted in the absence of gross
negligence or willful misconduct, shall not put such Issuing
Bank under any resulting liability to the Borrower.
SECTION 4. AGENTS' FEES; FACILITY FEE; UTILIZATION FEE;
COMMITMENTS.
4.1 Facility Fee; Utilization Fee. (a) The Borrower agrees to
pay to the Administrative Agent for the account of each Bank an
annual facility fee on the amount of such Bank's Commitment or,
if greater, the average daily amount of such Bank's Letter of
Credit Exposure, at the Applicable Facility Fee Rate, commencing
on the Effective Date and payable in arrears on the Payment Date
to occur in July, 2001 and thereafter payable quarterly in
arrears on each subsequent Payment Date prior to the date on
which all Obligations have been paid in full and the Commitments
have expired or been terminated, and on such date. All
computations of the facility fee shall be computed on the basis
of number of days elapsed (including the first day but excluding
the last day) over a year of 360 days.
(b) Utilization Fee. In addition to the fees set forth in
Section 4.1(a), the Borrower agrees to pay to the Administrative
Agent for the account of each Bank a utilization fee for each day
during the periods (x) from and including the Effective Date to
but excluding the next day thereafter on which the utilization
fee is payable and (y) from and including each day on which the
utilization fee is payable to but excluding the next day
thereafter on which the utilization fee is payable, on the daily
average aggregate outstanding principal amount of the Loans
(other than Competitive Bid Loans) of such Bank during such
period at a rate per annum.34 equal to (i) 0% if the Utilization
Percentage for such period shall be less than or equal to 50% and
(ii) 0.10% if the Utilization Percentage for such period shall be
greater than 50%. "Utilization Percentage" shall mean the
percentage corresponding to the fraction, the numerator of which
shall be the daily average aggregate outstanding principal amount
of all Loans of all Banks plus the Letter of Credit Outstandings
during any relevant period and the denominator of which shall be
the daily average amount of the Commitments of all Banks during
such period. Utilization fees shall be payable quarterly in
arrears on each subsequent Payment Date prior to the date on
which all Obligations have been paid in full and the Commitments
have expired or been terminated, and on such date. All
computations of the utilization fee shall be computed on the
basis of the number of days elapsed (including the first but
excluding the last day) over a year of 360 days.
4.2 Agents' Fees. The Borrower shall pay to each of the
Administrative Agent and the Syndication Agent for its own
account such fees and other amounts as set forth in the Fee
Letters.
4.3 Voluntary Reduction of Commitments. Upon at least two
Business Days' prior written notice (or telephonic notice
confirmed promptly in writing) to the Administrative Agent (which
notice the Administrative Agent shall promptly transmit to each
of the Banks), the Borrower shall have the right, without premium
or penalty, to permanently reduce each Bank's Pro Rata Share of
all or part of the Total Commitment; provided that any partial
reduction pursuant to this Section 4.3 shall be in the amount of
$100,000,000 or, if greater, an integral multiple of $5,000,000.
4.4 Pro Rata Reductions; No Reinstatement. Each reduction of
the Total Commitment shall be applied pro rata according to the
respective Commitments of the Banks. The Banks' Commitments, once
reduced or terminated, may not be reinstated.
SECTION 5. PAYMENTS.
5.1 Voluntary Prepayments. The Borrower shall have the right to
prepay Revolving Loans, Swing Line Loans and Eurodollar Loans in
whole or in part from time to time on the following terms and
conditions: (i) the Borrower shall give the Administrative Agent
at the Payment Office at least one Business Day's, in the case of
Revolving Loans or Swing Line Loans, or at least three Business
Days', in the case of Eurodollar Loans, prior written notice (or
telephonic notice confirmed promptly in writing, any such written
notice confirmation being in the form of Exhibit D hereto) by
11:00 a.m. (New York City time) on such date of its intent to
prepay such Loans, which notice shall be irrevocable, specifying
the date (which shall be a Business Day) and amount of such
prepayment and the Type(s) of Loans to be prepaid, which notice
the Administrative Agent shall promptly transmit to each of the
Banks, and which notice of prepayment having been given, the
principal amount of the Loans specified in such notice shall
become due and payable on the prepayment date specified therein;
(ii) each partial prepayment of any Swing Line Loan (or Revolving
Loan made pursuant to Section 2.5(c)) shall be in an aggregate
principal amount of at least $50,000,000 or, if greater, shall be
in an integral multiple of $5,000,000 and each partial prepayment
of all other Loans shall be in an aggregate principal amount of
$100,000,000 or, if greater, shall be in an integral multiple of
$5,000,000; provided that if a partial prepayment of Eurodollar
Loans made pursuant to a single Borrowing shall reduce the
outstanding Loans made pursuant to such Borrowing to an amount
less than $100,000,000, such outstanding Loans shall be deemed to
have been converted to Base Rate Loans on the date of such
prepayment; and (iii) each prepayment by the Borrower in respect
of any Loans made pursuant to a Borrowing shall be applied pro
rata among such Loans. A Competitive Bid Loan may not be prepaid
under this Section 5.1 in whole or in part without the.35 prior
written consent of the Bank which made such Loan. Subject to
Section 2.13, all prepayments shall be made without premium or
penalty.
Upon receipt of a notice of prepayment pursuant to
this Section 5.1, the Administrative Agent shall promptly
notify each Bank of the contents thereof and of each Bank's
ratable share, if any, of such prepayment.
5.2 Mandatory Prepayments. (a) If, at any time, after giving
effect to any termination or reduction of the Total Commitment
pursuant to the terms of this Agreement, the (i) sum of (x) the
aggregate outstanding principal amount of all Loans plus (y) the
aggregate Letter of Credit Outstandings shall exceed (ii) the
Total Commitment, the Borrower shall immediately prepay the Loans
in an aggregate amount equal to the lesser of (x) the outstanding
principal amount of Loans and (y) such excess, and shall deposit
in an account with the Administrative Agent the remaining portion
of such excess after such prepayment as cash collateral for the
obligations of the Borrower under Section 3. Amounts so deposited
shall be applied in the manner set forth in Section 3. Promptly
after the Final Maturity Date, or if later, the payment of all
Obligations, the Administrative Agent shall return any amount
remaining in such account to the Borrower without interest.
(b) With respect to each prepayment of Loans required by this
Section 5.2, the Borrower may designate the Types of Loans which
are to be prepaid and the specific Borrowing(s) pursuant to which
made; provided that (i) Eurodollar Loans may be designated for
prepayment pursuant to this Section 5.2 only on the last day of
an Interest Period applicable thereto unless (x) all Loans
incurred by the Borrower which are Eurodollar Loans with Interest
Periods ending on such date of required prepayment have been paid
in full and (y) all Loans incurred by the Borrower which are Base
Rate Loans have been paid in full; (ii) if any prepayment of
Eurodollar Loans made pursuant to a single Borrowing shall reduce
the outstanding principal amount of such Eurodollar Loans to an
amount less than $100,000,000, such Borrowing shall immediately
be deemed converted into Base Rate Loans; and (iii) each
prepayment of any Loans made pursuant to a Borrowing shall be
applied pro rata among such Loans. Notwithstanding anything to
the contrary contained above, Competitive Bid Loans shall be
prepaid pursuant to this Section 5.2(b) only if no other Loans
are then outstanding. In the absence of a designation by the
Borrower as described in the second sentence of this Section
5.2(b), the Administrative Agent shall, subject to the above,
make such designation in its sole discretion.
5.3 Method and Place of Payment. (a) Except as otherwise
specifically provided herein, all payments under this Agreement
and any Notes shall be made without defense, set-off or
counterclaim to the Administrative Agent for the ratable account
of the Banks entitled thereto not later than Noon (New York City
time) on the date when due and shall be made in Dollars in
immediately available funds at the Payment Office.
(b) Except as otherwise specifically provided herein, any
payments under this Agreement or any Notes to be made by the
Borrower which are made later than Noon (New York City time)
shall for all purposes hereof (including the following sentence)
be deemed to have been made on the next succeeding Business Day.
(c) Whenever any payment to be made hereunder or under any Note
shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest
shall be payable at the applicable rate during such extension.
5.4 Use of Proceeds. The Borrower shall use all of the proceeds
of the Loans for general corporate purposes of the Borrower in
furtherance of its business. Letters of Credit shall be used only
for the purposes stated in the definition thereof.
SECTION 6. CONDITIONS PRECEDENT.
6.1 Conditions Precedent to Effectiveness. The occurrence of
the Effective Date pursuant to Section 12.9 is subject to the
satisfaction of the following conditions precedent prior to, on
or contemporaneously with the occurrence of the Effective Date:
(a) Agreement and Notes. This Agreement shall have been executed
and delivered in accordance with Section 12.9 and the
Administrative Agent shall have received, for the account of each
Bank which has requested to receive Notes, if any, the Revolving
Note, Swing Line Note (in the case of the Swing Line Lenders
only) and Competitive Bid Note of such Bank, in each case duly
completed, executed and delivered by an Authorized Officer of the
Borrower.
(b) Termination of Existing Credit Agreement. There shall be no
obligations of the Borrower or any of its Subsidiaries
outstanding under the Refinanced Indebtedness, except for the
continuing indemnities provided for therein, which shall have
been terminated and the commitments of the lenders thereunder
shall have been terminated and any notes issued in connection
therewith shall be deemed cancelled.
(c) Officers' Certificates and Corporate Documents. The Agents
shall have received (with a copy for each of the other Banks) (i)
a certificate of the Secretary or an Assistant Secretary of the
Borrower certifying (x) the names and true signatures of the
officers of the Borrower authorized to sign this Agreement, any
Notes and the other documents to be delivered hereunder, (y) the
resolutions of the Borrower's Board of Directors approving and
authorizing the execution and delivery of this Agreement and the
Notes, if any, and (z) that there have been no changes in the
Borrower's Certificate of Incorporation (which shall have been
furnished to the Administrative Agent and the Syndication Agent)
since the date of the most recent certification thereof by the
appropriate Secretary of State and (ii) a certificate of the
chief executive officer or chief financial officer of the
Borrower certifying that the statements referred to in clause (h)
below are true as of the Effective Date, in each case in form and
substance satisfactory to the Banks.
(d) Opinion of Borrower's Counsel. The Agents shall have
received (with a copy for each of the other Banks) a favorable
opinion of ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, general counsel of the
Borrower, substantially in the form of Exhibit E hereto.
(e) Opinion of Agents' Counsel. The Agents shall have received
(with a copy for each of the other Banks) an opinion of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Agents
and the Banks, substantially in the form of Exhibit F hereto.
(f) Fees and Expenses. The Agents shall have received payment in
full of all fees referred to in Section 4.2 which are payable on
or prior to the Effective Date.
(g) Corporate Proceedings. All corporate and legal proceedings
and all instruments and agreements in connection with the
transactions contemplated by this Agreement shall be satisfactory
in form and substance to the Banks, and the Agents shall have
received (with copies for each of the other Banks) all
information and copies of all documents and papers, including
records of corporate proceedings, the Certificate of
Incorporation and By-Laws of the Borrower and governmental
approvals, if any, which any Bank may have reasonably requested
in connection therewith.
(h) Representations and Warranties True; No Default. On and as
of the Effective Date (i) the representations and warranties
contained in Section 7 shall be true and correct and (ii) no
event shall have occurred and be continuing, and no condition
shall exist, which constitutes an Event of Default or a Default.
6.2 Conditions Precedent to Each Loan and Letter of Credit. The
obligation of each Bank to make any Loan and each Issuing Bank to
issue any Letter of Credit is subject to the satisfaction of the
following conditions precedent:
(a) Representations and Warranties True; No Default. On the date
of such Loan or Letter of Credit issuance, both before and after
giving effect thereto and to the application of the proceeds
thereof, the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing, Notice of
Competitive Bid Borrowing, Notice of Swing Line Borrowing, or
notice of Letter of Credit issuance, the acceptance by the
Borrower of the proceeds of such Loan or the issuance of such
Letter of Credit shall constitute a representation and warranty
by the Borrower that on such date, both before and after giving
effect thereto and to the application of the proceeds thereof,
such statements are true): (i) the representations and warranties
contained in Section 7 are true and correct on and as of the date
of such Loan or Letter of Credit issuance, with the same effect
as though made on and as of the date of such Loan or Letter of
Credit issuance; and (ii) no event has occurred and is continuing
or condition exists, or would result from such Loan or Letter of
Credit issuance or the application of the proceeds thereof, which
constitutes an Event of Default or a Default.
(b) Other. The Administrative Agent shall have received such
other approvals, opinions or documents as it may reasonably
request, all in form and substance satisfactory to the
Administrative Agent.
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
In order to induce the Agents and the Banks to
enter into this Agreement and to make available the credit
facilities contemplated hereby, the Borrower makes the
following representations, warranties and agreements, each of
which shall survive the execution and delivery of this
Agreement and any Notes, the making of the Loans and the
issuance of Letters of Credit:
7.1 Corporate Status. Each of the Borrower and its Domestic
Subsidiaries (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization,
(ii) has all requisite power and authority to own its property
and assets and to transact the business in which it is engaged or
presently proposes to engage and (iii) has duly qualified and is
authorized to do business and is in good standing in every
jurisdiction (other than the jurisdiction of its organization) in
which it owns or leases real property or in which the nature of
its business requires it to be so qualified, except where the
failure to so qualify, individually or in the aggregate, may not
reasonably be expected to have a Material Adverse Effect.
Schedule 7.1 identifies all of the Borrower's Material
Subsidiaries, Domestic Subsidiaries and Principal Subsidiaries as
of the Effective Date and the principal type of business of each
such Subsidiary.
7.2 Corporate Power and Authority. The Borrower has the
corporate power and authority to execute, deliver and carry out
the terms and provisions of this Agreement and the Notes, if any,
and has taken all necessary corporate action to authorize the
execution, delivery and performance by the Borrower of such
Agreement and the Notes, if any. The Borrower has duly executed
and delivered this Agreement, and this Agreement and each Note,
if any, constitutes, its legal, valid and binding obligation,
enforceable in accordance with its terms, except as enforcement
thereof may be subject to (i) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally and (ii) general principles
of equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law).
7.3 No Violation. Neither the execution, delivery or
performance by the Borrower of this Agreement and the Notes, if
any, nor compliance by it with the terms and provisions thereof
nor the consummation of the transactions contemplated thereby,
(i) will contravene any applicable provision of any law, statute,
rule, regulation, order, writ, injunction or decree of any court
or governmental instrumentality or (ii) will conflict or be
inconsistent with or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property
or assets of the Borrower or any of its Subsidiaries pursuant to
the terms of any indenture, mortgage, deed of trust, agreement or
other instrument to which the Borrower or any of its Subsidiaries
is a party or by which it or any of its property or assets is
bound or to which it may be subject, or (iii) will violate any
provision of the Certificate of Incorporation or By-Laws of the
Borrower.
7.4 Litigation. There are no actions, suits or proceedings,
or any governmental investigation or any arbitration, in each case
pending or, to the knowledge of the Borrower, threatened which,
individually or in the aggregate, may reasonably be expected to
result in a Material Adverse Effect.
7.5 Financial Statements; Financial Condition; etc. The
audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries as at December 31, 2000, and the
unaudited consolidated financial statements of the Borrower and
its Consolidated Subsidiaries as at March 31, 2001, heretofore
delivered to the Banks were prepared in accordance with GAAP
consistently applied and fairly present the consolidated
financial condition and the results of operations of the entities
covered thereby on the dates and for the periods covered thereby,
except as disclosed in the notes thereto and, with respect to
interim financial statements, subject to normally recurring year-
end adjustments.
7.6 Material Adverse Change. Since December 31, 2000, there
has not occurred and there does not exist any event, act, condition
or liability which has had, or may reasonably be expected to
have, a Material Adverse Effect.
7.7 Use of Proceeds; Margin Regulations. All proceeds of each
Loan, and each Letter of Credit, will be used by the Borrower
only in accordance with the provisions of Section 5.4. No part of
the proceeds of any Loan will be used by the Borrower to purchase
or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock. Neither the
making of any Loan nor the use of the proceeds thereof will
violate or be inconsistent with the provisions of Regulations U
or X.
7.8 Governmental Approvals. No order, consent, approval,
license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public
body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with (i) the execution,
delivery and performance of this Agreement or the Notes, if any,
or the consummation of any of the transactions contemplated
thereby or (ii) the legality, validity, binding effect or
enforceability of this Agreement or the Notes, if any.
7.9 Tax Returns and Payments. The Borrower and each of its
Subsidiaries has filed all tax returns required to be filed by it
and has paid all taxes shown on such returns and assessments
payable by it which have become due, other than (i) those not yet
delinquent, (ii) or those that are in the aggregate adequately
reserved against in accordance with GAAP which are being
diligently contested in good faith by appropriate proceedings or
(iii) those with respect to which the failure to pay, in the
aggregate, could not reasonably be expected to have a Material
Adverse Effect. There are and will be no tax-sharing or similar
arrangements between the Borrower and any of its Subsidiaries.
7.10 ERISA. No accumulated funding deficiency (as defined in
Section 412 of the Code or Section 302 of ERISA) or Reportable
Event has occurred with respect to any Plan. There are no
Unfunded Benefit Liabilities under any Plan. The Borrower and
each member of its ERISA Controlled Group have complied with the
requirements of Section 515 of ERISA with respect to each
Multiemployer Plan, if any, and is not in "default" (as defined
in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan. The aggregate potential total withdrawal
liability, and the aggregate potential annual withdrawal
liability payments of the Borrower and the members of its ERISA
Controlled Group as determined in accordance with Title IV of
ERISA as if the Borrower and the members of its ERISA Controlled
Group had completely withdrawn from all Multiemployer Plans is
not greater than $10,000,000 and $1,000,000, respectively. To the
best knowledge of the Borrower and each member of its ERISA
Controlled Group, no Multiemployer Plan is or is likely to be in
reorganization (as defined in Section 4241 of ERISA or Section
418 of the Code) or is insolvent (as defined in Section 4245 of
ERISA). No material liability to the PBGC (other than required
premium payments), the Internal Revenue Service, any Plan or any
trust established under Title IV of ERISA has been, or is
expected by the Borrower or any member of its ERISA Controlled
Group to be, incurred by the Borrower or any member of its ERISA
Controlled Group. Neither the Borrower nor any member of its
ERISA Controlled Group has any contingent liability with respect
to any post-retirement benefit under any "welfare plan" (as
defined in Section 3(1) of ERISA), except contingent liabilities
which in the aggregate are not reasonably expected to have a
Material Adverse Effect. No lien under Section 412(n) of the Code
or 302(f) of ERISA or requirement to provide security under
Section 401(a)(29) of the Code or Section 307 of ERISA has been
or is reasonably expected by the Borrower or any member of its
ERISA Controlled Group to be imposed on the assets of the
Borrower or any member of its ERISA Controlled Group.
7.11 Investment Company Act; Public Utility Holding Company Act.
Neither the Borrower nor any of its Subsidiaries is (x) an
"investment company" or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of
1940, as amended, (y) a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of either a
"holding company" or a "subsidiary company" within the meaning of
the Public Utility Holding Company Act of 1935, as amended, or
(z) subject to any other federal or state law or regulation which
purports to restrict or regulate its ability to borrow money.
7.12 True and Complete Disclosure. All factual information
(taken as a whole) furnished by or on behalf of the Borrower and
its Subsidiaries, taken as a whole, in writing to the Agents or
any Bank on or prior to the Effective Date, for purposes of or in
connection with this Agreement or any of the transactions
contemplated hereby is, and all other such factual information
(taken as a whole) hereafter furnished by or on behalf of the
Borrower and its Subsidiaries, taken as a whole, in writing to
the Administrative Agent, the Syndication Agent or any Bank will
be, true and accurate in all material respects on the date as of
which such information is dated or furnished and not incomplete
by knowingly omitting to state any material fact necessary to
make such information (taken as a whole) not misleading at such
time. As of the Effective Date, there are no facts, events,
conditions or liabilities known to the Borrower which,
individually or in the aggregate, have or may reasonably be
expected to have a Material Adverse Effect.
7.13 Environmental Matters. (a) (i) The Borrower, each of its
Affiliates and, to the best of the Borrower's actual knowledge,
each of its other Environmental Affiliates are in compliance with
all applicable Environmental Laws except where noncompliance,
individually or in the aggregate, may not reasonably be expected
to have a Material Adverse Effect, (ii) the Borrower, each of its
Affiliates, and, to the best of the Borrower's actual knowledge,
each of its other Environmental Affiliates has all Environmental
Approvals required to operate its business as presently conducted
or as reasonably anticipated to be conducted except where the
failure to obtain any such Environmental Approval, individually
or in the aggregate, may not reasonably be expected to have a
Material Adverse Effect, (iii) neither the Borrower, any of its
Affiliates, nor, to the best of the Borrower's actual knowledge,
any of its other Environmental Affiliates has received any
communication (written or oral), whether from a governmental
authority, citizens group, employee or otherwise, that alleges
that the Borrower, such Affiliate or such Environmental Affiliate
is not in full compliance with all Environmental Laws and where
such noncompliance, individually or in the aggregate, may
reasonably be expected to have a Material Adverse Effect, and
(iv) to the Borrower's best knowledge after due inquiry, there
are no circumstances that may prevent or interfere with such full
compliance in the future except where such noncompliance,
individually or in the aggregate, may not reasonably be expected
to have a Material Adverse Effect.
(b) There is no Environmental Claim pending or threatened
against the Borrower, any of its Affiliates or, to the best of
the Borrower's actual knowledge, its other Environmental
Affiliates, which, individually or in the aggregate, may
reasonably be expected to have a Material Adverse Effect.
(c) There are no past or present actions, activities,
circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge or disposal
of any Material of Environmental Concern, that could form the
basis of any Environmental Claims against the Borrower, any of
its Affiliates or, to the best of the Borrower's actual
knowledge, any of its other Environmental Affiliates, which
Environmental Claims, individually or in the aggregate, may
reasonably be expected to have a Material Adverse Effect.
(d) Without in any way limiting the generality of the foregoing,
(i) there are no on-site or off-site locations in which the
Borrower, any of its Affiliates or, to the best of the Borrower's
actual knowledge, any of its other Environmental Affiliates has
stored, disposed or arranged for the disposal of Materials of
Environmental Concern, (ii) there are no underground storage
tanks located on property owned or leased by the Borrower, any of
its Affiliates or, to the best of the Borrower's actual
knowledge, any of its other Environmental Affiliates, (iii) there
is no asbestos contained in or forming part of any building,
building component, structure or office space owned or leased by
the Borrower, any of its Affiliates or, to the best of the
Borrower's actual knowledge, any of its other Environmental
Affiliates, and (iv) no polychlorinated biphenyls (PCB's) are
used or stored at any property owned or leased by the Borrower,
any of its Affiliates or, to the best of the Borrower's actual
knowledge, any of its other Environmental Affiliates, in each
case the consequences of which may reasonably be expected to have
a Material Adverse Effect.
(e) For purposes of this Section 7.13, "actual" knowledge shall
mean knowledge of the Borrower's chairman of the board, chief
executive officer, chief financial officer, general counsel or
any other person responsible for the administration of this
Agreement, including without limitation, attorneys..
7.14 Patents, Trademarks, etc. The Borrower and each of its
Subsidiaries has obtained and holds in full force and effect all
patents, trademarks, servicemarks, trade names, copyrights and
other such rights, free from burdensome restrictions, which are
necessary for the operation of its business as presently
conducted. No product, process, method, substance, part or other
material presently sold by or employed by the Borrower or any of
its Subsidiaries in connection with such business infringes any
patent, trademark, service ▇▇▇▇, trade name, copyright, license
or other right owned by any other Person which in each case is
valid without such Person's express authorization, except where
such unauthorized infringement, individually or in the aggregate,
may not reasonably be expected to have a Material Adverse Effect.
There is not pending or overtly threatened any claim or
litigation against or affecting the Borrower or any of its
Subsidiaries contesting its right to sell or use any such
product, process, method, substance, part or other material.
7.15 Ownership of Property. The Borrower and each of its
Subsidiaries has good and marketable fee simple title to or valid
leasehold interests in all of the real property owned or leased
by the Borrower or such Subsidiary and good title to all of their
personal property, except where the failure to hold such title or
leasehold interests, individually or in the aggregate, may not
reasonably be expected to have a Material Adverse Effect. The
personal and real property owned by the Borrower and its
Subsidiaries is not subject to any Lien of any kind except Liens
permitted hereby. The Borrower and its Subsidiaries enjoy
peaceful and undisturbed possession under all of their respective
leases except where the failure to enjoy such peaceful and
undisturbed possession, individually or in the aggregate, may not
reasonably be expected to have a Material Adverse Effect.
7.16 No Default. The Borrower is not in default under or with
respect to any agreement, instrument or undertaking to which it
is a party or by which it or any of its property is bound in any
respect which may reasonably be expected to result in a Material
Adverse Effect. No Default or Event of Default exists.
7.17 Licenses, etc. The Borrower and each of its Subsidiaries
have obtained and hold in full force and effect, all franchises,
licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way and other rights,
consents and approvals which are necessary for the operation of
their respective businesses as presently conducted, except where
the failure to obtain and hold the same, individually or in the
aggregate, may not reasonably be expected to have a Material
Adverse Effect.
7.18 Compliance With Law. The Borrower and each of its
Subsidiaries is in compliance with all laws, rules, regulations,
orders, judgments, writs and decrees except where such non-
compliance, individually or in the aggregate, may not reasonably
be expected to have a Material Adverse Effect.
7.19 Labor Matters. (i) Neither the Borrower nor any of its
Subsidiaries is or has been in breach of any collective
bargaining agreement, which breach has had or may reasonably be
expected to have a Material Adverse Effect, and (ii) there are no
Multiemployer Plans covering the employees of the Borrower or any
of its Subsidiaries. None of such Persons has suffered or is
suffering any strikes, walkouts, work stoppages or other material
labor difficulty within the last five years which has had or may
reasonably be expected to have a Material Adverse Effect.
SECTION 8. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that on and after
the Effective Date and until the Total Commitment has
terminated and the Obligations are paid in full:
8.1 Information Covenants. The Borrower will furnish to each
Bank with a copy to the Administrative Agent:
(a) Quarterly Financial Statements. Within 60 days after the
close of each quarterly accounting period in each fiscal year of
the Borrower (other than the final quarter), the consolidated
balance sheet of the Borrower and its Subsidiaries as at the end
of such quarterly period and the related consolidated statements
of income, cash flow and retained earnings for such quarterly
period and for the elapsed portion of the fiscal year ended with
the last day of such quarterly period, and in each case setting
forth comparative figures for the related periods in the prior
fiscal year.
(b) Annual Financial Statements. Within 120 days after the close
of each fiscal year of the Borrower, the consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income,
cash flow and retained earnings for such fiscal year, setting
forth comparative figures for the preceding fiscal year and, with
respect to such consolidated financial statements, certified
without qualification by independent certified public accountants
of recognized national standing selected by the Borrower, in each
case together with a report of such accounting firm stating that
in the course of its regular audit of the consolidated financial
statements of the Borrower, which audit was conducted in
accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge of any Default or Event
of Default, or if in the opinion of such accounting firm such a
Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof.
(c) Officer's Certificates. At the time of the delivery of the
financial statements under clauses (a) and (b) above, a
certificate of the chief financial officer of the Borrower which
(i) certifies (x) that such financial statements fairly present
the financial condition and the results of operations of the
Borrower and its Subsidiaries on the dates and for the periods
indicated, subject, in the case of interim financial statements,
to normally recurring year-end adjustments and (y) that such
officer has reviewed the terms of this Agreement and has made, or
caused to be made under his or her supervision, a review in
reasonable detail of the business and condition of the Borrower
and its Subsidiaries during the accounting period covered by such
financial statements, and that as a result of such review such
officer has concluded that no Default or Event of Default has
occurred during the period commencing at the beginning of the
accounting period covered by the financial statements accompanied
by such certificate and ending on the date of such certificate
or, if any Default or Event of Default has occurred, specifying
the nature and extent thereof and, if continuing, the action the
Borrower proposes to take in respect thereof, (ii) has attached
thereto a reasonably detailed calculation demonstrating
compliance with Section 9.8 and (iii) states whether any change
in GAAP or in the application thereof has occurred since the date
of the audited financial statements referred to in Section 7.5
and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such
certificate. Such certificate shall be substantially in the form
of Exhibit G.
(d) Notice of Default. Promptly after the Borrower obtains
knowledge of the occurrence of any Default or Event of Default, a
certificate of the chief financial officer of the Borrower
specifying the nature thereof and the Borrower's proposed
response thereto.
(e) Litigation. Promptly after (i) the occurrence thereof,
notice of the institution of or any development in any action,
suit or proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any governmental
or administrative body, agency or official, against the Borrower,
any of its Subsidiaries or any material property of any thereof
which, individually or in the aggregate, may reasonably be
expected to have a Material Adverse Effect, or (ii) actual
knowledge thereof, notice of the threat of any such action, suit,
proceeding, investigation or arbitration.
(f) ERISA. (i) As soon as possible and in any event within 10
days after the Borrower or any member of its ERISA Controlled
Group knows, or has reason to know, that: (A) any Termination
Event with respect to a Plan has occurred or will occur, or (B)
any condition exists with respect to a Plan which presents a
material risk of termination of the Plan or imposition of an
excise tax or other liability on the Borrower or any member of
its ERISA Controlled Group, or (C) the Borrower or any member of
its ERISA Controlled Group has applied for a waiver of the
minimum funding standard under Section 412 of the Code or Section
302 of ERISA, or (D) the Borrower or any member of its ERISA
Controlled Group has engaged in a "prohibited transaction," as
defined in Section 4975 of the Code or as described in Section
406 of ERISA, that is not exempt under Section 4975 of the Code
and Section 408 of ERISA, unless it is not reasonably expected to
have a Material Adverse Effect, or (E) the aggregate present
value of the Unfunded Benefit Liabilities under all Plans has in
any year increased by $1,000,000 or to an amount in excess of
$10,000,000, or (F) any condition exists with respect to a
Multiemployer Plan which presents a material risk of a partial or
complete withdrawal (as described in Section 4203 or 4205 of
ERISA) by the Borrower or any member of its ERISA Controlled
Group from a Multiemployer Plan, or (G) the Borrower or any
member of its ERISA Controlled Group is in "default" (as defined
in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan, or (H) a Multiemployer Plan is in
"reorganization" (as defined in Section 418 of the Code or
Section 4241 of ERISA) or is "insolvent" (as defined in Section
4245 of ERISA), or (I) the potential withdrawal liability (as
determined in accordance with Title IV of ERISA) of the Borrower
and the members of its ERISA Controlled Group with respect to all
Multiemployer Plans has in any year increased by $1,000,000 or to
an amount in excess of $10,000,000, or (J) there is an action
brought against the Borrower or any member of its ERISA
Controlled Group under Section 502 of ERISA with respect to its
failure to comply with Section 515 of ERISA, a certificate of the
president or chief financial officer of the Borrower setting
forth the details of each of the events described in clauses (A)
through (J) above as applicable and the action which the Borrower
or the applicable member of its ERISA Controlled Group proposes
to take with respect thereto, together with a copy of any notice
or filing from the PBGC or which may be required by the PBGC or
other agency of the United States government with respect to each
of the events described in clauses (A) through (J) above, as
applicable.
(ii) As soon as possible and in any event within two Business
Days after the receipt by the Borrower or any member of its ERISA
Controlled Group of a demand letter from the PBGC notifying the
Borrower or such member of its ERISA Controlled Group of its
final decision finding liability and the date by which such
liability must be paid, a copy of such letter, together with a
certificate of the president or chief financial officer of the
Borrower setting forth the action which the Borrower or such
member of its ERISA Controlled Group proposes to take with
respect thereto.
(g) SEC Filings. Promptly upon the filing thereof, copies of all
regular and periodic financial information, proxy materials and
other information and reports, if any, which the Borrower shall
file with the Securities and Exchange Commission (or any
successor thereto) or any governmental agencies substituted
therefor or promptly upon the mailing thereof, copies of such
documents, material, information and reports which the Borrower
shall send to or generally make available to its stockholders.
(h) Environmental. Unless prohibited by any applicable law,
rule, regulation, order, writ, injunction or decree of, or
agreement with, any court or governmental instrumentality, or in
the case of an Environmental Affiliate which is not otherwise an
Affiliate of the Borrower, any contractual undertaking the
primary purpose of which was other than to prohibit the
disclosure of such information, promptly and in any event within
five Business Days after the existence of any of the following
conditions, a certificate of an Authorized Officer of the
Borrower, specifying in detail the nature of such condition and
the Borrower's, such Affiliate's or such Environmental
Affiliate's proposed response thereto: (i) the receipt by the
Borrower, any of its Affiliates, or, to the best of the
Borrower's actual knowledge, any of its other Environmental
Affiliates of any communication (written or oral), whether from a
governmental authority, citizens group, employee or otherwise,
that alleges that such Person is not in compliance with
applicable Environmental Laws and such noncompliance,
individually or in the aggregate, may reasonably be expected to
have a Material Adverse Effect, (ii) the Borrower, any of its
Affiliates, or, to the best of the Borrower's actual knowledge,
any of its other Environmental Affiliates shall obtain knowledge
that there exists any Environmental Claim pending or threatened
against such Person, which, individually or in the aggregate, may
reasonably be expected to have a Material Adverse Effect, or
(iii) any release, emission, discharge or disposal of any
Material of Environmental Concern that could form the basis of
any Environmental Claim against the Borrower, any of its
Affiliates or any of its other Environmental Affiliates, which
Environmental Claim, individually or in the aggregate, may
reasonably be expected to have a Material Adverse Effect. For
purposes of this clause (h), "actual" knowledge shall have the
meaning provided by Section 7.13(e).
(i) Change in Ratings. Promptly and in any event within three
days after the Borrower receives notice from Standard & Poor's or
▇▇▇▇▇'▇ of a change in the rating of its Long-Term Indebtedness,
the Borrower shall notify the Administrative Agent of such rating
change. For purposes of computing the Applicable Margin, such
rating change shall be deemed to have taken effect on the date
such change was publicly announced by the applicable rating
agency.
(j) Other Information. From time to time with reasonable
promptness, such other information or documents (financial or
otherwise) as the Administrative Agent may reasonably request.
8.2 Books, Records and Inspections. The Borrower shall, and
shall cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries in
conformity with GAAP and all requirements of law shall be made of
all dealings and transactions in relation to its business and
activities. The Borrower shall, and shall cause each of its
Subsidiaries to, permit officers and designated representatives
of any Bank to visit and inspect any of the properties of the
Borrower or any of its Subsidiaries, and to examine the books of
record and account of the Borrower or any of its Subsidiaries,
and discuss the affairs, finances and accounts of the Borrower or
any of its Subsidiaries with, and be advised as to the same by,
its and their officers and independent accountants, all upon
reasonable notice, at such reasonable times and to such
reasonable extent as such Bank may desire.
8.3 Maintenance of Insurance. The Borrower shall, and shall
cause each of its Subsidiaries to, maintain with financially
sound and reputable insurance companies or through self-insurance
programs consistent with past practices, which past practices
have been disclosed in writing to the Agents prior to the
Effective Date, insurance on itself and its properties in at
least such amounts (in such types and with such deductibles) and
against at least such risks as are customarily insured against in
the same general area by companies engaged in the same or a
similar business similarly situated.
8.4 Taxes. (a) The Borrower shall pay or cause to be paid or
discharged, and shall cause each of its Subsidiaries to pay or
cause to be paid or discharged, when due, all taxes, charges and
assessments and all other lawful claims required to be paid by
the Borrower or such Subsidiaries, except as contested in good
faith and by appropriate proceedings diligently conducted, if
adequate reserves have been established with respect thereto in
accordance with GAAP.
(b) The Borrower shall not, and shall not permit any of its
Subsidiaries to, file or consent to the filing of any
consolidated tax return with any Person (other than the Borrower
and its Subsidiaries).
8.5 Corporate Franchises. The Borrower shall, and shall cause
each of its Subsidiaries to, do or cause to be done, all things
necessary to preserve and keep in full force and effect its
existence and its patents, trademarks, servicemarks, tradenames,
copyrights, franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights
of way and other rights, consents and approvals, except where the
failure to so preserve any of the foregoing (other than
existence) may not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
8.6 Compliance with Law. The Borrower shall and shall cause
each of its Subsidiaries to, comply with all applicable laws,
rules, statutes, regulations, decrees and orders of, and all
applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of their business
and the ownership of their property, including, without
limitation, ERISA and all Environmental Laws, other than those
the non-compliance with which, individually or in the aggregate,
may not reasonably be expected to have a Material Adverse Effect.
8.7 Maintenance of Properties. The Borrower shall cause each of
its Subsidiaries to, ensure that its material properties used or
useful in its business are kept in good repair, working order and
condition, normal wear and tear excepted.
SECTION 9. NEGATIVE COVENANTS.
The Borrower covenants and agrees that on and after
the Effective Date until the Total Commitment has terminated,
and the Obligations are paid in full:
9.1 Liens. The Borrower shall not, and shall not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist,
directly or indirectly, any Lien on any of its or their property
(whether real or personal, including, without limitation,
accounts receivable and inventory) or any interest it or they may
have therein, whether owned at the date hereof or hereafter
acquired (unless, in the case of any Lien of or upon the property
of any of its Subsidiaries, all obligations and indebtedness
thereby secured are held by the Borrower or any of its
Subsidiaries); provided that the provisions of this Section 9.1
shall not prevent or restrict the existence or creation of:
(A) liens for taxes or assessments or governmental charges or
levies not then due and delinquent or the validity of which is
being contested in good faith; and materialmen's, mechanic's,
carrier's, workmen's, repairmen's, landlord's or other like
liens, or deposits to obtain the release of such liens;
(B) pledges or deposits to secure public or statutory
obligations or to secure payment of workmen's compensation or to
secure performance in connection with tenders, leases of real
property, or bids of contracts and pledges or deposits made in
the ordinary course of business for similar purposes;
(C) licenses, easements, rights of way and other similar
encumbrances, or zoning or other restrictions as to the use of
real properties, the existence of which does not in the aggregate
interfere with the operation of the business of the Borrower or
any Subsidiary thereof;
(D) Liens of or upon any property or assets owned by any
Subsidiary of the Borrower existing on the date on which such
Subsidiary first became a Subsidiary, if such date is subsequent
to the date hereof;
(E) Liens of or upon (i) any property or assets acquired by the
Borrower or any of its Subsidiaries (whether by purchase, merger
or otherwise) after the date hereof (and not theretofore owned by
the Borrower or any of its Subsidiaries), or (ii) improvements
made on any property or assets now owned or hereafter acquired,
securing the purchase price thereof or created or incurred
simultaneously with, or within 180 days after, such acquisition
or the making of such improvements or existing at the time of
such acquisition (whether or not assumed) or the making of such
improvements, if (x) such Lien shall be limited to the property
or assets so acquired or the improvements so made, (y) the amount
of the obligations or indebtedness secured by such Liens shall
not be increased after the date of the acquisition of such
property or assets or the making of such improvements, except to
the extent improvements are made to such property or assets after
the date of the acquisition or the making of the initial
improvements, and (z) in each instance where the obligation or
indebtedness secured by such Lien constitutes an obligation or
indebtedness of, or is assumed by, the Borrower or any of its
Subsidiaries, the principal amount of the obligation or
indebtedness secured by such Lien shall not exceed 100% of the
cost or fair value (which may be determined in good faith by the
Board of Directors of the Borrower), whichever is lower, of the
property or assets or improvements at the time of the acquisition
or making thereof;
(F) Liens arising under Capitalized Leases;
(G) mortgages securing indebtedness of a Subsidiary of the
Borrower owing to the Borrower or to another Subsidiary of the
Borrower;
(H) Liens on property of a corporation existing at the time such
corporation is merged into or consolidated with the Borrower or
any of its Subsidiaries or at the time of a sale, lease or other
disposition of the properties of a corporation as an entirety or
substantially as an entirety to the Borrower or any of its
Subsidiaries;
(I) Liens on or other conveyances of property owned by the
Borrower or any of its Subsidiaries in favor of the United States
of America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country,
or any political subdivision thereof, to secure partial,
progress, advance or other payments pursuant to any contract or
statute or to secure any indebtedness incurred for the purpose of
financing all or any part of the purchase price or the cost of
construction of the property subject to such mortgages;
(J) renewals, extensions or replacements of the Liens referred
to in clauses (D) through (I) for amounts which shall not exceed
the principal amount of the obligations or indebtedness so
renewed or replaced at the time of the renewal or replacement
thereof and applying only to the same property or assets
theretofore subject to such Liens; and
(K) Liens (including Liens to secure judgments pending appeal)
not otherwise permitted by this Section 9.1 securing obligations
of the Borrower or any Subsidiary thereof in an aggregate
principal amount outstanding at any one time not to exceed an
amount equal to 10% of Consolidated Net Tangible Assets at such
time.
9.2 Subsidiary Indebtedness. The Borrower shall not permit any
Subsidiary to create, incur, assume or permit to exist any
Indebtedness, except:
(A) Indebtedness existing on the Effective Date and set forth in
Schedule 9.2 and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal
amount thereof;
(B) Indebtedness to the Borrower or any other Subsidiary;
(C) Indebtedness of any Person that becomes a Subsidiary (or is
merged into a Sudsidiary) after the date hereof and any
extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof;
provided that such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary;
(D) Indebtedness incurred by any Subsidiary organized, or
substantially all of the business of which is conducted, in the
People's Republic of China;
(E) Indebtedness incurred by Kodak International Finance
Limited, a company organized and existing under the laws of
England, in connection with its payment obligations under any
interest rate protection agreements (including without
limitation, any interest rate swaps, caps, floors, collars and
similar agreements) and currency swaps and similar agreements
entered into in the ordinary course of business to protect the
Borrower and its Subsidiaries against fluctuations in interest or
exchange rates;
(F) Indebtedness of Kodak Diamic Ltd., a Japanese corporation
and joint venture with the Mitsubishi Corporation doing business
principally in Japan; and
(G) other Indebtedness in an aggregate principal amount not
exceeding $500,000,000 at any time outstanding.
9.3 Restriction on Fundamental Changes. The Borrower shall not,
and shall not permit any of its Subsidiaries to, enter into any
merger or consolidation, or liquidate, wind-up or dissolve (or
suffer any liquidation or dissolution), discontinue its business
or convey, lease, sell, transfer or otherwise dispose of, in one
transaction or series of transactions, all or any substantial
part of the business or property of the Borrower or, in the case
of a Subsidiary of the Borrower the business or property of the
Borrower and its Subsidiaries taken as a whole, whether now or
hereafter acquired; provided that any such merger or
consolidation shall be permitted if (i) the Borrower shall be the
continuing corporation (in the case of a merger or
consolidation), or the successor, if other than the Borrower
shall be a corporation organized and existing under the laws of
the United States of America or any State thereof and such
corporation shall expressly assume to the satisfaction of the
Required Banks the due and punctual performance and observance of
all of the covenants and obligations contained in this Agreement
and any Notes to be performed by the Borrower and (ii)
immediately after giving effect to such merger or consolidation,
no Default or Event of Default shall have occurred and be
continuing; provided further that any wholly-owned Subsidiary of
the Borrower may merge into or convey, sell, lease or transfer
all or substantially all of its assets to, the Borrower or any
other wholly-owned Subsidiary of the Borrower.
9.4 Sales and Leasebacks. The Borrower shall not, nor shall
it permit any Principal Subsidiary to, enter into any arrangement
with any Person that provides for the leasing to the Borrower or
any Principal Subsidiary of any Principal Property (except for
leases for a term of not more than three years and leases between
the Borrower and a Principal Subsidiary or between Principal
Subsidiaries), which Principal Property has been or is to be sold
or transferred by the Borrower or such Principal Subsidiary to
such Person, unless the Borrower or such Principal Subsidiary
would be entitled, pursuant to Section 9.1 and 9.2, to create,
incur, assume or suffer to exist any Lien upon such property
securing Indebtedness at least equal in amount to the
Attributable Debt in respect of such arrangement; provided that
from and after the date on which such arrangement becomes
effective the Attributable Debt in respect of such arrangement
shall be deemed for all purposes under Section 9.1 and 9.2 to be
Indebtedness secured by a Lien.
9.5 Plans. The Borrower shall not, nor shall it permit any
member of its ERISA Controlled Group to, take any action which
would increase the aggregate present value of the Unfunded
Benefit Liabilities under all Plans to an amount in excess of
$10,000,000 (except to the extent that such increase is caused by
a change in a Plan's benefit formula and is reduced through
funding or otherwise within the time period during which the
Borrower could receive a federal income tax deduction with
respect to the tax year in which such formula change was made).
9.6 Restrictions on Subsidiary Distributions. Except as
provided herein, the Borrower shall not, nor shall it permit any
Subsidiary of the Borrower to, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any Subsidiary of the
Borrower to (a) pay dividends or make any other distributions on
any of such Subsidiary's capital stock (or other ownership
interest) owned by the Borrower or any other Subsidiary of the
Borrower, (b) repay or prepay any Indebtedness owed by such
Subsidiary to the Borrower or any other Subsidiary of the
Borrower, (c) make loans or advances to the Borrower or any other
Subsidiary of the Borrower, or (d) transfer any of its property
or assets to the Borrower or any other Subsidiary of the Borrower
other than restrictions (i) in agreements evidencing Indebtedness
permitted by Section 9.2(c) that impose restrictions on the
property so acquired, (ii) by reason of customary provisions
restricting assignments, subletting or other transfers contained
in leases, licenses, joint venture agreements, asset sale
agreements and similar agreements entered into in the ordinary
course of business, or (iii) on any Person that becomes a
Subsidiary after the date hereof provided that such restrictions
exist at the time such Person becomes a Subsidiary and are not
created in contemplation of or in connection with such Person
becoming a Subsidiary.
9.7 No Further Negative Pledges. Except with respect to (a)
specific property encumbered to secure payment of particular
Indebtedness or to be sold pursuant to an executed agreement with
respect to an asset sale permitted hereunder, (b) restrictions by
reason of customary provisions restricting assignments,
subletting or other transfers contained in leases, licenses and
similar agreements entered into in the ordinary course of
business (provided that such restrictions are limited to the
property or assets secured by such Liens or the property or
assets subject to such leases, licenses or similar agreements, as
the case may be), and (c) restrictions on any Person that becomes
a Subsidiary after the date hereof provided that such
restrictions exist at the time such Person becomes a Subsidiary
and are not created in contemplation of or in connection with
such Person becoming a Subsidiary, neither the Borrower nor any
of its Subsidiaries shall enter into any agreement prohibiting
the creation or assumption of any Lien upon any of its properties
or assets, whether now owned or hereafter acquired.
9.8 Consolidated Interest Coverage Ratio. The Borrower will not
permit the Consolidated Interest Coverage Ratio for any period of
four consecutive fiscal quarters of the Borrower to be less than
3.0:1.0.
SECTION 10. EVENTS OF DEFAULT.
10.1 Events of Default. Each of the following events, acts,
occurrences or conditions shall constitute an Event of Default
under this Agreement, regardless of whether such event, act,
occurrence or condition is voluntary or involuntary or results
from the operation of law or pursuant to or as a result of
compliance by any Person with any judgment, decree, order, rule
or regulation of any court or administrative or governmental
body:
(a) Failure to Make Payments. The Borrower shall (i) default in
the payment when due of any principal of the Loans or its
obligations under Section 3.3 or (ii) default, and such default
shall continue unremedied for five or more Business Days, in the
payment when due of any interest on the Loans or (iii) default,
and such default shall continue unremedied for ten or more days
after notice of such default, in the payment when due of any fees
or any other amounts owing hereunder.
(b) Breach of Representation or Warranty. Any representation or
warranty made by the Borrower herein or in any certificate or
statement delivered pursuant hereto or thereto shall prove to be
false or misleading in any material respect on the date as of
which made or deemed made.
(c) Breach of Covenants. The Borrower shall fail to perform or
observe any agreement, covenant or obligation arising under this
Agreement (except those described in subsections (a) or (b)
above) and, if capable of being remedied, such failure shall
remain unremedied for 30 days after written notice thereof shall
have been given to the Borrower by the Administrative Agent;
provided that there shall be deducted from such number of days
any grace period utilized by the Borrower in notifying the Banks
of such Default pursuant to Section 8.1(d).
(d) Default Under Other Agreements. The Borrower or any of its
Subsidiaries shall default in the payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise) of any amount owing in respect of any Indebtedness in
the principal amount of $50,000,000 or more; or the Borrower or
any of its Subsidiaries shall default in the performance or
observance of any obligation or condition with respect to any
Indebtedness or any other event shall occur or condition exist,
if the effect of such default, event or condition is to
accelerate the maturity of any such Indebtedness or to permit
(without regard to.50 any required notice or lapse of time) the
holder or holders thereof, or any trustee or agent for such
holders, to accelerate the maturity of any such Indebtedness, or
any such Indebtedness shall become or be declared to be due and
payable prior to its stated maturity other than as a result of a
regularly scheduled payment, and the principal amount of such
Indebtedness is $50,000,000 or more.
(e) Bankruptcy, etc. (i) The Borrower or any Material Subsidiary
shall commence a voluntary case concerning itself under the
Bankruptcy Code; or (ii) an involuntary case is commenced against
the Borrower or any Material Subsidiary and the petition is not
controverted within 30 days, or is not dismissed within 60 days,
after commencement of the case; or (iii) a custodian (as defined
in the Bankruptcy Code) is appointed for, or takes charge of, all
or substantially all of the property of the Borrower or any
Material Subsidiary or the Borrower or any Material Subsidiary
commences any other proceedings under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Borrower or
any Material Subsidiary or there is commenced against the
Borrower or any Material Subsidiary any such proceeding which
remains undismissed for a period of 60 days; or (iv) any order of
relief or other order approving any such case or proceeding is
entered; or (v) the Borrower or any Material Subsidiary is
adjudicated insolvent or bankrupt; or (vi) the Borrower or any
Material Subsidiary suffers any appointment of any custodian or
the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or
(vii) the Borrower or any Material Subsidiary makes a general
assignment for the benefit of creditors; or (viii) the Borrower
or any Material Subsidiary shall fail to pay, or shall state that
it is unable to pay, or shall be unable to pay, its debts
generally as they become due; or (ix) the Borrower or any
Material Subsidiary shall call a meeting of its creditors (other
than a meeting solely with the Banks) with a view to arranging a
composition or adjustment of its debts; or (x) the Borrower or
any Material Subsidiary shall by any act or failure to act
consent to, approve of or acquiesce in any of the foregoing; or
(xi) any corporate action is taken by the Borrower or any
Material Subsidiary for the purpose of effecting any of the
foregoing.
(f) ERISA. (i) Any Termination Event shall occur, or (ii) any
Plan shall incur an "accumulated funding deficiency" (as defined
in Section 412 of the Code or Section 302 of ERISA), whether or
not waived in excess of $50,000,000, or (iii) the Borrower or a
member of its ERISA Controlled Group shall have engaged in a
transaction which is prohibited under Section 4975 of the Code or
Section 406 of ERISA which could result in the imposition of
liability in excess of $50,000,000 on the Borrower or any member
of its ERISA Controlled Group, or (iv) the Borrower or any member
of its ERISA Controlled Group shall fail to pay when due an
amount which it shall have become liable to pay to the PBGC, any
Plan or a trust established under Title IV of ERISA, or (v) a
condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that an ERISA Plan must
be terminated or have a trustee appointed to administer any ERISA
Plan, or (vi) the Borrower or a member of its ERISA Controlled
Group suffers a partial or complete withdrawal from a
Multiemployer Plan or is in "default" (as defined in Section
4219(c)(5) of ERISA) with respect to payments to a Multiemployer
Plan, or (vii) a proceeding shall be instituted against the
Borrower or any member of its ERISA Controlled Group to enforce
Section 515 of ERISA, or (viii) any other event or condition
shall occur or exist with respect to any Plan which could subject
the Borrower or any member of its ERISA Controlled Group to any
tax, penalty or other liability in excess of $50,000,000.
(g) Judgments. One or more judgments or decrees in an aggregate
amount of $50,000,000 or more shall be entered by a court against
the Borrower or any of its Subsidiaries and (i) any such
judgments or decrees shall not be stayed, discharged, paid,
bonded.51 or vacated within 30 days or (ii) enforcement
proceedings shall be commenced by any creditor on any such
judgments or decrees.
(h) Environmental Matters. (i) Any Environmental Claim shall
have been asserted against the Borrower or any Environmental
Affiliate thereof which may reasonably be expected to have a
Material Adverse Effect, (ii) any release, emission, discharge or
disposal of any Material of Environmental Concern shall have
occurred, and such event could form the basis of an Environmental
Claim against the Borrower or any Environmental Affiliate thereof
which, if determined adversely, may reasonably be expected to
have a Material Adverse Effect, or (iii) the Borrower or any
Environmental Affiliate thereof shall have failed to obtain any
Environmental Approval necessary for the management, use,
control, ownership, or operation of its business, property or
assets or any such Environmental Approval shall be revoked,
terminated, or otherwise cease to be in full force and effect, in
each case, if the existence of such condition may reasonably be
expected to have a Material Adverse Effect.
(i) Change in Control. At any time on or after the Effective
Date a Change in Control shall have occurred.
10.2 Rights and Remedies. Upon the occurrence of any Event of
Default, the Administrative Agent may with the consent of, and
shall upon the written request of, the Required Banks, by written
notice to the Borrower, take any or all of the following actions,
without prejudice to the rights of the Administrative Agent, any
Bank or the holder of any Note to enforce its claims against the
Borrower, (provided, that, if an Event of Default specified in
Section 10.1(e) shall occur with respect to the Borrower or any
Material Subsidiary, the result which would occur upon the giving
of written notice by the Administrative Agent to the Borrower as
specified in clauses (i) and (ii) below shall occur automatically
without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment and Swing Line
Commitment of each Bank shall forthwith terminate immediately;
and (ii) declare the principal of and any accrued interest in
respect of all Loans plus an amount equal to the maximum amount
which would be available at any time to be drawn under all
Letters of Credit then outstanding (whether or not any
beneficiary under any Letter of Credit shall have presented, or
shall be entitled at such time to present, the drafts or other
documents required to draw under such Letter of Credit), to be,
whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice or
requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of
intent to demand or accelerate and notice of acceleration), all
of which are hereby waived by the Borrower. So long as any Letter
of Credit shall remain outstanding, any amounts described in
clause (ii) above with respect to Letters of Credit, when
received by the Administrative Agent shall be deposited in an
account with the Administrative Agent as cash collateral for the
obligations of the Borrower under Section 3. Amounts so deposited
shall be applied in the manner set forth in Section 3. Promptly
after the later of the Final Maturity Date or the payment of all
Obligations, the Administrative Agent will return any amount
remaining in such account to the Borrower, without interest.
SECTION 11. THE ADMINISTRATIVE AGENT AND SYNDICATION AGENT.
11.1 Appointment. Each Bank hereby designates and appoints
Citibank as the Administrative Agent and JPMorgan as the
Syndication Agent of such Bank under this Agreement, and each
such Bank authorizes each such Agent for such Bank, to take such
action on its behalf under the provisions of this Agreement and
to exercise such powers and perform such duties as are expressly
delegated to each such Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental
thereto. The Syndication Agent, in its capacity as such, shall
have no duties, obligations or liabilities of any kind under this
Agreement. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Bank, and no
implied covenants, functions, responsibilities, duties,
obligations or liabilities on the part of the Administrative
Agent shall be read into this Agreement or otherwise exist
against the Administrative Agent. The provisions of this Section
11 are solely for the benefit of the Agents and the Banks and
neither the Borrower nor any other Person shall have any rights
as a third party beneficiary or otherwise under any of the
provisions hereof. In performing its functions and duties
hereunder, the Agents shall act solely as the agents of the Banks
and do not assume nor shall be deemed to have assumed any
obligation or relationship of trust or agency with or for the
Borrower or any of their respective successors and assigns.
11.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence
or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care.
11.3 Exculpatory Provisions. No Agent shall be (i) liable for
any action lawfully taken or omitted to be taken by it or any
Person described in Section 11.2 under or in connection with this
Agreement (except for its or such Person's own gross negligence
or willful misconduct), or (ii) responsible in any manner to any
of the Banks for any recitals, statements, representations or
warranties made by the Borrower contained in this Agreement or in
any certificate, report, statement or other document referred to
or provided for in, or received under or in connection with, this
Agreement or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement, or for any
failure to perform its obligations hereunder. The Administrative
Agent shall not be under any obligation to any Bank to ascertain
or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to
inspect the properties, books or records of the Borrower. This
Section is intended solely to govern the relationship between the
Agents, on the one hand, and the Banks, on the other.
11.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in
relying, upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and
upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and
other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or
refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of the Required Banks as
it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement in accordance with a request of
the Required Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the
Banks and all future holders of any Notes.
11.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any
Default or Event of Default unless the Administrative Agent has
received notice from a Bank or the Borrower referring to this
Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default." In the event
that the Administrative Agent receives such a notice, the
Administrative Agent shall promptly give notice thereof to the
Banks. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be directed
by the Required Banks; provided that unless and until the
Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to
such Default or Event of Default as the Administrative Agent
shall deem advisable and in the best interests of the Banks.
11.6 Non-Reliance on the Agents and Other Banks. Each Bank
expressly acknowledges that neither of the Agents, nor any of
their officers, directors, employees, agents, attorneys-in-fact
or affiliates has made any representations or warranties to it
and that no act by either of the Agents or any of the foregoing
hereafter taken, including, without limitation, any review of the
affairs of the Borrower, shall be deemed to constitute any
representation or warranty by either of the Agents or any of the
foregoing. Each Bank represents and warrants to the Agents that
it has, independently and without reliance upon the Agents, any
of the foregoing or any other Bank and based on such documents
and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations,
property, prospects, financial and other conditions and
creditworthiness of the Borrower and made its own decision to
make its Loans (and issue Letters of Credit, if applicable)
hereunder and enter into this Agreement. Each Bank also
represents that it will, independently and without reliance upon
the Agents or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement, and to make such
investigation as it deems necessary to inform itself as to the
business, operations, property, prospects, financial and other
condition and creditworthiness of the Borrower. Except for
notices, reports and other documents expressly required under
this Agreement to be furnished to the Banks by either of the
Agents, neither of the Agents nor any of their affiliates shall
have any duty or responsibility to provide any Bank with any
credit or other information concerning the business, operations,
property, prospects, financial and other condition or
creditworthiness of the Borrower which may come into the
possession of either of the Agents or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
11.7 Indemnification. The Banks agree to indemnify the
Administrative Agent and its officers, directors, employees,
representatives and agents (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to
do so), ratably according to their Pro Rata Shares, from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including,
without limitation, the fees and disbursements of counsel for the
Administrative Agent or such Person in connection with any
investigative, administrative or judicial proceeding commenced or
threatened, whether or not the Administrative Agent or such
Person shall be designated a party thereto) that may at any time
(including, without limitation, at any time following the payment
of the Obligations) be imposed on, incurred by or asserted
against the Administrative Agent or such Person as a result of,
or arising out of, or in any way related to or by reason of, any
of the transactions contemplated hereby or the execution,
delivery or performance of this Agreement (but excluding any such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent
resulting from the gross negligence or willful misconduct of the
Administrative Agent or such Person as finally determined by a
court of competent jurisdiction).
11.8 Agents in their Individual Capacity. The Agents and their
affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the
Agents were not the Administrative Agent or Syndication Agent
hereunder, including, without limitation, acting as financial
advisors to the Borrower. With respect to Loans made or renewed
by it, Letters of Credit issued by it and any Note issued to it,
each Agent shall have the same rights and powers under this
Agreement as any Bank and may exercise the same as though it were
not an Agent, and the terms "Bank" and "Banks" shall include the
Agents in their individual capacities.
11.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the
Borrower and the Banks. If the Administrative Agent shall resign
as the Administrative Agent under this Agreement, then the
Required Banks during such 30-day period shall appoint from among
the Banks a successor administrative agent, whereupon such
successor administrative agent shall succeed to the rights,
powers and duties of the Administrative Agent so resigning and
the term "Administrative Agent" shall mean such successor
administrative agent, effective upon its appointment, and the
former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative
Agent or any of the parties to this Agreement or any holders of
the Notes. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section
11 and Section 12.1 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative
Agent under this Agreement.
11.10 Holders. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes
hereof unless and until the Administrative Agent shall have
received an executed Transfer Supplement in respect thereof. Any
request, authority or consent of any Person or entity who, at the
time of making such request or giving such authority or consent,
is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee, assignee or endorsee, as the case
may be, of such Note or of any Note(s) issued in exchange
therefor.
SECTION 12. MISCELLANEOUS.
12.1 Payment of Expenses; Indemnification. The Borrower shall:
(a) (i) whether or not the transactions hereby contemplated are
consummated, pay all reasonable out-of-pocket costs and expenses
of the Agents, Chase and the Co-Lead Arrangers in connection with
the administration (both before and after the execution hereof
and including, without limitation, the advice of counsel as to
the rights and duties of the Administrative Agent and the Banks
with respect thereto) of and in connection with the syndication,
negotiation, preparation, execution and delivery of this
Agreement, the documents and instruments referred to herein and
any amendment, waiver or consent related thereto (including,
without limitation, the reasonable and actual fees and
disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
special counsel to the Agents and the Banks and reasonable
allocated costs of internal counsel of the Agents) and (ii) pay
all reasonable out-of-pocket costs and expenses of the Agents and
each Bank incurred in connection with the preservation of rights
under, and enforcement of, and, after a Default, the refinancing,
renegotiation or restructuring of this Agreement, the Notes, if
any, and the documents and instruments referred to therein and
any amendment, waiver or consent relating thereto (including,
without limitation, the reasonable and actual fees and
disbursements of counsel and reasonable allocated costs of
internal counsel for the Agents and, in the case of enforcement,
for each of the Banks); provided that each Agent and Bank agrees
to use its best efforts to avoid duplication of legal expenses
when simultaneously using (and intending to seek reimbursement
for) internal counsel and outside counsel and that.55 each Agent
and Bank agrees to notify the Borrower in the event it intends to
simultaneously use and seek reimbursement for both internal
counsel and outside counsel;
(b) pay and hold each of the Banks harmless from and against any
and all present and future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies which
arise from any payment made hereunder (without duplication of
Section 2.14) or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement or any of the Notes
and save each Bank harmless from and against any and all
liabilities with respect to or resulting from any delay or
omission by the Borrower or any of its Subsidiaries to pay any
such taxes, charges or levies; and
(c) indemnify each Agent, and each Bank, its officers,
directors, employees, representatives, affiliates and agents
(each, an "Indemnitee") from and hold each of them harmless
against any and all costs, losses, liabilities, claims, damages,
obligations, judgments, suits, actions, disbursements or expenses
of any nature whatsoever (including, without limitation, the
reasonable and actual fees and disbursements of counsel
(including reasonable allocated costs of internal counsel) for
such Indemnitee in connection with any investigation, litigation
or other proceeding commenced or threatened, whether or not such
Indemnitee is a party thereto; provided that each Agent and Bank
agrees to use its best efforts to avoid duplication of legal
expenses when simultaneously using (and intending to seek
reimbursement for) internal counsel and outside counsel and that
each Agent and Bank agrees to notify the Borrower in the event it
intends to simultaneously use and seek reimbursement for both
internal counsel and outside counsel) that may at any time
(including, without limitation, following the payment of the
Obligations) be imposed on, asserted against or incurred by such
Indemnitee as a result of or arising out of or in any way related
to or by reason of any actual or proposed use by the Borrower or
any Subsidiary of the Borrower of the proceeds of any Loan or
Letter of Credit, this Agreement or any of the Notes, or any
transaction contemplated hereby or thereby, any violation by the
Borrower or its Environmental Affiliates of any applicable
Environmental Law, any Environmental Claim arising out of the
management, use, control, ownership or operation of property or
assets by the Borrower or any of its Environmental Affiliates,
including, without limitation, all on-site and off-site
activities involving Materials of Environmental Concern, the
breach of any representation or warranty set forth in Section 7
or the exercise by the Agents and the Banks of their rights and
remedies (including, without limitation, foreclosure) (but
excluding, as to any Indemnitee, any such losses, liabilities,
claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements incurred solely by
reason of the gross negligence or willful misconduct of such
Indemnitee as finally determined by a court of competent
jurisdiction). If and to the extent the foregoing obligations in
this Section 12.1 are unenforceable for any reason or are
insufficient to hold any Indemnitee harmless as so provided, the
Borrower agrees to make the maximum contribution to the payment
and satisfaction of such obligations which is permissible under
applicable law. The Borrower's obligations under this Section
12.1 shall survive any termination of this Agreement.
12.2 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the
continuance of any Event of Default, each Bank is hereby
authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to the Borrower or to
any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits
(general or special, time or demand, provisional or final) and
any other indebtedness at any time held or owing by such Bank
(including, without limitation, by branches and agencies of such
Bank wherever located) to or for the credit or the account of the
Borrower against and on account of the Obligation to such Bank
under this Agreement or any Notes, including, without limitation,
all interests in Obligations purchased by such Bank pursuant to
Section 12.4, and all other claims of any nature or description
arising out of or connected with this Agreement or any Notes,
irrespective of whether or not such Bank shall have made any
demand hereunder and although said Obligations, liabilities or
claims, or any of them, shall be contingent or unmatured.
12.3 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be
in writing (including when made by telecopier) and mailed,
telecopied or delivered, if to any party, at its address
specified opposite its signature below or at such other address
as shall be designated by such party in a written notice to the
other parties hereto; provided that all notices to be given by
the Borrower hereunder shall be given by an Authorized Officer of
the Borrower. All such notices and communications shall, when
mailed, telecopied, or sent by reputable overnight courier, be
effective (i) when received or (ii) three Business Days (or five
Business Days, in case of notices and other communications
provided to or by any foreign Bank which does not have any branch
or other office located in the United States) after being
deposited, postage prepaid, in the mails, the Business Day (or
the second Business Day, in case of notices and other
communications provided to or by any foreign Bank which does not
have any branch or other office located in the United States)
following delivery, freight prepaid, to an overnight courier or
the same Business Day of transmission by telecopier, whichever of
(i) or (ii) shall be earlier, except that notices and
communications to the Administrative Agent shall not be effective
until received by the Administrative Agent; and provided further
that all notices and communications permitted to be made by
telephone hereunder shall be effective as of the time received.
Without in any way limiting the Borrower's
obligation to confirm in writing any telephonic notice, the
Administrative Agent may act without liability upon the basis
of telephonic notice believed by the Administrative Agent in
good faith to be from an Authorized Officer of the Borrower
prior to receipt of written confirmation. In each such case,
the Borrower waives the right to dispute the Administrative
Agent's record of the terms of such telephonic notice.
12.4 Benefit of Agreement. (a) Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of and
be enforceable by the respective permitted successors and assigns
of the parties hereto, provided that the Borrower may not assign
or transfer any of its rights or obligations hereunder without
the prior written consent of each Bank.
(b) Participations. Any Bank may at any time sell to one or
more Persons (each a "Participant") participating interests in
any Loan owing to such Bank, any Note held by such Bank, any
Commitment or Swing Line Commitment of such Bank and or any other
interest of such Bank hereunder (in respect of any such Bank, its
"Credit Exposure"). Notwithstanding any such sale by a Bank of
participating interests to a Participant, such Bank's rights and
obligations under this Agreement shall remain unchanged, such
Bank shall remain solely responsible for the performance thereof,
such Bank shall remain the holder of any such Note for all
purposes under this Agreement (except as expressly provided
below), and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement. The
Borrower agrees that if any Obligations are due and unpaid, or
shall have been declared or shall have become due and payable
upon the occurrence and during the continuance of an Event of
Default, each Participant shall be deemed to have the right of
setoff in respect of its participating interest in amounts owing
under this Agreement and any Note to the same extent as if the
amount of its participating interest were owing directly to it as
a Bank under this Agreement or any Note; provided that such right
of setoff shall be subject to the obligations of such Participant
to share with the Banks, and the Banks agree to share with such
Participant, as provided in Section 2.15. The Borrower also
agrees that each Participant shall be entitled to the benefits of
Sections 2.11, 2.12, 2.13 and 2.14; provided further that no
Participant shall be entitled to receive any greater amount
pursuant to such sections than the transferor Bank would have
been entitled to receive in respect of the amount of the
participating interest transferred by such transferor Bank to
such Participant had no such transfer occurred. Each Bank agrees
that any agreement between such Bank and any such Participant in
respect of such participating interest shall not restrict such
Bank's right to agree to any amendment, supplement, waiver or
modification to this Agreement or any Note, except where the
result of any of the foregoing would be to extend the final
maturity of any Obligation or reduce the rate or extend the time
of payment of interest thereon or reduce the principal amount
thereof including, without limitation, reducing the amount of
fees payable to any Bank under this Agreement or the rate at
which such fees are calculated.
(c) Assignments. Any Bank may, in the ordinary course of its
business and in accordance with applicable law, at any time,
assign to any Bank (with the prior written consent of the
Borrower, which consent shall not be unreasonably withheld or
delayed) or any affiliate of such assigning Bank (each an
"Assignee") all or any part of its Credit Exposure other than its
rights and obligation as an Issuing Bank or a Swing Line Lender;
provided that such assignment shall be in a principal amount of
at least $10,000,000. The Borrower, the Administrative Agent and
the Banks agree that to the extent of any assignment the Assignee
shall be deemed to have the same rights and benefits under this
Agreement and any Notes and the same rights of setoff and
obligation to share pursuant to Section 2.15 as it would have had
if it were a Bank hereunder; provided that the Borrower and the
Administrative Agent shall be entitled to continue to deal solely
and directly with the assignor Bank in connection with the
interests so assigned to the Assignee unless and until such
Assignee becomes a direct signatory to this Agreement.
(d) Assignments to Purchasing Banks. Any Bank may at any time
and from time to time, with the prior written consent of the
Borrower and the Administrative Agent, which consent shall not be
unreasonably withheld or delayed, assign to one or more financial
institutions or other entities ("Purchasing Banks") all or any
part of its Credit Exposure pursuant to a supplement to this
Agreement substantially in the form of Exhibit H attached hereto
with such changes as the Administrative Agent shall approve (a
"Transfer Supplement"), executed by such Purchasing Bank, such
transferor Bank and the Administrative Agent; provided that no
Bank may assign its rights and obligations as a Swing Line
Lender; and provided further that the prior consent of the
Issuing Banks and the Swing Line Lenders, which shall not be
unreasonably withheld, shall be required for assignments to any
Purchasing Bank unless such Purchasing Bank's long term
indebtedness is rated at or higher than BBB+ by Standard & Poor's
or Baa1 by ▇▇▇▇▇'▇ or if such rating is unavailable, such
Purchasing Bank's long term certificate of deposit rating is at
or higher than BBB+ by Standard & Poor's or Baa1 by ▇▇▇▇▇'▇. Any
such partial assignment shall be an assignment of an identical
percentage of the transferor Bank's Loans and Commitment, Swing
Line Exposure and Letter of Credit Exposure under each of the
facilities and shall be in a principal amount of at least
$10,000,000. If the effect of any assignment would be to reduce a
Swing Line Lender's remaining aggregate Commitment below its
Swing Line Commitment, such Swing Line Lender shall first obtain
the consent of the Borrower and the Administrative Agent. Upon
(i) such execution of such Transfer Supplement, (ii) delivery of
an executed copy thereof to the Borrower and the Administrative
Agent, (iii) payment (x) by such Purchasing Bank to such
transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Purchasing Bank, and (y) by
either such Purchasing Bank or such transferor Bank to the
Administrative Agent of an assignment fee of $3,000, such
transferor Bank shall be released from its obligations hereunder
to the extent of such assignment and such Purchasing Bank shall
for all purposes be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank under this Agreement to
the same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Banks or the
Administrative Agent shall be required; provided, however, that
the transferor Bank shall retain such rights to expense
reimbursement and indemnification hereunder to which it was
entitled at the time of the transfer with respect to matters
arising out of the prior involvement of such transferor Bank as a
Bank hereunder. Such Transfer Supplement shall be deemed to amend
this Agreement to the extent, and only to the extent, necessary
to reflect the addition of such Purchasing Bank as a Bank and the
resulting adjustment of the Commitments, if any, arising from the
purchase by such Purchasing Bank of all or a portion of the
Credit Exposure of such transferor Bank (and such amendment shall
not require the consent of any Purchasing Bank). Promptly after
the consummation of any transfer to a Purchasing Bank pursuant
hereto, the transferor Bank, the Administrative Agent and the
Borrower shall make appropriate arrangements so that, if such
transferor Bank then holds a Note, a replacement Note is issued
to such transferor Bank and, if requested by the Purchasing Bank,
a new Note is issued to such Purchasing Bank, in each case in
principal amounts reflecting such transfer. No Issuing Bank shall
at any time assign or transfer to any Purchasing Bank its Issuing
Bank Commitment or rights and obligations as an Issuing Bank
without (i) the prior written consent of the Borrower and the
Administrative Agent, which consent shall not be unreasonably
withheld, and (ii) providing to the Administrative Agent such
documents and instruments executed by such Issuing Bank or
assignee or transferee as the Administrative Agent may reasonably
request for purposes of effecting such assignment or transfer and
the admission of such assignee or transferee as an Issuing Bank.
(e) The Administrative Agent may, notwithstanding any other
provision of this Agreement, revise Schedules 1, 2 and 3 hereto
as appropriate to reflect assignments and transfers, and any
addition of an Assignee, Purchasing Bank or other permitted
assignee or transferee as a party hereto, which are permitted
under this Section 12.4.
(f) Certain Exceptions. (i) Notwithstanding any other provision
set forth in this Agreement to the contrary, any Bank may at any
time and from time to time pledge as collateral for advances,
assign or endorse for discount, or otherwise transfer all or any
portion of its rights under this Agreement and its Note, if any,
to any Federal Reserve Bank pursuant to the Federal Reserve Act
and related regulations of the Board of Governors of the Federal
Reserve System (as such act or regulations are then or thereafter
in effect or any successor act or regulations), as well as any
applicable operating circular or other requirements of such Board
of Governors or Federal Reserve Bank (as then or thereafter in
effect). Any Federal Reserve Bank may at any time and from time
to time subsequently transfer all or any portion of the rights
acquired by such Bank pursuant to this subsection to any Person.
No such pledge, assignment, endorsement or other transfer shall
or have the effect of releasing the Administrative Agent, any
Bank or the Borrower from its respective obligations or
conferring any obligations on the pledgee, assignee, endorsee or
transferee, as the case may be, under this Agreement or any Note.
The requirements of subsections (b), (c) and (d) shall be deemed
inapplicable to pledges, assignments, endorsements or other
transfers permitted by this subsection.
(ii) Notwithstanding anything to the contrary contained herein,
any Bank (a "Granting Bank") may grant to a special purpose
funding vehicle (an "SPC") of such Granting Bank, identified as
such in writing from time to time by the Granting Bank to the
Administrative Agent and the Borrower, the option to provide to
the Borrower all or any part of any Loan that such Granting Bank
would otherwise be obligated to make to the Borrower pursuant to
this Agreement, provided that (a) nothing herein shall constitute
a commitment to make any Loan by any SPC and (b) if an SPC elects
not to exercise such option or otherwise fails to provide all or
any part of such Loan or fund any other obligation required to be
funded by it hereunder, the Granting Bank shall be obligated to
make such Loan or fund such obligation pursuant to the terms
hereof. The making of a Loan by an SPC hereunder shall satisfy
the obligation of the Granting Bank to make Loans to the same
extent, and as if, such Loan were made by the Granting Banks.
Each party hereto hereby agrees that no SPC shall be liable for
any payment under this Agreement for which a Bank would otherwise
be liable, for so long as, and to the extent, the related
Granting Bank makes such payment. In furtherance of the
foregoing, each party hereto hereby agrees that, prior to the
date that is one year and one day after the payment in full of
all outstanding senior indebtedness of any SPC, it will not
institute against or join any other person in instituting
against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings,
under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in
this Section 12.4 any SPC may (A) with notice to, but without the
prior written consent of, the Borrower or the Administrative
Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loan to its Granting Bank or
to any financial institutions providing liquidity and/or credit
facilities to or for the account of such SPC to fund the Loans
made by such SPC or to support the securities (if any) issued by
such SPC to fund such Loans and (B) disclose on a confidential
basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of a surety,
guarantee or credit or liquidity enhancement to such SPC.
Notwithstanding any other provisions of this Agreement, the
Borrower agrees that it will not use the proceeds of any Loan
made by a Bank which is funded through an SPC to be used to
purchase or carry Margin Stock if such Bank (i) notifies the
Borrower that its Loan will be funded through an SPC and (ii)
requests the Borrower prior to the Effective Date not to use the
proceeds of its Loan for such purpose.
(g) Disclosure of Information. The Borrower authorizes each Bank
to disclose to any Participant, Assignee or Purchasing Bank
(each, a "Transferee") and any prospective Transferee any and all
financial and other information in such Bank's possession
concerning the Borrower which has been delivered to such Bank by
the Borrower pursuant to this Agreement or which has been
delivered to such Bank by the Borrower in connection with such
Bank's credit evaluation of the Borrower prior to entering into
this Agreement.
12.5 No Waiver; Remedies Cumulative. No failure or delay on the
part of the Administrative Agent or any Bank or any holder of a
Note in exercising any right, power or privilege hereunder or
under any Note and no course of dealing between the Borrower and
the Administrative Agent, or any Bank or the holder of any Note
shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or
under any Note preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any Bank or the holder of any Note would
otherwise have. No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or
demand in similar or other circumstances or constitute a waiver
of the rights of the Administrative Agent, the Banks or the
holder of any Note to any other or further action in any
circumstances without notice or demand.
12.6 Payments Pro Rata. The Administrative Agent agrees that
upon receipt of each payment from or on behalf of the Borrower in
respect of any Obligations of the Borrower hereunder, it shall
promptly thereafter (on the same day if such payment was received
by the Administrative Agent prior to Noon (New York time) or on
the next Business Day if received thereafter) distribute funds in
the form received relating to such payment to the Banks pro rata
based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
12.7 Governing Law; Submission to Jurisdiction. THIS AGREEMENT
AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, ANY OTHER
CREDIT DOCUMENT OR ANY DOCUMENT RELATED THERETO MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THE
AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS
RIGHTS OR THE RIGHTS OF THE AGENTS AND THE BANKS WITH RESPECT TO
THIS AGREEMENT, ANY NOTE OR ANY DOCUMENT RELATED THERETO. THE
BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW. THE BORROWER HEREBY IRREVOCABLY
WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS
AGREEMENT, ANY OTHER CREDIT DOCUMENT OR ANY DOCUMENT RELATED
THERETO AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO
PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
EITHER OF THE AGENTS, ANY BANK OR ANY HOLDER OF A NOTE TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY
OTHER JURISDICTION.
12.8 Counterparts. This Agreement may be executed in any number
of counter-parts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall
be an original, but all of which shall together constitute one
and the same instrument.
12.9 Effectiveness. Subject to Section 6, this Agreement shall
become effective on the date (the "Effective Date") on which all
of the parties hereto shall have signed a copy hereof (whether
the same or different copies) and shall have delivered the same
to the Administrative Agent or, in the case of the Banks, shall
have given to the Administrative Agent telephonic (confirmed in
writing), written or telex notice (actually received) that the
same has been signed and mailed to it. The Administrative Agent
will give the Borrower and each Bank prompt written notice of the
occurrence of the Effective Date.
12.10 Headings Descriptive. The headings of the several
sections and subsections of this Agreement and the Table of
Contents are inserted for convenience only and shall not in any
way affect the meaning or construction of any provision of this
Agreement.
12.11 Marshalling; Recapture. Neither the Administrative
Agent nor any Bank shall be under any obligation to ▇▇▇▇▇▇▇▇ any
assets in favor of the Borrower or any other party or against or
in payment of any or all of the Obligations. To the extent any
Bank receives any payment by or on behalf of the Borrower which
payment or any part thereof is subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be
repaid to the Borrower or its estate, trustee, receiver,
custodian or any other party under any bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of
such payment or repayment, the obligation or part thereof which
has been paid, reduced or satisfied by the amount so repaid shall
be reinstated by the amount so repaid and shall be included
within the liabilities of the Borrower to such Bank as of the
date such initial payment, reduction or satisfaction occurred.
12.12 Amendment or Waiver. Except as expressly provided in
Section 12.4(d) and (e), no amendment or waiver of any provision
of this Agreement or any Notes, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Borrower and the
Required Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given; provided that no amendment, waiver or
consent shall, unless in writing and signed by all the Banks, do
any of the following: (i) amend or waive any of the conditions
specified in Section 6, (ii) increase the Commitments of the
Banks or subject the Banks to any additional monetary obligations
(including, without limitation, extending the periods of the
Commitments during which the Banks are obligated to make or
participate in Loans and participate in or issue Letters of
Credit), (iii) reduce the principal of, or interest on, the
Loans, any Notes or fees, (iv) postpone any date fixed for any
payment in respect of principal of, or interest on, the Loans or
participations in Letters of Credit or other fees or amounts
hereunder (including, without limitation, any date on which
mandatory prepayments are due), (v) change the percentage of the
Commitments or the aggregate unpaid principal amount of the
Loans, or the number or identity of the Banks, which shall be
required for the Banks or any of them to take any action under
this Agreement, or (vi) amend or waive Section 2.15, this Section
12.12 or the definitions of any terms used in such Sections; and
provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in
addition to the Banks required hereinabove to take such action,
affect the rights or duties of the Administrative Agent under
this Agreement or any Note. Notwithstanding the foregoing
provisions of this Section 12.12, the provisions of this
Agreement relating solely to fees payable to the Administrative
Agent for its own account and not for the account of the Banks
may be amended (but not to increase the amount of such fees so
payable) or waived or departure therefrom may be consented to by
the Administrative Agent in writing without any consent being
required, written or otherwise, from any Bank. The Borrower
agrees to give notice of any amendment or waiver approved by the
Borrower and the Required Banks to the Administrative Agent.
12.13 Survival. All indemnities set forth in this Agreement
shall survive the execution and delivery of this Agreement and
any Notes and the making and repayment of the Obligations
hereunder.
12.14 Independent Nature of Banks' Rights and Obligations.
Except as expressly provided herein, the amounts payable at any
time hereunder to each Bank shall be a separate and independent
debt, and each Bank shall be entitled to protect and enforce its
rights arising out of this Agreement, and it shall not be
necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose. No Bank shall be responsible
for any default by any other Bank in its obligations hereunder
and each Bank shall be obligated to make Loans or purchase
participations in Letters of Credit and perform its obligations
under Section 3.4, or in the case of an Issuing Bank, issue
Letters of Credit, in each case as required by the provisions of
this Agreement, regardless of the failure of any other Bank or
Issuing Bank to fulfill its commitments or obligations hereunder.
12.15 Independence of Covenants. All covenants hereunder
shall be given independent effect so that if a particular action
or condition is not permitted by any of such covenants, the fact
that it would be permitted by an exception to, or be otherwise
within the limitations of, another covenant shall not avoid the
occurrence of a Default or Event of Default if such action is
taken or condition exists.
12.16 Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE BORROWER, THE AGENTS AND THE BANKS
HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR ANY MATTER ARISING
HEREUNDER OR THEREUNDER.
IN WITNESS WHEREOF, the parties hereto have caused
their duly authorized officers to execute and deliver this
Agreement as of the date first above written.
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ KODAK COMPANY
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 978481
Answerback: EKHQTR
By:
Name:
Title:
with a copy to:
General Counsel
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
TABLE OF CONTENTS
SECTION 1. DEFINITIONS. 1
SECTION 2. AMOUNT AND TERMS OF CREDIT. 16
2.1 Revolving Loan Commitments 16
2.2 Notice of Revolving Loan Borrowing 17
2.3 Competitive Bid Loans 17
2.4 Swing Line Loans 19
2.5 Notice of Swing Line Borrowing; Conversions of and
Participations in Swing Line Loans 20
2.6 Disbursement of Funds 21
2.7 Repayment of Loans; Evidence of Debt 22
2.8 Interest 24
2.9 Interest Periods 25
2.10 Conversions or Continuations 25
2.11 Interest Rate Unascertainable, Increased Cost,
Illegality, etc 26
2.12 Capital Adequacy 27
2.13 Funding Losses 28
2.14 Taxes 29
2.15 Sharing of Payments, etc 30
2.16 Change of Lending Office 30
SECTION 3. LETTER OF CREDIT SUBFACILITY. 30
3.1 Letters of Credit 30
3.2 Notice of Issuance; Agreement to Issue 31
3.3 Payment of Amounts Drawn Under Letters of Credit 32
3.4 Payment by Banks 33
3.5 Compensation 33
3.6 Additional Payments; Illegality 34
3.7 Obligations Absolute 35
3.8 Indemnification; Nature of Issuing Banks' Duties 36
SECTION 4.AGENTS' FEES; FACILITY FEE; UTILIZATION FEE; COMMITMENTS. 37
4.1 Facility Fee; Utilization Fee 37
4.2 Agents' Fees 37
4.3 Voluntary Reduction of Commitments 37
4.4 Pro Rata Reductions; No Reinstatement 38
SECTION 5. PAYMENTS. 38
5.1 Voluntary Prepayments 38
5.2 Mandatory Prepayments 38
5.3 Method and Place of Payment 39
5.4 Use of Proceeds 39
SECTION 6. CONDITIONS PRECEDENT. 39
6.1 Conditions Precedent to Effectiveness 39
6.2 Conditions Precedent to Each Loan and Letter of
Credit 41
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. 41
7.1 Corporate Status 41
7.2 Corporate Power and Authority 41
7.3 No Violation 42
7.4 Litigation 42
7.5 Financial Statements; Financial Condition; etc 42
7.6 Material Adverse Change 42
7.7 Use of Proceeds; Margin Regulations 42
7.8 Governmental Approvals 42
7.9 Tax Returns and Payments 43
7.10 ERISA 43
7.11 Investment Company Act; Public Utility Holding
Company Act 43
7.12 True and Complete Disclosure 44
7.13 Environmental Matters 44
7.14 Patents, Trademarks, etc 45
7.15 Ownership of Property 45
7.16 No Default 45
7.17 Licenses, etc 45
7.18 Compliance With Law 46
7.19 Labor Matters 46
SECTION 8. AFFIRMATIVE COVENANTS. 46
8.1 Information Covenants 46
8.2 Books, Records and Inspections 49
8.3 Maintenance of Insurance 49
8.4 Taxes 49
8.5 Corporate Franchises 50
8.6 Compliance with Law 50
8.7 Maintenance of Properties 50
SECTION 9. NEGATIVE COVENANTS. 50
9.1 Liens 50
9.2 Subsidiary Indebtedness 52
9.3 Restriction on Fundamental Changes 52
9.4 Sales and Leasebacks 53
9.5 Plans 53
9.6 Restrictions on Subsidiary Distributions 53
9.7 No Further Negative Pledges 54
9.8 Consolidated Interest Coverage Ratio 54
SECTION 10. EVENTS OF DEFAULT. 54
10.1 Events of Default 54
10.2 Rights and Remedies 56
SECTION 11. THE ADMINISTRATIVE AGENT AND SYNDICATION AGENT. 57
11.1 Appointment 57
11.2 Delegation of Duties 57
11.3 Exculpatory Provisions 57
11.4 Reliance by Administrative Agent 58
11.5 Notice of Default 58
11.6 Non-Reliance on the Agents and Other Banks 58
11.7 Indemnification 59
11.8 Agents in their Individual Capacity 59
11.9 Successor Administrative Agent 59
11.10 Holders 60
SECTION 12. MISCELLANEOUS. 60
12.1 Payment of Expenses; Indemnification 60
12.2 Right of Setoff 61
12.3 Notices 61
12.4 Benefit of Agreement 62
12.5 No Waiver; Remedies Cumulative 65
12.6 Payments Pro Rata 66
12.7 Governing Law; Submission to Jurisdiction 66
12.8 Counterparts 66
12.9 Effectiveness 67
12.10 Headings Descriptive 67
12.11 Marshalling; Recapture 67
12.12 Amendment or Waiver 67
12.13 Survival 68
12.14 Independent Nature of Banks' Rights and Obligations 68
12.15 Independence of Covenants 68
12.16 Waiver of Trial by Jury 68
Schedule 1 Banks and Commitments
Schedule 2 Swing Line Lenders and Swing Line Commitments
Schedule 3 Issuing Banks and Issuing Bank Commitments
Schedule 7.1 Subsidiaries
Schedule 9.2 Existing Indebtedness
Exhibit A-1 Notice of Borrowing
Exhibit A-2 Notice of Competitive Bid Borrowing
Exhibit A-3 Notice of Swing Line Borrowing
Exhibit B-1 Form of Revolving Notes
Exhibit B-2 Form of Competitive Bid Notes
Exhibit B-3 Form of Swing Line Notes
Exhibit C Form of Notice of Issuance
Exhibit D Form of Notice of Prepayment
Exhibit E Form of Opinion of ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, general
counsel of the Borrower
Exhibit F Form of Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, special counsel to the Agents and the
Banks
Exhibit G Form of Compliance Certificate
Exhibit H Transfer Supplement