364-DAY
CREDIT AGREEMENT
among
▇▇▇▇▇▇▇ KODAK COMPANY,
THE BANKS NAMED HEREIN,
CITIBANK, N.A.
as Administrative Agent,
BNP PARIBAS
as Syndication Agent
and
THE BANK OF NOVA SCOTIA
as Documentation Agent
_______________
CITIGROUP GLOBAL MARKETS INC. and SCOTIA CAPITAL
as Joint Lead Arrangers
CITIGROUP GLOBAL MARKETS INC.
as Bookrunner,
Dated as of July 11, 2003
$1,000,000,000
CREDIT AGREEMENT, dated as of July 11, 2003 among
▇▇▇▇▇▇▇ KODAK COMPANY, a New Jersey corporation (the "Borrower",
whether or not any Borrowing has taken place hereunder), the
Banks (as hereinafter defined), CITIBANK, N.A. ("Citibank"), as
Administrative Agent (in such capacity, the "Administrative
Agent"), BNP PARIBAS ("BNP"), as Syndication Agent (in such
capacity, the "Syndication Agent"), and THE BANK OF NOVA SCOTIA
("Scotia"), as Documentation Agent (in such capacity, the
"Documentation Agent").
W I T N E S S E T H:
WHEREAS, subject to and upon the terms and conditions
herein set forth, the Banks are willing to make available to the
Borrower the credit facilities provided for herein, which credit
facilities have been arranged by the Joint Lead Arrangers (as
hereinafter defined);
NOW, THEREFORE, IT IS AGREED:
SECTION 1. DEFINITIONS.
(a) As used herein, the following terms shall have the meanings
herein specified unless the context otherwise requires. Defined
terms in this Agreement shall include in the singular number the
plural and in the plural number the singular:
"Absolute Rate" shall mean an interest rate (rounded to
the nearest .0001) expressed as a decimal.
"Absolute Rate Borrowing" shall mean a Competitive Bid
Borrowing with respect to which the Borrower has requested that
the Banks offer to make Competitive Bid Loans at Absolute Rates.
"Additional Bank" shall have the meaning provided in
Section 3.5(c).
"Administrative Agent" shall have the meaning provided
in the first paragraph of this Agreement and shall include any
successor administrative agent appointed in accordance with
Section 10.9.
"Administrative Agent Fee Letter" shall have the
meaning provided in Section 2.3(g).
"Affiliate" shall mean, with respect to any Person, any
other Person directly or indirectly controlling (including but
not limited to all directors and executive officers of such
Person), controlled by or under direct or indirect common control
with such Person. A Person shall be deemed to control a
corporation if such Person, directly or indirectly, controls the
management and policies of such corporation, whether through the
ownership of voting securities, by contract or otherwise.
"Agents" shall mean, collectively, the Administrative
Agent, the Syndication Agent and the Documentation Agent.
"Agreement" shall mean this Credit Agreement as the
same may hereafter be amended, restated, supplemented or
otherwise modified from time to time in accordance with its
terms.
"Applicable Facility Fee Rate" shall mean, for any date
of determination, the applicable rate computed in accordance with
the following levels (where (i) is the highest level and (vii) is
the lowest level): (i) a rate per annum equal to 0.06% if on such
date the Borrower's outstanding Long-Term Indebtedness is rated
A+ or higher by Standard & Poor's and A1 or higher by Moody's,
(ii) a rate per annum equal to 0.075% if on such date clause (i)
is inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated A or higher by Standard & Poor's and A2 or
higher by Moody's, (iii) a rate per annum equal to 0.09% if on
such date clauses (i) and (ii) are inapplicable and the
Borrower's outstanding Long-Term Indebtedness is rated A- or
higher by Standard & Poor's and A3 or higher by Moody's, (iv) a
rate per annum equal to 0.125% if on such date clauses (i)
through (iii) are inapplicable and the Borrower's outstanding
Long-Term Indebtedness is rated BBB+ or higher by Standard &
Poor's and Baa1 or higher by Moody's, (v) a rate per annum equal
to 0.15% if on such date clauses (i) through (iv) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated BBB or higher by Standard & Poor's and Baa2
or higher by Moody's, (vi) a rate per annum equal to 0.175% if on
such date clauses (i) through (v) are inapplicable and the
Borrower's outstanding Long-Term Indebtedness is rated BBB- or
higher by Standard and Poor's and Baa3 or higher by Moody's, and
(vii) a rate equal to 0.25% if on such date clauses (i) through
(vi) are inapplicable and the Borrower's Long-Term Indebtedness
is rated lower than BBB- by Standard & Poor's and lower than Baa3
by Moody's; provided that where the Standard & Poor's rating and
the ▇▇▇▇▇'▇ rating are in two different levels, the rating used
herein will be the higher of the two ratings, except that where
the Standard & Poor's rating and the ▇▇▇▇▇'▇ rating are in two
different levels and one of such levels is more than one level
lower than the other, the applicable level herein will be one
level higher than the level corresponding with such lower rating;
provided further that all references to any rating agency shall
be deemed to be deleted in the event that the Borrower's
outstanding Long-Term Indebtedness is no longer rated by such
agency, and clause (vii) shall be deemed to apply if such Long-
Term Indebtedness is no longer rated by either agency.
"Applicable Margin" shall mean,
(A) with respect to each Eurodollar Loan which is
a Revolving Loan, the applicable rate computed in accordance
with the following levels (where (i) is the highest level
and (vii) is the lowest level): (i) 0.19% if on the date
such Loan is made the Borrower's outstanding Long-Term
Indebtedness is rated A+ or higher by Standard & Poor's and
A1 or higher by Moody's, (ii) 0.325% if on the date such
Loan is made clause (i) is inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated A or higher by
Standard & Poor's and A2 or higher by Moody's, (iii) 0.41%
if on the date such Loan is made clauses (i) and (ii) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated A- or higher by Standard & Poor's and
A3 or higher by Moody's, (iv) 0.5% if on the date such Loan
is made clauses (i) through (iii) are inapplicable and the
Borrower's outstanding Long-Term Indebtedness is rated BBB+
or higher by Standard & Poor's and Baa1 or higher by
Moody's, (v) 0.6% if on the date such Loan is made clauses
(i) through (iv) are inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated BBB or higher by
Standard & Poor's and Baa2 or higher by Moody's, (vi) 0.825%
if on such date clauses (i) through (v) are inapplicable and
the Borrower's outstanding Long-Term Indebtedness is rated
BBB- or higher by Standard and Poor's and Baa3 or higher by
Moody's, and (vii) 1.5% if on the date such Loan is made
clauses (i) through (vi) are inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated lower than BBB-
by Standard & Poor's and lower than Baa3 by Moody's;
provided that where the Standard & Poor's rating and the
▇▇▇▇▇'▇ rating are in two different levels, the rating used
herein will be the higher of the two ratings, except that
where the Standard & Poor's rating and the ▇▇▇▇▇'▇ rating
are in two different levels and one of such levels is more
than one level lower than the other, the applicable level
herein will be one level higher than the level corresponding
with such lower rating; provided further that for purposes
of this definition all references to any rating agency shall
be deemed to be deleted in the event that the Borrower's
outstanding Long-Term Indebtedness is no longer rated by
such agency, and clause (vii) shall be deemed to apply if
such Long-Term Indebtedness is no longer rated by either
agency; and
(B) with respect to each Eurodollar Loan which is
a Term Loan, the applicable rate computed in accordance with
the following levels (where (i) is the highest level and
(vii) is the lowest level): (i) 0.60% if on the date such
Loan is made the Borrower's outstanding Long-Term
Indebtedness is rated A+ or higher by Standard & Poor's and
A1 or higher by Moody's, (ii) 0.75% if on the date such Loan
is made clause (i) is inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated A or higher by
Standard & Poor's and A2 or higher by Moody's, (iii) 0.85%
if on the date such Loan is made clauses (i) and (ii) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated A- or higher by Standard & Poor's and
A3 or higher by Moody's, (iv) 1.00% if on the date such Loan
is made clauses (i) through (iii) are inapplicable and the
Borrower's outstanding Long-Term Indebtedness is rated BBB+
or higher by Standard & Poor's and Baa1 or higher by
Moody's, (v) 1.25% if on the date such Loan is made clauses
(i) through (iv) are inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated BBB or higher by
Standard & Poor's and Baa2 or higher by Moody's, (vi) 1.50%
if on such date clauses (i) through (v) are inapplicable and
the Borrower's outstanding Long-Term Indebtedness is rated
BBB- or higher by Standard and Poor's and Baa3 or higher by
Moody's, and (vii) 2.25% if on the date such Loan is made
clauses (i) through (vi) are inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated lower than BBB-
by Standard & Poor's and lower than Baa3 by Moody's;
provided that where the Standard & Poor's rating and the
▇▇▇▇▇'▇ rating are in two different levels, the rating used
herein will be the higher of the two ratings, except that
where the Standard & Poor's rating and the ▇▇▇▇▇'▇ rating
are in two different levels and one of such levels is more
than one level lower than the other, the applicable level
herein will be one level higher than the level corresponding
with such lower rating; provided further that for purposes
of this definition all references to any rating agency shall
be deemed to be deleted in the event that the Borrower's
outstanding Long-Term Indebtedness is no longer rated by
such agency, and clause (vii) shall be deemed to apply if
such Long-Term Indebtedness is no longer rated by either
agency.
"Applicable Utilization Fee Rate" shall mean, for any
date of determination, the applicable rate computed in accordance
with the following levels (where (i) is the highest level and
(vii) is the lowest level): (i) a rate per annum equal to 0.10%
if on such date the Borrower's outstanding Long-Term Indebtedness
is rated A+ or higher by Standard & Poor's and A1 or higher by
Moody's, (ii) a rate per annum equal to 0.10% if on such date
clause (i) is inapplicable and the Borrower's outstanding Long-
Term Indebtedness is rated A or higher by Standard & Poor's and
A2 or higher by Moody's, (iii) a rate per annum equal to 0.10% if
on the date such Loan is made clauses (i) and (ii) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated A- or higher by Standard & Poor's and A3 or
higher by Moody's, (iv) 0.125% if on the date such Loan is made
clauses (i) through (iii) are inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated BBB+ or higher by
Standard & Poor's and Baa1 or higher by Moody's, (v) 0.25% if on
the date such Loan is made clauses (i) through (iv) are
inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated BBB or higher by Standard & Poor's and Baa2
or higher by Moody's, (vi) 0.25% if on such date clauses (i)
through (v) are inapplicable and the Borrower's outstanding Long-
Term Indebtedness is rated BBB- or higher by Standard and Poor's
and Baa3 or higher by Moody's, and (vii) 0.25% if on the date
such Loan is made clauses (i) through (vi) are inapplicable and
the Borrower's outstanding Long-Term Indebtedness is rated lower
than BBB- by Standard & Poor's and lower than Baa3 by Moody's;
provided that where the Standard & Poor's rating and the ▇▇▇▇▇'▇
rating are in two different levels, the rating used herein will
be the higher of the two ratings, except that where the Standard
& Poor's rating and the ▇▇▇▇▇'▇ rating are in two different
levels and one of such levels is more than one level lower than
the other, the applicable level herein will be one level higher
than the level corresponding with such lower rating; provided
further that for purposes of this definition all references to
any rating agency shall be deemed to be deleted in the event that
the Borrower's outstanding Long-Term Indebtedness is no longer
rated by such agency, and clause (vii) shall be deemed to apply
if such Long-Term Indebtedness is no longer rated by either
agency.
"Assessment Rate" shall mean, for any day, the annual
assessment rate in effect on such day that is payable by a member
of the Bank Insurance Fund classified as "well-capitalized" and
within supervisory subgroup "B" (or a comparable successor risk
classification) within the meaning of 12 C.F.R. Part 327 (or any
successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in
dollars at the offices of such member in the United States;
provided that if, as a result of any change in any law, rule or
regulation, it is no longer possible to determine the Assessment
Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be
representative of the cost of such insurance to the Banks.
"Assignee" shall have the meaning provided in Section
11.4(c).
"Attributable Debt" shall mean, with respect to any
arrangement subject to the provisions of Section 8.4, the lesser
of (a) the fair value of the Principal Property that has been or
is to be sold or transferred in connection with such arrangement,
as determined by the Board of Directors of the Borrower, or (b)
the present value (discounted at an annual rate of nine per cent
(9%) compounded semi-annually) of the obligation of the lessee
under such arrangement for net rental payments during the
remaining term of the lease (including any period for which such
lease has been extended).
"Authorized Officer" shall mean the Chairman, a
President, any Vice President, the Controller, the Secretary or
the Treasurer of the Borrower, and such other persons designated
by the Borrower in writing to the Administrative Agent and
acceptable to the Administrative Agent.
"Bank" shall mean the persons listed as such on
Schedule 1 hereto (including Purchasing Banks that become Banks
hereunder pursuant to Section 11.4).
"Bankruptcy Code" shall mean Title 11 of the United
States Code entitled "Bankruptcy," as amended from time to time,
and any successor statute or statutes.
"Base CD Rate" shall mean the sum of (a) the Three-
Month Secondary CD Rate multiplied by the Statutory Reserve Rate
plus (b) the Assessment Rate.
"Base Rate" shall mean, at any particular date, the
higher of (i) the rate of interest publicly announced by the
Administrative Agent from time to time as its prime rate, as in
effect from time to time at its principal office in New York
City, (ii) the rate that is 1% in excess of the Base CD Rate and
(iii) the rate that is less than of 1% in excess of the Federal Funds
Rate. The reference rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to
any customer. The Administration Agent may make commercial loans
or other loans at rates of interest at, above or below the
reference rate.
"Base Rate Loans" shall mean Loans bearing interest at
the rates provided in Section 2.6(a).
"BNP" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean the incurrence by the Borrower
of (i) Revolving Loans consisting of one Type of Loan from one or
more of the Banks on a given date (or resulting from conversions
or continuations on a given date), having in the case of
Eurodollar Loans the same Interest Period (except as otherwise
provided in Section 2.9 or 2.10), and (ii) Competitive Bid Loans.
"Business Day" shall mean (i) for all purposes other
than as covered by clause (ii) below, any day excluding Saturday,
Sunday and any day which shall be in the City of New York a legal
holiday or a day on which banking institutions are authorized or
required by law or other government actions to close and (ii)
with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar
Loans, any day which is a Business Day described in clause (i)
and which is also a day for trading by and between banks in
Dollar deposits in the interbank Eurodollar market.
"Capitalized Lease" shall mean any lease of property,
real, personal or mixed, the obligations under which are
capitalized on the consolidated balance sheet of the Borrower and
its Subsidiaries in accordance with GAAP.
"Capitalized Lease Obligations" shall mean all
obligations of the Borrower and its Subsidiaries under or in
respect of Capitalized Leases.
"Change in Control" shall mean a change in control of
the Borrower of a nature that would be required to be reported
(assuming such event has not been "previously reported") in
response to Item 1(a) of the Current Report on Form 8-K, as in
effect on the Effective Date, pursuant to Section 13 or 15(d) of
the Exchange Act; provided that, without limitation, a Change in
Control shall be deemed to have occurred at such time as (i) any
"person" within the meaning of Section 14(d) of the Exchange Act,
other than the Borrower, a Subsidiary of the Borrower, or any
employee benefit plan(s) sponsored by the Borrower or any
Subsidiary of the Borrower, is or has become the "beneficial
owner," as defined in Rule 13d-3 under the Exchange Act, directly
or indirectly, of 20% or more of the combined voting power of the
outstanding securities of the Borrower ordinarily having the
right to vote at the election of directors, or (ii) individuals
who constituted the Board on December 31, 2002 (the "Incumbent
Board") have ceased for any reason to constitute at least a
majority thereof; provided further that any person becoming a
director subsequent to December 31, 2002 whose election, or
nomination for election by the Borrower's shareholders, was
approved by a vote of at least three-quarters (3/4) of the
directors comprising the Incumbent Board (either by a specific
vote or by approval of the proxy statement of the Borrower in
which such person is named as a nominee for director without
objection to such nomination) shall be, for purposes of this
definition, considered as though such person were a member of the
Incumbent Board.
"Citibank" shall have the meaning provided in the first
paragraph of this Agreement.
"Class", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are Revolving Loans or Competitive Bid Loans.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and any successor statute.
"Commitment" shall mean, at any time for any Bank, the
amount set forth opposite such Bank's name on Schedule 1 hereto
under the heading "Commitment," provided that the aggregate
amount set forth on such Schedule 1 shall not exceed
$1,000,000,000, as such amount may be reduced or increased from
time to time pursuant to the terms of this Agreement.
"Commitment Termination Date" shall mean (i) July 9,
2004, or (ii) the Requested Commitment Termination Date if the
Commitment Termination Date shall have been extended pursuant to
Section 3.5.
"Commitment Transfer Supplement" shall have the meaning
provided in Section 3.5(c).
"Competitive Bid Borrowing" shall mean a Borrowing of
Competitive Bid Loans pursuant to Section 2.3.
"Competitive Bid Loan" shall have the meaning set forth
in Section 2.3.
"Competitive Bid Note" shall have the meaning provided
in Section 2.5(b).
"Consolidated Debt" shall mean, as of any date of
determination, all Debt of the Borrower and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Debt to EBITDA Ratio" shall mean for any
period, the ratio of (a) Consolidated Debt for such period to (b)
Consolidated EBITDA for such period.
"Consolidated EBITDA" shall mean, for any period,
Consolidated Net Income for such period plus, without duplication
and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) income
tax expense, (b) interest expense, amortization or writeoff of
debt discount with respect to Indebtedness (including the Loans),
(c) depreciation and amortization expense, (d) amortization of
intangibles (including, but not limited to, goodwill) and
organization costs, (e) any extraordinary expenses or losses
(including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such
period, losses on sales of assets outside of the ordinary course
of business and restructuring charges), and (f) any other non-
cash charges that will not at any time result in any cash
payment, and minus, to the extent included in the statement of
such Consolidated Net Income for such period, the sum of (i)
interest income, (ii) any extraordinary income or gains
(including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary
course of business and reversals of restructuring charges) and
(iii) any other non-cash income that will not at any time result
in any cash payment, all as determined on a consolidated basis.
"Consolidated Net Income" shall mean, for any period,
the consolidated net income (or loss) of the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance
with GAAP; provided that there shall be excluded (a) the income
(or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of the Borrower or is merged into or consolidated with
the Borrower or any of its Subsidiaries, (b) the income (or
deficit) of any Person (other than a Subsidiary of the Borrower
and a Person in which the Borrower or a Subsidiary of the
Borrower owns 50% of the equity) in which the Borrower or any of
its Subsidiaries has an ownership interest, except to the extent
that any such income is actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions and
(c) the undistributed earnings of any Subsidiary of the Borrower
and any other Person in which the Borrower or a Subsidiary of the
Borrower owns 50% of the equity, to the extent that the
declaration or payment of dividends or similar distributions by
such Subsidiary or other Person is not at the time permitted by
the terms of any contractual obligation or any law applicable to
such Subsidiary or other Person.
"Consolidated Net Tangible Assets" shall mean, at any
particular time, Consolidated Tangible Assets at such time after
deducting therefrom all current liabilities, except for (i) notes
and loans payable, (ii) current maturities of long-term debt and
(iii) current maturities of the principal component of
Capitalized Lease Obligations, all as set forth on the most
recent consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries and computed in accordance with GAAP.
"Consolidated Subsidiaries" shall mean all Subsidiaries
of the Borrower which are consolidated with the Borrower for
financial reporting purposes in accordance with GAAP.
"Consolidated Tangible Assets" shall mean, at any
particular time, the aggregate amount of all assets (less
applicable reserves and other properly deductible items) after
deducting therefrom all goodwill, trade names, trademarks,
patents, unamortized debt discount and expenses (to the extent
included in said aggregate amount of assets) and other like
intangibles, as set forth on the most recent consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries and
computed in accordance with GAAP.
"Continuing Banks" shall have the meaning provided in
Section 3.5(b).
"Control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. "Controlling"
and "Controlled" have meanings correlative thereto.
"Credit Exposure" shall have the meaning provided in
Section 11.4(b).
"Debt" shall mean, as applied to any Person at any
time, all indebtedness, obligations or other liabilities of such
Person (i) for borrowed money or evidenced by debt securities,
debentures, acceptances, notes or other similar instruments, (ii)
to pay the deferred purchase price of property or services,
except accounts payable and accrued expenses arising in the
ordinary course of business, and (iii) in respect of the
principal component of Capitalized Lease Obligations.
"Default" shall mean any event, act or condition which,
with notice or lapse of time, or both, would constitute an Event
of Default.
"Documentation Agent" shall have the meaning provided
in the first paragraph of this Agreement.
"Dollars" or "$" shall mean dollars of the United
States of America.
"Domestic Subsidiary" shall mean any Subsidiary of the
Borrower incorporated under the laws of the United States of
America or any state thereof.
"Effective Date" shall have the meaning provided in
Section 11.9.
"Environmental Affiliate" shall mean, with respect to
any Person, any other Person whose liability for any
Environmental Claim such Person has or may have retained, assumed
or otherwise become liable for (contingently or otherwise),
either contractually or by operation of law.
"Environmental Approvals" shall mean any permit,
license, approval, ruling, variance, exemption or other
authorization required under applicable Environmental Laws.
"Environmental Claim" shall mean, with respect to any
Person, any notice, claim, demand or similar communication
(written or oral) by any other Person alleging potential
liability for investigatory costs, cleanup costs, governmental
response costs, natural resources damages, property damages,
personal injuries, fines or penalties arising out of, based on or
resulting from (i) the presence, or release into the environment,
of any Material of Environmental Concern at any location, whether
or not owned by such Person or (ii) circumstances forming the
basis of any violation, or alleged violation, of any
Environmental Law.
"Environmental Laws" shall mean all federal, state,
local and foreign laws and regulations relating to pollution or
protection of human health or the environment (including, without
limitation, ambient air, surface water, ground water, land
surface or subsurface strata), including without limitation, laws
and regulations relating to emissions, discharges, releases or
threatened releases of Materials of Environmental Concern, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time. Section
references to ERISA are to ERISA, as in effect at the date of
this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Controlled Group" shall mean a group consisting
of any ERISA Person and all members of a controlled group of
corporations and all trades or businesses (whether or not
incorporated) under common control with such Person that,
together with such Person, are treated as a single employer under
regulations of the PBGC.
"ERISA Person" shall have the meaning set forth in
Section 3(9) of ERISA for the term "person."
"ERISA Plan" shall mean (i) any Plan that (x) is not a
Multiemployer Plan and (y) has Unfunded Benefit Liabilities in
excess of $1,000,000 and (ii) any Plan that is a Multiemployer
Plan.
"Eurodollar Loans" shall mean Revolving Loans or Term
Loans bearing interest at the rates provided in Section 2.6(b).
"Eurodollar Rate" shall mean, with respect to each
Interest Period for a Eurodollar Loan or a Spread Borrowing based
on the Eurodollar Rate, the rate determined by the Administrative
Agent to be (i)(a) the rate appearing on Page 3750 of the
Telerate Service (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service,
providing rate quotations comparable to those currently provided
on such page of such Service, as determined by the Administrative
Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London
interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period,
as the rate for dollar deposits with a maturity comparable to
such Interest Period and (b) in the event that the rate
referenced in the preceding clause (a) is not available at such
time for any reason, the rate (rounded upwards, if necessary, to
the next 1/16 of 1%) at which dollar deposits of $5,000,000 and
for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period, divided by (ii) a
percentage equal to 1 minus the then average stated maximum rate
(stated as a decimal) of all reserve requirements (including
without limitation any marginal, emergency, supplemental, special
or other reserves) applicable to any member bank of the Federal
Reserve System in respect of Eurocurrency liabilities as defined
in Regulation D (or any successor category of liabilities under
Regulation D).
"Event of Default" shall have the meaning provided in
Section 9.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended from time to time, and any successor statute
or statutes.
"Exiting Bank" shall have the meaning provided in
Section 3.5(d).
"Extension Effective Date" shall have the meaning
provided in Section 3.5(a).
"Extension Request" shall have the meaning provided in
Section 3.5(a).
"Federal Funds Rate" shall mean, for any period, a
fluctuating interest rate per annum equal for each day during
such period to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by the
Administrative Agent.
"Federal Reserve Board" shall mean the Board of
Governors of the Federal Reserve System as constituted from time
to time.
"Fee Letter" shall mean the Administrative Agent Fee
Letter.
"Final Maturity Date" shall mean the Commitment
Termination Date; provided, however, if the outstanding Revolving
Loans are converted to Term Loans pursuant to Section 2.5(e), the
"Final Maturity Date" shall mean the first anniversary of the
Commitment Termination Date.
"GAAP" shall mean generally accepted accounting
principles in effect in the United States of America as of the
date of this Agreement.
"Governmental Authority" shall mean any nation or
government, any state, provincial, local, municipal or other
political subdivision thereof and any entity or instrumentality
(of any nature whatsoever) exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining
to government and includes, without limitation, any pension
board.
"Indebtedness" of any Person shall mean, without
duplication, (i) all indebtedness (including principal, interest,
fees and charges) of such Person for borrowed money or, to the
extent it would appear as a liability in accordance with GAAP,
for the deferred purchase price (or a portion thereof) of
property or services (other than trade payables incurred in the
ordinary course of business of such Person), (ii) all
indebtedness of such Person evidenced by a note, bond, debenture
or similar instrument, (iii) the principal component of all
Capitalized Lease Obligations of such Person and all obligations
of such Person under any other lease to the extent that the then
present value of the minimum rental commitment thereunder should,
in accordance with GAAP, be capitalized on a balance sheet of the
lessee, (iv) the face amount of all letters of credit issued for
the account of such Person and, without duplication, all
unreimbursed amounts drawn thereunder, (v) all indebtedness of
any other Person secured by any Lien on any property owned by
such Person, whether or not such indebtedness has been assumed,
(vi) payment obligations under any interest rate protection
agreements (including without limitation, any interest rate
swaps, caps, floors, collars and similar agreements) and currency
swaps and similar agreements, (vii) payment obligations under any
facility for the sale or financing of receivables and (viii) any
indebtedness of any other Person of the character referred to in
clauses (i) through (vii) with respect to which such Person has
become liable by way of any guarantee, similar contingent
obligation or other arrangement which has the effect of assuring
payment.
"Indemnitee" shall have the meaning set forth in
Section 11.1(c).
"Interest Period" shall have the meaning provided in
Section 2.7.
"Interest Rate Basis" shall mean the Eurodollar Rate
and/or such other basis for determining an interest rate as the
Borrower and the Administrative Agent shall agree from time to
time.
"Joint Lead Arrangers" shall mean Scotia Capital and
Citigroup Global Markets Inc.
"Lending Office" shall mean, for each Bank, the office
specified opposite such Bank's name on the signature pages hereof
with respect to each Type of Loan, or such other office as such
Bank may designate in writing from time to time to the Borrower
and the Administrative Agent with respect to such Type of Loan.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preferential payment arrangement, priority or other
security agreement of any kind or nature whatsoever, including,
without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same
effect as any of the foregoing and the filing of any financing
statement or similar instrument under the Uniform Commercial Code
or comparable law of any jurisdiction, domestic or foreign.
"Loans" shall mean and include Revolving Loans,
Competitive Bid Loans and Term Loans.
"Long-Term Indebtedness" shall mean long-term
Indebtedness that is not subordinated to any other Indebtedness
and is not secured or supported by a guarantee, letter of credit
or other form of credit enhancement.
"Margin Stock" shall have the meaning provided such
term in Regulation U.
"Material Adverse Effect" shall mean material adverse
effect on (a) the business, condition (financial or otherwise),
operations, performance or properties of the Borrower and its
Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent or any Bank under this Agreement or any Note
or (c) the ability of the Borrower to perform its obligations
under this Agreement or any Note.
"Material Subsidiary" shall mean each Subsidiary of the
Borrower which meets any of the following conditions: (a) the
Borrower and its other Subsidiaries' investments in and advances
to such Subsidiary exceed 10% of the total assets of the Borrower
and its Subsidiaries consolidated as of the end of the most
recently completed fiscal year, (b) the Borrower's and its other
Subsidiaries' proportionate share of the total assets (after
intercompany eliminations) of such Subsidiary exceeds 10% of the
total assets of the Borrower and its Subsidiaries consolidated as
of the end of the most recently completed fiscal year, or (c) the
Borrower's and its other Subsidiaries' equity in the income from
continuing operations before income taxes, extraordinary items
and cumulative effect of a change in accounting principles of
such Subsidiary exceeds 10% of such income of the Borrower and
its Subsidiaries consolidated for the most recently completed
year. For purposes of calculating the prescribed income test
described in clause (c) above, if one or more of the following
are applicable, it or they shall be applied in such computations:
(i) when a loss has been incurred by either the Borrower and its
Subsidiaries consolidated or the applicable Subsidiary, but not
both, the equity in the income or loss of the applicable
Subsidiary shall be excluded from the income of the Borrower and
its Subsidiaries consolidated for purposes of the computation;
(ii) if income of the Borrower and its Subsidiaries consolidated
for the most recent fiscal year is at least 10 percent lower than
the average of the income for the last five fiscal years, such
average income shall be substituted for purposes of the
computation, with any loss years omitted for purposes of
computing average income; and (iii) where the test involves
combined entities, entities reporting losses shall not be
aggregated with entities reporting income.
"Materials of Environmental Concern" shall mean and
include chemicals, pollutants, contaminants, wastes, toxic
substances, petroleum and petroleum products.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or
any of its successors.
"Multiemployer Plan" shall mean a Plan which is a
"multiemployer plan" as defined in Section 4001(a)(3) of ERISA.
"Non-Extending Bank" shall have the meaning provided in
Section 3.5(b).
"Notes" shall have the meaning provided in Section
2.5(b).
"Notice of Borrowing" shall have the meaning provided
in Section 2.2(a).
"Notice of Competitive Bid Borrowing" shall have the
meaning provided in Section 2.3(b).
"Notice of Continuation or Conversion" shall have the
meaning provided in Section 2.8(b).
"Obligations" shall mean all amounts owing to any Agent
or any Bank pursuant to the terms of this Agreement or any Note.
"Participant" shall have the meaning provided in
Section 11.4(b).
"Payment Date" shall mean the last Business Day of each
January, April, July and October of each year.
"Payment Office" shall mean the office of Citibank as
Administrative Agent located at ▇ ▇▇▇▇'▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, or such other office of the Administrative Agent as the
Administrative Agent may hereafter designate in writing as such
to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation established under ERISA, or any successor thereto.
"Person" shall mean and include any individual,
partnership, joint venture, firm, corporation, association, trust
or other enterprise or entity or any government or political
subdivision or agency, department or instrumentality thereof.
"Plan" shall mean any employee benefit plan covered by
Title IV of ERISA, the funding requirements of which: (i) were
the responsibility of the Borrower or a member of its ERISA
Controlled Group at any time within the five years immediately
preceding the date hereof, (ii) are currently the responsibility
of the Borrower or a member of its ERISA Controlled Group, or
(iii) hereafter become the responsibility of the Borrower or a
member of its ERISA Controlled Group, including any such plans as
may have been, or may hereafter be, terminated for whatever
reason.
"Principal Property" shall mean any manufacturing plant
or manufacturing facility which is (a) owned by the Borrower or
any Principal Subsidiary, (b) located within the continental
United States, and (c) in the opinion of the Board of Directors
of the Borrower material to the total business conducted by the
Borrower and the Principal Subsidiaries taken as a whole.
"Principal Subsidiary" shall mean any Subsidiary of the
Borrower (a) substantially all the property of which is located
within the continental United States and (b) which owns any
Principal Property.
"Pro Rata Share" shall mean, with respect to each Bank,
a fraction (expressed as a percentage), the numerator of which
shall be the aggregate amount of such Bank's Commitment and the
denominator of which shall be the Total Commitment (without
giving effect to any termination of the Total Commitment or any
Bank's Commitment).
"Purchasing Bank" shall have the meaning provided in
Section 11.4(d).
"Refinanced Indebtedness" shall mean the Indebtedness
of the Borrower under the 364-Day Credit Agreement dated as of
July 12, 2002, among ▇▇▇▇▇▇▇ Kodak Company, the banks named
therein, Citibank, N.A., as administrative agent, BNP Paribas, as
syndication agent, and The Bank of Nova Scotia, as documentation
agent, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Regulation D," "Regulation U" and "Regulation X" shall
mean, respectively, Regulation D, Regulation U and Regulation X
of the Federal Reserve Board.
"Replacement Date" shall have the meaning provided in
Section 3.5(d).
"Reply Date" shall have the meaning provided in Section
2.3(c).
"Reportable Event" shall have the meaning set forth in
Section 4043(b) of ERISA (other than a Reportable Event as to
which the provision of 30 days' notice to the PBGC is waived
under applicable regulations), or is the occurrence of any of the
events described in Section 4068(f) or 4063(a) of ERISA.
"Requested Commitment Termination Date" shall have the
meaning provided in Section 3.5(a).
"Required Banks" shall mean Banks whose Commitments
aggregate 51% or more of the Total Commitment or, at any time
after the Total Commitment has been terminated in its entirety,
Banks holding 51% or more of the principal amount of all Loans
then outstanding.
"Revolving Loans" shall have the meaning provided in
Section 2.1(a).
"Revolving Note" shall have the meaning provided in
Section 2.5(b).
Securitization Facility" shall mean the accounts
receivable securitization facility between the Securitization
Subsidiary and various conduit purchasers and committed
purchasers, and Borrower, as servicer, dated as of March 28,
2002, pursuant to which certain domestic accounts receivable of
Borrower and certain Subsidiaries are sold to Securitization
Subsidiary and resold to the purchasers, as the same may be
amended, extended, modified or replaced.
"Securitization Subsidiary" shall mean EK Funding LLC,
a wholly-owned subsidiary of the Borrower.
"Spread" shall mean a percentage per annum in excess
of, or less than, an Interest Rate Basis.
"Spread Borrowing" shall mean a Competitive Bid
Borrowing with respect to which the Borrower has requested that
the Banks offer to make Competitive Bid Loans at a Spread over or
under a specified Interest Rate Basis.
"Standard & Poor's" shall mean Standard & Poor's
Ratings Group, a division of the ▇▇▇▇▇▇-▇▇▇▇ Corporation or any
of its successors.
"Statutory Reserve Rate" shall mean a fraction
(expressed as a decimal), the numerator of which is the number
one and the denominator of which is the number one minus the
aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Federal Reserve Board to which
the Administrative Agent is subject with respect to the Base CD
Rate, for new negotiable nonpersonal time deposits in dollars of
over $100,000 with maturities approximately equal to three
months. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in
any reserve percentage.
"Subsidiary" shall mean, with respect to any Person
(the "parent") at any date, any corporation, limited liability
company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the
parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, limited liability company,
partnership, association or other entity (a) of which securities
or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b)
that is, as of such date, otherwise Controlled, by the parent or
one or more subsidiaries of the parent or by the parent and one
or more subsidiaries of the parent.
"Syndication Agent" shall have the meaning provided in
the first paragraph of this Agreement.
"Taxes" shall have the meaning provided in Section
2.12.
"Three-Month Secondary CD Rate" shall mean, for any
day, the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such day
is not a Business Day, the next preceding Business Day) by the
Federal Reserve Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate will,
under the current practices of the Federal Reserve Board, be
published in Federal Reserve Statistical Release H.15(519) during
the week following such day) or, if such rate is not so reported
on such day or such next preceding Business Day, the average of
the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at
approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable
certificate of deposit dealers of recognized standing selected by
it.
"Termination Event" shall mean (i) a Reportable Event,
or (ii) the initiation of any action by the Borrower, any member
of the Borrower's ERISA Controlled Group or any ERISA Plan
fiduciary to terminate an ERISA Plan or the treatment of an
amendment to an ERISA Plan as a termination under ERISA, or (iii)
the institution of proceedings by the PBGC under Section 4042 of
ERISA to terminate an ERISA Plan or to appoint a trustee to
administer any ERISA Plan.
"Term Loan" shall have the meaning provided in Section
2.5(e).
"Term Loan Conversion Option" shall have the meaning
provided in Section 2.5(e).
"Term Note" shall have the meaning provided in Section
2.5(b).
"Total Commitment" shall mean, at any time, the sum of
the Commitments of each of the Banks at such time.
"Transferee" shall have the meaning provided in Section
11.4(g).
"Transfer Supplement" shall have the meaning provided
in Section 11.4(d).
"Type" shall mean any type of Loan determined with
respect to the interest option applicable thereto, i.e., whether
a Base Rate Loan or Eurodollar Loan.
"Unfunded Benefit Liabilities" shall mean with respect
to any Plan at any time, the amount (if any) by which (i) the
present value of all benefit liabilities under such Plan as
defined in Section 4001(a)(16) of ERISA, exceeds (ii) the fair
market value of all Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such
Plan (on the basis of reasonable assumptions under such Plan).
"Utilization Percentage" shall have the meaning
provided in Section 3.1(b).
(b) The financial statements to be furnished to the
Administrative Agent and the Banks pursuant hereto shall be made
and prepared in accordance with GAAP consistently applied
throughout the periods involved and consistent with GAAP as used
in the preparation of the financial statements referred to in
Section 7.1, and, except as otherwise specifically provided
herein, all computations determining compliance with Section 8
hereof shall utilize GAAP.
SECTION 2. AMOUNT AND TERMS OF CREDIT.
2.1 Revolving Loan Commitments. (a) Subject to and upon the
terms and conditions and in reliance upon the representations and
warranties of the Borrower herein set forth, each Bank severally
and not jointly agrees, at any time and from time to time on and
after the Effective Date and prior to the Commitment Termination
Date, to make a revolving loan or loans (collectively, the
"Revolving Loans") to the Borrower, which Revolving Loans (i)
shall, at the option of the Borrower, be made as part of one or
more Borrowings, each of which Borrowings shall, unless otherwise
specifically provided herein, consist entirely of Base Rate Loans
or Eurodollar Loans, (ii) subject to the terms and conditions set
out in Section 5, may be repaid and reborrowed in accordance with
the provisions hereof, and (iii) shall not exceed for any Bank an
aggregate outstanding principal amount at any time equal to the
Commitment of such Bank at such time, as reduced by the
outstanding principal amount of Revolving Loans made by such Bank
at such time. Notwithstanding the foregoing, no Revolving Loans
shall be made hereunder if immediately after giving effect
thereto and the use of proceeds thereof, the aggregate principal
amount of Loans outstanding at such time would exceed the Total
Commitment. Each Bank's Commitment shall expire, and each
Revolving Loan shall mature, on the Commitment Termination Date,
without further action being required on the part of the
Administrative Agent or any Bank.
(b) The aggregate principal amount of each Borrowing of
Revolving Loans by the Borrower shall be not less than
$100,000,000 and, if greater, shall be in an integral multiple of
$5,000,000. Notwithstanding the foregoing limitations, the
Borrower may borrow an amount, if less than the minimum amount
otherwise necessary to make such Borrowing, equal to the entire
undrawn portion of the Total Commitments.
2.2 Notice of Revolving Loan Borrowing. (a) Whenever the
Borrower desires to make a Borrowing of Revolving Loans hereunder
(other than a conversion pursuant to Section 2.8), it shall give
the Administrative Agent (i) at least one Business Day's prior
written notice (or telephonic notice confirmed promptly in
writing, any such written notice or confirmation being in the
form of Exhibit A-1 hereto) before the requested date of the
making of any such Borrowing consisting of Base Rate Loans and
(ii) at least three Business Days' prior written notice (or
telephonic notice confirmed promptly in writing) before the
requested date of the making of any such Borrowing consisting of
Eurodollar Loans, each such notice to be given at the Payment
Office prior to 11:00 a.m. (New York City time) on the date
specified. Each such notice or confirmation thereof (each a
"Notice of Borrowing") shall be irrevocable and shall specify (x)
the aggregate principal amount of the Revolving Loans to be made
pursuant to such Borrowing, (y) the date of Borrowing (which
shall be a Business Day) and (z) whether such Borrowing shall
consist of Base Rate Loans or Eurodollar Loans and, in the case
of Eurodollar Loans, the initial Interest Period to be applicable
thereto.
(b) Promptly after receipt of a Notice of Borrowing, the
Administrative Agent shall provide each Bank with a copy thereof
and inform each Bank of such Bank's Pro Rata Share of the Loans
requested thereunder.
2.3 Competitive Bid Loans. (a) Subject to and upon the terms
and conditions and in reliance upon the representations and
warranties of the Borrower herein set forth, each Bank severally
and not jointly agrees that the Borrower may incur a loan or
loans (each a "Competitive Bid Loan" and collectively, the
"Competitive Bid Loans") pursuant to a Competitive Bid Borrowing
from time to time on and after the Effective Date and prior to
the Commitment Termination Date, or, if earlier, the date of the
termination or expiration of the Commitments; provided that no
Competitive Bid Loans shall be made hereunder if, after giving
effect to any Competitive Bid Borrowing and the use of the
proceeds thereof, the aggregate principal amount of Loans
outstanding at any time would exceed the Total Commitment. Within
the foregoing limits and subject to the conditions set out in
Section 5, Competitive Bid Loans may be repaid and reborrowed in
accordance with the provisions hereof. No Competitive Bid Loan
shall be entitled to be converted into any other type of Loan.
(b) Whenever the Borrower desires to make a Borrowing of
Competitive Bid Loans hereunder, it shall give the Administrative
Agent, not later than 11:00 a.m. (New York City time) on the
fourth Business Day prior to the date of such proposed
Competitive Bid Borrowing, a written notice in the form of
Exhibit A-2 hereto (a "Notice of Competitive Bid Borrowing"),
such notice to specify in each case (i) the date (which shall be
a Business Day) and the aggregate amount of the proposed
Competitive Bid Borrowing (which shall not be less than
$100,000,000 and, if greater, shall be in an integral multiple of
$5,000,000), (ii) the Interest Period and maturity date for
repayment of each Competitive Bid Loan to be made as part of such
Competitive Bid Borrowing (which maturity date shall be the last
day of the Interest Period relating thereto, and may not be later
than the Commitment Termination Date), (iii) the interest payment
date or dates relating thereto, (iv) whether the proposed
Competitive Bid Borrowing is to be an Absolute Rate Borrowing or
a Spread Borrowing, and if a Spread Borrowing, the Interest Rate
Basis, and (v) any other terms to be applicable to such
Competitive Bid Borrowing. Promptly after receipt of a Notice of
Competitive Bid Borrowing, the Administrative Agent shall provide
each Bank with a copy thereof.
(c) Each Bank shall, if in its sole discretion it elects to do
so, irrevocably offer to make one or more Competitive Bid Loans
to the Borrower as part of such proposed Competitive Bid
Borrowing at a rate or rates of interest specified by such Bank
in its sole discretion and determined by such Bank independently
of each other Bank, by notifying the Administrative Agent (which
shall give prompt notice thereof to the Borrower), before 10:00
a.m. (New York City time) on the date (the "Reply Date") which is
(x) in the case of an Absolute Rate Borrowing, the Business Day
before and (y) in the case of a Spread Borrowing, three Business
Days before, the date of such proposed Competitive Bid Borrowing,
of the minimum amount and maximum amount of each Competitive Bid
Loan which such Bank would make as part of such proposed
Competitive Bid Borrowing (which amounts may, subject to the
proviso to the first sentence of Section 2.3(a), exceed such
Bank's Commitment), the rate or rates of interest therefor and
such Bank's Lending Office with respect to such Competitive Bid
Loan; provided that if the Administrative Agent in its capacity
as a Bank shall, in its sole discretion, elect to make any such
offer, it shall notify the Borrower of such offer before 9:30
a.m. (New York City time) on the Reply Date. If any Bank shall
elect not to make such an offer, such Bank shall so notify the
Administrative Agent, before 10:00 a.m. (New York City time) on
the Reply Date, and such Bank shall not be obligated to, and
shall not, make any Competitive Bid Loan as part of such
Competitive Bid Borrowing; provided that the failure by any Bank
to give such notice shall not cause such Bank to be obligated to
make any Competitive Bid Loan as part of such proposed
Competitive Bid Borrowing.
(d) The Borrower shall, in turn, before (x) in the case of
Absolute Rate Borrowings, Noon (New York City time) or (y) in the
case of Spread Borrowings, 1:00 p.m. (New York City time) on the
Reply Date, either
(1) cancel such Competitive Bid Borrowing by giving the
Administrative Agent notice to that effect, or
(2) accept one or more of the offers made by any Bank
or Banks pursuant to clause (c) above by giving notice (in
writing or by telephone promptly confirmed in writing) to
the Administrative Agent of the amount of each Competitive
Bid Loan (which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum
amount, notified to the Borrower by the Administrative Agent
on behalf of such Bank for such Competitive Bid Borrowing
pursuant to clause (c) above) to be made by each Bank as
part of such Competitive Bid Borrowing, and reject any
remaining offers made by Banks pursuant to clause (c) above
by giving the Administrative Agent notice to that effect;
provided that acceptance of offers may only be made on the
basis of ascending Absolute Rates (in the case of an
Absolute Rate Borrowing) or Spreads (in the case of a Spread
Borrowing), in each case commencing with the lowest rate so
offered; provided further, however, if offers are made by
two or more Banks at the same rate and acceptance of all
such equal offers would result in a greater principal amount
of Competitive Bid Loans being accepted than the aggregate
principal amount requested by the Borrower, the Borrower
shall have the right in its sole discretion to accept one or
more such equal offers in their entirety and reject the
other equal offer or offers or to allocate acceptance among
all such equal offers (but giving effect to the minimum and
maximum amounts specified for each such offer pursuant to
clause (c) above).
(e) If the Borrower notifies the Administrative Agent that such
Competitive Bid Borrowing is cancelled pursuant to clause (d)(1)
above, the Administrative Agent shall give prompt notice thereof
to the Banks and such Competitive Bid Borrowing shall not be
made.
(f) If the Borrower accepts one or more of the offers made by
any Bank or Banks pursuant to clause (d)(2) above, the
Administrative Agent shall in turn promptly notify (x) each Bank
that has made an offer as described in clause (c) above, of the
date and aggregate amount of such Competitive Bid Borrowing and
whether or not any offer or offers made by such Bank pursuant to
clause (c) above have been accepted by the Borrower and (y) each
Bank that is to make a Competitive Bid Loan as part of such
Competitive Bid Borrowing, of the amount of each Competitive Bid
Loan to be made by such Bank as part of such Competitive Bid
Borrowing.
(g) The Borrower agrees to pay the Administrative Agent for its
own account a competitive bid auction fee, payable on the date of
each Competitive Bid Borrowing with respect to each Competitive
Bid Loan, in the amounts set forth in the letter agreement, dated
May 27, 2003 (the "Administrative Agent Fee Letter"), between the
Borrower, the Administrative Agent and Citigroup Global Markets
Inc.
2.4 Disbursement of Funds. (a) No later than Noon (New York
City time) on the date specified for each Borrowing of Revolving
Loans or Competitive Bid Loans, each Bank required to participate
therein will, subject to the terms and conditions of this
Agreement, make available its Pro Rata Share, in the case of a
Borrowing of Revolving Loans, its share as specified in Section
2.3(d) of the Loans requested to be made on such date in Dollars
and immediately available funds at the Payment Office by such
Bank. After the Administrative Agent's receipt of the proceeds of
such Loans in immediately available funds, the Administrative
Agent will make available to the Borrower by depositing in the
Borrower's account at the Payment Office the aggregate of the
amounts so made available by the Banks in immediately available
funds. In the event that the Loans made by a Bank mature or are
being prepaid on the date of a requested Borrowing, such Bank
shall apply the proceeds of the Loans, if any, it is then making
to the extent thereof, to the repayment of such maturing or
prepaid Loans, such Loans and prepayments intended to be a
contemporaneous exchange.
(b) Unless the Administrative Agent shall have been notified by
any Bank prior to the date of a Borrowing that such Bank does not
intend to make available to the Administrative Agent such Bank's
portion of the Loans to be made on such date, the Administrative
Agent may assume that such Bank has made such amount available to
the Administrative Agent on such date and the Administrative
Agent may, in its sole discretion and in reliance upon such
assumption, but shall not be obligated to, make available to the
Borrower a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such
Bank on the date of Borrowing, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such
Bank. If such Bank does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the Borrower, and the
Borrower shall pay such corresponding amount (to the extent such
amount is not collected from such Bank) to the Administrative
Agent promptly, and in any event no later than the next
succeeding Business Day. The Administrative Agent shall also be
entitled to recover from such Bank or the Borrower, as the case
may be, interest on such corresponding amount in respect of each
day from the date such corresponding amount was made available by
the Administrative Agent to the Borrower at a rate per annum
equal to the interbank compensation rate set by the
Administrative Agent or its actual cost of funds, whichever is
higher. Nothing herein shall be deemed to relieve any Bank from
its obligation to fulfill its commitments hereunder or to
prejudice any rights which the Borrower may have against any Bank
as a result of any default by such Bank hereunder.
(c) In the event that a Borrowing of Revolving Loans is
requested to be made pursuant to this Agreement, if, after giving
effect thereto and the use of proceeds thereof, the outstanding
principal amount of Revolving Loans and Competitive Bid Loans
made by such Bank at such time would exceed such Bank's
Commitment, such Bank shall, immediately upon but in any event
within one Business Day of receipt of a Notice of Borrowing,
notify the Administrative Agent, and the Borrower of the amount
of such excess, and such Bank shall not be obligated to make
Loans pursuant to such Borrowing to the extent of such excess.
2.5 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative
Agent for the account of each Bank the then unpaid principal
amount of each Revolving Loan on the Commitment Termination Date,
provided, however, if the Borrower exercises the Term Loan
Conversion Option pursuant to Section 2.5(e), each Revolving Loan
shall be converted on the Commitment Termination Date to a Term
Loan and payable pursuant to clause (iii) of this Section 2.5(a),
(ii) to the Administrative Agent for the account of each Bank the
then unpaid principal amount of each Competitive Bid Loan on the
last day of the Interest Period applicable to such Loan and (iii)
to the Administrative Agent for the account of each Bank the then
unpaid principal amount of each Term Loan on the Final Maturity
Date.
(b) The Borrower's obligation to pay the principal of, and
interest on, all of the Loans made by a Bank shall, upon the
request of such Bank (i) in the case of Revolving Loans be
evidenced by a promissory note (collectively, the "Revolving
Notes"), (ii) in the case of Competitive Bid Loans be evidenced
by a promissory note (collectively, the "Competitive Bid Notes")
and (iii) in the case of Term Loans be evidenced by a promissory
note (collectively, the "Term Notes", and together with the
Revolving Notes and Competitive Bid Notes, the "Notes"), duly
executed and delivered by the Borrower substantially in the forms
of Exhibits B-1, B-2 and B-3 hereto, respectively, in each case
with blanks appropriately completed in conformity herewith. The
Borrower shall promptly issue Notes to a Bank upon the request of
such Bank. Any Notes issued to each Bank by the Borrower shall
(i) be payable to the order of such Bank and be dated, in the
case of a Revolving Note or Competitive Bid Note, the Effective
Date (or in the case of a Term Note, the Commitment Termination
Date), (ii) be in a stated principal amount, in the case of the
Revolving Notes, equal to the Commitment of such Bank, in the
case of the Competitive Bid Notes, equal to the aggregate
outstanding principal amount of Competitive Bid Loans made by
such Bank, in the case of the Term Notes, equal to unpaid
principal amount of the Revolving Loans converted to Term Loans
and in any such case, be payable in the aggregate principal
amount of the Loans evidenced thereby, (iii) mature, in the case
of the Revolving Notes, on the Commitment Termination Date or on
an earlier date as specified therein, in the case of the
Competitive Bid Notes, on the last day of the Interest Period
applicable to such Note, and in the case of the Term Notes, on
the Final Maturity Date, and in any such case, be subject to
mandatory prepayment as provided herein, (iv) bear interest as
provided in the appropriate clause of Section 2.6 in respect of
the Loans evidenced thereby and (v) be entitled to the benefits
of this Agreement.
(c) Each Bank shall note on its internal records each Loan made
by such Bank and payment thereon; provided that the failure to
make, or an error in making, a notation with respect to any Loan
shall not limit or otherwise affect the obligation of the
Borrower hereunder or under the applicable Note. Such notations
shall constitute prima facie evidence of the accuracy of the
information contained therein. Promptly upon the Borrower's
request (with a copy to the Administrative Agent), each Bank
shall provide to the Borrower copies of such notations. Although
each Note shall be dated the Effective Date, interest in respect
thereof shall be payable only for the periods during which any
amount thereunder is outstanding and although the stated amount
of each Revolving Note shall be equal to the relevant Bank's
Commitment, each Note shall be enforceable, with respect to the
Borrower's obligation to pay the principal amount thereof, only
to the extent of the outstanding principal amount of Loans
evidenced thereby.
(d) The Administrative Agent shall maintain at its Payment
Office (i) records of the names and addresses of the Banks and
(ii) accounts in which it shall record (x) the amount of each
Loan made hereunder, the Class and Type thereof and the Interest
Period applicable thereto, (y) the amount of any principal or
interest due and payable or to become due and payable from the
Borrower to each Bank hereunder and (z) the amount of any sum
received by the Administrative Agent hereunder for the account of
the Banks and each Bank's share thereof. The entries made in the
accounts maintained pursuant to this Section 2.5(d) shall be
prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of the
Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this
Agreement. Such records shall be available for inspection by the
Borrower or any Bank at any reasonable time and from time to time
upon reasonable prior notice.
(e) The Borrower shall have an option (the "Term Loan Conversion
Option") to convert the principal amount of the Revolving Loans
outstanding on the Commitment Termination Date to term loans (the
"Term Loans") provided that no Default or Event of Default shall
have occurred and be continuing on the Commitment Termination
Date. The Term Loans shall mature and be payable on the Final
Maturity Date. The Borrower may exercise the Term Loan
Conversion Option by sending notice thereof to the Administrative
Agent not less than 15 days and not more than 30 days prior to
the Commitment Termination Date. Promptly upon receipt of such
notice, the Administrative Agent shall notify each Bank that the
Borrower has exercised the Term Loan Conversion Option.
2.6 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan,
whether such Base Rate Loan is a Revolving Loan or a Term Loan,
as the case may be, from the date of the respective Borrowing
until maturity (whether by acceleration or otherwise) at a rate
per annum which shall be equal to the Base Rate as in effect from
time to time, such rate to change as and when the Base Rate
changes.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan, whether such Eurodollar
Loan is a Revolving Loan or a Term Loan, as the case may be, from
the date of the respective Borrowing until maturity (whether by
acceleration or otherwise) at a rate per annum which shall be
equal to the sum of (x) the relevant Eurodollar Rate plus (y) the
Applicable Margin.
(c) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Competitive Bid Loan from the date of
the respective Borrowing until maturity (whether by acceleration
or otherwise) at the rate or rates per annum specified pursuant
to Section 2.3(c) by the Bank making such Loan and accepted by
the Borrower pursuant to Section 2.3(d)(2).
(d) The Administrative Agent, upon determining the interest rate
for any Borrowing of Eurodollar Loans for any Interest Period,
shall promptly notify by telephone (confirmed in writing) or in
writing, the Borrower and the Banks thereof.
(e) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and all other overdue
amounts owing hereunder shall bear interest for each day from the
date such payment was due to but not including the date paid in
full at a rate per annum equal to two per cent (2%) per annum in
excess of the Base Rate in effect from time to time, payable on
demand; provided that no Loan shall bear interest after maturity
(whether by acceleration or otherwise) at a rate per annum less
than two per cent (2%) in excess of the rate of interest
applicable thereto at maturity.
(f) Interest on each Loan shall accrue from and including the
date of the Borrowing thereof to but excluding the date of any
repayment thereof (provided that any Loan borrowed and repaid on
the same day shall accrue one day's interest) and shall be
payable (i) in respect of each Base Rate Loan, quarterly in
arrears on each Payment Date, (ii) in respect of each Eurodollar
Loan, on the last day of each Interest Period applicable to such
Loan and, in the case of an Interest Period of six months or nine
months, on the date occurring every three months after the first
day of such Interest Period, (iii) in the case of Competitive Bid
Loans, as provided in Section 2.3 and (iv) in respect of all
Loans, on any prepayment or conversion thereof (on the amount
prepaid or converted), at maturity (whether by acceleration or
otherwise) and, after maturity, on demand.
(g) All computations of interest on (i) Eurodollar Loans and
Competitive Bid Loans and interest payable pursuant to Section
2.4(b) shall be made on the basis of a year of 360 days for the
actual number of days occurring in the period for which such
interest is payable and (ii) Base Rate Loans and interest payable
pursuant to Section 2.6(e) shall be made on the basis of a year
of 365 days (or 366 days in leap year) for the actual number of
days occurring in the period for which such interest is payable.
Each determination by the Administrative Agent of an interest
rate hereunder shall, except for manifest error, be final,
conclusive and binding for all purposes.
2.7 Interest Periods. The Borrower shall, in each Notice of
Borrowing or Notice of Continuation or Conversion in respect of
the making of, conversion into or continuation of, a Borrowing of
Eurodollar Loans, or in each Notice of Competitive Bid Borrowing
in respect of a Borrowing of Competitive Bid Loans, select the
interest period (each, an "Interest Period") to be applicable to
such Borrowing, which Interest Period shall, at the option of the
Borrower, be a one, two, three, six or, if available, nine month
period, and in the case of a Competitive Bid Loan, a period of
one to 360 days; provided that:
(i) any Interest Period for any Loan shall commence on
the date of such Loan;
(ii) the initial Interest Period for any Borrowing of or
conversion to Eurodollar Loans shall commence on the date of such
Borrowing or conversion and each Interest Period occurring
thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;
(iii) if any Interest Period relating to a Borrowing
consisting of Eurodollar Loans or Competitive Bid Loans having
the Eurodollar Rate as the Interest Rate Basis begins on a day
for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided that if any Interest
Period for a Eurodollar Loan or Competitive Bid Loan having the
Eurodollar Rate as the Interest Rate Basis would otherwise expire
on a day which is not a Business Day but is a day of the month
after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
and
(v) no Interest Period in respect of any Revolving Loan or
Competitive Bid Loan shall extend beyond the Commitment
Termination Date and no Interest Period in respect of any Term
Loan shall extend beyond the Final Maturity Date.
2.8 Conversions or Continuations. (a) Subject to the other
provisions hereof, the Borrower shall have the option (i) to
convert pro rata on any Business Day all or a portion equal to at
least $100,000,000 (or if greater, an integral multiple of
$5,000,000) of the outstanding principal amount of any Revolving
Loan or Term Loan, Revolving Loans made pursuant to one or more
Borrowings or Term Loans from one or more Types of Loans into one
Borrowing of another Type, or (ii) to continue all or any part of
the outstanding Eurodollar Loans made pursuant to one Borrowing;
provided that (x) except as otherwise provided in Section 2.9,
Eurodollar Loans may be converted into Loans of another Type only
on the last day of an Interest Period applicable thereto and (y)
Loans of any Type may only be converted into or continued as
Eurodollar Loans if no Default or Event of Default has occurred
and is continuing.
(b) In order to select to convert or continue a Revolving Loan
or a Term Loan under this Section 2.8, the Borrower shall deliver
an irrevocable notice thereof by telephone (confirmed promptly in
writing) or in writing (a "Notice of Continuation or Conversion")
to the Administrative Agent at the Payment Office prior to 11:00
a.m. (New York City time) at least three Business Days prior to
the date of such conversion or continuation specifying whether a
continuation or conversion is requested, the Loans to be so
converted or continued and, if to be converted into or continued
as Eurodollar Loans, the Interest Period to be initially
applicable thereto. Notwithstanding the foregoing, if a Default
or Event of Default is in existence at the time any Interest
Period in respect of any Borrowing of Eurodollar Loans is to
expire, such Loans may not be continued as Eurodollar Loans but
instead shall be automatically converted on the expiration date
of such Interest Period into a Borrowing of Base Rate Loans. If
upon the expiration of any Interest Period, the Borrower has
failed to elect a new Interest Period to be applicable to the
respective Borrowing of Eurodollar Loans as provided above, the
Borrower shall be deemed to have elected to convert the Borrowing
into a Borrowing of Base Rate Loans effective as of the
expiration date of such current Interest Period.
2.9 Interest Rate Unascertainable, Increased Cost, Illegality,
etc. (a) In the event that the Administrative Agent, in the case
of clause (i) below, or any Bank, in the case of clauses (ii) and
(iii) below, shall in good faith have reasonably determined
(which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any
Interest Period, that by reason of any changes arising after the
date of this Agreement affecting the interbank Eurodollar market
adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the
definition of Eurodollar Rate; or
(ii) at any time, that the relevant Eurodollar Rate applicable to
its Loans shall not represent the effective pricing to such Bank
for funding or maintaining the affected Loans, or such Bank shall
incur increased costs or reductions in the amounts received or
receivable hereunder in respect thereof, because of (x) any
change since the date of this Agreement in any applicable law or
governmental rule, regulation, guideline or order or any
interpretation thereof by any governmental agency or authority
and including the introduction of any new law or governmental
rule, regulation, guideline or order (such as, for example, but
not limited to, a change in official reserve requirements),
whether or not having the force of law and whether or not failure
to comply therewith would be unlawful or (y) other circumstances
affecting such Bank or the interbank Eurodollar market or the
position of such Bank in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan or Competitive Bid Loan having the Eurodollar
Rate as the Interest Rate Basis has become unlawful by compliance
by such Bank in good faith with any law, governmental rule,
regulation, guideline or order enacted or adopted after the date
of this Agreement (whether or not having the force of law), or
has become impracticable as a result of a contingency occurring
after the date of this Agreement which materially and adversely
affects the interbank Eurodollar market;
then, and in any such event, the Administrative Agent or such
Bank, as the case may be, shall, promptly after making such
determination, give notice (by telephone promptly confirmed in
writing) to the Borrower and (if applicable) to the
Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other
Banks). Thereafter (x) in the case of clause (i) above,
Eurodollar Loans shall no longer be available until such time as
the Administrative Agent notifies the Borrower and the Banks that
the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of
Borrowing, Notice of Competitive Bid Borrowing or Notice of
Conversion or Continuation given by the Borrower with respect to
any Borrowing of Eurodollar Loans or Competitive Bid Loans having
the Eurodollar Rate as the Interest Rate Basis which have not yet
been incurred shall be deemed cancelled and rescinded by the
Borrower, (y) in the case of clause (ii) above, the Borrower
shall pay to such Bank, within five Business Days of written
demand therefor with a copy to the Administrative Agent, such
additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as the
Bank in its sole discretion shall determine) as shall be required
to compensate such Bank for such increased costs or reduction in
amounts receivable hereunder (a written notice as to additional
amounts owed such Bank, showing the basis for the calculation
thereof, submitted to the Borrower by the Bank shall, absent
manifest error, be final and conclusive and binding upon all of
the parties hereto) and (z) in the case of clause (iii) above,
the Borrower shall take one of the actions specified in clause
(b) below as promptly as possible.
(b) At any time that any Eurodollar Loans are affected by the
circumstances described in clause (a) above, the Borrower may
(and, in the case of a Eurodollar Loan affected pursuant to
clause (a)(iii) above, shall) either (i) if the affected
Eurodollar Loan has not yet been made but is then the subject of
a Notice of Borrowing or a Notice of Conversion or Continuation,
be deemed to have cancelled and rescinded such notice, or (ii) if
the affected Eurodollar Loan is then outstanding, require the
affected Bank to convert each such Eurodollar Loan into a Base
Rate Loan at the end of the applicable Interest Period or such
earlier time as may be required by law by giving the
Administrative Agent telephonic notice (promptly confirmed in
writing) thereof on the Business Day that the Borrower was
notified by the Bank pursuant to clause (a) above; provided that
if more than one Bank is affected at any time, then all affected
Banks must be treated in the same manner pursuant to this clause
(b).
(c) In the event that the Administrative Agent determines at any
time following its giving of notice based on the conditions
described in clause (a)(i) above that none of such conditions
exist, the Administrative Agent shall promptly give notice
thereof to the Borrower and the Banks, whereupon the Borrower's
right to request Eurodollar Loans from the Banks and the Banks'
obligation to make Eurodollar Loans shall be restored.
(d) In the event that a Bank determines at any time following
its giving of a notice based on the conditions described in
clause (a)(iii) above that none of such conditions exist, such
Bank shall promptly give notice thereof to the Borrower and the
Administrative Agent, whereupon the Borrower's right to request
Eurodollar Loans from such Bank and such Bank's obligation to
make Eurodollar Loans shall be restored.
2.10 Capital Adequacy. (a) If any Bank determines in good faith
that compliance with any applicable law, rule, regulation,
guideline, request or directive, whether or not having the force
of law, from a governmental authority, central bank or comparable
agency, concerning capital adequacy or reserves, or any change
therein or in interpretation or administration thereof by any
governmental authority, central bank or comparable agency has or
will have the effect of reducing the rate of return on the
capital or assets of such Bank or any Person controlling such
Bank as a consequence of such Bank's commitments or obligations
hereunder, then from time to time within 15 days after demand
therefor by such Bank (with a copy to the Administrative Agent),
the Borrower will pay to such Bank such additional amounts as
will compensate such Bank or Person for such reduction. Each
Bank, upon determining that any increased costs will be payable
pursuant to this Section 2.10, will give prompt written notice
thereof to the Borrower, which notice shall show the basis for
calculation of such increased costs, although the failure to give
any such notice shall not release or diminish any of the
Borrower's obligations to pay increased costs pursuant to this
Section. To the extent that the notice required by the
immediately preceding sentence is given by any Bank more than 180
days after the occurrence of the event giving rise to additional
costs of the type described in this Section 2.10, such Bank shall
not be entitled to compensation under this Section 2.10 for any
amounts incurred or accrued prior to the giving of such notice to
the Borrower.
(b) If the Borrower shall, as a result of the requirements of
subsection (a) above or Section 2.12, be required to pay any Bank
the additional costs referred to therein and the Borrower, in its
sole discretion, shall deem such additional amounts to be
material, the Borrower shall have the right to substitute another
bank satisfactory to the Administrative Agent for such Bank which
has certified the additional costs to the Borrower, and the
Administrative Agent shall use reasonable efforts to assist the
Borrower to locate such substitute bank. Any such substitution
shall be on terms and conditions satisfactory to the
Administrative Agent and until such time as such substitution
shall be consummated, the Borrower shall continue to pay such
additional costs. Upon any such substitution, the Borrower shall
pay or cause to be paid to the Bank that is being replaced, all
principal, interest (to the date of such substitution) and other
amounts owing hereunder to such Bank and such Bank will be
released from liability hereunder.
2.11 Funding Losses. The Borrower shall compensate each Bank,
upon such Bank's delivery of a written request therefore, with a
copy to the Administrative Agent, (which request shall set forth
in reasonable detail the basis for requesting such amounts and
which request shall, absent manifest error, be final, conclusive
and binding upon all of the parties hereto), for all losses,
expenses and liabilities (including, without limitation, any
interest paid by such Bank to lenders of funds borrowed by it to
make or carry its Eurodollar Loans to the extent not recovered by
such Bank in connection with the re-employment of such funds and
including loss of anticipated profits) which such Bank may
sustain: (i) if for any reason (other than a default by such
Bank) a Borrowing of, or conversion (or deemed conversion) from
or into, or continuation of, Eurodollar Loans, or a Borrowing of
Competitive Bid Loans, does not occur on the date specified
therefor in a Notice of Borrowing, a Notice of Continuation or
Conversion or a Notice of Competitive Bid Borrowing (whether or
not cancelled, rescinded or otherwise withdrawn); (ii) if, for
any reason, any repayment (including, without limitation, payment
after acceleration) of any of its Eurodollar Loans or Competitive
Bid Loans or conversion of its Eurodollar Loans occurs on a date
which is not the last day of an Interest Period applicable
thereto; (iii) if any prepayment of any of its Eurodollar Loans
or Competitive Bid Loans is not made on any date specified in a
notice of prepayment given by the Borrower; or (iv) as a
consequence of (x) any default by the Borrower to repay its Loans
when required by the terms of this Agreement or a Note of such
Bank or (y) an election made or action required to be taken
pursuant to Section 2.9(b).
2.12 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges,
fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any governmental
authority excluding, in the case of the Administrative Agent and
each Bank, net income and franchise, gross receipts or other
taxes imposed on net income, in each case imposed on the
Administrative Agent or such Bank by the jurisdiction under the
laws of which the Administrative Agent or such Bank is organized
or qualified to do business (other than in situations where the
basis of the imposition of such tax is the activity of the
Borrower or any of its Affiliates in such jurisdiction) or any
political subdivision or taxing authority thereof or therein, or
by any jurisdiction in which such Bank's Lending Office is
located or any political subdivision or taxing authority thereof
or therein (all such non-excluded taxes, levies, imposts,
deductions, charges or withholdings being hereinafter called
"Taxes"). If any Taxes are required to be deducted or withheld
from any amounts payable to the Administrative Agent or any Bank
hereunder or under any Notes, the amounts so payable to the
Administrative Agent or such Bank shall be increased to the
extent necessary to yield to the Administrative Agent or such
Bank (after payment of all Taxes including Taxes payable with
respect to the additional amounts payable under this Section)
interest or any such other amounts payable hereunder at the rates
or in the amounts specified in this Agreement and any Notes.
Whenever any Taxes are payable by the Borrower, as promptly as
possible thereafter, the Borrower shall send to the
Administrative Agent for its own account or for the account of
such Bank, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Banks for any incremental taxes,
interest or penalties that may become payable by the
Administrative Agent or any Bank as a result of any such failure.
The agreements in this Section 2.12(a) shall survive the
termination of this Agreement and the payment of any Notes and
all other Obligations and are subject to the provisions of
Section 2.12(b).
(b) Each Bank that is not incorporated under the laws of the
United States of America or a state thereof (including each
Purchasing Bank that becomes a party to this Agreement pursuant
to Section 11.4(d)) agrees that, prior to the first date on which
any Loan is made, or, in the case of a Purchasing Bank, prior to
the date it becomes a Bank hereunder, it will deliver to the
Borrower and the Administrative Agent two duly completed copies
of United States Internal Revenue Service Form W-8BEN or W-8ECI
or successor applicable form, as the case may be, certifying in
each case that such Bank is entitled to receive payments under
this Agreement and any Notes payable to it, without deduction or
withholding of any United States federal income taxes. Each Bank
which delivers to the Borrower and the Administrative Agent a
Form W-8BEN or W-8ECI pursuant to the preceding sentence further
undertakes to deliver to the Borrower and the Administrative
Agent two further copies of the said Form W-8BEN or W-8ECI (if
required by law), or successor applicable forms, or other manner
of certification, as the case may be, on or before the date that
any such form expires or becomes obsolete or after the occurrence
of any event requiring a change in the most recent form
previously delivered by it to the Borrower, and such extensions
or renewals thereof as may reasonably be requested by the
Borrower, certifying that such Bank is entitled to receive
payments under this Agreement without deduction or withholding of
any United States federal income taxes, unless in any such case
an event (including, without limitation, any change in treaty,
law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such
forms inapplicable or which would prevent such Bank from duly
completing and delivering any such form with respect to it and
such Bank advises the Borrower that it is not capable of
receiving payments without any deduction or withholding of United
States federal income tax.
2.13 Sharing of Payments, etc. Each of the Banks agrees that if
it should receive any amount hereunder (whether by voluntary
payment, by realization upon security, by the exercise of the
right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under this Agreement, or
otherwise) which is applicable to the payment of any Obligations,
of a sum which with respect to the related sum or sums received
by other Banks is in a greater proportion than the total of such
Obligations then owed and due to such Bank bears to the total of
such Obligations then owed and due to all of the Banks
immediately prior to such receipt, then such Bank receiving such
excess payment shall purchase for cash without recourse or
warranty from the other Banks an interest in such Obligations
owing to such Banks in such amount as shall result in a
proportional participation by all of the Banks in such amount;
provided that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be
rescinded and the purchase price restored to the extent of such
recovery, but without interest. The Borrower agrees that any Bank
so purchasing a participation from another Bank pursuant to this
Section 2.13, may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-
off) with respect to such participation as fully as if such Bank
were the direct creditor of the Borrower in the amount of such
participation.
2.14 Change of Lending Office. Each Bank agrees that it will use
its best efforts (subject to overall policy considerations of
such Bank) to designate an alternate Lending Office for any
Eurodollar Loans or Competitive Bid Loans affected by the matters
or circumstances described in Sections 2.9 and 2.10 (provided
that such designation is made on such terms that such Bank
suffers no economic, legal, regulatory or other disadvantage,
determined by such Bank in its sole discretion) with the object
of avoiding the consequences of the event giving rise to the
operation of any such Section. Nothing in this Section 2.14 shall
affect or postpone any of the obligations of the Borrower or the
right of any Bank provided in this Agreement.
SECTION 3. AGENTS' FEES; FACILITY FEE; UTILIZATION FEE;
COMMITMENTS.
3.1 Facility Fee; Utilization Fee. (a) Facility Fee. The
Borrower agrees to pay to the Administrative Agent for the
account of each Bank an annual facility fee on the amount of such
Bank's Commitment at the Applicable Facility Fee Rate, commencing
on the Effective Date and payable in arrears on the Payment Date
to occur in July, 2003 and thereafter payable quarterly in
arrears on each subsequent Payment Date prior to the Commitment
Termination Date, and on the Commitment Termination Date. All
computations of the facility fee shall be computed on the basis
of number of days elapsed (including the first day but excluding
the last day) over a year of 360 days.
(b) Utilization Fee. In addition to the fees set forth in
Section 3.1(a), the Borrower agrees to pay to the Administrative
Agent for the account of each Bank a utilization fee for each day
during the periods (x) from and including the Effective Date to
but excluding the next day thereafter on which the utilization
fee is payable and (y) from and including each day on which the
utilization fee is payable to but excluding the next day
thereafter on which the utilization fee is payable, on the daily
average aggregate outstanding principal amount of the Loans
(other than Competitive Bid Loans) of such Bank during such
period at a rate per annum equal to (i) 0% if the Utilization
Percentage for such period shall be less than or equal to 50% and
(ii) the Applicable Utilization Fee Rate if the Utilization
Percentage for such period shall be greater than 50%.
"Utilization Percentage" shall mean the percentage corresponding
to the fraction, the numerator of which shall be the daily
average aggregate outstanding principal amount of all Loans of
all Banks during any relevant period and the denominator of which
shall be the daily average amount of the Commitments of all Banks
during such period. Utilization fees shall be payable quarterly
in arrears on each subsequent Payment Date prior to the date on
which all Obligations have been paid in full and the Commitments
have expired or been terminated, and on such date. All
computations of the utilization fee shall be computed on the
basis of the number of days elapsed (including the first but
excluding the last day) over a year of 360 days.
3.2 Agent's Fees. The Borrower shall pay to each of the
Administrative Agent and the Syndication Agent for its own
account such fees and other amounts as set forth in the Fee
Letter.
3.3 Voluntary Reduction of Commitments. Upon at least two
Business Days' prior written notice (or telephonic notice
confirmed promptly in writing) to the Administrative Agent (which
notice the Administrative Agent shall promptly transmit to each
of the Banks), the Borrower shall have the right, without premium
or penalty, to permanently reduce each Bank's Pro Rata Share of
all or part of the Total Commitment; provided that any partial
reduction pursuant to this Section 3.3 shall be in the amount of
$100,000,000 or, if greater, an integral multiple of $5,000,000.
3.4 Pro Rata Reductions; No Reinstatement. Each reduction of
the Total Commitment shall be applied pro rata according to the
respective Commitments of the Banks. The Banks' Commitments, once
reduced or terminated, may not be reinstated.
3.5 Extension of Commitment Termination Date.
(a) The Borrower may request, in a notice substantially in the form
of Exhibit C (an "Extension Request") given as herein provided to the
Administrative Agent not less than 45 days and not more than 60
days prior to the Commitment Termination Date, that the
Commitment Termination Date be extended, which notice shall
specify that the requested extension is to be effective (the
"Extension Effective Date") on the then current Commitment
Termination Date, and that the new Commitment Termination Date to
be in effect following such extension (the "Requested Commitment
Termination Date") is to be July 8, 2005. The Administrative
Agent shall forthwith transmit such Extension Request to the
Banks. Each Bank shall, not less than 30 days and not more than
45 days prior to the Extension Effective Date, notify the
Borrower and the Administrative Agent of its election to extend
or not to extend the Commitment Termination Date with respect to
its Commitment. If on the date 30 days prior to the Extension
Effective Date Banks having at least 75% of the aggregate amount
of the Commitments elect to extend the Commitment Termination
Date with respect to their Commitments, then, subject to the
provisions of this Section 3.5 and Section 5.3, the Commitment
Termination Date shall be extended to the Requested Commitment
Termination Date. Any Bank which shall not notify the Borrower
and the Administrative Agent of its election to extend the
Commitment Termination Date on or prior to the date 30 days prior
to the Extension Effective Date shall be deemed to have elected
not to extend the Commitment Termination Date with respect to its
Commitment.
(b) Provided that Banks having at least 75% of the aggregate
amount of the Commitments shall have elected to extend their
Commitments as provided in this Section 3.5, and any Bank shall
timely notify the Borrower and the Administrative Agent pursuant
to Section 3.5(a) of its election not to extend its Commitment or
shall be deemed to have elected not to extend its Commitment (any
such Bank being called a "Non-Extending Bank"), then the
remaining Banks (the "Continuing Banks") or any of them shall
have the right (but not the obligation), upon irrevocable notice
to the Borrower and the Administrative Agent not later than 15
days preceding the Extension Effective Date to increase their
Commitments, by an amount up to the aggregate Commitments of the
Non-Extending Banks. If Continuing Banks have elected to increase
their Commitments pursuant to the preceding sentence by an
aggregate amount which exceeds the aggregate Commitments of the
Non-Extending Banks, then the proposed increase in the Commitment
of each such Continuing Bank (as specified in the notice referred
to in the preceding sentence) shall be decreased pro rata in
accordance with the proposed increase of each so that the
aggregate increase in the Commitments of such Continuing Banks is
equal to the aggregate Commitments of the Non-Extending Banks.
Each increase in the Commitments of a Continuing Bank shall be
evidenced by a written instrument executed by such Continuing
Bank, the Borrower and the Administrative Agent.
(c) In the event the aggregate Commitments of the Non-Extending
Banks shall exceed the aggregate amount by which the Continuing
Banks have agreed to increase their Commitments pursuant to
Section 3.5(b), the Borrower may, subject to the same approval
process required of Purchasing Banks in Section 11.4(d),
designate one or more other financial institutions willing to
provide Commitments until the Requested Commitment Termination
Date in an aggregate amount not greater than such excess. Any
such financial institution (an "Additional Bank"), shall, on the
Replacement Date (as hereinafter defined), execute and deliver to
the Borrower and the Administrative Agent a Commitment Transfer
Supplement, substantially in the form of Exhibit D (the
"Commitment Transfer Supplement"), satisfactory to the Borrower
and the Administrative Agent, setting forth the amount of such
Additional Bank's Commitment and containing its agreement to
become, and to perform all the obligations of, a Bank hereunder.
(d) The Borrower, with the consent of the Administrative Agent,
shall be permitted at its option to designate one or more Non-
Extending Banks to be replaced on the Extension Effective Date or
at any time thereafter until the Commitment Termination Date, as
extended, by one or more Continuing Banks or Additional Banks
(each such Non-Extending Bank to be hereinafter referred to as an
"Exiting Bank"). The increase in the Commitment of a Continuing
Bank and the Commitment of an Additional Bank shall become
effective on the date on which such Continuing Bank or Additional
Bank, as the case may be, replaces the Commitment of an Exiting
Bank (the "Replacement Date") pursuant to the terms of Section
3.5(b) or Section 3.5(c), respectively. On the Replacement Date,
the Exiting Bank shall receive payment from the Borrower in full
of the outstanding principal amount, together with accrued
interest to such date and any other amount owed by the Borrower
to such Exiting Bank pursuant to this Agreement or any Note, of
the Loans of such Exiting Bank.
(e) The Borrower shall deliver and cause to be delivered to each
Continuing Bank whose Commitment is being increased pursuant to
this Section 3.5 and to each Additional Bank, on the Replacement
Date, in exchange for the Notes held by such Bank, new Notes, if
requested by such Continuing Bank or Additional Bank, as the case
may be, maturing on the Requested Commitment Termination Date, in
the principal amount of such Bank's Commitment after giving
effect to the adjustments made pursuant to this Section 3.5.
(f) If the Banks having at least 75% of the aggregate amount of
the Commitments shall have elected to extend their Commitments as
provided in this Section 3.5, then (i) effective on the then
current Commitment Termination Date, the Commitments of the
Continuing Banks and any Additional Banks shall continue until
the Requested Commitment Termination Date, and as to such Banks
the terms "Commitment Termination Date", as used herein shall
mean such Requested Commitment Termination Date; (ii) the
Commitments of any Non-Extending Bank shall continue until the
Commitment Termination Date, and shall then terminate (as to any
Non-Extending Bank, the term "Commitment Termination Date", as
used herein, shall mean the then current Commitment Termination
Date) and any such Non-Extending Bank shall receive payment from
the Borrower in full of the outstanding principal amount,
together with accrued interest to such date and any other amounts
owed by the Borrower to such Non-Extending Bank pursuant to this
Agreement or any Note, of the Loans of such Non-Extending Bank;
and (iii) from and after any Replacement Date, the term "Banks"
shall be deemed to include the Continuing Banks, the Non-
Extending Banks and the Additional Banks and (except with respect
to Sections 2.9, 2.10, 2.11, 2.12 and 11.1 to the extent the
rights under such sections arise after the applicable Replacement
Date in respect of Exiting Banks) to exclude the Exiting Banks
exiting on such Replacement Date.
SECTION 4. PAYMENTS.
4.1 Voluntary Prepayments. The Borrower shall have the right to
prepay Revolving Loans, Term Loans and Eurodollar Loans, in whole
or in part from time to time on the following terms and
conditions: (i) the Borrower shall give the Administrative Agent
at the Payment Office at least one Business Day's, in the case of
Revolving Loans and Term Loans, or at least three Business Days',
in the case of Eurodollar Loans, prior written notice (or
telephonic notice confirmed promptly in writing, any such written
notice confirmation being in the form of Exhibit E hereto) by
11:00 a.m. (New York City time) on such date of its intent to
prepay such Loans, which notice shall be irrevocable, specifying
the date (which shall be a Business Day) and amount of such
prepayment and the Type(s) of Loans to be prepaid, which notice
the Administrative Agent shall promptly transmit to each of the
Banks, and which notice of prepayment having been given, the
principal amount of the Loans specified in such notice shall
become due and payable on the prepayment date specified therein;
(ii) each partial prepayment of all Loans shall be in an
aggregate principal amount of $100,000,000 or, if greater, shall
be in an integral multiple of $5,000,000; provided that if a
partial prepayment of Eurodollar Loans made pursuant to a single
Borrowing shall reduce the outstanding Loans made pursuant to
such Borrowing to an amount less than $100,000,000, such
outstanding Loans shall be deemed to have been converted to Base
Rate Loans on the date of such prepayment; and (iii) each
prepayment by the Borrower in respect of any Loans made pursuant
to a Borrowing shall be applied pro rata among such Loans. A
Competitive Bid Loan may not be prepaid under this Section 4.1 in
whole or in part without the prior written consent of the Bank
which made such Loan. Subject to Section 2.11, all prepayments
shall be made without premium or penalty.
Upon receipt of a notice of prepayment pursuant to this
Section 4.1, the Administrative Agent shall promptly notify each
Bank of the contents thereof and of each Bank's ratable share, if
any, of such prepayment.
4.2 Mandatory Prepayments. (a) If, at any time prior to the
Commitment Termination Date, after giving effect to any
termination or reduction of the Total Commitment pursuant to the
terms of this Agreement, the aggregate outstanding principal
amount of all Loans shall exceed the Total Commitment, the
Borrower shall immediately prepay the Loans in an aggregate
amount equal to the lesser of (x) the outstanding principal
amount of Loans and (y) such excess. Promptly after the Final
Maturity Date, or if later, the payment of all Obligations, the
Administrative Agent shall return any amount in excess of the
Obligations to the Borrower, without interest.
(b) With respect to each prepayment of Loans required by this
Section 4.2, the Borrower may designate the Types of Loans which
are to be prepaid and the specific Borrowing(s) pursuant to which
made; provided that (i) Eurodollar Loans may be designated for
prepayment pursuant to this Section 4.2 only on the last day of
an Interest Period applicable thereto unless (x) all Loans
incurred by the Borrower which are Eurodollar Loans with Interest
Periods ending on such date of required prepayment have been paid
in full and (y) all Loans incurred by the Borrower which are Base
Rate Loans have been paid in full; (ii) if any prepayment of
Eurodollar Loans made pursuant to a single Borrowing shall reduce
the outstanding principal amount of such Eurodollar Loans to an
amount less than $100,000,000, such Borrowing shall immediately
be deemed converted into Base Rate Loans; and (iii) each
prepayment of any Loans made pursuant to a Borrowing shall be
applied pro rata among such Loans. Notwithstanding anything to
the contrary contained above, Competitive Bid Loans shall be
prepaid pursuant to this Section 4.2(b) only if no other Loans
are then outstanding. In the absence of a designation by the
Borrower as described in the second sentence of this Section
4.2(b), the Administrative Agent shall, subject to the above,
make such designation in its sole discretion.
4.3 Method and Place of Payment. (a) Except as otherwise
specifically provided herein, all payments under this Agreement
and any Notes shall be made without defense, set-off or
counterclaim to the Administrative Agent for the ratable account
of the Banks entitled thereto not later than Noon (New York City
time) on the date when due and shall be made in Dollars in
immediately available funds at the Payment Office.
(b) Except as otherwise specifically provided herein, any
payments under this Agreement or any Notes to be made by the
Borrower which are made later than Noon (New York City time)
shall for all purposes hereof (including the following sentence)
be deemed to have been made on the next succeeding Business Day.
(c) Whenever any payment to be made hereunder or under any Note
shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest
shall be payable at the applicable rate during such extension.
4.4 Use of Proceeds. The Borrower shall use all of the proceeds
of the Loans for general corporate purposes of the Borrower in
furtherance of its business.
SECTION 5. CONDITIONS PRECEDENT.
5.1 Conditions Precedent to Effectiveness. The occurrence of
the Effective Date pursuant to Section 11.9 is subject to the
satisfaction of the following conditions precedent prior to, on
or contemporaneously with the occurrence of the Effective Date:
(a) Agreement and Notes. This Agreement shall have been executed
and delivered in accordance with Section 11.9 and the
Administrative Agent shall have received, for the account of each
Bank which has requested to receive Notes, if any, the Revolving
Note and the Competitive Bid Note of such Bank, in each case duly
completed, executed and delivered by an Authorized Officer of the
Borrower.
(b) Termination of Existing Credit Agreement. There shall be no
obligations of the Borrower or any of its Subsidiaries
outstanding under the Refinanced Indebtedness, except for the
continuing indemnities provided for therein, which shall have
been terminated and the commitments of the lenders thereunder
shall have been terminated and any notes issued in connection
therewith shall be deemed cancelled.
(c) Officers' Certificates and Corporate Documents. The Agents
shall have received (with a copy for each of the other Banks) (i)
a certificate of the Secretary or an Assistant Secretary of the
Borrower certifying (x) the names and true signatures of the
officers of the Borrower authorized to sign this Agreement, any
Notes and the other documents to be delivered hereunder, (y) the
resolutions of the Borrower's Board of Directors approving and
authorizing the execution and delivery of this Agreement and the
Notes, if any, and (z) that there have been no changes in the
Borrower's Certificate of Incorporation (which shall have been
furnished to the Administrative Agent and the Syndication Agent)
since the date of the most recent certification thereof by the
appropriate Secretary of State and (ii) a certificate of the
chief executive officer or chief financial officer of the
Borrower certifying that the statements referred to in clauses
(h), (i) and (j) below are true as of the Effective Date, in each
case in form and substance satisfactory to the Banks.
(d) Opinion of Borrower's Counsel. The Agents shall have
received (with a copy for each of the other Banks) a favorable
opinion of ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, general counsel of the
Borrower, substantially in the form of Exhibit F hereto.
(e) Opinion of Syndication Agents' Counsel. The Agents shall
have received (with a copy for each of the other Banks) an
opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for
the Agents and the Banks, substantially in the form of Exhibit G
hereto.
(f) Fees and Expenses. The Agents shall have received payment in
full of all fees referred to in Section 3.2 which are payable on
or prior to the Effective Date and all substantiated expenses for
which invoices have been presented on or prior to the Effective
Date.
(g) Corporate Proceedings. All corporate and legal proceedings
and all instruments and agreements in connection with the
transactions contemplated by this Agreement shall be satisfactory
in form and substance to the Banks, and the Agents shall have
received (with copies for each of the other Banks) all
information and copies of all documents and papers, including
records of corporate proceedings, the Certificate of
Incorporation and By-Laws of the Borrower and governmental
approvals, if any, which any Bank may have reasonably requested
in connection therewith.
(h) Representations and Warranties True; No Default. On and as
of the Effective Date (i) the representations and warranties
contained in Section 6 shall be true and correct and (ii) no
event shall have occurred and be continuing, and no condition
shall exist, which constitutes an Event of Default or a Default.
(i) Material Adverse Effect. Since December 31, 2002, there has
not occurred and there does not exist any event, act, condition
or liability which has had, or may reasonably be expected to
have, a Material Adverse Effect.
(j) Litigation. There are no actions, suits or proceedings, or
any governmental investigation or any arbitration, in each case
pending or, to the knowledge of the Borrower, threatened which,
individually or in the aggregate, may reasonably be expected to
result in a Material Adverse Effect.
5.2 Conditions Precedent to Each Loan. The obligation of each
Bank to make any Loan is subject to the satisfaction of the
following conditions precedent:
(a) Representations and Warranties True; No Default. On the date
of such Loan, both before and after giving effect thereto and to
the application of the proceeds thereof, the following statements
shall be true (and each of the giving of the applicable Notice of
Borrowing, Notice of Competitive Bid Borrowing, or the acceptance
by the Borrower of the proceeds of such Loan shall constitute a
representation and warranty by the Borrower that on such date,
both before and after giving effect thereto and to the
application of the proceeds thereof, such statements are true):
(i) the representations and warranties contained in Section 6 are
true and correct on and as of the date of such Loan, with the
same effect as though made on and as of the date of such Loan;
and (ii) no event has occurred and is continuing or condition
exists, or would result from such Loan or the application of the
proceeds thereof, which constitutes an Event of Default or a
Default.
(b) Other. The Administrative Agent shall have received such
other approvals, opinions or documents as it may reasonably
request, all in form and substance satisfactory to the
Administrative Agent.
5.3 Conditions Precedent to the Extension of the Commitment
Termination Date. On the date of the extension of the Commitment
Termination Date pursuant to Section 3.5, both before and after
giving effect thereto, the following statements shall be true
(and the giving of the Extension Notice shall constitute a
representation and warranty by the Borrower that on the date of
such notice such statements are true): (i) the representations
and warranties contained in Section 6 are true and correct on and
as of the date of such extension, with the same effect as though
made on and as of the date of such extension; (ii) since December
31, 2002, there has not occurred and there does not exist any
event, act, condition or liability which has had, or may
reasonably be expected to have, a Material Adverse Effect; (iii)
there are no actions, suits or proceedings, or any governmental
investigation or any arbitration, in each case pending or, to the
knowledge of the Borrower, threatened which, individually or in
the aggregate, may reasonably be expected to result in a Material
Adverse Effect; and (iv) no event has occurred and is continuing
or condition exists, or would result from such extension, which
constitutes an Event of Default or a Default.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
In order to induce the Agents and the Banks to enter
into this Agreement and to make available the credit facilities
contemplated hereby, the Borrower makes the following
representations, warranties and agreements, each of which shall
survive the execution and delivery of this Agreement and any
Notes and the making of the Loans:
6.1 Corporate Status. Each of the Borrower and its Domestic
Subsidiaries (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization,
(ii) has all requisite power and authority to own its property
and assets and to transact the business in which it is engaged or
presently proposes to engage and (iii) has duly qualified and is
authorized to do business and is in good standing in every
jurisdiction (other than the jurisdiction of its organization) in
which it owns or leases real property or in which the nature of
its business requires it to be so qualified, except where the
failure to so qualify, individually or in the aggregate, may not
reasonably be expected to have a Material Adverse Effect.
Schedule 6.1 identifies all of the Borrower's Material
Subsidiaries, Domestic Subsidiaries and Principal Subsidiaries as
of the Effective Date and the principal type of business of each
such Subsidiary.
6.2 Corporate Power and Authority. The Borrower has the
corporate power and authority to execute, deliver and carry out
the terms and provisions of this Agreement and the Notes, if any,
and has taken all necessary corporate action to authorize the
execution, delivery and performance by the Borrower of such
Agreement and the Notes, if any. The Borrower has duly executed
and delivered this Agreement, and this Agreement and each Note,
if any, constitutes, its legal, valid and binding obligation,
enforceable in accordance with its terms, except as enforcement
thereof may be subject to (i) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally and (ii) general principles
of equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law).
6.3 No Violation. Neither the execution, delivery or
performance by the Borrower of this Agreement and the Notes, if
any, nor compliance by it with the terms and provisions thereof
nor the consummation of the transactions contemplated thereby,
(i) will contravene any applicable provision of any law, statute,
rule, regulation, order, writ, injunction or decree of any court
or governmental instrumentality or (ii) will conflict or be
inconsistent with or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property
or assets of the Borrower or any of its Subsidiaries pursuant to
the terms of any indenture, mortgage, deed of trust, agreement or
other instrument to which the Borrower or any of its Subsidiaries
is a party or by which it or any of its property or assets is
bound or to which it may be subject, or (iii) will violate any
provision of the Certificate of Incorporation or By-Laws of the
Borrower.
6.4 Litigation. There is no action, suit, investigation,
litigation or proceeding, in each case pending or, to the best
knowledge of the Borrower, threatened affecting the Borrower or
any of its Subsidiaries before any court, governmental agency or
arbitrator that is reasonably likely to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
6.5 Financial Statements; Financial Condition; etc. The audited
consolidated financial statements of the Borrower and its
Consolidated Subsidiaries as at December 31, 2002 and the
unaudited consolidated financial statements of the Borrower and
its Consolidated Subsidiaries as at March 31, 2003, heretofore
delivered to the Banks were prepared in accordance with GAAP
consistently applied and fairly present the consolidated
financial condition and the results of operations of the entities
covered thereby on the dates and for the periods covered thereby,
except as disclosed in the notes thereto and, with respect to
interim financial statements, subject to normally recurring year-
end adjustments.
6.6 Use of Proceeds; Margin Regulations. All proceeds of each
Loan, will be used by the Borrower only in accordance with the
provisions of Section 4.4. No part of the proceeds of any Loan
will be used by the Borrower to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing
or carrying any Margin Stock. Neither the making of any Loan nor
the use of the proceeds thereof will violate or be inconsistent
with the provisions of Regulations U or X.
6.7 Governmental Approvals. No order, consent, approval,
license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public
body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with (i) the execution,
delivery and performance of this Agreement or the Notes, if any,
or the consummation of any of the transactions contemplated
thereby or (ii) the legality, validity, binding effect or
enforceability of this Agreement or the Notes, if any.
6.8 Tax Returns and Payments. The Borrower and each of its
Subsidiaries has filed all tax returns required to be filed by it
and has paid all taxes shown on such returns and assessments
payable by it which have become due, other than (i) those not yet
delinquent, (ii) or those that are in the aggregate adequately
reserved against in accordance with GAAP which are being
diligently contested in good faith by appropriate proceedings or
(iii) those with respect to which the failure to pay, in the
aggregate, could not reasonably be expected to have a Material
Adverse Effect. There are and will be no tax-sharing or similar
arrangements between the Borrower and any of its Subsidiaries.
6.9 ERISA. No accumulated funding deficiency (as defined in
Section 412 of the Code or Section 302 of ERISA) or Reportable
Event has occurred with respect to any Plan. There are no
Unfunded Benefit Liabilities under any Plan. The Borrower and
each member of its ERISA Controlled Group have complied with the
requirements of Section 515 of ERISA with respect to each
Multiemployer Plan, if any, and is not in "default" (as defined
in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan. The aggregate potential total withdrawal
liability, and the aggregate potential annual withdrawal
liability payments of the Borrower and the members of its ERISA
Controlled Group as determined in accordance with Title IV of
ERISA as if the Borrower and the members of its ERISA Controlled
Group had completely withdrawn from all Multiemployer Plans is
not greater than $10,000,000 and $1,000,000, respectively. To the
best knowledge of the Borrower and each member of its ERISA
Controlled Group, no Multiemployer Plan is or is likely to be in
reorganization (as defined in Section 4241 of ERISA or Section
418 of the Code) or is insolvent (as defined in Section 4245 of
ERISA). No material liability to the PBGC (other than required
premium payments), the Internal Revenue Service, any Plan or any
trust established under Title IV of ERISA has been, or is
expected by the Borrower or any member of its ERISA Controlled
Group to be, incurred by the Borrower or any member of its ERISA
Controlled Group. Neither the Borrower nor any member of its
ERISA Controlled Group has any contingent liability with respect
to any post-retirement benefit under any "welfare plan" (as
defined in Section 3(1) of ERISA), except contingent liabilities
which in the aggregate are not reasonably expected to have a
Material Adverse Effect. No lien under Section 412(n) of the Code
or 302(f) of ERISA or requirement to provide security under
Section 401(a)(29) of the Code or Section 307 of ERISA has been
or is reasonably expected by the Borrower or any member of its
ERISA Controlled Group to be imposed on the assets of the
Borrower or any member of its ERISA Controlled Group.
6.10 Investment Company Act; Public Utility Holding Company Act.
Neither the Borrower nor any of its Subsidiaries is (x) an
"investment company" or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of
1940, as amended, (y) a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of either a
"holding company" or a "subsidiary company" within the meaning of
the Public Utility Holding Company Act of 1935, as amended, or
(z) subject to any other federal or state law or regulation which
purports to restrict or regulate its ability to borrow money.
6.11 True and Complete Disclosure. All factual information
(taken as a whole) furnished by or on behalf of the Borrower and
its Subsidiaries, taken as a whole, in writing to the Agents or
any Bank on or prior to the Effective Date, for purposes of or in
connection with this Agreement or any of the transactions
contemplated hereby is, and all other such factual information
(taken as a whole) hereafter furnished by or on behalf of the
Borrower and its Subsidiaries, taken as a whole, in writing to
the Administrative Agent, the Syndication Agent or any Bank will
be, true and accurate in all material respects on the date as of
which such information is dated or furnished and not incomplete
by knowingly omitting to state any material fact necessary to
make such information (taken as a whole) not misleading at such
time. As of the Effective Date, there are no facts, events,
conditions or liabilities known to the Borrower which,
individually or in the aggregate, have or may reasonably be
expected to have a Material Adverse Effect.
6.12 Environmental Matters. (a) (i) The Borrower, each of its
Affiliates and, to the best of the Borrower's actual knowledge,
each of its other Environmental Affiliates are in compliance with
all applicable Environmental Laws except where noncompliance,
individually or in the aggregate, may not reasonably be expected
to have a Material Adverse Effect, (ii) the Borrower, each of its
Affiliates, and, to the best of the Borrower's actual knowledge,
each of its other Environmental Affiliates has all Environmental
Approvals required to operate its business as presently conducted
or as reasonably anticipated to be conducted except where the
failure to obtain any such Environmental Approval, individually
or in the aggregate, may not reasonably be expected to have a
Material Adverse Effect, (iii) neither the Borrower, any of its
Affiliates, nor, to the best of the Borrower's actual knowledge,
any of its other Environmental Affiliates has received any
communication (written or oral), whether from a governmental
authority, citizens group, employee or otherwise, that alleges
that the Borrower, such Affiliate or such Environmental Affiliate
is not in full compliance with all Environmental Laws and where
such noncompliance, individually or in the aggregate, may
reasonably be expected to have a Material Adverse Effect, and
(iv) to the Borrower's best knowledge after due inquiry, there
are no circumstances that may prevent or interfere with such full
compliance in the future except where such noncompliance,
individually or in the aggregate, may not reasonably be expected
to have a Material Adverse Effect.
(b) There is no Environmental Claim pending or threatened
against the Borrower, any of its Affiliates or, to the best of
the Borrower's actual knowledge, its other Environmental
Affiliates, which, individually or in the aggregate, may
reasonably be expected to have a Material Adverse Effect.
(c) There are no past or present actions, activities,
circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge or disposal
of any Material of Environmental Concern, that could form the
basis of any Environmental Claims against the Borrower, any of
its Affiliates or, to the best of the Borrower's actual
knowledge, any of its other Environmental Affiliates, which
Environmental Claims, individually or in the aggregate, may
reasonably be expected to have a Material Adverse Effect.
(d) Without in any way limiting the generality of the foregoing,
(i) there are no on-site or off-site locations in which the
Borrower, any of its Affiliates or, to the best of the Borrower's
actual knowledge, any of its other Environmental Affiliates has
stored, disposed or arranged for the disposal of Materials of
Environmental Concern, (ii) there are no underground storage
tanks located on property owned or leased by the Borrower, any of
its Affiliates or, to the best of the Borrower's actual
knowledge, any of its other Environmental Affiliates, (iii) there
is no asbestos contained in or forming part of any building,
building component, structure or office space owned or leased by
the Borrower, any of its Affiliates or, to the best of the
Borrower's actual knowledge, any of its other Environmental
Affiliates, and (iv) no polychlorinated biphenyls (PCB's) are
used or stored at any property owned or leased by the Borrower,
any of its Affiliates or, to the best of the Borrower's actual
knowledge, any of its other Environmental Affiliates, in each
case the consequences of which may reasonably be expected to have
a Material Adverse Effect.
(e) For purposes of this Section 6.12, "actual" knowledge shall
mean knowledge of the Borrower's chairman of the board, chief
executive officer, chief financial officer, general counsel or
any other person responsible for the administration of this
Agreement, including without limitation, attorneys.
6.13 Patents, Trademarks, etc. The Borrower and each of its
Subsidiaries has obtained and holds in full force and effect all
patents, trademarks, servicemarks, trade names, copyrights and
other such rights, free from burdensome restrictions, which are
necessary for the operation of its business as presently
conducted. No product, process, method, substance, part or other
material presently sold by or employed by the Borrower or any of
its Subsidiaries in connection with such business infringes any
patent, trademark, service ▇▇▇▇, trade name, copyright, license
or other right owned by any other Person which in each case is
valid without such Person's express authorization, except where
such unauthorized infringement, individually or in the aggregate,
may not reasonably be expected to have a Material Adverse Effect.
There is not pending or overtly threatened any claim or
litigation against or affecting the Borrower or any of its
Subsidiaries contesting its right to sell or use any such
product, process, method, substance, part or other material.
6.14 Ownership of Property. The Borrower and each of its
Subsidiaries has good and marketable fee simple title to or valid
leasehold interests in all of the real property owned or leased
by the Borrower or such Subsidiary and good title to all of their
personal property, except where the failure to hold such title or
leasehold interests, individually or in the aggregate, may not
reasonably be expected to have a Material Adverse Effect. The
personal and real property owned by the Borrower and its
Subsidiaries is not subject to any Lien of any kind except Liens
permitted hereby. The Borrower and its Subsidiaries enjoy
peaceful and undisturbed possession under all of their respective
leases except where the failure to enjoy such peaceful and
undisturbed possession, individually or in the aggregate, may not
reasonably be expected to have a Material Adverse Effect.
6.15 No Default. The Borrower is not in default under or with
respect to any agreement, instrument or undertaking to which it
is a party or by which it or any of its property is bound in any
respect which may reasonably be expected to result in a Material
Adverse Effect. No Default or Event of Default exists.
6.16 Licenses, etc. The Borrower and each of its Subsidiaries
have obtained and hold in full force and effect, all franchises,
licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way and other rights,
consents and approvals which are necessary for the operation of
their respective businesses as presently conducted, except where
the failure to obtain and hold the same, individually or in the
aggregate, may not reasonably be expected to have a Material
Adverse Effect.
6.17 Compliance With Law. The Borrower and each of its
Subsidiaries is in compliance with all laws, rules, regulations,
orders, judgments, writs and decrees except where such non-
compliance, individually or in the aggregate, may not reasonably
be expected to have a Material Adverse Effect.
6.18 Labor Matters. (i) Neither the Borrower nor any of its
Subsidiaries is or has been in breach of any collective
bargaining agreement, which breach has had or may reasonably be
expected to have a Material Adverse Effect, and (ii) there are no
Multiemployer Plans covering the employees of the Borrower or any
of its Subsidiaries. None of such Persons has suffered or is
suffering any strikes, walkouts, work stoppages or other material
labor difficulty within the last five years which has had or may
reasonably be expected to have a Material Adverse Effect.
SECTION 7. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that on and after the
Effective Date and until the Total Commitment has terminated and
the Obligations are paid in full:
7.1 Information Covenants. The Borrower will furnish to each
Bank with a copy to the Administrative Agent:
(a) Quarterly Financial Statements. Within 60 days after the
close of each quarterly accounting period in each fiscal year of
the Borrower (other than the final quarter), the consolidated
balance sheet of the Borrower and its Subsidiaries as at the end
of such quarterly period and the related consolidated statements
of income, cash flow and retained earnings for such quarterly
period and for the elapsed portion of the fiscal year ended with
the last day of such quarterly period, and in each case setting
forth comparative figures for the related periods in the prior
fiscal year.
(b) Annual Financial Statements. Within 120 days after the close
of each fiscal year of the Borrower, the consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income,
cash flow and retained earnings for such fiscal year, setting
forth comparative figures for the preceding fiscal year and, with
respect to such consolidated financial statements, certified
without qualification by independent certified public accountants
of recognized national standing selected by the Borrower, in each
case together with a report of such accounting firm stating that
in the course of its regular audit of the consolidated financial
statements of the Borrower, which audit was conducted in
accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge of any Default or Event
of Default, or if in the opinion of such accounting firm such a
Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof.
(c) Officer's Certificates. At the time of the delivery of the
financial statements under clauses (a) and (b) above, a
certificate of the chief financial officer of the Borrower which
(i) certifies (x) that such financial statements fairly present
the financial condition and the results of operations of the
Borrower and its Subsidiaries on the dates and for the periods
indicated, subject, in the case of interim financial statements,
to normally recurring year-end adjustments and (y) that such
officer has reviewed the terms of this Agreement and has made, or
caused to be made under his or her supervision, a review in
reasonable detail of the business and condition of the Borrower
and its Subsidiaries during the accounting period covered by such
financial statements, and that as a result of such review such
officer has concluded that no Default or Event of Default has
occurred during the period commencing at the beginning of the
accounting period covered by the financial statements accompanied
by such certificate and ending on the date of such certificate
or, if any Default or Event of Default has occurred, specifying
the nature and extent thereof and, if continuing, the action the
Borrower proposes to take in respect thereof, (ii) has attached
thereto a reasonably detailed calculation demonstrating
compliance with Section 8.8 and (iii) states whether any change
in GAAP or in the application thereof has occurred since the date
of the audited financial statements referred to in Section 6.5
and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such
certificate. Such certificate shall be substantially in the form
of Exhibit H.
(d) Notice of Default. Promptly after the Borrower obtains
knowledge of the occurrence of any Default or Event of Default, a
certificate of the chief financial officer of the Borrower
specifying the nature thereof and the Borrower's proposed
response thereto.
(e) Litigation. Promptly after (i) the occurrence thereof,
notice of the institution of or any development in any action,
suit or proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any governmental
or administrative body, agency or official, against the Borrower,
any of its Subsidiaries or any material property of any thereof
which, individually or in the aggregate, may reasonably be
expected to have a Material Adverse Effect, or (ii) actual
knowledge thereof, notice of the threat of any such action, suit,
proceeding, investigation or arbitration.
(f) ERISA. (i) As soon as possible and in any event within 10
days after the Borrower or any member of its ERISA Controlled
Group knows, or has reason to know, that: (A) any Termination
Event with respect to a Plan has occurred or will occur, or (B)
any condition exists with respect to a Plan which presents a
material risk of termination of the Plan or imposition of an
excise tax or other liability on the Borrower or any member of
its ERISA Controlled Group, or (C) the Borrower or any member of
its ERISA Controlled Group has applied for a waiver of the
minimum funding standard under Section 412 of the Code or
Section 302 of ERISA, or (D) the Borrower or any member of its
ERISA Controlled Group has engaged in a "prohibited transaction,"
as defined in Section 4975 of the Code or as described in
Section 406 of ERISA, that is not exempt under Section 4975 of
the Code and Section 408 of ERISA, unless it is not reasonably
expected to have a Material Adverse Effect, or (E) the aggregate
present value of the Unfunded Benefit Liabilities under all Plans
has in any year increased by $1,000,000 or to an amount in excess
of $10,000,000, or (F) any condition exists with respect to a
Multiemployer Plan which presents a material risk of a partial or
complete withdrawal (as described in Section 4203 or 4205 of
ERISA) by the Borrower or any member of its ERISA Controlled
Group from a Multiemployer Plan, or (G) the Borrower or any
member of its ERISA Controlled Group is in "default" (as defined
in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan, or (H) a Multiemployer Plan is in
"reorganization" (as defined in Section 418 of the Code or
Section 4241 of ERISA) or is "insolvent" (as defined in Section
4245 of ERISA), or (I) the potential withdrawal liability (as
determined in accordance with Title IV of ERISA) of the Borrower
and the members of its ERISA Controlled Group with respect to all
Multiemployer Plans has in any year increased by $1,000,000 or to
an amount in excess of $10,000,000, or (J) there is an action
brought against the Borrower or any member of its ERISA
Controlled Group under Section 502 of ERISA with respect to its
failure to comply with Section 515 of ERISA, a certificate of the
president or chief financial officer of the Borrower setting
forth the details of each of the events described in clauses (A)
through (J) above as applicable and the action which the Borrower
or the applicable member of its ERISA Controlled Group proposes
to take with respect thereto, together with a copy of any notice
or filing from the PBGC or which may be required by the PBGC or
other agency of the United States government with respect to each
of the events described in clauses (A) through (J) above, as
applicable.
(ii) As soon as possible and in any event within two Business
Days after the receipt by the Borrower or any member of its ERISA
Controlled Group of a demand letter from the PBGC notifying the
Borrower or such member of its ERISA Controlled Group of its
final decision finding liability and the date by which such
liability must be paid, a copy of such letter, together with a
certificate of the president or chief financial officer of the
Borrower setting forth the action which the Borrower or such
member of its ERISA Controlled Group proposes to take with
respect thereto.
(g) SEC Filings. Promptly upon the filing thereof, copies of all
regular and periodic financial information, proxy materials and
other information and reports, if any, which the Borrower shall
file with the Securities and Exchange Commission (or any
successor thereto) or any governmental agencies substituted
therefor or promptly upon the mailing thereof, copies of such
documents, material, information and reports which the Borrower
shall send to or generally make available to its stockholders.
(h) Environmental. Unless prohibited by any applicable law,
rule, regulation, order, writ, injunction or decree of, or
agreement with, any court or governmental instrumentality, or in
the case of an Environmental Affiliate which is not otherwise an
Affiliate of the Borrower, any contractual undertaking the
primary purpose of which was other than to prohibit the
disclosure of such information, promptly and in any event within
five Business Days after the existence of any of the following
conditions, a certificate of an Authorized Officer of the
Borrower, specifying in detail the nature of such condition and
the Borrower's, such Affiliate's or such Environmental
Affiliate's proposed response thereto: (i) the receipt by the
Borrower, any of its Affiliates, or, to the best of the
Borrower's actual knowledge, any of its other Environmental
Affiliates of any communication (written or oral), whether from a
governmental authority, citizens group, employee or otherwise,
that alleges that such Person is not in compliance with
applicable Environmental Laws and such noncompliance,
individually or in the aggregate, may reasonably be expected to
have a Material Adverse Effect, (ii) the Borrower, any of its
Affiliates, or, to the best of the Borrower's actual knowledge,
any of its other Environmental Affiliates shall obtain knowledge
that there exists any Environmental Claim pending or threatened
against such Person, which, individually or in the aggregate, may
reasonably be expected to have a Material Adverse Effect, or
(iii) any release, emission, discharge or disposal of any
Material of Environmental Concern that could form the basis of
any Environmental Claim against the Borrower, any of its
Affiliates or any of its other Environmental Affiliates, which
Environmental Claim, individually or in the aggregate, may
reasonably be expected to have a Material Adverse Effect. For
purposes of this clause (h), "actual" knowledge shall have the
meaning provided by Section 6.12(e).
(i) Change in Ratings. Promptly and in any event within three
days after the Borrower receives notice from Standard & Poor's or
▇▇▇▇▇'▇ of a change in the rating of its Long-Term Indebtedness,
the Borrower shall notify the Administrative Agent of such rating
change.
(j) Other Information. From time to time with reasonable
promptness, such other information or documents (financial or
otherwise) as the Administrative Agent may reasonably request.
7.2 Books, Records and Inspections. The Borrower shall, and
shall cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries in
conformity with GAAP and all requirements of law shall be made of
all dealings and transactions in relation to its business and
activities. The Borrower shall, and shall cause each of its
Subsidiaries to, permit officers and designated representatives
of any Bank to visit and inspect any of the properties of the
Borrower or any of its Subsidiaries, and to examine the books of
record and account of the Borrower or any of its Subsidiaries,
and discuss the affairs, finances and accounts of the Borrower or
any of its Subsidiaries with, and be advised as to the same by,
its and their officers and independent accountants, all upon
reasonable notice, at such reasonable times and to such
reasonable extent as such Bank may desire.
7.3 Maintenance of Insurance. The Borrower shall, and shall
cause each of its Subsidiaries to, maintain with financially
sound and reputable insurance companies or through self-insurance
programs consistent with past practices, which past practices
have been disclosed in writing to the Agents prior to the
Effective Date, insurance on itself and its properties in at
least such amounts (in such types and with such deductibles) and
against at least such risks as are customarily insured against in
the same general area by companies engaged in the same or a
similar business similarly situated.
7.4 Taxes. (a) The Borrower shall pay or cause to be paid or
discharged, and shall cause each of its Subsidiaries to pay or
cause to be paid or discharged, when due, all taxes, charges and
assessments and all other lawful claims required to be paid by
the Borrower or such Subsidiaries, except as contested in good
faith and by appropriate proceedings diligently conducted, if
adequate reserves have been established with respect thereto in
accordance with GAAP.
(b) The Borrower shall not, and shall not permit any of its
Subsidiaries to, file or consent to the filing of any
consolidated tax return with any Person (other than the Borrower
and its Subsidiaries).
7.5 Corporate Franchises. The Borrower shall, and shall cause
each of its Subsidiaries to, do or cause to be done, all things
necessary to preserve and keep in full force and effect its
existence and its patents, trademarks, servicemarks, tradenames,
copyrights, franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights
of way and other rights, consents and approvals, except where the
failure to so preserve any of the foregoing (other than
existence) may not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
7.6 Compliance with Law. The Borrower shall and shall cause
each of its Subsidiaries to, comply with all applicable laws,
rules, statutes, regulations, decrees and orders of, and all
applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of their business
and the ownership of their property, including, without
limitation, ERISA and all Environmental Laws, other than those
the non-compliance with which, individually or in the aggregate,
may not reasonably be expected to have a Material Adverse Effect.
7.7 Maintenance of Properties. The Borrower shall cause each of
its Subsidiaries to, ensure that its material properties used or
useful in its business are kept in good repair, working order and
condition, normal wear and tear excepted.
SECTION 8. NEGATIVE COVENANTS.
The Borrower covenants and agrees that on and after the
Effective Date until the Total Commitment has terminated, and the
Obligations are paid in full:
8.1 Liens. The Borrower shall not, and shall not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist,
directly or indirectly, any Lien on any of its or their property
(whether real or personal, including, without limitation,
accounts receivable and inventory) or any interest it or they may
have therein, whether owned at the date hereof or hereafter
acquired (unless, in the case of any Lien of or upon the property
of any of its Subsidiaries, all obligations and indebtedness
thereby secured are held by the Borrower or any of its
Subsidiaries); provided that the provisions of this Section 8.1
shall not prevent or restrict the existence or creation of:
(A) liens for taxes or assessments or governmental charges or
levies not then due and delinquent or the validity of which is
being contested in good faith; and materialmen's, mechanic's,
carrier's, workmen's, repairmen's, landlord's or other like
liens, or deposits to obtain the release of such liens;
(B) pledges or deposits to secure public or statutory
obligations or to secure payment of workmen's compensation or to
secure performance in connection with tenders, leases of real
property, or bids of contracts and pledges or deposits made in
the ordinary course of business for similar purposes;
(C) licenses, easements, rights of way and other similar
encumbrances, or zoning or other restrictions as to the use of
real properties, the existence of which does not in the aggregate
interfere with the operation of the business of the Borrower or
any Subsidiary thereof;
(D) Liens of or upon any property or assets owned by any
Subsidiary of the Borrower existing on the date on which such
Subsidiary first became a Subsidiary, if such date is subsequent
to the date hereof;
(E) Liens of or upon (i) any property or assets acquired by the
Borrower or any of its Subsidiaries (whether by purchase, merger
or otherwise) after the date hereof (and not theretofore owned by
the Borrower or any of its Subsidiaries), or (ii) improvements
made on any property or assets now owned or hereafter acquired,
securing the purchase price thereof or created or incurred
simultaneously with, or within 180 days after, such acquisition
or the making of such improvements or existing at the time of
such acquisition (whether or not assumed) or the making of such
improvements, if (x) such Lien shall be limited to the property
or assets so acquired or the improvements so made, (y) the amount
of the obligations or indebtedness secured by such Liens shall
not be increased after the date of the acquisition of such
property or assets or the making of such improvements, except to
the extent improvements are made to such property or assets after
the date of the acquisition or the making of the initial
improvements, and (z) in each instance where the obligation or
indebtedness secured by such Lien constitutes an obligation or
indebtedness of, or is assumed by, the Borrower or any of its
Subsidiaries, the principal amount of the obligation or
indebtedness secured by such Lien shall not exceed 100% of the
cost or fair value (which may be determined in good faith by the
Board of Directors of the Borrower), whichever is lower, of the
property or assets or improvements at the time of the acquisition
or making thereof;
(F) Liens arising under Capitalized Leases;
(G) mortgages securing indebtedness of a Subsidiary of the
Borrower owing to the Borrower or to another Subsidiary of the
Borrower;
(H) Liens on property of a corporation existing at the time such
corporation is merged into or consolidated with the Borrower or
any of its Subsidiaries or at the time of a sale, lease or other
disposition of the properties of a corporation as an entirety or
substantially as an entirety to the Borrower or any of its
Subsidiaries;
(I) Liens on or other conveyances of property owned by the
Borrower or any of its Subsidiaries in favor of the United States
of America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country,
or any political subdivision thereof, to secure partial,
progress, advance or other payments pursuant to any contract or
statute or to secure any indebtedness incurred for the purpose of
financing all or any part of the purchase price or the cost of
construction of the property subject to such mortgages;
(J) renewals, extensions or replacements of the Liens referred
to in clauses (D) through (I) for amounts which shall not exceed
the principal amount of the obligations or indebtedness so
renewed or replaced at the time of the renewal or replacement
thereof and applying only to the same property or assets
theretofore subject to such Liens;
(K) Liens (including Liens to secure judgments pending appeal)
not otherwise permitted by this Section 8.1 securing obligations
of the Borrower or any Subsidiary thereof in an aggregate
principal amount outstanding at any one time not to exceed an
amount equal to 10% of Consolidated Net Tangible Assets at such
time; and
(L) Liens securing the obligations of the Securitization
Subsidiary under the Securitization Facility.
8.2 Subsidiary Indebtedness. The Borrower shall not permit any
Subsidiary to create, incur, assume or permit to exist any
Indebtedness, except:
(A) Indebtedness to the Borrower or any other Subsidiary;
(B) Indebtedness of any Person that becomes a Subsidiary (or is
merged into a Subsidiary) after the date hereof and any
extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof;
provided that such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary; and
(C) Indebtedness incurred by any Subsidiary organized, or
substantially all of the business of which is conducted, in the
People's Republic of China;
(D) Indebtedness incurred by Kodak International Finance
Limited, a company organized and existing under the laws of
England, in connection with its payment obligations under any
interest rate protection agreements (including without
limitation, any interest rate swaps, caps, floors, collars and
similar agreements) and currency swaps and similar agreements
entered into in the ordinary course of business to protect the
Borrower and its Subsidiaries against fluctuations in interest or
exchange rates;
(E) Indebtedness of Kodak Diamic Ltd., a Japanese corporation
and joint venture with the Mitsubishi Corporation doing business
principally in Japan;
(F) Indebtedness incurred by the Securitization Subsidiary in
connection with the Securitization Facility; and
(G) other Indebtedness in an aggregate principal amount not
exceeding $800,000,000 at any time outstanding.
8.3 Restriction on Fundamental Changes. The Borrower shall not,
and shall not permit any of its Subsidiaries to, enter into any
merger or consolidation, or liquidate, wind-up or dissolve (or
suffer any liquidation or dissolution), discontinue its business
or convey, lease, sell, transfer or otherwise dispose of, in one
transaction or series of transactions, all or any substantial
part of the business or property of the Borrower or, in the case
of a Subsidiary of the Borrower the business or property of the
Borrower and its Subsidiaries taken as a whole, whether now or
hereafter acquired; provided that any such merger or
consolidation shall be permitted if (i) the Borrower shall be the
continuing corporation (in the case of a merger or
consolidation), or the successor, if other than the Borrower
shall be a corporation organized and existing under the laws of
the United States of America or any State thereof and such
corporation shall expressly assume to the satisfaction of the
Required Banks the due and punctual performance and observance of
all of the covenants and obligations contained in this Agreement
and any Notes to be performed by the Borrower and (ii)
immediately after giving effect to such merger or consolidation,
no Default or Event of Default shall have occurred and be
continuing; provided further that any wholly-owned Subsidiary of
the Borrower may merge into or convey, sell, lease or transfer
all or substantially all of its assets to, the Borrower or any
other wholly-owned Subsidiary of the Borrower.
8.4 Sales and Leasebacks. The Borrower shall not, nor shall it
permit any Principal Subsidiary to, enter into any arrangement
with any Person that provides for the leasing to the Borrower or
any Principal Subsidiary of any Principal Property (except for
leases for a term of not more than three years and leases between
the Borrower and a Principal Subsidiary or between Principal
Subsidiaries), which Principal Property has been or is to be sold
or transferred by the Borrower or such Principal Subsidiary to
such Person, unless the Borrower or such Principal Subsidiary
would be entitled, pursuant to Section 8.1 and 8.2, to create,
incur, assume or suffer to exist any Lien upon such property
securing Indebtedness at least equal in amount to the
Attributable Debt in respect of such arrangement; provided that
from and after the date on which such arrangement becomes
effective the Attributable Debt in respect of such arrangement
shall be deemed for all purposes under Section 8.1 and 8.2 to be
Indebtedness secured by a Lien.
8.5 Plans. The Borrower shall not, nor shall it permit any
member of its ERISA Controlled Group to, take any action which
would increase the aggregate present value of the Unfunded
Benefit Liabilities under all Plans to an amount in excess of
$10,000,000 (except to the extent that such increase is caused by
a change in a Plan's benefit formula and is reduced through
funding or otherwise within the time period during which the
Borrower could receive a federal income tax deduction with
respect to the tax year in which such formula change was made).
8.6 Restrictions on Subsidiary Distributions. Except as
provided herein, the Borrower shall not, nor shall it permit any
Subsidiary of the Borrower to, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any Subsidiary of the
Borrower to (a) pay dividends or make any other distributions on
any of such Subsidiary's capital stock (or other ownership
interest) owned by the Borrower or any other Subsidiary of the
Borrower, (b) repay or prepay any Indebtedness owed by such
Subsidiary to the Borrower or any other Subsidiary of the
Borrower, (c) make loans or advances to the Borrower or any other
Subsidiary of the Borrower, or (d) transfer any of its property
or assets to the Borrower or any other Subsidiary of the Borrower
other than restrictions (i) in agreements evidencing Indebtedness
permitted by Section 8.2(c) that impose restrictions on the
property so acquired, (ii) by reason of customary provisions
restricting assignments, subletting or other transfers contained
in leases, licenses, joint venture agreements, asset sale
agreements and similar agreements entered into in the ordinary
course of business, (iii) on any Person that becomes a Subsidiary
after the date hereof provided that such restrictions exist at
the time such Person becomes a Subsidiary and are not created in
contemplation of or in connection with such Person becoming a
Subsidiary, or (iv) with respect to the Securitization Subsidiary
as set forth in the Securitization Facility.
8.7 No Further Negative Pledges. Except with respect to (a)
specific property encumbered to secure payment of particular
Indebtedness or to be sold pursuant to an executed agreement with
respect to an asset sale permitted hereunder, (b) restrictions by
reason of customary provisions restricting assignments,
subletting or other transfers contained in leases, licenses and
similar agreements entered into in the ordinary course of
business (provided that such restrictions are limited to the
property or assets secured by such Liens or the property or
assets subject to such leases, licenses or similar agreements, as
the case may be), and (c) restrictions on any Person that becomes
a Subsidiary after the date hereof provided that such
restrictions exist at the time such Person becomes a Subsidiary
and are not created in contemplation of or in connection with
such Person becoming a Subsidiary, neither the Borrower nor any
of its Subsidiaries shall enter into any agreement prohibiting
the creation or assumption of any Lien upon any of its properties
or assets, whether now owned or hereafter acquired.
8.8 Consolidated Debt to EBITDA Ratio. The Borrower will not
permit the Consolidated Debt to EBITDA Ratio for any period of
four consecutive fiscal quarters of the Borrower to be greater
than 3.0:1.0.
SECTION 9. EVENTS OF DEFAULT.
9.1 Events of Default. Each of the following events, acts,
occurrences or conditions shall constitute an Event of Default
under this Agreement, regardless of whether such event, act,
occurrence or condition is voluntary or involuntary or results
from the operation of law or pursuant to or as a result of
compliance by any Person with any judgment, decree, order, rule
or regulation of any court or administrative or governmental
body:
(a) Failure to Make Payments. The Borrower shall (i) default in
the payment when due of any principal of the Loans or (ii)
default, and such default shall continue unremedied for five or
more Business Days, in the payment when due of any interest on
the Loans or (iii) default, and such default shall continue
unremedied for ten or more days after notice of such default, in
the payment when due of any fees or any other amounts owing
hereunder.
(b) Breach of Representation or Warranty. Any representation or
warranty made by the Borrower herein or in any certificate or
statement delivered pursuant hereto or thereto shall prove to be
false or misleading in any material respect on the date as of
which made or deemed made.
(c) Breach of Covenants. The Borrower shall fail to perform or
observe any agreement, covenant or obligation arising under this
Agreement (except those described in subsections (a) or (b)
above) and, if capable of being remedied, such failure shall
remain unremedied for 30 days after written notice thereof shall
have been given to the Borrower by the Administrative Agent;
provided that there shall be deducted from such number of days
any grace period utilized by the Borrower in notifying the Banks
of such Default pursuant to Section 7.1(d).
(d) Default Under Other Agreements. The Borrower or any of its
Subsidiaries shall default in the payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise) of any amount owing in respect of any Indebtedness in
the principal amount of $50,000,000 or more; or the Borrower or
any of its Subsidiaries shall default in the performance or
observance of any obligation or condition with respect to any
Indebtedness or any other event shall occur or condition exist,
if the effect of such default, event or condition is to
accelerate the maturity of any such Indebtedness or to permit
(without regard to any required notice or lapse of time) the
holder or holders thereof, or any trustee or agent for such
holders, to accelerate the maturity of any such Indebtedness, or
any such Indebtedness shall become or be declared to be due and
payable prior to its stated maturity other than as a result of a
regularly scheduled payment, and the principal amount of such
Indebtedness is $50,000,000 or more.
(e) Bankruptcy, etc. (i) The Borrower or any Material
Subsidiary shall commence a voluntary case concerning itself
under the Bankruptcy Code; or (ii) an involuntary case is
commenced against the Borrower or any Material Subsidiary and the
petition is not controverted within 30 days, or is not dismissed
within 60 days, after commencement of the case; or (iii) a
custodian (as defined in the Bankruptcy Code) is appointed for,
or takes charge of, all or substantially all of the property of
the Borrower or any Material Subsidiary or the Borrower or any
Material Subsidiary commences any other proceedings under any
reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of
any jurisdiction whether now or hereafter in effect relating to
the Borrower or any Material Subsidiary or there is commenced
against the Borrower or any Material Subsidiary any such
proceeding which remains undismissed for a period of 60 days; or
(iv) any order of relief or other order approving any such case
or proceeding is entered; or (v) the Borrower or any Material
Subsidiary is adjudicated insolvent or bankrupt; or (vi) the
Borrower or any Material Subsidiary suffers any appointment of
any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60
days; or (vii) the Borrower or any Material Subsidiary makes a
general assignment for the benefit of creditors; or (viii) the
Borrower or any Material Subsidiary shall fail to pay, or shall
state that it is unable to pay, or shall be unable to pay, its
debts generally as they become due; or (ix) the Borrower or any
Material Subsidiary shall call a meeting of its creditors (other
than a meeting solely with the Banks) with a view to arranging a
composition or adjustment of its debts; or (x) the Borrower or
any Material Subsidiary shall by any act or failure to act
consent to, approve of or acquiesce in any of the foregoing; or
(xi) any corporate action is taken by the Borrower or any
Material Subsidiary for the purpose of effecting any of the
foregoing.
(f) ERISA. (i) Any Termination Event shall occur, or (ii) any
Plan shall incur an "accumulated funding deficiency" (as defined
in Section 412 of the Code or Section 302 of ERISA), whether or
not waived in excess of $50,000,000, or (iii) the Borrower or a
member of its ERISA Controlled Group shall have engaged in a
transaction which is prohibited under Section 4975 of the Code or
Section 406 of ERISA which could result in the imposition of
liability in excess of $50,000,000 on the Borrower or any member
of its ERISA Controlled Group, or (iv) the Borrower or any member
of its ERISA Controlled Group shall fail to pay when due an
amount which it shall have become liable to pay to the PBGC, any
Plan or a trust established under Title IV of ERISA, or (v) a
condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that an ERISA Plan must
be terminated or have a trustee appointed to administer any ERISA
Plan, or (vi) the Borrower or a member of its ERISA Controlled
Group suffers a partial or complete withdrawal from a
Multiemployer Plan or is in "default" (as defined in Section
4219(c)(5) of ERISA) with respect to payments to a Multiemployer
Plan, or (vii) a proceeding shall be instituted against the
Borrower or any member of its ERISA Controlled Group to enforce
Section 515 of ERISA, or (viii) any other event or condition
shall occur or exist with respect to any Plan which could subject
the Borrower or any member of its ERISA Controlled Group to any
tax, penalty or other liability in excess of $50,000,000.
(g) Judgments. One or more judgments or decrees in an aggregate
amount of $50,000,000 or more shall be entered by a court against
the Borrower or any of its Subsidiaries and (i) any such
judgments or decrees shall not be stayed, discharged, paid,
bonded or vacated within 30 days or (ii) enforcement proceedings
shall be commenced by any creditor on any such judgments or
decrees.
(h) Environmental Matters. (i) Any Environmental Claim shall
have been asserted against the Borrower or any Environmental
Affiliate thereof which may reasonably be expected to have a
Material Adverse Effect, (ii) any release, emission, discharge or
disposal of any Material of Environmental Concern shall have
occurred, and such event could form the basis of an Environmental
Claim against the Borrower or any Environmental Affiliate thereof
which, if determined adversely, may reasonably be expected to
have a Material Adverse Effect, or (iii) the Borrower or any
Environmental Affiliate thereof shall have failed to obtain any
Environmental Approval necessary for the management, use,
control, ownership, or operation of its business, property or
assets or any such Environmental Approval shall be revoked,
terminated, or otherwise cease to be in full force and effect, in
each case, if the existence of such condition may reasonably be
expected to have a Material Adverse Effect.
(i) Change in Control. At any time on or after the Effective
Date a Change in Control shall have occurred.
9.2 Rights and Remedies. Upon the occurrence of any Event of
Default, the Administrative Agent may with the consent of, and
shall upon the written request of, the Required Banks, by written
notice to the Borrower, take any or all of the following actions,
without prejudice to the rights of the Administrative Agent, any
Bank or the holder of any Note to enforce its claims against the
Borrower (provided, that, if an Event of Default specified in
Section 9.1(e) shall occur with respect to the Borrower or any
Material Subsidiary, the result which would occur upon the giving
of written notice by the Administrative Agent to the Borrower as
specified in clauses (i) and (ii) below shall occur automatically
without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Bank
shall forthwith terminate immediately; and (ii) declare the
principal of and any accrued interest in respect of all Loans to
be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice or
requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of
intent to demand or accelerate and notice of acceleration), all
of which are hereby waived by the Borrower. Promptly after the
later of the Final Maturity Date or the payment of all
Obligations, the Administrative Agent will return any amount in
excess of the Obligations to the Borrower, without interest.
SECTION 10. THE ADMINISTRATIVE AGENT AND SYNDICATION AGENT.
10.1 Appointment. Each Bank hereby designates and appoints
Citibank as the Administrative Agent of such Bank under this
Agreement, and each such Bank authorizes the Administrative Agent
for such Bank, to take such action on its behalf under the
provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement, together
with such other powers as are reasonably incidental thereto. The
Syndication Agent, in its capacity as such, shall have no duties,
obligations or liabilities of any kind under this Agreement. The
Documentation Agent, in its capacity as such, shall have no
duties, obligations or liabilities of any kind under this
Agreement. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Bank, and no
implied covenants, functions, responsibilities, duties,
obligations or liabilities on the part of the Administrative
Agent shall be read into this Agreement or otherwise exist
against the Administrative Agent. The provisions of this Section
10 are solely for the benefit of the Agents and the Banks and
neither the Borrower nor any other Person shall have any rights
as a third party beneficiary or otherwise under any of the
provisions hereof. In performing its functions and duties
hereunder, the Agents shall act solely as the agents of the Banks
and do not assume nor shall be deemed to have assumed any
obligation or relationship of trust or agency with or for the
Borrower or any of their respective successors and assigns.
10.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence
or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care.
10.3 Exculpatory Provisions. No Agent shall be (i) liable for
any action lawfully taken or omitted to be taken by it or any
Person described in Section 10.2 under or in connection with this
Agreement (except for its or such Person's own gross negligence
or willful misconduct), or (ii) responsible in any manner to any
of the Banks for any recitals, statements, representations or
warranties made by the Borrower contained in this Agreement or in
any certificate, report, statement or other document referred to
or provided for in, or received under or in connection with, this
Agreement or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement, or for any
failure to perform its obligations hereunder. The Administrative
Agent shall not be under any obligation to any Bank to ascertain
or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to
inspect the properties, books or records of the Borrower. This
Section is intended solely to govern the relationship between the
Agents, on the one hand, and the Banks, on the other.
10.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in
relying, upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and
upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and
other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or
refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of the Required Banks as
it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement in accordance with a request of
the Required Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the
Banks and all future holders of any Notes.
10.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any
Default or Event of Default unless the Administrative Agent has
received notice from a Bank or the Borrower referring to this
Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default." In the event
that the Administrative Agent receives such a notice, the
Administrative Agent shall promptly give notice thereof to the
Banks. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be directed
by the Required Banks; provided that unless and until the
Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to
such Default or Event of Default as the Administrative Agent
shall deem advisable and in the best interests of the Banks.
10.6 Non-Reliance on the Agents and Other Banks. Each Bank
expressly acknowledges that neither of the Agents, nor any of
their officers, directors, employees, agents, attorneys-in-fact
or affiliates has made any representations or warranties to it
and that no act by either of the Agents or any of the foregoing
hereafter taken, including, without limitation, any review of the
affairs of the Borrower, shall be deemed to constitute any
representation or warranty by either of the Agents or any of the
foregoing. Each Bank represents and warrants to the Agents that
it has, independently and without reliance upon the Agents, any
of the foregoing or any other Bank and based on such documents
and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations,
property, prospects, financial and other conditions and
creditworthiness of the Borrower and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Bank
also represents that it will, independently and without reliance
upon the Agents or any other Bank, and based on such documents
and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement,
and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, prospects,
financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents
expressly required under this Agreement to be furnished to the
Banks by either of the Agents, neither of the Agents nor any of
their affiliates shall have any duty or responsibility to provide
any Bank with any credit or other information concerning the
business, operations, property, prospects, financial and other
condition or creditworthiness of the Borrower which may come into
the possession of either of the Agents or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification. The Banks agree to indemnify the
Administrative Agent and its officers, directors, employees,
representatives and agents (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to
do so), ratably according to their Pro Rata Shares, from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including,
without limitation, the fees and disbursements of counsel for the
Administrative Agent or such Person in connection with any
investigative, administrative or judicial proceeding commenced or
threatened, whether or not the Administrative Agent or such
Person shall be designated a party thereto) that may at any time
(including, without limitation, at any time following the payment
of the Obligations) be imposed on, incurred by or asserted
against the Administrative Agent or such Person as a result of,
or arising out of, or in any way related to or by reason of, any
of the transactions contemplated hereby or the execution,
delivery or performance of this Agreement (but excluding any such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent
resulting from the gross negligence or willful misconduct of the
Administrative Agent or such Person as finally determined by a
court of competent jurisdiction).
10.8 Agents in their Individual Capacity. The Agents and their
affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the
Agents were not the Administrative Agent or Syndication Agent
hereunder, including, without limitation, acting as financial
advisors to the Borrower. With respect to Loans made or renewed
by it and any Note issued to it, each Agent shall have the same
rights and powers under this Agreement as any Bank and may
exercise the same as though it were not an Agent, and the terms
"Bank" and "Banks" shall include the Agents in their individual
capacities.
10.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the
Borrower and the Banks. If the Administrative Agent shall resign
as the Administrative Agent under this Agreement, then the
Required Banks during such 30-day period shall appoint from among
the Banks a successor administrative agent, whereupon such
successor administrative agent shall succeed to the rights,
powers and duties of the Administrative Agent so resigning and
the term "Administrative Agent" shall mean such successor
administrative agent, effective upon its appointment, and the
former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative
Agent or any of the parties to this Agreement or any holders of
the Notes. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section
10 and Section 11.1 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative
Agent under this Agreement.
10.10 Holders. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes
hereof unless and until the Administrative Agent shall have
received an executed Transfer Supplement in respect thereof. Any
request, authority or consent of any Person or entity who, at the
time of making such request or giving such authority or consent,
is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee, assignee or endorsee, as the case
may be, of such Note or of any Note(s) issued in exchange
therefor.
SECTION 11. MISCELLANEOUS.
11.1 Payment of Expenses; Indemnification. The Borrower shall:
(a) (i) whether or not the transactions hereby contemplated are
consummated, pay all reasonable out-of-pocket costs and expenses
of the Agents, and the Joint Lead Arrangers in connection with
the administration (both before and after the execution hereof
and including, without limitation, the advice of counsel as to
the rights and duties of the Administrative Agent and the Banks
with respect thereto) of and in connection with the syndication,
negotiation, preparation, execution and delivery of this
Agreement, the documents and instruments referred to herein and
any amendment, waiver or consent related thereto (including,
without limitation, the reasonable and actual fees and
disbursements of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel
to the Agents and the Banks and reasonable allocated costs of
internal counsel of the Agents) and (ii) pay all reasonable out-
of-pocket costs and expenses of the Agents and each Bank incurred
in connection with the preservation of rights under, and
enforcement of, and, after a Default, the refinancing,
renegotiation or restructuring of this Agreement, the Notes, if
any, and the documents and instruments referred to therein and
any amendment, waiver or consent relating thereto (including,
without limitation, the reasonable and actual fees and
disbursements of counsel and reasonable allocated costs of
internal counsel for the Agents and, in the case of enforcement,
for each of the Banks); provided that each Agent and Bank agrees
to use its best efforts to avoid duplication of legal expenses
when simultaneously using (and intending to seek reimbursement
for) internal counsel and outside counsel and that each Agent and
Bank agrees to notify the Borrower in the event it intends to
simultaneously use and seek reimbursement for both internal
counsel and outside counsel;
(b) pay and hold each of the Banks harmless from and against any
and all present and future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies which
arise from any payment made hereunder (without duplication of
Section 2.12) or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement or any of the Notes
and save each Bank harmless from and against any and all
liabilities with respect to or resulting from any delay or
omission by the Borrower or any of its Subsidiaries to pay any
such taxes, charges or levies; and
(c) indemnify each Agent, and each Bank, its officers,
directors, employees, representatives, affiliates and agents
(each, an "Indemnitee") from and hold each of them harmless
against any and all costs, losses, liabilities, claims, damages,
obligations, judgments, suits, actions, disbursements or expenses
of any nature whatsoever (including, without limitation, the
reasonable and actual fees and disbursements of counsel
(including reasonable allocated costs of internal counsel) for
such Indemnitee in connection with any investigation, litigation
or other proceeding commenced or threatened, whether or not such
Indemnitee is a party thereto; provided that each Agent and Bank
agrees to use its best efforts to avoid duplication of legal
expenses when simultaneously using (and intending to seek
reimbursement for) internal counsel and outside counsel and that
each Agent and Bank agrees to notify the Borrower in the event it
intends to simultaneously use and seek reimbursement for both
internal counsel and outside counsel) that may at any time
(including, without limitation, following the payment of the
Obligations) be imposed on, asserted against or incurred by such
Indemnitee as a result of or arising out of or in any way related
to or by reason of any actual or proposed use by the Borrower or
any Subsidiary of the Borrower of the proceeds of any Loan, this
Agreement or any of the Notes, or any transaction contemplated
hereby or thereby, any violation by the Borrower or its
Environmental Affiliates of any applicable Environmental Law, any
Environmental Claim arising out of the management, use, control,
ownership or operation of property or assets by the Borrower or
any of its Environmental Affiliates, including, without
limitation, all on-site and off-site activities involving
Materials of Environmental Concern, the breach of any
representation or warranty set forth in Section 6 or the exercise
by the Agents and the Banks of their rights and remedies
(including, without limitation, foreclosure) (but excluding, as
to any Indemnitee, any such losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements incurred solely by reason of the gross
negligence or willful misconduct of such Indemnitee as finally
determined by a court of competent jurisdiction). If and to the
extent the foregoing obligations in this Section 11.1 are
unenforceable for any reason or are insufficient to hold any
Indemnitee harmless as so provided, the Borrower agrees to make
the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law. The
Borrower's obligations under this Section 11.1 shall survive any
termination of this Agreement.
11.2 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the
continuance of any Event of Default, each Bank is hereby
authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to the Borrower or to
any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits
(general or special, time or demand, provisional or final) and
any other indebtedness at any time held or owing by such Bank
(including, without limitation, by branches and agencies of such
Bank wherever located) to or for the credit or the account of the
Borrower against and on account of the Obligation to such Bank
under this Agreement or any Notes, including, without limitation,
all interests in Obligations purchased by such Bank pursuant to
Section 11.4, and all other claims of any nature or description
arising out of or connected with this Agreement or any Notes,
irrespective of whether or not such Bank shall have made any
demand hereunder and although said Obligations, liabilities or
claims, or any of them, shall be contingent or unmatured.
11.3 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be
in writing (including when made by telecopier) and mailed,
telecopied or delivered, if to any party, at its address
specified opposite its signature below or at such other address
as shall be designated by such party in a written notice to the
other parties hereto; provided that all notices to be given by
the Borrower hereunder shall be given by an Authorized Officer of
the Borrower. All such notices and communications shall, when
mailed, telecopied, or sent by reputable overnight courier, be
effective (i) when received or (ii) three Business Days (or five
Business Days, in case of notices and other communications
provided to or by any foreign Bank which does not have any branch
or other office located in the United States) after being
deposited, postage prepaid, in the mails, the Business Day (or
the second Business Day, in case of notices and other
communications provided to or by any foreign Bank which does not
have any branch or other office located in the United States)
following delivery, freight prepaid, to an overnight courier or
the same Business Day of transmission by telecopier, whichever of
(i) or (ii) shall be earlier, except that notices and
communications to the Administrative Agent shall not be effective
until received by the Administrative Agent; and provided further
that all notices and communications permitted to be made by
telephone hereunder shall be effective as of the time received.
Without in any way limiting the Borrower's obligation
to confirm in writing any telephonic notice, the Administrative
Agent may act without liability upon the basis of telephonic
notice believed by the Administrative Agent in good faith to be
from an Authorized Officer of the Borrower prior to receipt of
written confirmation. In each such case, the Borrower waives the
right to dispute the Administrative Agent's record of the terms
of such telephonic notice.
11.4 Benefit of Agreement. (a) Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of and
be enforceable by the respective permitted successors and assigns
of the parties hereto, provided that the Borrower may not assign
or transfer any of its rights or obligations hereunder without
the prior written consent of each Bank.
(b) Participations. Any Bank may at any time sell to one or
more Persons (each a "Participant") participating interests in
any Loan owing to such Bank, any Note held by such Bank, or any
Commitment of such Bank and or any other interest of such Bank
hereunder (in respect of any such Bank, its "Credit Exposure").
Notwithstanding any such sale by a Bank of participating
interests to a Participant, such Bank's rights and obligations
under this Agreement shall remain unchanged, such Bank shall
remain solely responsible for the performance thereof, such Bank
shall remain the holder of any such Note for all purposes under
this Agreement (except as expressly provided below), and the
Borrower and the Administrative Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's
rights and obligations under this Agreement. The Borrower agrees
that if any Obligations are due and unpaid, or shall have been
declared or shall have become due and payable upon the occurrence
and during the continuance of an Event of Default, each
Participant shall be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this
Agreement and any Note to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under
this Agreement or any Note; provided that such right of setoff
shall be subject to the obligations of such Participant to share
with the Banks, and the Banks agree to share with such
Participant, as provided in Section 2.13. The Borrower also
agrees that each Participant shall be entitled to the benefits of
Sections 2.9, 2.10, 2.11 and 2.12; provided further that no
Participant shall be entitled to receive any greater amount
pursuant to such sections than the transferor Bank would have
been entitled to receive in respect of the amount of the
participating interest transferred by such transferor Bank to
such Participant had no such transfer occurred. Each Bank agrees
that any agreement between such Bank and any such Participant in
respect of such participating interest shall not restrict such
Bank's right to agree to any amendment, supplement, waiver or
modification to this Agreement or any Note, except where the
result of any of the foregoing would be to extend the final
maturity of any Obligation or reduce the rate or extend the time
of payment of interest thereon or reduce the principal amount
thereof including, without limitation, reducing the amount of
fees payable to any Bank under this Agreement or the rate at
which such fees are calculated.
(c) Assignments. Any Bank may, in the ordinary course of its
business and in accordance with applicable law, at any time,
assign to any Bank (with the prior written consent of the
Administrative Agent and the Borrower, which consent shall not be
unreasonably withheld or delayed) or any affiliate of such
assigning Bank (each an "Assignee") all or any part of its Credit
Exposure; provided that such assignment shall be in a principal
amount of at least $10,000,000 unless otherwise agreed by the
Borrower and the Administrative Agent. The Borrower, the
Administrative Agent and the Banks agree that to the extent of
any assignment the Assignee shall be deemed to have the same
rights and benefits under this Agreement and any Notes and the
same rights of setoff and obligation to share pursuant to Section
2.13 as it would have had if it were a Bank hereunder; provided
that the Borrower and the Administrative Agent shall be entitled
to continue to deal solely and directly with the assignor Bank in
connection with the interests so assigned to the Assignee unless
and until such Assignee becomes a direct signatory to this
Agreement.
(d) Assignments to Purchasing Banks. Any Bank may at any time
and from time to time, with the prior written consent of the
Borrower and the Administrative Agent, which consent shall not be
unreasonably withheld or delayed, assign to one or more financial
institutions or other entities ("Purchasing Banks") all or any
part of its Credit Exposure pursuant to a supplement to this
Agreement substantially in the form of Exhibit I attached hereto
with such changes as the Administrative Agent shall approve (a
"Transfer Supplement"), executed by such Purchasing Bank, such
transferor Bank and the Administrative Agent. Any such partial
assignment shall be an assignment of an identical percentage of
the transferor Bank's Loans and Commitment, under each of the
facilities and shall be in a principal amount of at least
$10,000,000 unless otherwise agreed by the Borrower and the
Administrative Agent. Upon (i) such execution of such Transfer
Supplement, (ii) delivery of an executed copy thereof to the
Borrower and the Administrative Agent, (iii) payment (x) by such
Purchasing Bank to such transferor Bank of an amount equal to the
purchase price agreed between such transferor Bank and such
Purchasing Bank, and (y) by either such Purchasing Bank or such
transferor Bank to the Administrative Agent of an assignment fee
of $3,000, such transferor Bank shall be released from its
obligations hereunder to the extent of such assignment and such
Purchasing Bank shall for all purposes be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank
under this Agreement to the same extent as if it were an original
party hereto, and no further consent or action by the Borrower,
the Banks or the Administrative Agent shall be required;
provided, however, that the transferor Bank shall retain such
rights to expense reimbursement and indemnification hereunder to
which it was entitled at the time of the transfer with respect to
matters arising out of the prior involvement of such transferor
Bank as a Bank hereunder. Such Transfer Supplement shall be
deemed to amend this Agreement to the extent, and only to the
extent, necessary to reflect the addition of such Purchasing Bank
as a Bank and the resulting adjustment of the Commitments, if
any, arising from the purchase by such Purchasing Bank of all or
a portion of the Credit Exposure of such transferor Bank (and
such amendment shall not require the consent of any Purchasing
Bank). Promptly after the consummation of any transfer to a
Purchasing Bank pursuant hereto, the transferor Bank, the
Administrative Agent and the Borrower shall make appropriate
arrangements so that, if such transferor Bank then holds a Note,
a replacement Note is issued to such transferor Bank and, if
requested by the Purchasing Bank, a new Note is issued to such
Purchasing Bank, in each case in principal amounts reflecting
such transfer.
(e) The Administrative Agent may, notwithstanding any other
provision of this Agreement, revise Schedule 1 hereto as
appropriate to reflect assignments and transfers, and any
addition of an Assignee, Purchasing Bank or other permitted
assignee or transferee as a party hereto, which are permitted
under this Section 11.4.
(f) Certain Exceptions. (i) Notwithstanding any other provision
set forth in this Agreement to the contrary, any Bank may at any
time and from time to time pledge as collateral for advances,
assign or endorse for discount, or otherwise transfer all or any
portion of its rights under this Agreement and its Note, if any,
to any Federal Reserve Bank pursuant to the Federal Reserve Act
and related regulations of the Board of Governors of the Federal
Reserve System (as such act or regulations are then or thereafter
in effect or any successor act or regulations), as well as any
applicable operating circular or other requirements of such Board
of Governors or Federal Reserve Bank (as then or thereafter in
effect). Any Federal Reserve Bank may at any time and from time
to time subsequently transfer all or any portion of the rights
acquired by such Bank pursuant to this subsection to any Person.
No such pledge, assignment, endorsement or other transfer shall
or have the effect of releasing the Administrative Agent, any
Bank or the Borrower from its respective obligations or
conferring any obligations on the pledgee, assignee, endorsee or
transferee, as the case may be, under this Agreement or any Note.
The requirements of subsections (b), (c) and (d) shall be deemed
inapplicable to pledges, assignments, endorsements or other
transfers permitted by this subsection.
(ii) Notwithstanding anything to the contrary contained herein,
any Bank (a "Granting Bank") may grant to a special purpose
funding vehicle (an "SPC") of such Granting Bank, identified as
such in writing from time to time by the Granting Bank to the
Administrative Agent and the Borrower, the option to provide to
the Borrower all or any part of any Loan that such Granting Bank
would otherwise be obligated to make to the Borrower pursuant to
this Agreement, provided that (a) nothing herein shall constitute
a commitment to make any Loan by any SPC and (b) if an SPC elects
not to exercise such option or otherwise fails to provide all or
any part of such Loan or fund any other obligation required to be
funded by it hereunder, the Granting Bank shall be obligated to
make such Loan or fund such obligation pursuant to the terms
hereof. The making of a Loan by an SPC hereunder shall satisfy
the obligation of the Granting Bank to make Loans to the same
extent, and as if, such Loan were made by the Granting Banks.
Each party hereto hereby agrees that no SPC shall be liable for
any payment under this Agreement for which a Bank would otherwise
be liable, for so long as, and to the extent, the related
Granting Bank makes such payment. In furtherance of the
foregoing, each party hereto hereby agrees that, prior to the
date that is one year and one day after the payment in full of
all outstanding senior indebtedness of any SPC, it will not
institute against or join any other person in instituting
against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings,
under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in
this Section 11.4 any SPC may (A) with notice to , but without
the prior written consent of, the Borrower or the Administrative
Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loan to its Granting Bank or
to any financial institutions providing liquidity and/or credit
facilities to or for the account of such SPC to fund the Loans
made by such SPC or to support the securities (if any) issued by
such SPC to fund such Loans and (B) disclose on a confidential
basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of a surety,
guarantee or credit or liquidity enhancement to such SPC.
Notwithstanding any other provisions of this Agreement, the
Borrower agrees that it will not use the proceeds of any Loan
made by a Bank which is funded through an SPC to be used to
purchase or carry Margin Stock if such Bank (i) notifies the
Borrower that its Loan will be funded through an SPC and (ii)
requests the Borrower prior to the Effective Date not to use the
proceeds of its Loan for such purpose.
(g) Disclosure of Information. The Borrower authorizes each Bank
to disclose to any Participant, Assignee or Purchasing Bank
(each, a "Transferee") and any prospective Transferee any and all
financial and other information in such Bank's possession
concerning the Borrower which has been delivered to such Bank by
the Borrower pursuant to this Agreement or which has been
delivered to such Bank by the Borrower in connection with such
Bank's credit evaluation of the Borrower prior to entering into
this Agreement. Notwithstanding anything herein to the contrary,
the Borrower, each Bank and each Agent (and each employee,
representative, or other agent of each of the foregoing parties)
may disclose to any and all Persons without limitation of any
kind, the U.S. tax treatment and U.S. tax structure of the
transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to
any of the foregoing parties relating to such U.S. tax treatment
and U.S. tax structure.
11.5 No Waiver; Remedies Cumulative. No failure or delay on the
part of the Administrative Agent or any Bank or any holder of a
Note in exercising any right, power or privilege hereunder or
under any Note and no course of dealing between the Borrower and
the Administrative Agent, or any Bank or the holder of any Note
shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or
under any Note preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any Bank or the holder of any Note would
otherwise have. No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or
demand in similar or other circumstances or constitute a waiver
of the rights of the Administrative Agent, the Banks or the
holder of any Note to any other or further action in any
circumstances without notice or demand.
11.6 Payments Pro Rata. The Administrative Agent agrees that
upon receipt of each payment from or on behalf of the Borrower in
respect of any Obligations of the Borrower hereunder, it shall
promptly thereafter (on the same day if such payment was received
by the Administrative Agent prior to Noon (New York time) or on
the next Business Day if received thereafter) distribute funds in
the form received relating to such payment to the Banks pro rata
based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
11.7 Governing Law; Submission to Jurisdiction. THIS AGREEMENT
AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, ANY OTHER
CREDIT DOCUMENT OR ANY DOCUMENT RELATED THERETO MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THE
AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS
RIGHTS OR THE RIGHTS OF THE AGENTS AND THE BANKS WITH RESPECT TO
THIS AGREEMENT, ANY NOTE OR ANY DOCUMENT RELATED THERETO. THE
BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW. THE BORROWER HEREBY IRREVOCABLY
WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS
AGREEMENT, ANY OTHER CREDIT DOCUMENT OR ANY DOCUMENT RELATED
THERETO AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO
PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
EITHER OF THE AGENTS, ANY BANK OR ANY HOLDER OF A NOTE TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY
OTHER JURISDICTION.
11.8 Counterparts. This Agreement may be executed in any number
of counter-parts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall
be an original, but all of which shall together constitute one
and the same instrument.
11.9 Effectiveness. Subject to Section 5, this Agreement shall
become effective on the date (the "Effective Date") on which all
of the parties hereto shall have signed a copy hereof (whether
the same or different copies) and shall have delivered the same
to the Administrative Agent or, in the case of the Banks, shall
have given to the Administrative Agent telephonic (confirmed in
writing), written or telex notice (actually received) that the
same has been signed and mailed to it. The Administrative Agent
will give the Borrower and each Bank prompt written notice of the
occurrence of the Effective Date.
11.10 Headings Descriptive. The headings of the several
sections and subsections of this Agreement and the Table of
Contents are inserted for convenience only and shall not in any
way affect the meaning or construction of any provision of this
Agreement.
11.11 Marshalling; Recapture. Neither the Administrative
Agent nor any Bank shall be under any obligation to ▇▇▇▇▇▇▇▇ any
assets in favor of the Borrower or any other party or against or
in payment of any or all of the Obligations. To the extent any
Bank receives any payment by or on behalf of the Borrower which
payment or any part thereof is subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be
repaid to the Borrower or its estate, trustee, receiver,
custodian or any other party under any bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of
such payment or repayment, the obligation or part thereof which
has been paid, reduced or satisfied by the amount so repaid shall
be reinstated by the amount so repaid and shall be included
within the liabilities of the Borrower to such Bank as of the
date such initial payment, reduction or satisfaction occurred.
11.12 Amendment or Waiver. Except as expressly provided in
Section 11.4(d) and (e), no amendment or waiver of any provision
of this Agreement or any Notes, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Borrower and the
Required Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given; provided that no amendment, waiver or
consent shall, unless in writing and signed by all the Banks, do
any of the following: (i) amend or waive any of the conditions
specified in Section 5, (ii) increase the Commitments of the
Banks or subject the Banks to any additional monetary obligations
(including, without limitation, extending the periods of the
Commitments during which the Banks are obligated to make Loans),
(iii) reduce the principal of, or interest on, the Loans, any
Notes or fees, (iv) postpone any date fixed for any payment in
respect of principal of, or interest on, the Loans or other fees
or amounts hereunder (including, without limitation, any date on
which mandatory prepayments are due) except pursuant to Section
3.5, (v) change the percentage of the Commitments or the
aggregate unpaid principal amount of the Loans, or the number or
identity of the Banks, which shall be required for the Banks or
any of them to take any action under this Agreement, or (vi)
amend or waive Section 2.13, this Section 11.12 or the
definitions of any terms used in such Sections; and provided
further that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the
Banks required hereinabove to take such action, affect the rights
or duties of the Administrative Agent under this Agreement or any
Note. Notwithstanding the foregoing provisions of this Section
11.12, the provisions of this Agreement relating solely to fees
payable to the Administrative Agent for its own account and not
for the account of the Banks may be amended (but not to increase
the amount of such fees so payable) or waived or departure
therefrom may be consented to by the Administrative Agent in
writing without any consent being required, written or otherwise,
from any Bank. The Borrower agrees to give notice of any
amendment or waiver approved by the Borrower and the Required
Banks to the Administrative Agent.
11.13 Survival. All indemnities set forth in this Agreement
shall survive the execution and delivery of this Agreement and
any Notes and the making and repayment of the Obligations
hereunder.
11.14 Independent Nature of Banks' Rights and Obligations.
Except as expressly provided herein, the amounts payable at any
time hereunder to each Bank shall be a separate and independent
debt, and each Bank shall be entitled to protect and enforce its
rights arising out of this Agreement, and it shall not be
necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose. No Bank shall be responsible
for any default by any other Bank in its obligations hereunder
and each Bank shall be obligated to make Loans as required by the
provisions of this Agreement, regardless of the failure of any
other Bank to fulfill its commitments or obligations hereunder.
11.15 Independence of Covenants. All covenants hereunder
shall be given independent effect so that if a particular action
or condition is not permitted by any of such covenants, the fact
that it would be permitted by an exception to, or be otherwise
within the limitations of, another covenant shall not avoid the
occurrence of a Default or Event of Default if such action is
taken or condition exists.
11.16 Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE BORROWER, THE AGENTS AND THE BANKS
HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR ANY MATTER ARISING
HEREUNDER OR THEREUNDER.
IN WITNESS WHEREOF, the parties hereto have caused
their duly authorized officers to execute and deliver this
Agreement as of the date first above written.
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ KODAK COMPANY
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 978481
Answerback: EKHQTR
By:
Name:
Title:
with a copy to:
General Counsel
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Citibank, N.A. CITIBANK, N.A.,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as Administrative Agent and
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Bank
By: _________________________
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
The Bank of Nova Scotia THE BANK OF NOVA SCOTIA
One Liberty Plaza as Documentation Agent and Bank
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By: _________________________
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BNP Paribas BNP PARIBAS,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as Syndication Agent and Bank
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Bank of China London Branch BANK OF CHINA LONDON BRANCH
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ By:
UK _______________________________
Name:
Title:
HSBC Bank USA HSBC BANK USA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By: _________________________
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Deutsche Bank AG New York DEUTSCHE BANK AG NEW YORK
Branch BRANCH
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ By: _________________________
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Name:
Title:
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Mailstop JCY05-0511
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Mellon Bank, ▇.▇. ▇▇▇▇▇▇ BANK, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By: _________________________
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Key Bank National Association KEY BANK NATIONAL ASSOCIATION
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇-▇▇▇▇ By: _________________________
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By: _________________________
Name:
Title:
Address:
ING Capital LLC ING CAPITAL LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By:
_______________________________
Name:
Title:
ABN AMRO Bank N.V. ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ By: _________________________
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name:
Title:
ABN AMRO Bank N.V.
By: _________________________
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Lloyds TSB Bank plc LLOYDS TSB BANK PLC
1251 Avenue of the Americas
39th Floor By: _________________________
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Export Development Canada EXPORT DEVELOPMENT CANADA
▇▇▇ ▇'▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ By:
KIA 1K3 _______________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Financial
Services Manager
By:
_______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
Barclays Bank PLC BARCLAYS BANK PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ By: _________________________
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Bank Hapoalim B.M. BANK HAPOALIM B.M.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By: _________________________
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Industrial and Commercial INDUSTRIAL AND COMMERCIAL BANK OF
Bank of CHINA SHANGHAI MUNICIPAL BRANCH
China, Shanghai Municipal
Branch By: _________________________
Address: No 9 PuDong Name:
Avenue Title:
Shanghai, China
Address: No ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ Commercial Paper, Inc. ▇▇▇▇▇▇ COMMERCIAL PAPER, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By: _________________________
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Mizuho Corporate Bank, Ltd. MIZUHO CORPORATE BANK, LTD.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By:
_______________________________
Name:
Title:
Nordea Bank Danmark A/S NORDEA BANK DANMARK A/S
Strandgade 3, Christiansbro
▇▇ ▇▇▇ ▇▇▇ By:
DK-0900 Copenhagen C. _______________________________
Denmark
Name:
Title:
Sumitomo Mitsui Banking SUMITOMO MITSUI BANKING
Corporation CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By: _________________________
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
UFJ Bank Limited UFJ BANK LIMITED
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By:
_______________________________
Name:
Title:
Banca Nazionale Del Lavoro BANCA NAZIONALE DEL LAVORO
S.P.A., S.P.A., NEW YORK BRANCH
New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ By: _________________________
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Name:
Title:
By: _________________________
Name:
Title:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S. Bank, National Association U.S. BANK, NATIONAL ASSOCIATION
U.S. Bank Centre
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇ By: _________________________
Mail Loc: CN-OH-RN11 Name:
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Title:
Address: U.S. Bank Centre
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇.: CN-OH-RN11
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Banco Santander Central BANCO SANTANDER CENTRAL
Hispano, S.A. HISPANO, S.A.
New York Branch New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ By: _________________________
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Name:
Title:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
PNC Bank PNC BANK, National Association
One PNC Plaza
Fifth Avenue and Wood Street By: _________________________
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank ▇.▇. ▇▇▇▇▇ FARGO BANK N.A.
By: _________________________
Name:
Title:
Address:
The Bank of New York THE BANK OF NEW YORK
One Wall Street
21st Floor By: _________________________
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Bank of Communications, New BANK OF COMMUNICATIONS, NEW
York Branch YORK BRANCH
One Exchange Plaza
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ By:
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ _______________________________
Name:
Title:
Address: One Exchange Plaza
▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
The Northern Trust Company THE NORTHERN TRUST COMPANY
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By:
_______________________________
Name:
Title:
SECTION 1. DEFINITIONS. 1
SECTION 2. AMOUNT AND TERMS OF CREDIT. 16
2.1 Revolving Loan Commitments 16
2.2 Notice of Revolving Loan Borrowing 17
2.3 Competitive Bid Loans 17
2.4 Disbursement of Funds 19
2.5 Repayment of Loans; Evidence of Debt 20
2.6 Interest 22
2.7 Interest Periods 23
2.8 Conversions or Continuations 23
2.9 Interest Rate Unascertainable, Increased Cost,
Illegality, etc 24
2.10 Capital Adequacy 25
2.11 Funding Losses 26
2.12 Taxes 27
2.13 Sharing of Payments, etc 28
2.14 Change of Lending Office 28
SECTION 3.AGENTS' FEES; FACILITY FEE; UTILIZATION FEE;
COMMITMENTS. 28
3.1 Facility Fee; Utilization Fee 28
3.2 Agent's Fees 29
3.3 Voluntary Reduction of Commitments 29
3.4 Pro Rata Reductions; No Reinstatement 29
3.5 Extension of Commitment Termination Date 29
SECTION 4. PAYMENTS. 31
4.1 Voluntary Prepayments 31
4.2 Mandatory Prepayments 32
4.3 Method and Place of Payment 32
4.4 Use of Proceeds 33
SECTION 5. CONDITIONS PRECEDENT. 33
5.1 Conditions Precedent to Effectiveness 33
5.2 Conditions Precedent to Each Loan 34
5.3 Conditions Precedent to the Extension of the
Commitment Termination Date 35
SECTION 6.REPRESENTATIONS, WARRANTIES AND AGREEMENTS. 35
6.1 Corporate Status 35
6.2 Corporate Power and Authority 35
6.3 No Violation 35
6.4 Litigation 36
6.5 Financial Statements; Financial Condition; etc 36
6.6 Use of Proceeds; Margin Regulations 36
6.7 Governmental Approvals 36
6.8 Tax Returns and Payments 36
6.9 ERISA 37
6.10 Investment Company Act; Public Utility Holding
Company Act 37
6.11 True and Complete Disclosure 37
6.12 Environmental Matters 38
6.13 Patents, Trademarks, etc 39
6.14 Ownership of Property 39
6.15 No Default 39
6.16 Licenses, etc 39
6.17 Compliance With Law 39
6.18 Labor Matters 40
SECTION 7. AFFIRMATIVE COVENANTS. 40
7.1 Information Covenants 40
7.2 Books, Records and Inspections 43
7.3 Maintenance of Insurance 43
7.4 Taxes 43
7.5 Corporate Franchises 43
7.6 Compliance with Law 43
7.7 Maintenance of Properties 44
SECTION 8. NEGATIVE COVENANTS. 44
8.1 Liens 44
8.2 Subsidiary Indebtedness 46
8.3 Restriction on Fundamental Changes 46
8.4 Sales and Leasebacks 47
8.5 Plans 47
8.6 Restrictions on Subsidiary Distributions 47
8.7 No Further Negative Pledges 47
8.8 Consolidated Interest Coverage Ratio 48
SECTION 9. EVENTS OF DEFAULT. 48
9.1 Events of Default 48
9.2 Rights and Remedies 50
SECTION 10. THE ADMINISTRATIVE AGENT AND SYNDICATION AGENT. 50
10.1 Appointment 50
10.2 Delegation of Duties 51
10.3 Exculpatory Provisions 51
10.4 Reliance by Administrative Agent 51
10.5 Notice of Default 52
10.6 Non-Reliance on the Agents and Other Banks 52
10.7 Indemnification 52
10.8 Agents in their Individual Capacity 53
10.9 Successor Administrative Agent 53
10.10 Holders 53
SECTION 11. MISCELLANEOUS. 53
11.1 Payment of Expenses; Indemnification 53
11.2 Right of Setoff 55
11.3 Notices 55
11.4 Benefit of Agreement 56
11.5 No Waiver; Remedies Cumulative 59
11.6 Payments Pro Rata 59
11.7 Governing Law; Submission to Jurisdiction 59
11.8 Counterparts 60
11.9 Effectiveness 60
11.10 Headings Descriptive 60
11.11 Marshalling; Recapture 60
11.12 Amendment or Waiver 60
11.13 Survival 61
11.14 Independent Nature of Banks' Rights and
Obligations 61
11.15 Independence of Covenants 61
11.16 Waiver of Trial by Jury 61
Schedule 1 Banks and Commitments
chedule 6.1 Subsidiaries
Exhibit A-1 Notice of Borrowing
Exhibit A-2 Notice of Competitive Bid Borrowing
Exhibit B-1 Form of Revolving Notes
Exhibit B-2 Form of Competitive Bid Notes
Exhibit B-3 Form of Term Loan Notes
Exhibit C Form of Extension Request
Exhibit D Form of Commitment Transfer Supplement
Exhibit E Form of Notice of Prepayment
Exhibit F Form of Opinion of ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, general
counsel of the Borrower
Exhibit G Form of Opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP,
special counsel to the Agents and the Banks
Exhibit H Form of Compliance Certificate
Exhibit I Transfer Supplement