Exhibit 10b1
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364-DAY REVOLVING CREDIT AGREEMENT
dated as of
July 12, 2001
among
FORTUNE BRANDS, INC.,
The Lenders Party Hereto
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
CITIBANK, N.A.,
as Syndication Agent
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
as Joint Advisors, Joint Lead Arrangers
and Joint Bookrunners
FLEET NATIONAL BANK,
CREDIT SUISSE FIRST BOSTON,
BARCLAYS BANK PLC
and
THE DAI-ICHI KANGYO BANK, LTD.,
as Co-Documentation Agents
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TABLE OF CONTENTS
Page
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Article I
Definitions..............................1
Section 1.01 Defined Terms......................................1
Section 1.02 Classification of Loans and Borrowings............22
Section 1.03 Terms Generally...................................23
Section 1.04 Accounting Terms; GAAP............................23
Article II
The Credits.............................24
Section 2.01 Revolving Commitments.............................24
Section 2.02 Loans and Borrowings..............................24
Section 2.03 Requests for Revolving Borrowings.................25
Section 2.04 Competitive Bid and Negotiated Rate Loan
Procedures........................................26
Section 2.05 Funding of Borrowings.............................31
Section 2.06 Interest Elections................................32
Section 2.07 Termination and Reduction of Revolving
Commitments.......................................34
Section 2.08 Repayment of Loans; Evidence of Debt..............35
Section 2.09 Prepayment of Loans...............................36
Section 2.10 Fees..............................................37
Section 2.11 Interest..........................................39
Section 2.12 Alternate Rate of Interest........................41
Section 2.13 Increased Costs...................................42
Section 2.14 Break Funding Payments............................43
Section 2.15 Taxes.............................................44
Section 2.16 Payments Generally; Pro Rata Treatment;
Sharing of Set-offs...............................46
Section 2.17 Mitigation Obligations; Replacement
of Lenders........................................49
Section 2.18 Additional Reserve Costs..........................50
Section 2.19 Redenomination of Certain Designated
Foreign Currencies................................51
Section 2.20 Assigned Dollar Value.............................52
Section 2.21 Term-Out Option...................................53
Article III
Representations and Warranties..........54
Section 3.01 Organization; Powers..............................54
Section 3.02 Authorization; Enforceability.....................54
Section 3.03 Governmental Approvals; No Conflicts..............54
Section 3.04 Financial Condition; No Material
Adverse Change....................................55
Section 3.05 Properties........................................55
Section 3.06 Litigation and Environmental Matters..............55
Section 3.07 Compliance with Laws and Agreements...............56
Section 3.08 Investment and Holding Company Status.............56
Section 3.09 Taxes.............................................56
Section 3.10 ERISA.............................................57
Section 3.11 Disclosure........................................57
Article IV
Conditions..............................57
Section 4.01 Effective Date....................................57
Section 4.02 Each Credit Event.................................58
Article V
Affirmative Covenants...................59
Section 5.01 Financial Statements and Other
Information.......................................59
Section 5.02 Notices of Material Events........................60
Section 5.03 Existence; Conduct of Business....................61
Section 5.04 Payment of Obligations............................61
Section 5.05 Maintenance of Properties; Insurance..............61
Section 5.06 Books and Records; Inspection Rights..............61
Section 5.07 Compliance with Laws..............................61
Section 5.08 Use of Proceeds...................................62
Section 5.09 Litigation Report.................................62
Article VI
Negative Covenants......................62
Section 6.01 Restrictions on Borrowing by Restricted
Subsidiaries......................................62
Section 6.02 Restrictions on Secured Debt......................63
Section 6.03 Restrictions on Sale and Lease Back
Transactions......................................65
Section 6.04 Fundamental Changes...............................66
Section 6.05 Transactions with Affiliates......................67
Section 6.06 Interest Coverage Ratio...........................68
Article VII
Events of Default.......................68
Article VIII
The Administrative Agent................71
Article IX
Miscellaneous...........................74
Section 9.01 Notices...........................................74
Section 9.02 Waivers; Amendments...............................75
Section 9.03 Expenses; Indemnity; Damage Waiver................76
Section 9.04 Successors and Assigns............................79
Section 9.05 Survival..........................................83
Section 9.06 Counterparts; Integration;
Effectiveness.....................................84
Section 9.07 Severability......................................84
Section 9.08 Right of Setoff...................................84
Section 9.09 Governing Law; Jurisdiction; Consent
to Service of Process.............................85
Section 9.10 Waiver of Jury Trial..............................86
Section 9.11 Headings..........................................86
Section 9.12 Confidentiality...................................86
Section 9.13 Interest Rate Limitation..........................87
Section 9.14 Judgment..........................................87
Section 9.15 Termination of Existing Credit
Facilities........................................88
SCHEDULES:
Schedule 2.01 -- Revolving Commitments
Schedule 3.06 -- Disclosed Matters
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of Company's Counsel
Exhibit C B- MLA Cost
Exhibit D -- Form of Revolving Note
364-DAY REVOLVING CREDIT AGREEMENT dated as of July 12,
2001, among FORTUNE BRANDS, INC., a Delaware corporation, the
LENDERS party hereto, THE CHASE MANHATTAN BANK, as
Administrative Agent, and CITIBANK, N.A., as Syndication
Agent.
The parties hereto agree as follows:
Article I
Definitions
Section 1.01 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified. With
respect to any Lender, the term "Affiliate" shall be deemed to include (a) any
entity (whether a corporation, partnership, trust or otherwise) that is engaged
in making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered
or managed by such Lender or an Affiliate of such Lender and (b) in the case of
any Lender that is a fund that invests in bank loans and similar extensions of
credit, any other fund that invests in bank loans and similar extensions of
credit and is
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managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 2 of 1%. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Alternative Currency" means any currency specified by the Company
in a Competitive Bid Request relating to a proposed Competitive Borrowing if
such currency is freely transferable and convertible into Dollars in the London
market at the time and for which LIBO Rates may be determined at such time by
reference to the Telerate screen as provided in the definition of "LIBO Rate".
"Alternative Currency Borrowing" means a Borrowing comprised of
Alternative Currency Loans.
"Alternative Currency Equivalent" means, with respect to an amount
in Dollars on any date in relation to a specified Alternative Currency, the
amount of such specified Alternative Currency that may be purchased with such
amount of Dollars at the Spot Exchange Rate with respect to such Alternative
Currency on such date.
"Alternative Currency Loan" means any Loan denominated in an
Alternative Currency.
"Applicable Currency" has the meaning assigned to such term in
Section 2.11.
"Applicable Revolving Commitment Percentage" means, with respect to
any Lender, the percentage of the total Revolving Commitments represented by
such Lender's Revolving Commitment. If the Revolving Commitments have terminated
or expired, the Applicable Revolving Commitment Percentages shall be determined
based upon the Revolving Commitments most recently in effect, giving effect to
any assignments.
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"Assessment Rate" means, 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 Lenders.
"Assigned Dollar Value" has the meaning assigned to such term in
Section 2.20.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Termination Date and the date
of termination of the Revolving Commitments.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD
Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Board Resolution" means a copy of a resolution delivered to the
Administrative Agent and certified by the Secretary or an Assistant Secretary of
the Company as having been duly adopted by the Board of Directors of the
Company, or by the Secretary or an Assistant Secretary of the Company or the
Secretary of the Executive Committee of such Board of Directors as having been
duly adopted by such Executive Committee, or by the Secretary or an Assistant
Secretary of the Company or the Secretary of any other
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committee of such Board of Directors duly authorized to act for it hereunder as
having been duly adopted by such other committee.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurocurrency Loans,
as to which a single Interest Period is in effect, (b) a Competitive Loan or
group of Competitive Loans of the same Type and in the same currency made on the
same date and as to which a single Interest Period is in effect or (c) a
Negotiated Rate Loan.
"Borrowing Date" means any Business Day specified in a notice
pursuant to Section 2.02 or 2.04 as a date on which the Company requests Loans
to be made hereunder.
"Borrowing Request" means a request by the Company for a Revolving
Borrowing in accordance with Section 2.03.
"British Pounds Sterling" means lawful money of the United Kingdom.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed, except that when used in connection with a Eurocurrency Loan
or an Alternative Currency Loan, "Business Day" also shall exclude any day on
which dealings in foreign currencies and exchange between banks may not be
carried on in London, England or New York, New York or, in the case of an
Alternative Currency Loan denominated in a currency other than British Pounds
Sterling, the place designated by the Administrative Agent from time to time as
the place for payments in such currency.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
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"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 50% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Company; or (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Company by Persons who were neither (i) nominated by the board of directors of
the Company nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender(or,
for purposes of Section 2.13(b) or 2.18, by any lending office of such Lender or
by such Lender's holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Competitive Loans or Negotiated Rate Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Company" means Fortune Brands, Inc.
"Competitive Bid" means an offer by a Lender to make a Competitive
Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid,
the Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Company for
Competitive Bids in accordance with Section 2.04.
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"Competitive Loan" means a Loan made pursuant to a Competitive Bid
as contemplated by Section 2.04.
"Currency Equivalent" means the Dollar Equivalent or the Alternative
Currency Equivalent, as the case may be, of the Applicable Currency.
"Consolidated EBITDA" means, for any period of four consecutive
fiscal quarters, Consolidated Net Income for such period, excluding, to the
extent included in determining such Consolidated Net Income, extraordinary
items, noncash restructuring charges, noncash nonrecurring charges, losses from
asset impairments and gains or losses resulting from the sale of assets not in
the ordinary course of business, plus, without duplication and to the extent
deducted in determining such Consolidated Net Income, the sum of (i)
Consolidated Interest Expense for such period, (ii) income taxes for such
period, and (iii) depreciation and amortization of intangibles for such period,
all determined on a consolidated basis for each such item in accordance with
GAAP.
"Consolidated Interest Expense" means, for any period, the gross
interest expense of the Company and the Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, net income for the
Company and the Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP.
"Consolidated Net Tangible Assets" means the excess over current
liabilities of all assets as determined by the Company and set forth in a
consolidated balance sheet of the Company and its consolidated Subsidiaries
prepared in accordance with GAAP as of a date within 90 days of the date of such
determination, after deducting goodwill, trademarks, patents, other like
intangibles and the minority interest of others.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
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"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Denomination Date" means, in relation to any Alternative Currency
Borrowing, the date that is three Business Days before the date such Borrowing
is made.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06 and the matters described in
any filings made by the Company from time to time with the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended.
"Dollar Equivalent" means, with respect to an amount of any
Alternative Currency on any date, the amount of Dollars that may be purchased
with such amount of the Alternative Currency at the Spot Exchange Rate with
respect to the Alternative Currency on such date.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"EMU Legislation" means the legislative measures of the European
Union for the introduction of, changeover to or operation of the Euro in one or
more member states.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any Subsidiary
directly or indirectly resulting from or based upon
8
(a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Company or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Company or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan other
than under circumstances pursuant to which such Plan could not reasonably be
expected to require any additional funding at any time following such
termination or appointment; (f) the incurrence by the Company or any of its
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Company or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
9
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Euro" or "i" means the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in the EMU
Legislation
"Eurocurrency", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Taxes" means, with respect to the Administrative Agent,
Chase Manhattan International Limited, any Lender or any other recipient of any
payment to be made by or on account of any obligation of the Company hereunder,
(a) income, franchise or similar taxes imposed on (or measured by) its net
income by the United States of America or by the jurisdiction under the laws of
which the Administrative Agent, Lender or other recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other
jurisdiction described in clause (a) above, and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Company under
Section 2.17(b)), any withholding tax that (i) is in effect and would apply to
amounts payable to such Foreign Lender, at the time such Foreign Lender becomes
a party to this Agreement (or designates a new lending office), by the Company
previously designated hereunder, except to the extent that such Foreign Lender
(or its assignor, if any) was entitled, at the time of designation of a new
lending office (or assignment), to receive additional amounts from the Company
with respect to any withholding tax pursuant to Section 2.15(a), or (ii) is
attributable to such Foreign Lender's failure to comply with Section 2.15(e).
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve
10
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Company.
"Fixed Rate" means, with respect to any Competitive Loan (other than
a Eurocurrency Competitive Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a
Fixed Rate.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Company is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Funded Debt" of any Person means (i) all indebtedness for money
borrowed which by its terms matures more than 12 months from the creation,
extension or renewal thereof or which is extendible or renewable at the option
of the obligor on such indebtedness to a time more than 12 months after its
creation, extension or renewal and (ii) all guarantees, direct or indirect, of
such indebtedness of others or of dividends; provided that Funded Debt shall not
include endorsements of negotiable instruments for collection, deposit or
negotiation and guarantees by the Company or a Restricted Subsidiary arising in
connection with the sale, discount, guarantee or pledge of notes, chattel
mortgages, leases, accounts receivable, trade acceptances and other paper
arising, in the ordinary course of business, out of installment or conditional
sales to or by, or transactions involving title retention with, distributors,
dealers or other customers, of merchandise, equipment or services. The Company
or a Restricted
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Subsidiary shall be deemed to have assumed any Funded Debt secured by any
mortgage upon any of its property or assets whether or not it has actually done
so.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Granting Lender" has the meaning specified in paragraph (h) of
Section 9.04.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness of the payment
thereof, (c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation or (d) as an
account party in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; provided, that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
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"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all Capital Lease Obligations
of such Person and (c) all Guarantees by such Person of Indebtedness of others
described in clause (a) or (b) above. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person's ownership interest in or other relationship with
such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the Company that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Information Memorandum" means the Confidential Information
Memorandum dated June 12, 2001, relating to the Company and the Transactions.
"Interest Election Request" means a request by the Company to
convert or continue a Revolving Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period, (c) with respect
to any Fixed Rate Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Fixed Rate
Borrowing with an Interest Period of more than 90 days' duration (unless
otherwise specified in the applicable Competitive Bid Request), each day prior
to the last day of such Interest Period that occurs at intervals of 90 days'
duration after the first day of such Interest Period, and any other dates that
are specified in the applicable
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Competitive Bid Request as Interest Payment Dates with respect to such Borrowing
and (d) with respect to any Negotiated Rate Loan, the last day of the Interest
Period applicable to such Negotiated Rate Loan and any other day during such
Interest Period on which interest therein is payable, as separately agreed
between the Company and the applicable Lender.
"Interest Period" means (a) with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Company may elect, (b) with respect to any Fixed
Rate Borrowing, the period (which shall not be less than seven days or more than
180 days) commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Bid Request and (c) with respect to any
Negotiated Rate Borrowing, the period commencing on the date of such Borrowing
and ending on such date as shall be mutually agreed upon between the Company and
the applicable Lender; provided, that (i) if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of a Eurocurrency Borrowing
only, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day
and (ii) any Interest Period pertaining to a Eurocurrency Borrowing that
commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month
of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and, in the case of a
Revolving Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for
any Interest Period, the rate
14
per annum determined by reference to the British Bankers' Association Interest
Settlement Rates for deposits with a maturity comparable to such Interest Period
denominated in the currency in which such Eurocurrency Borrowing is denominated
as reflected on the applicable Telerate Screen (or on any successor or
substitute page of the Telerate Service, providing rate quotations comparable to
those currently provided on such Service, as determined by the Administrative
Agent or Chase Manhattan International Limited, as applicable, from time to time
for purposes of providing quotations of interest rates applicable to deposits of
currency in which such Borrowing is denominated) at approximately 11:00 a.m.,
London time, on the Quotation Day for the currency in which such Borrowing is
denominated. In the event that such rate is not available at such time for any
reason, then the "LIBO Rate" with respect to such Eurocurrency Borrowing for
such Interest Period shall be the rate at which dollar deposits of $5,000,000
(or in the case of Eurocurrency Borrowings denominated in an Alternative
Currency, deposits with a Dollar Equivalent of $5,000,000) and for a maturity
comparable to such Interest Period are offered by the principal London office of
the Administrative Agent or Chase Manhattan International Limited, as
applicable, in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, on the Quotation Day for the currency in
which such Borrowing is denominated prior to the commencement of such Interest
Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
"Loan" means any loan made by a Lender to the Company pursuant to
this Agreement.
"Local Time" means (a) with respect to any Loan or Borrowing
denominated in Dollars, New York City time, and (b) with respect to any Loan or
Borrowing denominated in any Alternative Currency, London time (or such other
time as Chase Manhattan International Limited may designate in respect of the
applicable currency).
15
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or financial condition of the Company and the
Subsidiaries taken as a whole or (b) the rights of or benefits available to the
Lenders under this Agreement.
"Material Indebtedness" means Indebtedness (other than the Loans) of
any one or more of the Company and the Subsidiaries in an aggregate principal
amount exceeding $50,000,000.
"Material Subsidiary" means any Subsidiary that is (a) a Restricted
Subsidiary or (b) a "significant subsidiary" of the Company within the meaning
of Regulation S-X of the Securities and Exchange Commission (or any successor
provision).
"Maturity Date" means the Termination Date or, if the Company
exercises its option under Section 2.21, July 11, 2003.
"MLA Cost" means the cost imputed to the Lenders in connection with
a Borrowing denominated in British Pounds Sterling in compliance with the
Mandatory Liquid Asset requirements of the Bank of England during an Interest
Period (or part of an Interest Period), expressed as a rate per annum and
determined in accordance with Exhibit C.
"mortgage" means any mortgage, pledge or security interest.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Negotiated Rate Loan" means a Loan made to the Company by a Lender
pursuant to a Negotiated Rate Loan Request in such principal amount, for such
Interest Period and having such interest rate(s) and repayment terms as
16
shall, in each case, be mutually agreed upon between the Company and such
Lender.
"Negotiated Rate Loan Request" means a request by the Company for a
Lender to make a Negotiated Rate Loan, which shall be delivered to such Lender
(with a copy to the Administrative Agent) in writing, by facsimile transmission
or by telephone, immediately confirmed in writing, and which shall specify the
amount to be borrowed and the proposed Borrowing Date, currency and Interest
Period.
"Obligations" means (a) the obligation of the Company to pay the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, and (b) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Company under this Agreement.
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Company
17
or any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Quotation Day" in respect of the determination of the LIBO Rate for
any Interest Period (a) for any Eurocurrency Borrowing in Dollars or any
Alternative Currency (other than British Pounds Sterling), means the day on
which quotations would ordinarily be given by prime banks in the London
interbank market for deposits in the currency in which such Borrowing is
denominated for delivery on the first day of such Interest Period; provided,
that if quotations would ordinarily be given on more than one date, the
Quotation Day for such Interest Period shall be the last of such dates and (b)
for any Eurocurrency Borrowing denominated in British Pounds Sterling, means the
first day of such Interest Period.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers and employees of such
Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Credit Exposures and unused Revolving Commitments representing more than 50% of
the sum of the total Revolving Credit Exposures and unused Revolving Commitments
at such time; provided that, for purposes of declaring the Loans to be due and
payable pursuant to Article VII, and for all purposes after the Loans become due
and payable pursuant to Article VII or the Revolving Commitments expire or
terminate, the outstanding Competitive Loans and Negotiated Rate Loans of the
Lenders shall be included in their respective Revolving Credit Exposures in
determining the Required Lenders.
18
"Restricted Subsidiary" means any Subsidiary other than (i) each
Subsidiary organized and existing under laws other than the laws of the United
States or state thereof, (ii) each Subsidiary substantially all of the physical
properties of which are located, or substantially all of the business of which
is carried on, outside of the United States, (iii) each Subsidiary the primary
business of which consists of finance, banking, credit, leasing, insurance,
financial services, or similar operations or any combination thereof, (iv) each
Subsidiary the primary business of which consists of the ownership,
construction, management, operation, sale or leasing of real property or
improvements thereon, similar operations or any combination thereof, (v) each
Subsidiary the primary business of which consists of the exploration for, or the
extraction, production, transporting or marketing of petroleum or gas or other
extracted substances, or similar operations or any combination thereof, (vi)
each Subsidiary the primary business of which consists of the ownership or
operation of one or more transportation businesses or facilities or equipment
related thereto or similar operations or any combination thereof, (vii) each
Subsidiary the primary business of which consists of obtaining funds with which
to make investments outside of the United States, (viii) each Subsidiary
substantially all of the assets of which consist of the ownership directly or
indirectly of the capital stock of one or more Subsidiaries covered by the
preceding clauses (i) through (vii), (ix) each Subsidiary which the Company or
any Subsidiary is, by the terms of the final order of any court of competent
jurisdiction from which no further appeal may be taken, required to dispose of
and which shall by Board Resolution be determined not to be a Restricted
Subsidiary, effective as of the date specified in such resolution and (x) any
corporation a majority of the voting shares of which shall at the time be owned
directly or indirectly by one or more corporations specified in the preceding
clauses (i) through (ix); provided that the Board of Directors may by Board
Resolutions declare any such Subsidiary to be a Restricted Subsidiary, effective
as of the date such resolution is adopted. For purposes of this definition and
any provisions of this Agreement in which the term Restricted Subsidiary
appears, the term "Subsidiary" means, at any date, any corporation of which the
Company, or the Company and one or more Subsidiaries, directly or indirectly own
outstanding shares of capital stock having voting power
19
sufficient to elect, under ordinary circumstances (not dependent upon the
happening of a contingency), a majority of the directors.
"Revaluation Date" means, with respect to an Alternative Currency
Borrowing, the last day of each Interest Period with respect to such Borrowing
(and if such Interest Period has a duration of more than three months, each day
prior to the last day of such Interest Period that occurs at intervals of three
months duration after the first day of such Interest Period).
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans to the Company hereunder,
expressed as an amount representing the maximum aggregate amount of such
Lender's Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.07 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Revolving Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Revolving Commitment, as applicable. The
initial aggregate amount of the Lenders' Revolving Commitments is $500,000,000.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the outstanding principal amount of such Lender's Revolving Loans.
"Revolving Loan" means a Loan made to the Company pursuant to
Section 2.03.
"Secured Debt" means indebtedness for money borrowed if such
indebtedness is secured by a mortgage upon any assets of the Company or a
Restricted Subsidiary, including in such assets, without limitation, shares of
stock or indebtedness of any Restricted Subsidiary owned by the Company or
another Restricted Subsidiary. Indebtedness secured by mortgages on property
existing at the time it is acquired and mortgages securing any part of the
purchase price of property purchased, constructed or improved shall be deemed to
be indebtedness for money borrowed. The Company or a Restricted Subsidiary shall
be deemed to have assumed any indebtedness secured by any mortgage upon any
20
of its property or assets whether or not it has actually done so.
"SPV" has the meaning specified in paragraph (h) of Section 9.04.
"Spot Exchange Rate" means, on any day, (a) with respect to any
Alternative Currency in relation to Dollars, the spot rate at which Dollars are
offered on such day for such Alternative Currency which appears on page FX of
the Reuters Screen at approximately 11:00 a.m., London time (and if such spot
rate is not available on the applicable page of the Reuters Screen, such spot
rate as quoted by Chase Manhattan International Limited at approximately 11:00
a.m., London time), and (b) with respect to Dollars in relation to any specified
Alternative Currency, the spot rate at which such specified Alternative Currency
is offered on such day for Dollars which appears on page FXFX of the Reuters
Screen at approximately 11:00 a.m., London time (and if such spot rate is not
available on the applicable page of the Reuters Screen, such spot rate as quoted
by Chase Manhattan International Limited at approximately 11:00 a.m., London
time). For purposes of determining the Spot Exchange Rate in connection with an
Alternative Currency Borrowing, such Spot Exchange Rate shall be determined as
of the Denomination Date for such Borrowing with respect to transactions in the
applicable Alternative Currency that will settle on the date of such Borrowing.
"Statutory Reserve Rate" means 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 Board to which the Administrative Agent is subject (a) 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 and
(b) with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets
21
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date.
"Subsidiary" means any subsidiary of the Company.
"Syndication Agent" means Citibank, N.A., in its capacity as
syndication agent for the Lenders hereunder.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Termination Date" means July 11, 2002.
"Three-Month Secondary CD Rate" means, 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 Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
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.
"Total Revolving Exposure" means, at any time, the sum of (a) the
total Revolving Credit Exposure of the Lenders at such time, plus (b) the
outstanding principal
22
amount of all Competitive Loans and Negotiated Rate Loans of the Lenders at such
time that are denominated in Dollars, plus (c) the Assigned Dollar Value at such
time of the outstanding principal amount of all Competitive Loans and Negotiated
Rate Loans of the Lenders at such time that are denominated in Alternative
Currencies.
"Transactions" means the execution, delivery and performance by the
Company of this Agreement, the borrowing of Loans and the use of the proceeds
thereof.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to (a) the Adjusted LIBO Rate, (b) the
Alternate Base Rate, (c) in the case of a Competitive Loan or Borrowing, the
LIBO Rate or a Fixed Rate or (d) in the case of a Negotiated Rate Loan or
Borrowing, the rate negotiated between the Company and the applicable Lender.
"Value" means, as to any sale and lease back transaction to which
Section 6.03 applies, the product of (a) the net proceeds from any such sale
(less the amount applied in connection with such sale to the retirement of
outstanding Funded Debt in accordance with Section 6.03(c)) and (b) a fraction,
the numerator of which is the number of full years of the term of the lease
relating to such property (without regard to any options to renew or extend such
term) remaining at the time of the determination of such value and the
denominator of which is the number of full years of such term at the time of
such sale.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.02 Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type
(e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
Borrowing").
23
Section 1.03 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns (subject to any restrictions on such assignments set forth herein), (c)
the words "herein", "hereof" and "hereunder", and words of similar import, shall
be construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
Section 1.04 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective
24
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
Article II
The Credits
Section 2.01 Revolving Commitments. Subject to the terms and
conditions set forth herein, each Lender agrees to make Revolving Loans in
Dollars to the Company from time to time during the Availability Period in an
aggregate principal amount that will not result in (a) such Lender's Revolving
Credit Exposure exceeding such Lender's Revolving Commitment or (b) the Total
Revolving Exposure exceeding the total Revolving Commitments. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Company may borrow, prepay and reborrow Revolving Loans.
Section 2.02 Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Revolving Commitments. Each
Competitive Loan and Negotiated Rate Loan shall be made in accordance with the
procedures set forth in Section 2.04. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Revolving Commitments and Competitive Bids of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.12, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Company may request
in accordance herewith, (ii) each Competitive Borrowing shall be comprised
entirely of Eurocurrency Loans or Fixed Rate Loans as the Company may request in
accordance herewith and (iii) each Negotiated Rate Loan shall be denominated in
Dollars or an Alternative Currency as agreed between the Company and the
applicable Lender. Each Lender at its option may make any Eurocurrency Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not (a) affect the
obligation of the Company to repay such Loan in accordance with the terms of
this Agreement or
25
(b) result in the Company incurring any additional cost or expense (including
pursuant to Section 2.13, 2.15 or 2.18).
(c) At the commencement of each Interest Period for any Eurocurrency
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $10,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $1,000,000; provided that an
ABR Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the total Revolving Commitments. Each Competitive Borrowing shall be
in an aggregate amount that is an integral multiple of $1,000,000 and not less
than $1,000,000. Each Negotiated Rate Borrowing shall be in an aggregate amount
that is separately agreed between the Company and the applicable Lender. Subject
to Section 2.12, Loans made pursuant to any Alternative Currency Borrowing shall
be made in the Alternative Currency specified in the applicable Competitive Bid
Request in an aggregate amount equal to the Dollar amount accepted pursuant to
Section 2.04 (as determined by Chase Manhattan International Limited based upon
the applicable Spot Exchange Rate as of the Denomination Date for such Borrowing
(which determination shall be conclusive absent manifest error)); provided that
for purposes of the borrowing amounts specified above, each Alternative Currency
Borrowing shall be deemed to be in a principal amount equal to its Assigned
Dollar Value. Borrowings of more than one Type and Class may be outstanding at
the same time; provided that there shall not at any time be more than a total of
eight Eurocurrency Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Company shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
Section 2.03 Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Company shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurocurrency Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 10:30
a.m., New York City
26
time, on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Company. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the requested Borrowing Date, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Company's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.05.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurocurrency Revolving Borrowing,
then the Company shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
Section 2.04 Competitive Bid and Negotiated Rate Loan Procedures.
(a) Subject to the terms and conditions set forth herein, from time to time
during the Availability Period the Company may request Competitive Bids and may
(but shall not have any obligation to) accept Competitive Bids and borrow
Competitive Loans denominated in Dollars or any Alternative Currency; provided
that the Total Revolving Exposure at any time shall not exceed the
27
total Revolving Commitments. To request Competitive Bids, the Company shall
notify the Administrative Agent and, in the case of a Borrowing denominated in
any Alternative Currency, Chase Manhattan International Limited, of such request
by telephone, (i) in the case of a Eurocurrency Borrowing denominated in
Dollars, not later than 11:00 a.m., New York City time, four Business Days
before the date of the proposed Borrowing, (ii) in the case of a Eurocurrency
Borrowing denominated in any Alternative Currency, not later than 9:00 a.m., New
York City time, four Business Days before the date of the proposed Borrowing,
and (iii) in the case of a Fixed Rate Borrowing, not later than 10:00 a.m., New
York City time, one Business Day before the date of the proposed Borrowing;
provided that the Company may submit up to (but not more than) two Competitive
Bid Requests on the same day, but a Competitive Bid Request shall not be made
within five Business Days after the date of any previous Competitive Bid Request
from the Company, unless any and all such previous Competitive Bid Requests
shall have been withdrawn or all Competitive Bids received in response thereto
rejected. Each such telephonic Competitive Bid Request shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent (and, in the
case of an Alternative Currency Borrowing, Chase Manhattan International
Limited) of a written Competitive Bid Request in a form approved by the
Administrative Agent and signed by the Company. Each such telephonic and written
Competitive Bid Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount (expressed in Dollars) and currency of the
requested Borrowing;
(ii) the requested Borrowing Date, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurocurrency Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Company's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.05.
28
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent (or, in the case of an Alternative Currency
Borrowing, Chase Manhattan International Limited) shall notify the Lenders of
the details thereof by telecopy, inviting such Lenders to submit Competitive
Bids.
(b) Each Lender may (but shall not have any obligation to) make one
or more Competitive Bids to the Company in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent (and, in
the case of an Alternative Currency Borrowing, Chase Manhattan International
Limited) by telecopy, (i) in the case of a Eurocurrency Competitive Borrowing
denominated in Dollars, not later than 11:00 a.m., New York City time, three
Business Days before the proposed date of such Competitive Borrowing, (ii) in
the case of a Eurocurrency Competitive Borrowing denominated in any Alternative
Currency, not later than 11:00 a.m., New York City time, three Business Days
before the proposed date of such Competitive Borrowing and (iii) in the case of
a Fixed Rate Borrowing, not later than 12:00 noon, New York City time, on the
proposed date of such Competitive Borrowing. Competitive Bids that do not
conform substantially to the form approved by the Administrative Agent may be
rejected by the Administrative Agent and the Administrative Agent shall notify
the applicable Lender as promptly as practicable. Each Competitive Bid shall
specify (i) the principal amount (expressed in Dollars) and currency (which
shall be a minimum of $5,000,000 and an integral multiple of $1,000,000 and
which may equal the entire principal amount of the Competitive Borrowing
requested by the Company) of the Competitive Loan or Loans that the Lender is
willing to make, (ii) the Competitive Bid Rate or Rates at which the Lender is
prepared to make such Loan or Loans (expressed as a percentage rate per annum in
the form of a decimal to no more than four decimal places) and (iii) the
Interest Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent (or, in the case of an Alternative
Currency Borrowing, Chase Manhattan International Limited) shall promptly notify
the Company by telecopy of the Competitive Bid Rate and the principal
29
amount specified in each Competitive Bid and the identity of the Lender that
shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Company
may accept or reject any Competitive Bid. The Company shall notify the
Administrative Agent (and, in the case of an Alternative Currency Borrowing,
Chase Manhattan International Limited) by telephone, confirmed by telecopy in a
form approved by the Administrative Agent, whether and to what extent it has
decided to accept or reject each Competitive Bid (i) in the case of a
Eurocurrency Competitive Borrowing denominated in Dollars, not later than 12:00
noon, New York City time, three Business Days before the date of the proposed
Competitive Borrowing, (ii) in the case of a Eurocurrency Competitive Borrowing
denominated in an Alternative Currency, not later than 12:00 noon, New York City
time, three Business Days before the date of the proposed Competitive Borrowing
and (iii) in the case of a Fixed Rate Borrowing, not later than 1:00 p.m., New
York City time, on the proposed date of the Competitive Borrowing; provided that
(i) the failure of the Company to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) the Company shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Company rejects
a Competitive Bid made at a lower Competitive Bid Rate, (iii) the aggregate
amount of the Competitive Bids accepted by the Company shall not exceed the
aggregate amount of the requested Competitive Borrowing specified in the related
Competitive Bid Request, (iv) to the extent necessary to comply with clause
(iii) above, the Company may accept Competitive Bids at the same Competitive Bid
Rate in part, which acceptance, in the case of multiple Competitive Bids at such
Competitive Bid Rate, shall be made pro rata in accordance with the amount of
each such Competitive Bid, and (v) except pursuant to clause (iv) above, no
Competitive Bid shall be accepted for a Competitive Loan unless such Competitive
Loan is in a minimum principal amount (expressed in Dollars) of $5,000,000 and
an integral multiple of $1,000,000; provided further that if a Competitive Loan
must be in an amount (expressed in Dollars) less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum
amount (expressed in Dollars) of $1,000,000 or any integral multiple thereof,
and in calculating the pro rata allocation of acceptances of portions of
multiple
30
Competitive Bids at a particular Competitive Bid Rate pursuant to clause (iv)
the amounts shall be rounded to integral multiples of $1,000,000 in a manner
determined by the Company. A notice given by the Company pursuant to this
paragraph shall be irrevocable.
(e) The Administrative Agent (or, in the case of an Alternative
Currency Borrowing, Chase Manhattan International Limited) shall promptly notify
each bidding Lender by telecopy whether or not its Competitive Bid has been
accepted (and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the Company at least one quarter of an hour earlier than the time by which
the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
(g) Subject to the terms and conditions set forth herein, from time
to time during the Availability Period the Company may make Negotiated Rate Loan
Requests to any Lender or Lenders and may (but shall not have any obligation to)
borrow Negotiated Rate Loans denominated in Dollars or any Alternative Currency;
provided that the Total Revolving Exposure at any time shall not exceed the
total Revolving Commitments. If the Company and any Lender agree to the terms of
a Negotiated Rate Loan to be made on a Borrowing Date pursuant to a Negotiated
Rate Loan Request, the Company and such Lender shall promptly notify by
telephone the Administrative Agent (and, in the case of an Alternative Currency
Borrowing, Chase Manhattan International Limited) of the aggregate amount
(expressed in Dollars) and currency of the Negotiated Rate Loan to be made on
such Borrowing Date and the respective interest rate, Interest Period and
Interest Payment Dates therefor. Each Lender that agrees to make a Negotiated
Rate Loan shall, at such time, on such Borrowing Date and at such location as
shall be mutually agreed upon between the Company and such Lender, make
available to the Company the amount of the Negotiated Rate Loan to be made by
such Lender, in immediately available funds.
31
Section 2.05 Funding of Borrowings. (a) Each Lender shall make each
Revolving Loan and each Competitive Loan denominated in Dollars (other than any
Negotiated Rate Loan) to be made by it hereunder on the proposed date thereof by
wire transfer of immediately available funds by 2:00 p.m., New York City time
(or time of such other city designated by the Administrative Agent), to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. Each Lender shall make each Competitive Loan
denominated in an Alternative Currency to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 1:00
p.m., London time (or time of such other city designated by Chase Manhattan
International Limited), to the account of Chase Manhattan International Limited
most recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent (or, in the case of an Alternative Currency Borrowing,
Chase Manhattan International Limited) will make such Loans available to the
Company by promptly crediting, before 2:00 p.m. Local Time, the amounts so
received, in like funds, to an account of the Company maintained with (i) the
Administrative Agent in New York City, in the case of Loans denominated in
Dollars and (ii) Chase Manhattan International Limited in London (or such other
city as Chase Manhattan International Limited may designate in respect of the
applicable currency), in the case of Loans denominated in any other Alternative
Currency, in each case designated by the Company in the applicable Borrowing
Request or Competitive Bid Request. Each Lender making a Negotiated Rate Loan
shall make such Loan on the date, at the time and to the account of the Company
separately agreed between such Lender and the Company.
(b) Unless the Administrative Agent and, if applicable, Chase
Manhattan International Limited shall have received notice from a Lender prior
to the proposed date of any Borrowing (other than any Negotiated Rate Borrowing)
that such Lender will not make available to the Administrative Agent or Chase
Manhattan International Limited, as applicable, such Lender's share of such
Borrowing, the Administrative Agent or Chase Manhattan International Limited, as
applicable, may assume that such Lender has made such share available on such
date in accordance with paragraph (a) of this Section and may, in reliance upon
such assumption, make available to the
32
Company a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent or
Chase Manhattan International Limited, as applicable, then the applicable Lender
and the Company severally agree to pay to the Administrative Agent or Chase
Manhattan International Limited, as applicable, forthwith on demand such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to the Company to but excluding the date of
payment to the Administrative Agent or Chase Manhattan International Limited, as
applicable, at (i) in the case of such Lender, the greater of (A)(1) the Federal
Funds Effective Rate in the case of Loans denominated in Dollars and (2) the
rate reasonably determined by Chase Manhattan International Limited to be the
cost to it of funding such amount, in the case of Loans denominated in any other
currency, and (B) a rate determined by the Administrative Agent or Chase
Manhattan International Limited, as applicable, in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Company, the
higher of (A) the interest rate applicable to the Loan in respect of which such
payment is owed or (B) the Administrative Agent's or Chase Manhattan
International Limited's cost of funds, as applicable. If such Lender pays such
amount to the Administrative Agent or Chase Manhattan International Limited, as
applicable, then such amount shall constitute such Lender's Loan included in
such Borrowing.
Section 2.06 Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Company
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Company may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Competitive Borrowings or Negotiated Rate Borrowings, which may not
be converted or continued.
33
(b) To make an election pursuant to this Section, the Company shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.02 if the Company were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Company.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the Company shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each applicable Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
34
(e) If the Company fails to deliver a timely Interest Election
Request with respect to a Eurocurrency Revolving Borrowing prior to the end of
the Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
continued as a Eurocurrency Revolving Borrowing with an Interest Period of one
month's duration. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of Lenders having Revolving Credit Exposures and unused Revolving
Commitments that represent more than 50% of the sum of the total Revolving
Credit Exposures and unused Revolving Commitments so notifies the Company, then,
so long as an Event of Default is continuing (i) no outstanding Revolving
Borrowing may be converted to or continued as a Eurocurrency Borrowing and (ii)
unless repaid, each Eurocurrency Revolving Borrowing shall be converted to an
ABR Borrowing at the end of the Interest Period applicable thereto.
Section 2.07 Termination and Reduction of Revolving Commitments. (a)
(a) Unless previously terminated, the Revolving Commitments shall terminate on
the Termination Date.
(b) The Company may at any time terminate, or from time to time
reduce, the Revolving Commitments; provided that (i) each reduction of the
Revolving Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Company shall not terminate
or reduce the Revolving Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.08, the Total Revolving
Exposure would exceed the total Revolving Commitments.
(c) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Revolving Commitments under paragraph (b) of
this Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the applicable Lenders of the contents thereof. Each notice
delivered by the Company pursuant to this Section shall be irrevocable; provided
that a notice of termination of the
35
Revolving Commitments delivered by the Company may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Company (by notice to the Administrative Agent
on or prior to the specified effective date) if such condition is not satisfied.
Any termination or reduction of the Revolving Commitments shall be permanent.
Each reduction of the Revolving Commitments shall be made ratably among the
Lenders in accordance with their respective Revolving Commitments.
Section 2.08 Repayment of Loans; Evidence of Debt. (a) The Company
hereby unconditionally promises to pay (i) on the Maturity Date to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan, (ii) to the Administrative Agent (or, in the case
of an Alternative Currency Borrowing, Chase Manhattan International Limited) for
the account of each Lender the then unpaid principal amount of each Competitive
Loan on the last day of the Interest Period applicable to such Loan and (iii) to
the applicable Lender the then unpaid principal amount of each Negotiated Rate
Loan on the earlier of the Termination Date and the last day of the Interest
Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Company to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent and Chase Manhattan International
Limited shall maintain accounts in which it shall record (i) the amount of each
Loan made hereunder, the Class and Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Company to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent or Chase Manhattan
International Limited hereunder for the account of the Lenders and each Lender's
share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of
36
any Lender, the Administrative Agent or Chase Manhattan International Limited to
maintain such accounts or any error therein shall not in any manner affect the
obligation of the Company to repay its Loans in accordance with the terms of
this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Company shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and (i)
with respect to any Revolving Loan, substantially in the form of Exhibit D, and
(ii) with respect to any Loan that is not a Revolving Loan, in a form approved
by the Company and the Administrative Agent, in each case appropriately
completed in conformity with this Agreement. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
(f) Each Lender that makes any Negotiated Rate Loan shall notify the
Administrative Agent and, if applicable, Chase Manhattan International Limited
of each such Loan and of each payment of principal in respect thereof.
Section 2.09 Prepayment of Loans. (a) The Company shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section;
provided that the Company shall not have the right to prepay any Competitive
Loan or Negotiated Rate Loan without the prior consent of the Lender thereof.
(b) If, on any Revaluation Date prior to the Termination Date, the
Total Revolving Exposure exceeds 105% of the total Revolving Commitments, then
the Company shall, not later than the third Business Day after the Company
receives notice thereof from the Administrative Agent, prepay, without penalty
or premium (subject to Section 2.14), one or more Borrowings in an aggregate
amount sufficient to reduce the Total Revolving Exposure to an amount not
exceeding the total Revolving Commitments;
37
provided that the Company shall not be required to prepay any Competitive Loans
or Negotiated Rate Loans pursuant to this paragraph.
(c) The Company shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Revolving Commitments as contemplated by Section 2.07, then
such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.07. Promptly following receipt of any such
notice relating to a Revolving Borrowing, the Administrative Agent shall advise
the Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section 2.02.
Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.11.
Section 2.10 Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the rate of 0.06% per annum on the daily amount of the Revolving
Commitment of such Lender (whether used or unused) during the period from and
including the Effective Date to but excluding the date on which such Revolving
Commitment terminates; provided that, if such Lender continues to have any
Revolving Credit Exposure after its Revolving Commitment terminates (including
as a result of the exercise by the Company of its option pursuant to Section
2.21), then such facility fee shall continue to accrue on the daily amount of
such Lender's Revolving Credit Exposure from and including the date on which its
Revolving Commitment terminates to but excluding the date
38
on which such Lender ceases to have any Revolving Credit Exposure. The
Administrative Agent will give the Company three Business Days' notice of the
amount of the facility fee payable on each payment date. Accrued facility fees
shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Revolving Commitments
terminate, commencing on the first such date to occur after the date hereof;
provided that any facility fees accruing after the date on which the Revolving
Commitments terminate (other than any facility fees accruing after the
Termination Date as a result of the Company exercising its option under Section
2.21) shall be payable on demand. Any facility fees accruing after the Revolving
Commitments terminate upon the Company exercising its option under Section 2.21
shall be payable quarterly in arrears on the last day of March, June, September
and December of the year following the Termination Date and on the Maturity
Date, commencing on the first such date to occur after the Termination Date. All
facility fees shall be payable in Dollars and shall be computed on the basis of
a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(b) For each day on which the Total Revolving Exposure is in excess
of 50% of the total Revolving Commitments as of such day (and for each day after
the day on which the Revolving Commitments terminate if the Total Revolving
Exposure is in excess of 50% of the total Revolving Commitments as in effect as
of the day the Revolving Commitments terminate, including as a result of the
Company exercising its option under Section 2.21) the Company agrees to pay to
the Administrative Agent for the account of each Lender a utilization fee, which
shall accrue at a rate per annum equal to 0.10% on the amount of the Revolving
Credit Exposure of such Lender on such day. Accrued utilization fees shall be
payable in arrears on the last day of March, June, September and December of
each year and on the date on which the Revolving Commitments terminate,
commencing on the first such date to occur after the date hereof; provided that
any utilization fees accruing after the date on which the Revolving Commitments
terminate (other than any utilization fees accruing after the Termination Date
as a result of the Company exercising its option under Section 2.21) shall be
payable on demand. Any utilization fees accruing after the Revolving
39
Commitments terminate upon the Company exercising its option under Section 2.21
shall be payable in arrears on the last day of March, June, September and
December of the year following the Termination Date until the Maturity Date,
commencing on the first such date to occur after the Termination Date. All
utilization fees shall be payable in Dollars and shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Company agrees to pay to the Administrative Agent, for its
own account, fees payable in Dollars in the amounts and at the times separately
agreed upon between the Company and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees and utilization fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.
Section 2.11 Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest (i) in the case of a Eurocurrency Revolving Loan, at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus 0.24% per annum,
or (ii) in the case of a Eurocurrency Competitive Borrowing, at the LIBO Rate
for the Interest Period in effect for such Borrowing plus (or minus, as
applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Each Negotiated Rate Loan shall bear interest at the rate agreed
by the Company and the applicable Lender.
(e) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Company hereunder (other
than with respect to any Negotiated Rate Loan) is not paid when due, whether at
stated maturity, upon acceleration or otherwise,
40
such overdue amount shall bear interest, after as well as before judgment, at a
rate per annum equal to (i) in the case of overdue principal of any Loan, 2%
plus the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount, 2% plus the
rate applicable to ABR Loans as provided in paragraph (a) of this Section. If
all or a portion of the principal amount of any Negotiated Rate Loan shall not
be paid when due, whether at stated maturity, upon acceleration or otherwise,
such overdue amount shall, without limiting any rights of any Lender under this
Agreement, bear interest, after as well as before judgment, at the rate per
annum as shall be mutually agreed upon between the Company and the applicable
Lender or, in the absence of such agreement, at the rate determined pursuant to
the preceding sentence.
(f) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments (or, in the event that the Company
exercises its option under Section 2.21, on the first anniversary of the
Termination Date); provided that (i) interest accrued pursuant to paragraph (e)
of this Section shall be payable on demand, (ii) in the event of any repayment
or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan
prior to the end of the Availability Period), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurocurrency
Revolving Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion.
(g) All interest hereunder shall be computed on the basis of a year
of 360 days (subject to any agreement to the contrary, in the case of Negotiated
Rate Loans), except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and
41
such determination shall be conclusive absent manifest error.
Section 2.12 Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing denominated in
any currency:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for the currency in which such Eurocurrency Borrowing is or is
to be denominated (the "Applicable Currency") for such Interest Period; or
(b) the Administrative Agent is advised by Lenders having Revolving
Credit Exposures and unused Revolving Commitments representing more than
50% of the sum of the total Revolving Credit Exposures and unused
Revolving Commitments at such time (or, in the case of a Eurocurrency
Competitive Loan, the Lender that is required to make such Loan) that the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period for the Applicable Currency will not adequately and fairly reflect
the cost to such Lenders (or Lender) of making or maintaining their Loans
(or its Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be
ineffective, and such Borrowing shall be converted to or continued on the last
day of the Interest Period applicable thereto as an ABR Borrowing, (ii) if any
Borrowing Request requests a Eurocurrency Revolving Borrowing, such Revolving
Borrowing shall be made as an ABR Borrowing (or such Borrowing shall not be made
if the Company revokes (and in such circumstances, such Borrowing Request may be
revoked notwithstanding any other provision of this Agreement) such Borrowing
Request by telephonic notice, confirmed promptly in writing, not later than one
Business Day prior to the proposed date of such Borrowing) and (iii) any request
by the Company for a Eurocurrency
42
Competitive Borrowing denominated in the Applicable Currency shall be
ineffective; provided that if the circumstances giving rise to such notice do
not affect all the Lenders, then requests by the Company for Eurocurrency
Competitive Borrowings denominated in the Applicable Currency may be made to
Lenders that are not affected thereby.
Section 2.13 Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurocurrency Loans or Fixed Rate
Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise), then the Company
will pay to such Lender such additional amount or amounts as will compensate
such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Company will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
43
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Company and shall be conclusive absent manifest error. The Company shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof. In requesting any compensation pursuant to this Section, each
Lender will use good faith efforts to treat the Company in substantially the
same manner as such Lender treats other similarly situated borrowers under
similar circumstances.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that, in the case of a
Change in Law, the Company shall not be required to compensate a Lender pursuant
to this Section for any increased costs or reductions incurred more than 270
days prior to the date that such Lender notifies the Company of the Change in
Law giving rise to such increased costs or reductions and of such Lender's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a
Lender shall not be entitled to compensation pursuant to this Section in respect
of any Competitive Loan if the Change in Law that would otherwise entitle it to
such compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
Section 2.14 Break Funding Payments. In the event of (a) the payment
of any principal of any Eurocurrency Loan, Fixed Rate Loan, or, unless otherwise
agreed to by the Company and the applicable Lender with respect to a Negotiated
Rate Loan, a Negotiated Rate Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurocurrency Loan other than on the last day of the
Interest Period applicable thereto, (c) the failure to borrow, convert, continue
or prepay any Revolving Loan on the date specified in any notice
44
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.09(b) and is revoked in accordance therewith), (d) the failure
to borrow any Competitive Loan after accepting the Competitive Bid to make such
Loan, or (e) the assignment of any Eurocurrency Loan, Fixed Rate Loan or, unless
otherwise agreed to by the Company and the applicable Lender with respect to a
Negotiated Rate Loan, Negotiated Rate Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Company
pursuant to Section 2.17, then, in any such event, the Company shall compensate
each Lender for the loss, cost and expense attributable to such event. In the
case of a Eurocurrency Loan, such loss, cost or expense to any Lender may
include an amount reasonably determined by such Lender to be incurred by reason
of the liquidation or reemployment of funds, but excluding loss of anticipated
profits. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Company and shall be conclusive absent manifest error. The Company shall
pay such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof.
Section 2.15 Taxes. (a) Any and all payments by or on account of any
obligation of the Company hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the Company
shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent or Lender (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Company shall make such deductions and (iii) the
Company shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Company shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Company shall indemnify the Administrative Agent or Lender,
within 10 days after written demand therefor is made (which demand shall set
45
forth in reasonable detail the basis for the determination that the Company is
liable), for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent or such Lender, as the case may be, on or with respect to
any payment by or on account of any obligation of the Company hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Company by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Company to a Governmental Authority, the Company shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Company is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Company (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Company as will permit such payments to be
made without withholding or at a reduced rate, provided that such Foreign Lender
has received written notice from the Company advising it of the availability of
such exemption or reduction and supplying all applicable documentation.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Company or with respect to which the
Company has paid additional amounts pursuant to this Section 2.15, it shall pay
over such refund to the Company
46
(but only to the extent of indemnity payments made, or additional amounts paid,
by the Company under this Section 2.15 with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided, that the Company, upon the request of the Administrative
Agent or such Lender, agrees to repay the amount paid over to the Company (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to the
Company or any other Person.
Section 2.16 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Company shall make each payment required to be made by it
hereunder other than any payments with respect to Negotiated Rate Loans (whether
of principal, interest or fees, or of amounts payable under Section 2.13, 2.14,
2.15 or 2.18, or otherwise) prior to 12:00 noon, Local Time on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent or Chase Manhattan International Limited, as applicable, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments to be made to the Administrative
Agent shall be made to it at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
all such payments to be made to Chase Manhattan International Limited shall be
made to it at its offices at ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and
payments pursuant to Sections 2.13, 2.14, 2.15, 2.18 and 9.03 shall be made
directly to the Persons entitled thereto. The Administrative Agent or Chase
Manhattan International Limited, as applicable, shall distribute any such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. All payments (including
prepayments) to be made by the Company on account of principal, interest
47
and fees relating to Negotiated Rate Loans shall be made to the Lender with
respect thereto on such terms, at such address and at such time as shall be
mutually agreed upon between the Company and the applicable Lender in Dollars or
the Alternative Currency agreed on the date due. If any payment hereunder shall
be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such
extension. All payments hereunder of principal or interest in respect of any
Loan (or of any amounts payable under Section 2.14 or, at the request of the
applicable Lender, Section 2.13, 2.15 or 2.18 in respect of any Loan) shall be
made in Dollars, except as otherwise expressly provided. Any payment required to
be made by the Administrative Agent or Chase Manhattan International Limited
hereunder shall be deemed to have been made by the time required if the
Administrative Agent or Chase Manhattan International Limited, as applicable,
shall, at or before such time, have taken the necessary steps to make such
payment in accordance with the regulations or operating procedures of the
clearing or settlement system used by the Administrative Agent or Chase
Manhattan International Limited, as applicable, to make such payment. Any amount
payable by the Administrative Agent or Chase Manhattan International Limited, as
applicable, to one or more Lenders in the national currency of a member state of
the European Union that has adopted the Euro as its lawful currency shall be
paid in Euro.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent or Chase Manhattan International Limited to pay
fully all amounts of principal, interest and fees then due hereunder (other than
with respect to Negotiated Rate Loans), such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder (other than with respect
to Negotiated Rate Loans), ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, towards payment of principal then due hereunder (other than with
respect to Negotiated Rate Loans), ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties.
48
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Company pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
to any assignee or participant, other than to the Company or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Company consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Company rights of set-off and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Company in the amount of
such participation.
(d) Unless the Administrative Agent or Chase Manhattan International
Limited, as applicable, shall have received notice from the Company prior to the
date on which any payment is due to the Administrative Agent or Chase Manhattan
International Limited, as applicable, for the account of the Lenders hereunder
that the Company will not make such payment, the Administrative Agent or Chase
Manhattan International Limited, as applicable, may assume that the Company has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the
Company has not in fact made such
49
payment, then each of the Lenders severally agrees to repay to the
Administrative Agent or Chase Manhattan International Limited, as applicable,
forthwith on demand the amount so distributed to such Lender with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent or Chase
Manhattan International Limited, as applicable, at (i) the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
or Chase Manhattan International Limited, as applicable, in accordance with
banking industry rules on interbank compensation (in the case of an amount
denominated in Dollars) and (ii) the rate reasonably determined by the
Administrative Agent or Chase Manhattan International Limited, as applicable, to
be the cost to it of funding such amount (in the case of an amount denominated
in any other currency).
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(b) or 2.16(d), then the Administrative Agent or
Chase Manhattan International Limited, as applicable, may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent or Chase Manhattan International, as
applicable, for the account of such Lender to satisfy such Lender's obligations
under such Sections until all such unsatisfied obligations are fully paid.
Section 2.17 Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.13 or 2.18, or if the Company
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.13, 2.15 or 2.18, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Company
hereby agrees to pay all reasonable costs and
50
expenses incurred by any Lender in connection with any such designation or
assignment.
(b) If any Lender requests compensation under Section 2.13 or 2.18,
or if the Company is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, either (x) so long as no Default has occurred and is
continuing, terminate the Revolving Commitment of such Lender and prepay all
outstanding Loans (other than Competitive Loans and Negotiated Rate Loans) of
such Lender or (y) require such Lender to assign and delegate, without recourse
(in accordance with and subject to the restrictions contained in Section 9.04),
all its interests, rights and obligations under this Agreement (other than any
outstanding Competitive Loans and Negotiated Rate Loans held by it) to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) in the case of
an assignment to a Person not then a Lender, the Company shall have received the
prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, and (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans (other than Competitive
Loans and Negotiated Rate Loans), accrued interest thereon, accrued fees and all
other amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Company (in the case
of all other amounts). The Company shall not be entitled to terminate a Lender's
Revolving Commitment and prepay its Loans as provided in clause (x) above, and a
Lender shall not be required to make any such assignment and delegation as
provided in clause (y) above, if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Company to effect such
termination and prepayment or to require such assignment and delegation, as the
case may be, cease to apply.
Section 2.18 Additional Reserve Costs. (a) If and so long as any
Lender is required to make special deposits with the Bank of England, or to
maintain reserve asset ratios or to pay fees (other than deposits or
51
reserves reflected in the determination of the Adjusted LIBO Rate), in each case
in respect of such Lender's Eurocurrency Loans in any Alternative Currency, such
Lender may require the Company to pay, contemporaneously with each payment of
interest on each of such Loans, additional interest on such Loans at a rate per
annum equal to the MLA Cost calculated in accordance with the formula and in the
manner set forth in Exhibit C.
(b) If and so long as any Lender is required to comply with reserve
assets, liquidity, cash margin or other requirements of any monetary or other
authority (other than any such requirements reflected in the determination of
the Adjusted LIBO Rate) (including any such requirement imposed by the European
Central Bank or the European System of Central Banks, but excluding requirements
reflected in the Statutory Reserves or the MLA Cost) in respect of any of such
Lender's Eurocurrency Loans in any Alternative Currency, such Lender may require
the Company to pay, contemporaneously with each payment of interest on each of
such Lender's Eurocurrency Loans subject to such requirements, additional
interest on such Loans at a rate per annum specified by such Lender to be the
cost to such Lender of complying with such requirements in relation to such
Loan.
(c) Any additional interest owed pursuant to paragraph (a) or (b)
above shall be determined by the relevant Lender, which determination shall be
conclusive absent manifest error, and notified to the Company (with a copy to
the Administrative Agent and, if applicable, Chase Manhattan International
Limited) at least five Business Days before each date on which interest is
payable for the relevant Loan, and such additional interest so notified to the
Company by such Lender shall be payable to the Administrative Agent or Chase
Manhattan International Limited, as applicable, for the account of such Lender
on each date on which interest is payable for such Loan.
Section 2.19 Redenomination of Certain Designated Foreign
Currencies. (a) Each obligation of any party to this Agreement to make a payment
denominated in the national currency unit of any member state of the European
Union that adopts the Euro as its lawful currency after the date hereof shall be
redenominated into Euro at the time of such adoption (in accordance with the EMU
Legislation). If, in relation to the currency of any such
52
member state, the basis of accrual of interest expressed in this Agreement in
respect of that currency shall be inconsistent with any convention or practice
in the London Interbank Market for the basis of accrual of interest in respect
of the Euro, such expressed basis shall be replaced by such convention or
practice with effect from the date on which such member state adopts the Euro as
its lawful currency; provided that if any Borrowing in the currency of such
member state is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Borrowing, at the end of the then
current Interest Period.
(b) Without prejudice and in addition to any method of conversion or
rounding prescribed by any EMU Legislation and (i) without limiting the
liability of the Company for any amount due under this Agreement and (ii)
without increasing the Revolving Commitment of any Lender, all references in
this Agreement to minimum amounts (or integral multiples thereof) denominated in
the national currency unit of any member state of the European Union that adopts
the Euro as its lawful currency after the date hereof shall, immediately upon
such adoption, be replaced by references to such minimum amounts (or integral
multiples thereof) as shall be specified herein with respect to Borrowings
denominated in Euro.
(c) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent (in consultation
with the Company) may from time to time specify to be appropriate to reflect the
adoption of the Euro by any member state of the European Union and any relevant
market conventions or practices relating to the Euro.
Section 2.20 Assigned Dollar Value. (a) With respect to each
Alternative Currency Borrowing, its "Assigned Dollar Value" shall mean the
following:
(i) (A) in the case of a Competitive Borrowing, the Dollar amount
thereof accepted pursuant to Section 2.04 or (B) in the case of a
Negotiated Rate Borrowing, (x) denominated in Dollars, the Dollar amount
of such Borrowing and (y) denominated in any Alternative Currency, the
Dollar Equivalent thereof as determined by the Administrative Agent or
Chase Manhattan International Limited, as applicable, based
53
upon the applicable Spot Exchange Rate at or about the date of such
Borrowing, which determination shall be conclusive absent manifest error)
unless and until adjusted pursuant to the following clause (ii), and
(ii) as of each Revaluation Date with respect to such Alternative
Currency Borrowing, the "Assigned Dollar Value" of such Borrowing shall be
adjusted to be the Dollar Equivalent thereof (as determined by the
Administrative Agent based upon the applicable Spot Exchange Rate as of
the date that is three Business Days before such Revaluation Date (which
determination shall be conclusive absent manifest error))(subject to
further adjustment in accordance with this clause (ii) thereafter).
(b) The Assigned Dollar Value of an Alternative Currency Loan shall
equal the Assigned Dollar Value of the Alternative Currency Borrowing of which
such Loan is a part multiplied by the percentage of such Borrowing represented
by such Loan.
(c) The Administrative Agent or Chase Manhattan International
Limited, as applicable, shall notify the Company of any change in the Assigned
Dollar Value of any Alternative Currency Borrowing promptly following
determination of such change.
Section 2.21 Term-Out Option. The Company may, so long as no Default
shall have occurred and be continuing and upon 15 days' prior written notice to
the Administrative Agent, elect that Revolving Loans outstanding on the
Termination Date remain outstanding after the Termination Date as term loans
that will mature on the first anniversary of the Termination Date; provided that
all Revolving Commitments will terminate on the Termination Date, and additional
Revolving Borrowings will not be permitted after the Termination Date. This
Section shall not apply to Competitive Loans and Negotiated Rate Loans, which
must be repaid on or prior to the Termination Date. If the Company exercises its
option pursuant to this Section, Revolving Loans that are outstanding on the
Termination Date will continue to constitute "Revolving Loans" for all purposes
of this Agreement after the Termination Date.
54
Article III
Representations and Warranties
The Company represents and warrants to the Lenders that:
Section 3.01 Organization; Powers. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization and has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, (a) is qualified to do business
in and (b) is in good standing in, every jurisdiction where such qualification
is required.
Section 3.02 Authorization; Enforceability. The Transactions are
within the Company's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by the Company and constitutes a legal, valid
and binding obligation of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
Section 3.03 Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation binding upon the Company or any of its Material
Subsidiaries or the charter, by-laws or other organizational documents of the
Company or any of its Subsidiaries or any order of any Governmental Authority
binding upon the Company or any of its Subsidiaries, (c) will not violate or
result in a default under any material indenture, agreement or other instrument
binding upon the Company or any of its Material Subsidiaries or its assets, or
give rise to a right thereunder to require any payment to be made by the Company
or any of its Subsidiaries, and (d) will not result in the
55
creation or imposition of any Lien on any material asset of the Company or any
of its Subsidiaries.
Section 3.04 Financial Condition; No Material Adverse Change. (a)
(a) The Company has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders equity and cash flows (i) as of and
for the fiscal year ended December 31, 2000, reported on by
PricewaterhouseCoopers, independent public accountants, and (ii) as of and for
the fiscal quarter and the portion of the fiscal year ended March 31, 2001, as
filed by the Company with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended. Such financial statements present
fairly, in all material respects, the financial position and results of
operations and cash flows of the Company and its consolidated Subsidiaries as of
such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) Since December 31, 2000, there has been no material adverse
change in the business, assets, operations or financial condition of the Company
and its Subsidiaries, taken as a whole.
Section 3.05 Properties. (a) Each of the Company and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for such defects in title
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
(b) Each of the Company and its Subsidiaries owns, or is licensed to
use, all trademarks, trade names, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Company and its
Subsidiaries does not, to the knowledge of the Company, infringe upon the rights
of any other Person, except for any such infringements that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Section 3.06 Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority
56
pending against or, to the knowledge of the Company, threatened against or
affecting the Company or any of its Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii)
that specifically involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, none of the Company or any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has incurred any Environmental Liability,
(iii) has received notice of any claim with respect to any Environmental
Liability or (iv) knows of any facts or circumstances that could reasonably be
expected to result in any Environmental Liability.
Section 3.07 Compliance with Laws and Agreements. Each of the
Company and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
Section 3.08 Investment and Holding Company Status. None of the
Company or any of Subsidiaries is (a) an "investment company" registered or
required to be registered under the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
Section 3.09 Taxes. Each of the Company and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) any Taxes that are being contested in good faith by
appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on
57
its books adequate reserves or (b) to the extent that the failure to do so could
not reasonably be expected to result in a Material Adverse Effect.
Section 3.10 ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is likely to occur, could reasonably be expected to result in a
Material Adverse Effect.
Section 3.11 Disclosure. The Information Memorandum furnished by or
on behalf of the Company to the Administrative Agent and Lenders in connection
with the negotiation of this Agreement (as modified or supplemented by other
information so furnished) did not as of the date thereof contain any material
misstatement of fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
Article IV
Conditions
Section 4.01 Effective Date. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed
on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company,
substantially in the form of Exhibit B and covering such other matters
relating to the Company, this Agreement or the Transactions as the
Required Lenders shall reasonably request. The Company hereby requests
such counsel to deliver such opinions.
58
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Company, the authorization of the Transactions and any other legal matters
relating to the Company, this Agreement or the Transactions, all in form
and substance reasonably satisfactory to the Administrative Agent and its
counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President or
a Financial Officer of the Company, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the Company hereunder.
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) no later than five Business Days after the date hereof
(and, in the event such conditions are not so satisfied or waived, the Revolving
Commitments shall terminate at such time).
Section 4.02 Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing is subject to the satisfaction of
the following conditions:
(a) The representations and warranties of the Company set forth in
this Agreement (other than, for any Borrowing after the Effective Date,
the representations and warranties set forth in Sections 3.04(b) and 3.06)
shall be true and correct on and as of the date of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Company on the date
59
thereof as to the matters specified in paragraphs (a) and (b) of this Section.
Article V
Affirmative Covenants
Until the Revolving Commitments have expired or been terminated and
the principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full, the Company covenants and agrees with the Lenders that:
Section 5.01 Financial Statements and Other Information. The Company
will furnish to the Administrative Agent (with sufficient copies for each
Lender):
(a) within 120 days after the end of each fiscal year of the
Company, its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for
such year, setting forth in each case in comparative form the figures for
the previous fiscal year, all reported on by PricewaterhouseCoopers or
other independent public accountants of recognized national standing to
the effect that such consolidated financial statements present fairly in
all material respects the financial condition and results of operations of
the Company and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, its consolidated balance
sheet and related statements of operations, stockholders' equity and cash
flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form
the figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as presenting fairly in all
material respects the financial condition and results of operations of the
Company and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
60
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Company (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Section
6.06 and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements
referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate; and
(d) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Company or any Subsidiary, or compliance with the terms of this Agreement,
as the Administrative Agent or any Lender may reasonably request.
The Company may at its option satisfy its obligations under Section 5.01(a) and
5.01(b) by delivering copies of its Form 10-K and Form 10-Q filings (or any
successor forms), respectively, as filed with the Securities and Exchange
Commission for the relevant period; provided that such filings contain the
required information and are certified by a Financial Officer of the Company.
Section 5.02 Notices of Material Events. The Company will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default; and
(b) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Company and its Subsidiaries in an aggregate
amount exceeding $50,000,000.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
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Section 5.03 Existence; Conduct of Business. The Company will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises; provided
that the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03 or any transfer, disposition or
abandonment of rights, licenses, permits, privileges or franchises that could
not reasonably be expected to have a Material Adverse Effect.
Section 5.04 Payment of Obligations. The Company will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect,
except where (a) the validity or amount thereof is being contested in good faith
by appropriate proceedings and (b) the Company or such Subsidiary has set aside
on its books adequate reserves with respect thereto in accordance with GAAP.
Section 5.05 Maintenance of Properties; Insurance. The Company will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
in good working order and condition, ordinary wear and tear excepted, except for
any such failure as would not have a Material Adverse Effect, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are considered appropriate by management of
the Company.
Section 5.06 Books and Records; Inspection Rights. The Company will,
and will cause each of its Subsidiaries to, keep proper books of record and
account that will enable the Company to comply with its obligations under
Section 5.01(a) and (b) of this Agreement. The Company will permit any
representatives designated by the Administrative Agent or any Lender, at the
expense of the Administrative Agent or such Lender, upon reasonable prior
notice, to visit and inspect its properties, and to discuss its affairs,
finances and condition with its officers, all at such reasonable times (during
normal business hours) and as often as reasonably requested.
Section 5.07 Compliance with Laws. The Company will, and will cause
each of its Subsidiaries to, comply
62
with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
Section 5.08 Use of Proceeds. The proceeds of the Loans will be used
only for general corporate purposes, including support of commercial paper
issued by the Company. No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that entails a violation of Regulation U
or X of the Board.
Section 5.09 Litigation Report. Promptly, and in any event within
five days, after the Company has filed with the Securities and Exchange
Commission (a) the Company's quarterly report on Form 10-Q (or any successor
form) for any fiscal quarter or (b) a Form 8-K (or any successor form) relating
to legal proceedings, the Company shall furnish to the Administrative Agent
(with sufficient copies for each Lender) a copy of such Form 10-Q (including, if
requested by any Lender, any exhibits thereto relating to information required
by Item 1 ("Legal Proceedings") of Part II of Form 10-Q) or such Form 8-K, as
applicable.
Article VI
Negative Covenants
Until the Revolving Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Company covenants and agrees with the Lenders that:
Section 6.01 Restrictions on Borrowing by Restricted Subsidiaries.
The Company will not permit any Restricted Subsidiary to issue, assume,
guarantee or incur any Funded Debt except:
(a) Funded Debt owed to the Company or to a Restricted Subsidiary;
(b) Funded Debt which is Secured Debt permitted by Section 6.02
without equally and ratably securing the Obligations;
63
(c) unsecured Funded Debt issued, assumed, guaranteed or incurred
which represents an extension, renewal or refunding of Secured Debt
permitted by the first paragraph of Section 6.02 to the extent of the
principal amount of the Secured Debt so extended, renewed or refunded;
(d) unsecured Funded Debt in an amount which, if it were Secured
Debt, would be permitted by the second paragraph of Section 6.02 without
equally and ratably securing the Obligations;
(e) unsecured Funded Debt assumed by a Restricted Subsidiary in
connection with its merger with, or acquisition of all or a substantial
part of the assets and business of, any Person and which constitutes
existing indebtedness or an existing guarantee of such Person;
(f) unsecured Funded Debt of a Person existing at the time it
becomes a Restricted Subsidiary;
(g) Funded Debt created in connection with any industrial revenue
bond, pollution control bond or similar financing arrangement between the
Company or any Restricted Subsidiary and the United States, any State
thereof or any municipal government or other governmental body or agency;
and
(h) any extension, renewal or refunding (or successive extensions,
renewals or refundings), in whole or in part, of any Funded Debt referred
to in the foregoing clauses (a) through (g).
Section 6.02 Restrictions on Secured Debt. The Company will not, and
will not permit any Restricted Subsidiary to, issue, assume, guarantee or incur
any Secured Debt, without effectively providing that the Obligations (together
with, if the Company shall so determine, any other indebtedness of the Company
or such Restricted Subsidiary then existing or thereafter created ranking
equally with the Obligations, including guarantees of indebtedness of others)
shall be secured equally and ratably with (or prior to) such Secured Debt, so
long as such Secured Debt shall be so secured, except that this Section shall
not apply to Secured Debt secured by:
(a) mortgages on property of any corporation existing at the time
such corporation becomes a Restricted Subsidiary;
64
(b) mortgages on property of any Person which is merged with, or all
or a substantial part of whose properties are acquired by, the Company or
any Restricted Subsidiary; provided that any such mortgage shall have
existed prior to such merger or acquisition and shall not have applied to
any property owned by the Company or any Restricted Subsidiary immediately
prior to such merger or acquisition;
(c) mortgages upon or with respect to any property acquired,
constructed or improved by the Company or any Restricted Subsidiary after
the date hereof which are created, incurred or assumed contemporaneously
with, or within 90 days after, such acquisition, completion of
construction or completion of improvement to secure or provide for the
payment of any part of the purchase price of such property or the cost of
such construction or improvement, or mortgages upon or with respect to any
property existing at the time of acquisition thereof; provided that any
such mortgage shall not apply to any property theretofore owned by the
Company or any Restricted Subsidiary other than any theretofore unimproved
real property on which the property so constructed, or the improvement, is
located;
(d) mortgages which secure indebtedness owing to the Company or to a
Restricted Subsidiary;
(e) the mortgage of any property of the Company or any Restricted
Subsidiary in favor of the United States, or any State thereof, or any
department, agency or instrumentality of either, to secure partial,
progress, advance or other payments to the Company or any Restricted
Subsidiary pursuant to the provisions of any contract or statute;
(f) the mortgage of any property of the Company or any Restricted
Subsidiary created, incurred or assumed in connection with any industrial
revenue bond, pollution control bond or similar financing arrangement
between the Company or any Restricted Subsidiary and the United States,
any state thereof or any municipal government or other governmental body
or agency; or
(g) any extension, renewal or refunding (or successive extensions,
renewals or refundings), in whole or in part, of any mortgage referred to
in the foregoing clauses (a) through (f), or of any indebtedness secured
thereby; provided that such extension, renewal or refunding mortgage shall
be limited to all or any part of the same
65
property that secured the mortgage extended, renewed or refunded (plus
improvements on such property).
Notwithstanding the foregoing provisions of this Section 6.02, the
Company and any one or more Restricted Subsidiaries may issue, assume, guarantee
or incur Secured Debt, without equally and ratably securing the Obligations, if
after giving effect thereto, the sum of (i) the aggregate amount of all Secured
Debt of the Company and its Restricted Subsidiaries (except Secured Debt
pursuant to clauses (a) through (g) of the first paragraph of this Section
6.02), (ii) the aggregate Value of sale and lease back transactions to which
Section 6.03 applies and (iii) the aggregate amount of all unsecured outstanding
Funded Debt of all Restricted Subsidiaries permitted under Section 6.01(d)(or
any extension, renewal or refunding thereof), does not exceed 10% of
Consolidated Net Tangible Assets.
If the Company shall hereafter be required to secure the Obligations
equally and ratably with (or prior to) any other indebtedness pursuant to this
Section 6.02, (i) the Company will promptly deliver to the Administrative Agent
a certificate of a Financial Officer of the Company stating that such covenant
has been complied with, and an opinion of counsel to the Company stating that in
the opinion of such counsel such covenant has been complied with, that any
instruments executed by the Company or any Restricted Subsidiary in the
performance of such covenant comply with the requirements of such covenant and
that all steps necessary to perfect such security have been taken, and (ii) the
Administrative Agent is hereby authorized to enter into such instruments and to
take such action, if any, as it may deem advisable to enable it to enforce the
rights of the Lenders of such Obligations so secured.
Section 6.03 Restrictions on Sale and Lease Back Transactions. The
Company will not, and will not permit any Restricted Subsidiary to, sell or
transfer (other than to the Company or to a Restricted Subsidiary) any property
owned by the Company or any Restricted Subsidiary on the date hereof, which (as
determined by a Board Resolution) constitutes a major facility of the Company
and its Restricted Subsidiaries, taken as a whole, with the intention of the
Company or any Restricted Subsidiary taking back a lease of such property,
except a lease for a temporary period (not exceeding five years) by
66
the end of which it is intended that the use of such property by the lessee will
be discontinued. Notwithstanding the foregoing, the Company or any Restricted
Subsidiary may so sell any such property and lease it back if (a) the Company
promptly gives notice of such sale to the Administrative Agent; (b) the net
proceeds of such sale are at least equal to the fair value (as determined by
Board Resolution) of such property; and (c) the Company shall, and in any such
case the Company covenants that it will, within 120 days after such sale, apply,
or cause such Restricted Subsidiary to apply, not less than an amount equal to
the net proceeds of such sale to the retirement of outstanding Funded Debt of
the Company and/or any Restricted Subsidiary (other than any thereof which is
owed to the Company or any Restricted Subsidiary and other than any thereof
which is subordinate in right of payment to the Obligations); provided that the
amount to be applied to the retirement of Funded Debt of the Company or such
Restricted Subsidiary shall be reduced by
(i) the amount of Secured Debt which the Company or such Restricted
Subsidiary could at that time issue, assume, guarantee or incur pursuant
to the second paragraph of Section 6.02 without equally and ratably
securing the Obligations, and
(ii) the principal amount of any debentures, notes or other
instruments evidencing Funded Debt of the Company (which may include
Obligations) or of a Restricted Subsidiary delivered within 120 days after
such sale to the applicable trustee for retirement and cancellation, other
than any debentures, notes or other instruments retired by payment at
maturity or pursuant to any mandatory sinking fund payment or any
mandatory prepayment provision.
Section 6.04 Fundamental Changes. (a) The Company shall not
consolidate with or merge into any other Person or convey or transfer its
properties and assets substantially as an entirety to any Person, unless
(i) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety
shall be a corporation organized and existing under the laws of the United
States or any State or the
▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ and expressly assume, in form reasonably satisfactory
to the Administrative Agent, the due and punctual payment of the principal
of (and premium, if any) and interest, if any, on all the Loans and the
performance of every covenant of this Agreement on the part of the Company
to be performed or observed;
(ii) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Administrative Agent a
certificate of a duly authorized officer of the Company and an opinion of
legal counsel to the Company (which shall be reasonably acceptable to the
Administrative Agent), each stating that such consolidation, merger,
conveyance or transfer comply with this Section 6.04(a) and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
(b) Upon any consolidation or merger, or any conveyance or transfer
of the properties and assets of the Company substantially as an entirety in
accordance with Section 6.04(a), the successor corporation formed by such
consolidation or into which the Company is merged or to which such conveyance or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Agreement with the same effect
as if such successor corporation had been named as the Company herein, and
thereafter the predecessor corporation shall be relieved of all obligations and
covenants under this Agreement and any promissory notes issued hereunder and may
be liquidated and dissolved.
Section 6.05 Transactions with Affiliates. The Company will not, and
will not permit any of its Restricted Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) at prices and on terms and conditions not
materially less favorable to the Company or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third
68
parties, and (b) transactions between or among the Company and its Subsidiaries.
Section 6.06 Interest Coverage Ratio. The Company will not permit
the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Expense, each
as calculated as at the end of any fiscal quarter ending on or after the
Effective Date for the period of four prior consecutive fiscal quarters then
ended, to be less than 3.50 to 1.00.
Article VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Company shall fail to pay any principal of any Loan when and
as the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or otherwise;
(b) (i) the Company shall fail to pay any interest on any Loan when
and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five Business Days or (ii) the Company
shall fail to pay any fee or any other amount (other than an amount
referred to in clause (a) or (b)(i) of this Article) payable under this
Agreement, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five Business Days after
notice thereof from the Administrative Agent to the Company (which notice
will be given at the request of any Lender);
(c) any representation or warranty made or deemed made by or on
behalf of the Company or any of its Subsidiaries in this Agreement or any
amendment or modification hereof or waiver hereunder, or in any report,
certificate, financial statement or other document furnished pursuant to
this Agreement or any amendment or modification hereof or waiver
hereunder, shall prove to have been incorrect in any material respect when
made or deemed made;
(d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to
the Company's existence) or 5.08 or in Article VI;
69
(e) the Company shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b), (c), (d) or (n) of this Article), and such
failure shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent to the Company (which notice will be
given at the request of any Lender);
(f) the Company or any of its Subsidiaries shall fail to make any
payment (of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable (after giving effect to any period of grace or notice requirement
thereunder);
(g) any Material Indebtedness becomes due prior to its scheduled
maturity or the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf cause any Material Indebtedness to
become due, or require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity; provided that this
clause (g) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Company or any of its Material Subsidiaries or
its debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Company
or any of its Material Subsidiaries or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;
(i) the Company or any of its Material Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or
70
similar official for the Company or any of its Material Subsidiaries or
for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
(j) the Company or any of its Material Subsidiaries shall admit in
writing its inability to pay its debts as they become due;
(k) one or more final judgments for the payment of money in an
aggregate amount in excess of $100,000,000 shall be rendered against the
Company, any of its Material Subsidiaries or any combination thereof and
the same shall remain undischarged for a period of 60 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to attach or levy upon any
assets of the Company or any of its Material Subsidiaries to enforce any
such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in a Material
Adverse Effect;
(m) a Change in Control shall occur; or
(n) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.09, and such failure shall
continue unremedied for a period of 5 Business Days after notice thereof
from the Administrative Agent to the Company (which notice will be given
at the request of any Lender);
then, and in every such event (other than an event with respect to the Company
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, at the request of the Required Lenders the
Administrative Agent shall, by notice to the Company, take either or both of the
following actions, at the same or different times: (i) terminate the Revolving
Commitments, and thereupon the Revolving Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be
71
due and payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of the Company accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Company; and in case of any event with
respect to the Company described in clause (h) or (i) of this Article, the
Revolving Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Company accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Company.
Article VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Company or any of its subsidiaries or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
72
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Company or
any of its subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Company or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Company), independent accountants and other
experts selected by it, and shall not be liable for any action
73
taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Company. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint a successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Company to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Company and
such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
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Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
Article IX
Miscellaneous
Section 9.01 Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Company, to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, Attention of the Treasurer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to The Chase Manhattan Bank,
Loan and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (212)
552-7500), with a copy to The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to Chase Manhattan International Limited, to ▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trinity Tower, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇
(Telecopy No. ▇▇-▇▇-▇▇▇▇-▇▇▇▇); and
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to
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the other parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall be deemed
to have been given on the date of receipt.
Section 9.02 Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Company
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Company and the Required Lenders or by the Company and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Revolving Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any Revolving
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.16(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each
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Lender or (v) change any of the provisions of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender; provided, further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent
hereunder without the prior written consent of the Administrative Agent.
Notwithstanding the foregoing, any provision of this Agreement may be amended by
an agreement in writing entered into by the Company, the Required Lenders and
the Administrative Agent if (i) by the terms of such agreement the Revolving
Commitment of each Lender not consenting to the amendment provided for therein
shall terminate upon the effectiveness of such amendment and (ii) at the time
such amendment becomes effective, each Lender not consenting thereto receives
payment in full of the principal of and interest accrued on each Loan made by it
and all other amounts owing to it or accrued for its account under this
Agreement. Anything contained in the foregoing to the contrary notwithstanding,
the Company and the applicable Lender with respect to a Negotiated Rate Loan
may, from time, to time, enter into amendments, supplements or modifications for
the purpose of adding any provisions to such Negotiated Rate Loans or changing
in any manner the rights of such Lender and the Company thereunder and such
Lender may waive any of the requirements of such Negotiated Rate Loan; provided
that the Company and such Lender shall notify the Administrative Agent in
writing of any extensions of the maturity of such Negotiated Rate Loan or
reduction of the principal amount thereof; provided, further, that the Company
and such Lender shall not extend the maturity of such Negotiated Rate Loan
beyond the Termination Date.
Section 9.03 Expenses; Indemnity; Damage Waiver. (a) The Company
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates (including Chase Manhattan International
Limited), including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein and the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the
77
transactions contemplated hereby or thereby shall be consummated) and (ii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent or any
Lender (other than any Lender that defaults in its obligation to fund Loans
hereunder, so long as such default is continuing), including the reasonable
fees, charges and disbursements of any counsel for the Administrative Agent or
any Lender, in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or in
connection with the Loans made hereunder, including all such reasonable
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans; provided that the Company shall have no
obligation to pay fees, charges or disbursements for more than (x) one firm of
counsel acting for the Administrative Agent in each applicable jurisdiction and
(y) one firm of counsel acting for the Lenders in each applicable jurisdiction.
(b) The Company shall indemnify the Administrative Agent and each
Lender (other than any Lender that defaults in its obligation to fund Loans
hereunder, so long as such default is continuing), and each Related Party of any
of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and reasonable out-of-pocket expenses, including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan or the
use of the proceeds therefrom, (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by the Company
or any Subsidiary, or any Environmental Liability related in any way to the
Borrower or any Subsidiary, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses,
78
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of such Indemnitee or the violation of
this Agreement by such Indemnitee. Notwithstanding the foregoing, the Company
shall have no obligation to pay fees, charges or disbursements for more than (x)
one firm of counsel acting for the Administrative Agent and all of their Related
Parties in each applicable jurisdiction and (y) one firm of counsel acting for
the Lenders and all of their Related Parties in each applicable jurisdiction;
provided that an Indemnitee shall have the right to employ additional counsel
(including local counsel), and the Company shall bear the reasonable fees,
charges and disbursements of such additional counsel, if (1) the employment of
counsel by such Indemnitee has been authorized in writing by the Company, (2)
such Indemnitee has reasonably concluded (based upon advice of counsel to such
Indemnitee) that there may be legal defenses available to it that are different
from or in addition to those available to any other Indemnitee or (3) such
Indemnitee has reasonably concluded (based upon advice of counsel to such
Indemnitee) that a conflict or potential conflict exists between such Indemnitee
and any other Indemnitee.
(c) To the extent that the Company fails to pay any amount required
to be paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent such
Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such. For purposes of this
paragraph, a Lender's "pro rata share" of any amount shall be determined based
on the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment or if the Revolving Commitments have terminated or
expired, such percentage shall be determined based upon the Total Revolving
Exposure.
(d) To the extent permitted by applicable law, the Company shall not
assert, and the Company hereby waives, any claim against any Indemnitee, on any
theory of
79
liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement, any promissory note issued pursuant to this
Agreement, the Transactions or any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
Section 9.04 Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Company may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Company without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of the Administrative Agent and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Revolving Commitment and the Loans at the time owing to it); provided
that (i) except in the case of an assignment to a Lender or an Affiliate of a
Lender, the Company and the Administrative Agent must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld);
provided that no consent of the Company shall be required if an Event of Default
has occurred and is continuing, (ii) except in the case of an assignment to a
Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Revolving Commitment, the amount of the
Revolving Commitment of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$10,000,000 unless each of the Company and the Administrative Agent otherwise
consent, (iii) each partial
80
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, except that this
clause (iii) shall not apply to rights in respect of outstanding Competitive
Loans or Negotiated Rate Loans, (iv) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500 to the Administrative
Agent, and (v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and provided further that
any consent of the Company otherwise required under this paragraph shall not be
required if an Event of Default under clause (h) or (i) of Article VII has
occurred and is continuing. Subject to acceptance and recording thereof pursuant
to paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.13, 2.14, 2.15, 2.18 and 9.03 solely in respect of any
period ended on or before the date of such assignment). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this paragraph shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Company, shall maintain at one of its offices in The City of New York a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Revolving
Commitment of, and principal amount of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Company, the Administrative Agent and the
Lenders may treat
81
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Company,
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Company or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Revolving Commitment and
the Loans owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Company, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the Company
agrees that each Participant shall be entitled to the benefits of Sections 2.13,
2.14 and 2.15 to the same
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extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13, 2.15 or 2.18 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Company's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.15
unless the Company is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Company, to comply with Section
2.15(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (a
"SPV"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Company, the option to provide to the
Company all or any part of any Loan that such Granting Lender would otherwise be
obligated to make to the Company pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPV to make any Loan, (ii)
if an SPV elects not to exercise such option or otherwise fails to provide all
or any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof. The making of an Loan by an SPV hereunder
shall utilize the Revolving Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPV shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In
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furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPV, it will not institute against, or
join any other person in instituting against, such SPV any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 9.04, any SPV may (i) with
notice to, but without the prior written consent of, the Company and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Lender or to any
financial institutions (consented to by the Company and the Administrative
Agent) providing liquidity or credit support to or for the account of such SPV
to support the funding or maintenance of Loans and (ii) disclose on a
confidential basis pursuant to a written confidentiality agreement in form and
substance reasonably satisfactory to the Company any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPV. This
paragraph (h) may not be amended without the written consent of any SPV whose
rights and obligations are affected thereby.
Section 9.05 Survival. All covenants, agreements, representations
and warranties made by the Company herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Revolving Commitments have not expired or terminated.
The provisions of Sections 2.13, 2.14, 2.15, 2.18 and 9.03 and Article VIII
shall survive and remain in
84
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Revolving Commitments or the termination of this Agreement or any
provision hereof.
Section 9.06 Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
any promissory notes issued pursuant to this Agreement and any separate letter
agreements with respect to fees payable to the Administrative Agent constitute
the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
Section 9.07 Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Section 9.08 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other obligations at any time owing by such Lender to or
for the
85
credit or the account of the Company against any of and all the obligations of
the Company now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
Section 9.09 Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Company hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against the Company
or its properties in the courts of any jurisdiction.
(c) The Company hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
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(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
Section 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section 9.12 Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) to the extent necessary to prosecute
or defend any claim, in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
Participant in, or any prospective
87
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Company or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Company. For the
purposes of this Section, "Information" means all information received from the
Company relating to the Company or its business, other than any such information
that is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by the Company; provided that, in the case of
information received from the Company after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Section 9.13 Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
Section 9.14 Judgment. (a) If, for the purpose of obtaining judgment
in any court, it is necessary to convert a sum owing hereunder in one currency
into
88
another currency, each party hereto agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of the Company in respect of any sum due to any
party hereto or any holder of the obligations owing hereunder (the "Applicable
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to be due
hereunder (the "Agreement Currency"), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Company agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the Company contained in this
Section 9.14 shall survive the termination of this Agreement and the payment of
all other amounts owing hereunder.
Section 9.15 Termination of Existing Credit Facilities. The Company
and each Lender which as of the date of this Agreement is a party to, or which
has an Affiliate which is a party to, a bi-lateral credit agreement with the
Company (each an "Existing Credit Agreement"), hereby agrees that, effective as
of the time each of the conditions set forth in Section 4.01 of this Agreement
is satisfied, such Existing Credit Agreement shall automatically (and without
further notice or other action by or to the Company, such Lender, such Affiliate
or any other Person) be terminated; the Commitment (as defined in the Existing
Credit Agreement) under the Existing Credit Agreement shall terminate in whole;
and neither the Company, the Lender or any Affiliate shall have any further
rights or obligations under the Existing Credit Agreement, except for (i) the
Lender's or such Affiliate's right to receive payment in full of all amounts
which as of the
89
termination date are owed to it in respect of outstanding principal, accrued
interest, accrued fees or other amounts payable, which right shall continue
until full payment is made and (ii) rights or obligations under provisions of
the Existing Credit Agreement which by the express terms thereof survive
termination of the Existing Credit Agreement, which rights and obligations shall
continue in accordance with the terms thereof.
90
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
FORTUNE BRANDS, INC.,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice
President - Finance
and Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
CITIBANK, N.A., individually and as
Syndication Agent,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK, individually
and as Co-Documentation Agent
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Managing Director
91
BARCLAYS BANK PLC,
by
/s/ Sydney ▇. ▇▇▇▇▇▇
---------------------------------
Name: Sydney ▇. ▇▇▇▇▇▇
Title: Director
CREDIT SUISSE FIRST BOSTON,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
THE DAI-ICHI KANGYO BANK, LTD.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President &
Group Leader
BANK OF NEW YORK,
by
/s/ ▇▇▇▇ ▇'▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Vice President
92
THE NORTHERN TRUST COMPANY,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Second Vice
President
BANK ONE, NA,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
- CHICAGO BRANCH,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Manager
HSBC BANK PLC,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Global Corporate
Manager
93
ABN AMRO BANK N.V.,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Group Vice
President
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice
President
FIRSTAR BANK, N.A.,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice
President
WESTPAC BANKING CORPORATION,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Relationship Manager