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EXHIBIT 10.2
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SHORT TERM REVOLVING CREDIT AGREEMENT
among
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION,
THE LENDERS SIGNATORY HERETO,
MELLON BANK, N.A., as Funding Agent
and
NATIONAL WESTMINSTER BANK PLC,
as Administrative Agent
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Dated as of September 20, 1995
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Table of Contents
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Section Title Page
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ARTICLE I DEFINITIONS; CONSTRUCTION . . . . . . . . . . . . . . . 1
1.01 Certain Definitions . . . . . . . . . . . . . . . . . . 1
1.02 Construction . . . . . . . . . . . . . . . . . . . . . 20
1.03 Accounting Principles . . . . . . . . . . . . . . . . . 20
1.04 Designated Subsidiaries . . . . . . . . . . . . . . . . 21
ARTICLE II THE CREDITS . . . . . . . . . . . . . . . . . . . . . . 22
2.01 Revolving Credit Loans . . . . . . . . . . . . . . . . 22
2.02 Fees; Reduction
of the Committed Amounts . . . . . . . . . . . . . . 23
2.03 Competitive Bid Loans . . . . . . . . . . . . . . . . . 24
2.04 Maximum Aggregate Amount of Loans . . . . . . . . . . . 33
2.05 [Intentionally Omitted] . . . . . . . . . . . . . . . . 33
2.06 Making of Loans . . . . . . . . . . . . . . . . . . . . 33
2.07 Interest Rates . . . . . . . . . . . . . . . . . . . . 34
2.08 Conversion or Renewal of Interest Rate
Options . . . . . . . . . . . . . . . . . . . . . . . 39
2.09 Prepayments Generally . . . . . . . . . . . . . . . . . 40
2.10 Optional Prepayments; Mandatory
Prepayments . . . . . . . . . . . . . . . . . . . . . 40
2.11 Interest Payment Dates . . . . . . . . . . . . . . . . 41
2.12 Pro Rata Treatment . . . . . . . . . . . . . . . . . . 41
2.13 Additional Compensation in Certain
Circumstances . . . . . . . . . . . . . . . . . . . . 44
2.14 Payments Generally; Interest on
Overdue Amounts . . . . . . . . . . . . . . . . . . . 47
2.15 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 48
2.16 Funding by Branch, Subsidiary or
Affiliate . . . . . . . . . . . . . . . . . . . . . . 51
2.17 Extension of Revolving Credit
Maturity Date . . . . . . . . . . . . . . . . . . . . 52
ARTICLE III REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . 53
3.01 Corporate Status . . . . . . . . . . . . . . . . . . . 53
3.02 Corporate Power and Authorization . . . . . . . . . . . 53
3.03 Execution and Binding Effect . . . . . . . . . . . . . 53
3.04 Governmental Approvals and Filings . . . . . . . . . . 54
3.05 Absence of Conflicts . . . . . . . . . . . . . . . . . 54
3.06 Audited Financial Statements . . . . . . . . . . . . . 54
3.07 Absence of Undisclosed Liabilities . . . . . . . . . . 55
3.08 Absence of Material Adverse Changes . . . . . . . . . . 55
3.09 Accurate and Complete Disclosure . . . . . . . . . . . 55
3.10 Margin Regulations . . . . . . . . . . . . . . . . . . 55
3.11 Subsidiaries . . . . . . . . . . . . . . . . . . . . . 56
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3.12 Partnerships, etc. . . . . . . . . . . . . . . . . . . 56
3.13 Litigation . . . . . . . . . . . . . . . . . . . . . . 56
3.14 Absence of Events of Default . . . . . . . . . . . . . 56
3.15 Absence of Other Defaults . . . . . . . . . . . . . . . 56
3.16 Insurance . . . . . . . . . . . . . . . . . . . . . . . 57
3.17 Title to Property . . . . . . . . . . . . . . . . . . . 57
3.18 Intellectual Property . . . . . . . . . . . . . . . . . 57
3.19 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 58
3.20 Employee Benefits . . . . . . . . . . . . . . . . . . . 58
3.21 Environmental Matters . . . . . . . . . . . . . . . . . 59
ARTICLE IV CONDITIONS OF LENDING . . . . . . . . . . . . . . . . . 60
4.01 Conditions to Initial Loans . . . . . . . . . . . . . . 60
4.02 Conditions to All Loans . . . . . . . . . . . . . . . . 62
ARTICLE V AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . 62
5.01 Basic Reporting Requirements . . . . . . . . . . . . . 62
5.02 Insurance . . . . . . . . . . . . . . . . . . . . . . . 66
5.03 Payment of Taxes and Other Potential
Charges and Priority Claims . . . . . . . . . . . . . 66
5.04 Preservation of Corporate Status . . . . . . . . . . . 67
5.05 Governmental Approvals and Filings . . . . . . . . . . 67
5.06 Maintenance of Properties . . . . . . . . . . . . . . . 67
5.07 Avoidance of Other Conflicts . . . . . . . . . . . . . 67
5.08 Financial Accounting Practices . . . . . . . . . . . . 68
5.09 Use of Proceeds . . . . . . . . . . . . . . . . . . . . 68
5.10 Continuation of or Change in Business . . . . . . . . . 68
5.11 Consolidated Tax Return . . . . . . . . . . . . . . . . 68
5.12 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . 68
5.13 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . 68
5.14 Ratings . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE VI NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . 70
6.01 Financial Covenants . . . . . . . . . . . . . . . . . . 70
6.02 Liens . . . . . . . . . . . . . . . . . . . . . . . . . 71
6.03 Indebtedness . . . . . . . . . . . . . . . . . . . . . 72
6.04 Loans, Advances and Certain Investments . . . . . . . . 72
6.05 Changes in Business . . . . . . . . . . . . . . . . . . 72
6.06 Amendment of Certain Documents . . . . . . . . . . . . 72
6.07 Mergers; Acquisitions . . . . . . . . . . . . . . . . . 73
6.08 ERISA Obligations . . . . . . . . . . . . . . . . . . . 73
6.09 Principal Foreign Affiliates . . . . . . . . . . . . . 73
6.10 Certain Agreements . . . . . . . . . . . . . . . . . . 74
ARTICLE VII DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . 74
7.01 Events of Default . . . . . . . . . . . . . . . . . . . 74
7.02 Consequences of an Event of Default . . . . . . . . . . 77
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ARTICLE VIII THE AGENTS . . . . . . . . . . . . . . . . . . . . . . 78
8.01 Appointments . . . . . . . . . . . . . . . . . . . . . 78
8.02 General Nature of Agents' Duties . . . . . . . . . . . 79
8.03 Exercise of Powers . . . . . . . . . . . . . . . . . . 80
8.04 Certain Provisions . . . . . . . . . . . . . . . . . . 80
8.05 Administration by the Agents . . . . . . . . . . . . . 81
8.06 Lender Not Relying on Agents or
Other Lenders . . . . . . . . . . . . . . . . . . . . 82
8.07 Indemnification . . . . . . . . . . . . . . . . . . . . 82
8.08 Agents in their Individual Capacities . . . . . . . . . 83
8.09 Holders of Notes . . . . . . . . . . . . . . . . . . . 83
8.10 Successor Agents . . . . . . . . . . . . . . . . . . . 83
8.11 Calculations . . . . . . . . . . . . . . . . . . . . . 84
8.12 Funding by Funding Agent . . . . . . . . . . . . . . . 84
ARTICLE IX MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 85
9.01 Holidays . . . . . . . . . . . . . . . . . . . . . . . 85
9.02 Records . . . . . . . . . . . . . . . . . . . . . . . . 85
9.03 Amendments and Waivers . . . . . . . . . . . . . . . . 85
9.04 No Implied Waiver; Cumulative Remedies . . . . . . . . 86
9.05 Notices . . . . . . . . . . . . . . . . . . . . . . . . 86
9.06 Expenses; Taxes; Indemnity . . . . . . . . . . . . . . 87
9.07 Severability . . . . . . . . . . . . . . . . . . . . . 88
9.08 Prior Understandings . . . . . . . . . . . . . . . . . 88
9.09 Duration; Survival . . . . . . . . . . . . . . . . . . 88
9.10 Counterparts . . . . . . . . . . . . . . . . . . . . . 89
9.11 Limitation on Payments . . . . . . . . . . . . . . . . 89
9.12 Set-Off . . . . . . . . . . . . . . . . . . . . . . . . 89
9.13 Sharing of Collections . . . . . . . . . . . . . . . . 90
9.14 Successors and Assigns; Participations;
Assignments . . . . . . . . . . . . . . . . . . . . . 90
9.15 Governing Law; Submission to Jurisdiction:
Waiver of Jury Trial . . . . . . . . . . . . . . . . 94
9.16 Confidentiality . . . . . . . . . . . . . . . . . . . . 95
9.17 Replacement of Lenders . . . . . . . . . . . . . . . . 95
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Competitive Bid Loan Quote Request
Exhibit C Form of Competitive Bid Loan Quote
Exhibit D Form of Competitive Bid Note
Exhibit E Form of Quarterly Compliance Certificate
Exhibit F Form of Transfer Supplement
Schedule 1.04 Designated Subsidiaries
Schedule 3.01 Corporate Status
Schedule 3.02 Consents and Approvals
Schedule 3.07 Indebtedness
Schedule 3.11 Subsidiaries
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Schedule 3.12 Partnerships
Schedule 3.21 Environmental Matters
Schedule 6.02 Liens
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SHORT TERM REVOLVING CREDIT AGREEMENT
THIS AGREEMENT, dated as of September 20, 1995, by and among
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION, a New York corporation (the "Borrower"), the lenders
parties hereto from time to time (the "Lenders", as defined further below),
MELLON BANK, N.A., a national banking association, as Funding Agent for the
Lenders hereunder and NATIONAL WESTMINSTER BANK PLC, as Administrative Agent for
the Lenders hereunder.
Recitals:
A. The Borrower has requested the Lenders to extend credit to
the Borrower to enable it to borrow, repay and reborrow hereunder amounts not
exceeding $200,000,000 aggregate principal amount at any time outstanding, and
the Lenders are willing to extend such credit upon the terms and conditions set
forth herein.
B. The Borrower and the Lenders desire to establish an
uncommitted competitive bid facility.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.01. Certain Definitions. In addition to other words and
terms defined elsewhere in this Agreement, as used herein the following words
and terms shall have the following meanings, respectively, unless the context
hereof otherwise clearly requires:
"Absolute Rate" shall have the meaning set forth in Section
2.03(d)(ii)(F) hereof.
"Absolute Rate Auction" shall mean a solicitation of
Competitive Bid Loan Quotes setting forth Absolute Rates pursuant to
Section 2.03 hereof.
"Absolute Rate Loan" or "Absolute Rate Loans" shall mean any or
all Competitive Bid Loans the interest rates of which are determined on
the basis of Absolute Rates pursuant to an Absolute Rate Auction.
"Administrative Agent" shall mean, initially, National
Westminster Bank PLC, in its capacity as Administrative Agent for the
Lenders hereunder, and any successor Administrative Agent appointed in
accordance with Section 8.10 hereof.
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"Affected Lender" shall have the meaning set forth in Section
2.07(e) hereof.
"Affiliate" of a Person (the "Specified Person") shall mean (a)
any Person which directly or indirectly controls, or is controlled by,
or is under common control with, the Specified Person, and (b) any
director or officer (or, in the case of a Person which is not a
corporation, any individual having analogous powers) of the Specified
Person or of a Person who is an Affiliate of the Specified Person within
the meaning of the preceding clause (a). For purposes of the preceding
sentence, "control" of a Person means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.
"Agents" shall mean, collectively, the Funding Agent and the
Administrative Agent and "Agent" shall mean either of the foregoing.
"Applicable Margin" shall have the meaning set forth in Section
2.07(b) hereof.
"Assessment Rate" shall have the meaning set forth in Section
2.07(a)(ii) hereof.
"Base Rate" shall have the meaning set forth in Section
2.07(a)(i) hereof.
"Base Rate Auction" shall mean a solicitation of Competitive
Bid Loan Quotes setting forth Base Rate Margins based on the Base Rate
pursuant to Section 2.03 hereof.
"Base Rate Loans" shall mean Competitive Bid Loans the interest
rates of which are determined on the basis of the Base Rate pursuant to
a Base Rate Auction.
"Base Rate Margin" shall have the meaning set forth in Section
2.03(d)(ii)(E) hereof.
"Base Rate Option" shall have the meaning set forth in Section
2.07(a)(i) hereof.
"Base Rate Portion" of any Loan or Loans shall mean at any time
the portion, including the whole, of such Loan or Loans bearing
interest at such time (i) under the Base Rate Option or (ii) in
accordance with Section 2.14 hereof. If no Loan or Loans is specified,
"Base Rate Portion" shall refer to the Base Rate Portion of all Loans
outstanding at such time.
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"Benefit Plan" shall mean any plan, agreement, arrangement or
commitment which is an employment or consulting agreement, executive
compensation plan, bonus plan, deferred compensation agreement,
employee pension, profit-sharing, savings or retirement plan, employee
stock option or stock purchase plan, retiree medical or life, group
life, health, or accident insurance or other benefit plan, agreement,
arrangement or commitment, including, without limitation, severance, or
other bonus practice (including, but not limited to, employee benefit
plans, as defined in section 3(3) of ERISA), with respect to which the
Borrower, any of its Significant Subsidiaries, or a member of their
respective Controlled Group, at any relevant time have some liability
or obligation to contribute or pay benefits and which relates to
current or former employees of the Borrower, any Significant Subsidiary
or any member of their respective Controlled Group.
"Business Day" shall mean (a) with respect to selection of the
Euro-Rate Option, prepayment of any Euro-Rate Portion of any Revolving
Credit Loans, determining the first or last day of any Euro-Rate
Funding Period, the giving of notices or quotes in connection with a
LIBOR Auction or a payment of principal of or interest on, or the
Interest Period for, a LIBOR-based Loan, a day for dealings in deposits
in Dollars by and among banks in the London interbank market and on
which commercial banks are open for domestic and international business
in Pittsburgh, Pennsylvania and New York, New York and (b) with respect
to selection of any other interest rate Option, prepayment of any part
of any other Portion of any Revolving Credit Loans, determining the
first or last day of any other Funding Period, the giving of notices or
quotes in connection with an Absolute Rate or a payment of principal of
or interest on, or the Interest Period for, an Absolute Rate Loan and
in every other context, any day other than a Saturday, Sunday or other
day on which banking institutions are authorized or obligated to close
in Pittsburgh, Pennsylvania and New York, New York.
"Capitalized Lease" shall mean at any time any lease which is,
or is required under GAAP to be, capitalized on the balance sheet of
the lessee at such time, and "Capitalized Lease Obligation" of any
Person at any time shall mean the aggregate amount which is, or is
required under GAAP to be, reported as a liability on the balance sheet
of such Person at such time as lessee under a Capitalized Lease.
"CD Rate" shall have the meaning set forth in Section
2.07(a)(ii) hereof.
"CD Rate Funding Period" shall have the meaning set forth in
Section 2.07(c) hereof.
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"CD Rate Option" shall have the meaning set forth in Section
2.07(a)(ii) hereof.
"CD Rate Portion" of any Loan or Loans shall mean at any time
the portion, including the whole, of such Loan or Loans bearing
interest at any time under the CD Rate Option or at a rate calculated
by reference to the CD Rate under Section 2.14 hereof. If no Loan or
Loans is specified, "CD Rate Portion" shall refer to the CD Rate
Portion of all Loans outstanding at such time.
"CD Rate Reserve Percentage" for any day and for any CD Rate
Funding Period shall mean the percentage (expressed as a decimal,
rounded upward to the nearest 1/100 of 1%), as determined in good faith
by the Funding Agent (which determination shall be conclusive absent
manifest error), which is in effect on such day as prescribed by the
Board of Governors of the Federal Reserve System (or any successor)
representing the maximum reserve requirement (including without
limitation supplemental, marginal and emergency reserve requirements)
for a member bank of such System in respect of nonpersonal time
deposits in Dollars in the United States having a maturity comparable
to such CD Rate Funding Period.
"Change of Control" shall mean (a) any Person or group of
Persons (as used in Sections 13 and 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder) shall have become the beneficial owner (as defined in Rules
13d-3 and 13d-5 promulgated by the Securities and Exchange Commission
(the "SEC") under the Exchange Act) of 20% or more of the Borrower's
outstanding Voting Stock, unless a majority of the Continuing Directors
approves the acquisition not later than 10 days after such acquisition
or (b) a change in the board of directors of the Borrower shall have
occurred which results in a majority of directors not being Continuing
Directors.
"Closing Date" shall mean the date on which the last of the
conditions set forth in Section 4.01 hereof has been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended, and
any successor statute of similar import, and regulations thereunder, in
each case as in effect from time to time. References to sections of
the Code shall be construed also to refer to any successor sections.
"Commitments" of a Lender shall mean the Revolving Credit
Commitment of such Lender.
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"Commitment Percentage" of a Lender at any time shall mean the
Commitment Percentage for such Lender set forth below its name on the
signature page hereof, subject to adjustment as provided in Section
9.17 hereof and subject to transfer to another Lender as provided in
Section 9.14 hereof.
"Competitive Bid Borrowing" shall have the meaning set forth in
Section 2.03(b) hereof.
"Competitive Bid Expiration Date" shall mean September 18,
1996, or such later date as may be established as the Competitive Bid
Expiration Date pursuant to Section 2.17 hereof.
"Competitive Bid Loan" or "Competitive Bid Loans" shall mean
any or all loans provided for by Section 2.03 hereof.
"Competitive Bid Loan Maturity Date" shall have the meaning set
forth in Section 2.03(j) hereof.
"Competitive Bid Loan Quote" shall mean an offer in accordance
with Section 2.03(d) hereof by a Lender to make a Competitive Bid Loan.
"Competitive Bid Loan Quote Request" shall have the meaning set
forth in Section 2.03(b) hereof.
"Competitive Bid Note" shall have the meaning set forth in
Section 2.03(p) hereof.
"Competitive Bid Register" shall have the meaning set forth in
Section 2.03(l) hereof.
"Consolidated Adjusted EBIT" for any period, with respect to
the Borrower and its consolidated Subsidiaries, shall mean the sum of
(a) Consolidated Net Income for such period, (b) Consolidated Adjusted
Interest Expense for such period, (c) charges against income for
foreign, federal, state and local income taxes for such period, (d)
Consolidated Adjusted Rental Expense for such period, all as determined
on a consolidated basis in accordance with GAAP.
"Consolidated Adjusted Interest Expense" for any period shall
mean the total interest expense of the Borrower and its consolidated
Subsidiaries (other than Special Purpose Subsidiaries) for such period
determined on a consolidated basis in accordance with GAAP.
"Consolidated Adjusted Rental Expense" for any period shall
mean aggregate rent and lease payments made pursuant to operating
leases for such period by the Borrower and its
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consolidated Subsidiaries (other than Special Purpose Subsidiaries)
determined on a consolidated basis in accordance with GAAP.
"Consolidated Capitalization" at any time shall mean the sum of
Consolidated Net Worth at such time and Consolidated Indebtedness at
such time.
"Consolidated Fixed Charges" for any period shall mean the sum
of Consolidated Adjusted Interest Expense for such period and
Consolidated Adjusted Rental Expense for such period.
"Consolidated Fixed Charges Coverage Ratio" for any period
shall mean the ratio of the Consolidated Adjusted EBIT for such period
to the Consolidated Fixed Charges for such period.
"Consolidated Indebtedness" at any time shall mean the
Indebtedness of the Borrower and its consolidated Subsidiaries at such
time determined on a consolidated basis in accordance with GAAP.
"Consolidated Leverage Ratio" at any time shall mean the ratio
of Consolidated Indebtedness to the Consolidated Capitalization at such
time.
"Consolidated Net Income" for any period shall mean the net
earnings (or loss) after taxes of the Borrower and its consolidated
Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Worth" at any time shall mean the total
amount of stockholders' equity of the Borrower and its consolidated
Subsidiaries at such time determined on a consolidated basis in
accordance with GAAP.
"Continuing Directors" shall mean members of the board of
directors of the Borrower who (a) were directors on August 1, 1995 or
(b) have been directors for at least two years, or (c) were nominated
or elected with the affirmative vote of the greater of (x) a majority
of the Continuing Directors on the board or (y) three Continuing
Directors.
"Controlled Group" shall mean with respect to any Person, all
members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which,
together with such Person, are treated as a single employer under
Section 414(b), 414(c), 414(m) or 414(o) of the Code or Section
4001(a)(2) of ERISA.
"Corresponding Source of Funds" shall mean:
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(a) In the case of any Funding Segment of the CD Rate
Portion, the proceeds of hypothetical issuances by a Lender of one or
more of its certificates of deposit at the beginning of the CD Rate
Funding Period corresponding to such Funding Segment, having maturities
approximately equal to such CD Rate Funding Period and in an aggregate
amount approximately equal to such Lender's Pro Rata share of such
Funding Segment; and
(b) In the case of any Funding Segment of the Euro-Rate
Portion, the proceeds of hypothetical receipts by a Notional Euro-Rate
Funding Office or by a Lender through a Notional Euro-Rate Funding
Office of one or more Dollar deposits in the interbank eurodollar
market at the beginning of the Euro-Rate Funding Period corresponding
to such Funding Segment having maturities approximately equal to such
Euro-Rate Funding Period and in an aggregate amount approximately equal
to such Lender's Pro Rata share of such Funding Segment.
"Debt Instrument" shall have the meaning set forth in Section
7.01(f) hereof.
"Designated Subsidiary" shall mean each Subsidiary so
designated pursuant to Section 1.04 hereof.
"Dollar," "Dollars" and the symbol "$" shall mean lawful money
of the United States of America.
"Dollar Equivalent Amount" shall have the meaning set forth in
Section 2.03(r) hereof.
"Environmental Claim" shall mean, with respect to any Person,
any action, suit, proceeding, investigation, notice, claim, complaint,
demand, request for information or other communication (written or
oral) by any other Person (including but not limited to any
Governmental Authority, citizens' group or present or former employee
of such Person) alleging, asserting or claiming any actual or potential
(a) violation of any Environmental Law, (b) liability under any
Environmental Law or (c) 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 the presence, or release into the environment, of any
Hazardous Materials at any location, whether or not owned by such
Person.
"Environmental Matters" means any matter arising out of,
relating to, or resulting from any emissions, discharges, releases or
threatened releases of Hazardous Materials into the air, surface water,
groundwater, or soil, or otherwise arising out of, relating to, or
resulting from the
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manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials.
"Environmental Permits" means all permits, licenses,
authorizations, registrations and other governmental consents required
by applicable Requirements of Law for the use, storage, treatment,
transportation, release, emission and disposal of raw materials,
by-products, wastes and other substances used or produced by or
otherwise relating to the operations of the Borrower and any
Significant Subsidiary of the Borrower.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and any successor statute of similar import, and
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Lien" shall mean a security interest or lien arising
under or in connection with a Pension Plan or Title IV of ERISA or a
claim asserted (including for failure to withhold) by the government
which if successful would result in such a lien; provided, however,
that any claim asserted, (a) for which the Borrower has reasonable
grounds to contest and (b) which the Borrower is diligently contesting
in good faith through appropriate proceedings with the IRS or a court
of law, shall not be deemed an ERISA Lien for so long as all of the
above conditions are met.
"Eurocurrency Liabilities" shall have the meaning set forth in
the definition of Euro-Rate Reserve Percentage set forth in Section
1.01 hereof.
"Eurocurrency Loan" shall have the meaning set forth in Section
2.03(r) hereof.
"Euro-Rate" shall have the meaning set forth in Section
2.07(a)(iii) hereof.
"Euro-Rate Funding Period" shall have the meaning set forth in
Section 2.07(c) hereof.
"Euro-Rate Option" shall have the meaning set forth in Section
2.07(a)(iii) hereof.
"Euro-Rate Portion" of any Loan or Loans shall mean at any time
the portion, including the whole, of such Loan or Loans bearing
interest at any time under the Euro-Rate Option or at a rate calculated
by reference to the Euro-Rate under
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Section 2.14 hereof. If no Loan or Loans is specified, "Euro-Rate
Portion" shall refer to the Euro-Rate Portion of all Loans outstanding
at such time.
"Euro-Rate Reserve Percentage" for any day for any Lender shall
mean the percentage (expressed as a decimal, rounded upward to the
nearest 1/100 of 1%), as determined in good faith by such Lender (which
determination shall be conclusive absent manifest error), which is in
effect on such day as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) representing the maximum
reserve requirement of such Lender (including, without limitation,
supplemental, marginal and emergency reserve requirements) with respect
to eurocurrency funding (currently referred to as "Eurocurrency
Liabilities") of a member bank in such System.
"Event of Default" shall mean any of the Events of Default
described in Section 7.01 hereof.
"Facility Fee" shall have the meaning set forth in Section
2.02(a) hereof.
"Federal Funds Effective Rate" for any day shall mean the rate
per annum (rounded upward to the nearest 1/100 of 1%) determined by the
Funding Agent (which determination shall be conclusive) to be the rate
per annum announced by the Federal Reserve Bank of New York (or any
successor) on such day as being the weighted average of the rates on
overnight Federal funds transactions arranged by Federal funds brokers
on the previous trading day, as computed and announced by such Federal
Reserve Bank (or any successor) in substantially the same manner as
such Federal Reserve Bank computes and announces the weighted average
it refers to as the "Federal Funds Effective Rate" as of the date of
this Agreement; provided, that if such Federal Reserve Bank (or its
successor) does not announce such rate on any day, the "Federal Funds
Effective Rate" for such day shall be the Federal Funds Effective Rate
for the last day on which such rate was announced.
"Financial Provisions" shall have the meaning set forth in
Section 1.03(d) hereof.
"Funding Agent" shall mean, initially, Mellon Bank, N.A., in
its capacity as Funding Agent for the Lenders hereunder, and any
successor Funding Agent appointed in accordance with Section 8.10
hereof.
"Funding Periods" shall have the meaning set forth in Section
2.07(c) hereof.
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15
"Funding Segment" of the CD Rate Portion or the Euro-Rate
Portion, as the case may be, of the Revolving Credit Loans at any time
shall mean the entire principal amount of such Portion to which at the
time in question there is applicable a particular Funding Period
beginning on a particular day and ending on a particular day. (By
definition, each such Portion is at all times composed of an integral
number of discrete Funding Segments and the sum of the principal
amounts of all Funding Segments of any such Portion at any time equals
the principal amount of such Portion at such time.)
"GAAP" shall have the meaning set forth in Section 1.03 hereof.
"Governmental Action" shall have the meaning set forth in
Section 3.04 hereof.
"Governmental Authority" shall mean any government or political
subdivision or any agency, authority, bureau, central bank, commission,
department or instrumentality of either, or any court, tribunal, grand
jury or arbitrator, in each case whether foreign or domestic.
"Guarantee" shall mean the guarantee by any Person to pay or
perform the obligations of any other Person, including any agreement,
whether such agreement is on a contingency basis or otherwise, to
purchase, repurchase or otherwise acquire Indebtedness of any other
Person, or to purchase, sell or lease, as lessee or lessor, property or
services, in any such case primarily for the purpose of enabling
another Person to make payment of Indebtedness.
"Hazardous Materials" means any pollutants, contaminants,
hazardous or toxic substances, materials or wastes (including
petroleum, petroleum by-products, PCBs, and friable asbestos) as those
concepts are used in the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA), the Resource Conservation and
Recovery Act (RCRA), the Toxic Substance Control Act (TSCA), the Clean
Air Act, the Clean Water Act, and other similar federal or state
statutes or regulations.
"Indebtedness" of a Person shall mean with respect to any
Person, without duplication, all (a) liabilities or obligations
incurred in connection with borrowings (including reimbursement
obligations in respect of letters of credit or banker's acceptances
which have been drawn and including the sale of debt securities) of
such Person which in accordance with generally accepted accounting
principles would be included in determining total liabilities as shown
on the liability side of a balance sheet of such Person at the date as
of which Indebtedness is to be determined, including,
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16
without limitation, Capitalized Lease Obligations of such Person; (b)
liabilities or obligations of such Person issued, incurred or assumed
in respect of the purchase price of property except for trade accounts
payable incurred in the ordinary course of business on which interest
is not being accrued; (c) liabilities or obligations of others of any
of the types specified in the preceding clauses (a) and (b) for which
such Person is directly or indirectly liable, by way of guaranty
(whether by direct guaranty, suretyship, discount, endorsement,
take-or-pay agreement, agreement to purchase or advance or keep in
funds or other agreement having the effect of a guaranty) or otherwise;
and (d) liabilities or obligations of others of any of the types
specified in the preceding clauses (a) and (b) which are secured by
Liens on any assets of such Person, whether or not such liabilities or
obligations shall have been assumed by it.
"Indemnified Parties" shall mean the Agents, the Lenders, their
respective affiliates, and the directors, officers, employees,
attorneys and agents of each of the foregoing.
"Initial Revolving Credit Committed Amount" shall have the
meaning set forth in Section 2.01(a) hereof.
"Interest Period" shall mean with respect to any Competitive
Bid Loan, the period commencing on the date such Competitive Bid Loan
is made and ending on a date not less than seven days nor more than 180
days thereafter (with respect to any Absolute Rate Loan) or 30, 60, 90
or 180 days thereafter (with respect to any CD Rate Loan) or one, two,
three or six months (with respect to any LIBO-Rate Loan), as the
Borrower may specify in the related Competitive Bid Loan Quote Request
as provided in Section 2.03(b) hereof, provided that:
(a) No Interest Period may end after the Competitive
Bid Expiration Date;
(b) Each Interest Period that would otherwise end on a
day that is not a Business Day shall end on the next succeeding
Business Day or, in the case of an Interest Period for a
LIBOR-based Loan, if such next succeeding Business Day falls in
the next succeeding calendar month, then such Interest Period
shall end on the next preceding Business Day; and
(c) Notwithstanding clauses (a) and (b) above, no
Interest Period for any Competitive Bid Loan shall have a
duration of less than seven days and, if the Interest Period
for any Competitive Bid Loan would otherwise be a shorter
period, such Competitive Bid Loan shall not be available
hereunder.
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"Investment" by any Person in any other Person shall mean:
(a) the amount paid, or the value of property or services
contributed, by such Person for or in connection with the acquisition
by such Person of any stock, bonds, notes, debentures, option
contracts, investment contracts, partnership or other ownership
interests or other securities of any other Person;
(b) the amount of any advance, loan or extension of credit
to any other Person by such Person; and
(c) the amount of any Indebtedness of any other Person
which such Person has guaranteed and which by its terms or as a
consequence of any default thereunder such Indebtedness has or may, at
the option of the holder thereof, become due and payable by
acceleration or otherwise.
"IRS" shall mean the Internal Revenue Service.
"Law" shall mean any law (including common law), constitution, statute,
treaty, convention, regulation, rule, ordinance, order, injunction, writ, decree
or award of any Governmental Authority.
"Lender" shall mean any of the Lenders listed on the signature pages
hereof, subject to the provisions of Section 9.14 hereof pertaining to Persons
becoming or ceasing to be Lenders.
"Level I Day" shall mean a day on which there is in effect a ▇▇▇▇▇'▇
Rating of A3 or better and an S&P Rating of A- or better.
"Level II Day" shall mean a day which is not a Level I Day and on which
there is in effect a ▇▇▇▇▇'▇ Rating of Baa1 or better and an S&P Rating of BBB+
or better.
"Level III Day" shall mean a day which is not a Level I Day or a Level
II Day and on which there is in effect a ▇▇▇▇▇'▇ Rating of Baa2 or better and an
S&P Rating of BBB or better.
"Level IV Day" shall mean a day which is not a Level I Day, a Level II
Day or a Level III Day and on which there is in effect a ▇▇▇▇▇'▇ Rating of Baa3
or better and an S&P Rating of BBB- or better.
"Level V Day" shall mean a day which is not a Level I Day, a Level II
Day, a Level III Day or a Level IV Day.
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"LIBO-Rate" for any day, as used herein, shall mean with respect to
each proposed LIBOR-based Loan a rate of interest (which shall be the same for
each day in the applicable Interest Period) equal to the rate of interest
determined in good faith by the Funding Agent in accordance with its usual
procedures from the Reuters Screen LIBO page (which determination shall be
conclusive absent manifest error) to be the average of the rates per annum for
deposits in Dollars offered to the leading banks in the London interbank market
at approximately 11:00 a.m., London time, two Business Days prior to the first
day of such Interest Period for delivery on the first day of such Interest
Period in amounts comparable to the amount of the LIBOR-based Loan to be funded
and having maturities comparable to such Interest Period.
"LIBOR Auction" shall mean a solicitation of Competitive Bid Loan
Quotes setting forth LIBOR-based Margins based on the LIBO-Rate pursuant to
Section 2.03 hereof.
"LIBOR-based Loans" shall mean Competitive Bid Loans the interest
rates of which are determined on the basis of the LIBO-Rate pursuant to a LIBOR
Auction.
"Lien" shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, including but not limited to any conditional sale or title
retention arrangement, and any assignment, deposit arrangement or lease
intended as, or having the effect of, security.
"Loan" shall mean any loan or advance by a Lender under this
Agreement, whether a Revolving Credit Loan or a Competitive Bid Loan and
"Loans" shall mean all Revolving Credit Loans and Competitive Bid Loans made by
Lenders under this Agreement.
"Loan Documents" shall mean this Agreement, the Notes and the Transfer
Supplements, and all other agreements and instruments extending, renewing,
refinancing or refunding any indebtedness, obligation or liability arising
under any of the foregoing, and any certificate or instrument delivered by the
Borrower in connection herewith or therewith, in each case as the same may be
amended, modified or supplemented from time to time hereafter.
"Material Adverse Effect" shall mean a material adverse effect on the
business, operations, properties, assets or condition (financial or otherwise)
of the Borrower and its Subsidiaries taken as a whole.
"▇▇▇▇▇'▇" shall mean ▇▇▇▇▇'▇ Investor's Services, Inc., or any
successor thereto.
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"▇▇▇▇▇'▇ Rating" shall mean the rating assigned to the Borrower's
senior unsecured long term debt by ▇▇▇▇▇'▇, or in the event the Borrower has no
▇▇▇▇▇'▇-rated senior unsecured long-term debt outstanding, the "hypothetical
senior long-term debt rating" most recently assigned to the Borrower by ▇▇▇▇▇'▇,
which assignment shall have been made not more than fifteen months prior to the
time in question and not more than ninety (90) days after a request therefor by
the Required Lenders pursuant to Section 5.14 hereof.
"Nonextending Lender" shall have the meaning set forth in Section 2.17
hereof.
"Note" or "Notes" shall mean the Revolving Credit Note(s) or the
Competitive Bid Note(s), as the case may be, of the Borrower executed and
delivered under this Agreement, together with all extensions, renewals,
refinancings or refundings of any thereof in whole or part.
"Notional Euro-Rate Funding Office" shall have the meaning given to
that term in Section 2.16(a) hereof.
"Obligations" shall mean all indebtedness, obligations and liabilities
of the Borrower to any Lender or either Agent from time to time arising under
or in connection with or related to or evidenced by or secured by this
Agreement or any other Loan Document, and all extensions, renewals or
refinancings thereof, whether such indebtedness, obligations or liabilities are
direct or indirect, otherwise secured or unsecured, joint or several, absolute
or contingent, due or to become due, whether for payment or performance, now
existing or hereafter arising. Without limitation of the foregoing, such
indebtedness, obligations and liabilities include the principal amount of
Loans, interest, fees, indemnities or expenses under or in connection with this
Agreement or any other Loan Document, and all extensions, renewals and
refinancings thereof, whether or not such Loans were made in compliance with
the terms and conditions of this Agreement or in excess of the obligation of
the Lenders to lend. Obligations shall remain Obligations notwithstanding any
assignment or transfer or any subsequent assignment or transfer of any of the
Obligations or any interest therein.
"Office," (a) when used in connection with the Funding Agent, shall
mean its office located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, or at such other office or offices of the Funding Agent or any branch,
subsidiary or affiliate thereof as may be designated in writing from time to
time by the Funding Agent to the Borrower and (b) when used in connection with
the Administrative Agent, shall mean its office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other office or offices of the
Administrative Agent or any branch,
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subsidiary or affiliate thereof as may be designated in writing from time to
time by the Administrative Agent to the Borrower.
"Option" shall mean the Base Rate Option, the CD Rate Option or the
Euro-Rate Option, as the case may be.
"Participants" shall have the meaning set forth in Section 9.14(b)
hereof.
"PBGC" means the Pension Benefit Guaranty Corporation established
under Title IV of ERISA or any other governmental agency, department or
instrumentality succeeding to the functions of said corporation.
"Pension Plan" shall mean a single employer plan as defined in Section
4001(a)(15) of ERISA or an individual account plan which is subject to the
funding standards of Section 302 of ERISA with respect to which the Borrower,
any of its Significant Subsidiaries, or members of their respective Controlled
Groups, at any relevant time have some liability or obligation to contribute or
pay benefits and which relates to current or former employees of the Borrower,
any of its Significant Subsidiaries or any member of their respective Controlled
Groups.
"Permitted Liens" shall mean (a) pledges or deposits by the Borrower
under workers' compensation laws, unemployment insurance laws, social security
laws, or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness of the Borrower),
or leases to which the Borrower is a party, or deposits to secure public or
statutory obligations of the Borrower or deposits of cash or U.S. Governmental
Bonds to secure surety, appeal, performance or other similar bonds to which the
Borrower is a party, or deposits as security for contested taxes or import
duties or for the payment of rent; (b) Liens imposed by law such as carriers',
warehousemen's, materialmen's and mechanics' or other similar liens, or Liens
arising out of judgments or awards against the Borrower with respect to which
the Borrower at the time shall currently be prosecuting an appeal or proceedings
for review; (c) Liens for taxes not yet subject to penalties for nonpayment and
Liens for taxes the payment of which is being contested as permitted by Section
5.03 hereof; and (d) minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for rights of way, highways and railroad
crossings, sewers, electric lines, telephone and telegraph lines and other
similar purposes, or zoning or other restrictions as to the use of real
property; all of which Liens described in clause (d) hereof do not in the
aggregate
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materially detract from the value of the properties to which they relate or
materially impair their use in the operation of the business of the Borrower.
"Person" shall mean an individual, corporation, partnership,
trust, unincorporated association, joint venture, joint-stock company,
Governmental Authority or any other entity.
"Portion" shall mean the Base Rate Portion, the CD Rate
Portion or the Euro-Rate Portion, as the case may be.
"Potential Default" shall mean any event or condition which
with notice or passage of time, or any combination of the foregoing, would
constitute an Event of Default.
"Prime Rate" as used herein, shall mean the arithmetic average
of the interest rates per annum announced from time to time by Mellon Bank,
N.A. and National Westminster Bank PLC, respectively, as their prime rates.
"Principal Foreign Affiliates" shall have the meaning set
forth in Section 6.09 hereof.
"Project" shall mean any municipal solid waste project or any
other project the assets of which are financed on a limited recourse basis.
"Pro Rata" shall have the meaning set forth in Section 2.12
hereof.
"Purchasing Lender" shall have the meaning set forth in
Section 9.14(c) hereof.
"Register" shall have the meaning set forth in Section 9.14(d)
hereof.
"Regular Payment Date" shall mean the last Business Day of
each March, June, September and December after the date hereof.
"Relevant Date" shall have the meaning set forth in Section
1.03(a) hereof.
"Replacement Lender" shall have the meaning set forth in
Section 2.17 hereof.
"Reportable Event" means an event described in Section 4043 of
ERISA or in the regulations thereunder with respect to which the 30-day notice
is not waived or an event described in Section 4043 or in the regulations
thereunder with respect to which the 30-day notice has been waived and which
involves a liability of $1,000,000 or more or a
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material plan or a receipt of a notice of withdrawal liabilities pursuant to
Section 4202 of ERISA. For purposes of this definition a material plan is a
plan in which benefit liabilities exceed assets on a termination basis based on
PBGC assumptions by $1,000,000.
"Required Lenders" shall mean, at any time prior to the
termination or expiration of the Commitments, Lenders which have Commitments
constituting, in the aggregate, at least 66 2/3% of the total Commitments of
all the Lenders at such time and shall mean, at any time thereafter, Lenders
which have outstanding Loans constituting, in the aggregate, at least 66 2/3%
of all Loans outstanding at such time.
"Requirements of Law" means all applicable federal, state, and
local laws, statutes, rules, regulations, codes, ordinances, orders, decrees,
directives, permits, licenses and judgments relating to Environmental Matters
in effect as of the date of this Agreement.
"Responsible Officer" of the Borrower shall mean its Chief
Executive Officer, its Chief Financial Officer, any Vice President, the
Treasurer or one of its Assistant Treasurers.
"Revolving Credit Commitment" shall have the meaning set forth
in Section 2.01(a) hereof.
"Revolving Credit Committed Amount" shall have the meaning set
forth in Section 2.01(a) hereof.
"Revolving Credit Loans" shall have the meaning set forth in
Section 2.01(a) hereof.
"Revolving Credit Maturity Date" shall mean September 18,
1996, as such date may be extended pursuant to Section 2.17 hereof.
"Revolving Credit Note" shall mean the promissory note of the
Borrower executed and delivered under Section 2.01(c) hereof, any promissory
note issued in substitution therefor pursuant to Sections 2.16(b) or 9.14(c)
hereof, together with all extensions, renewals, refinancings or refundings
thereof in whole or part.
"S&P" shall mean Standard & Poor's Rating Services, or any
successor thereto.
"S&P Rating" shall mean the rating assigned to the Borrower's
senior unsecured long term debt by S&P, or in the event the Borrower has no
S&P-rated senior unsecured long-term debt outstanding, the "issuer credit
rating" most recently assigned to the Borrower by S&P, which assignment
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shall have been made not more than fifteen months prior to the time in question
and not more than ninety (90) days after a request therefor by the Required
Lenders pursuant to Section 5.14 hereof.
"Significant Subsidiary" shall mean (a) each Special Purpose
Subsidiary, (b) each other Subsidiary of the Borrower which in the most recent
fiscal year of the Borrower accounted for more than 10% of the consolidated
assets of the Borrower and its Subsidiaries or which accounted for more than 10%
of the consolidated income of the Borrower and its Subsidiaries for each of the
most recent three fiscal years of the Borrower; provided, however, that with
respect to Subsidiaries created or acquired after the date hereof, if thereafter
such entity, in a fiscal year, accounts for more than 10% of the consolidated
assets of the Borrower and its Subsidiaries or accounts for more than 10% of the
consolidated income of the Borrower and its Subsidiaries in such fiscal year, it
shall be deemed to be a Significant Subsidiary for such fiscal year and (c) each
other Subsidiary of the Company other than any Designated Subsidiary.
"Special Purpose Subsidiary" shall mean a Subsidiary of the Borrower
formed with the express and sole purpose of, and which is engaged solely in the
business of, constructing or owning, leasing or operating a specific Project,
and with respect to which Subsidiary, neither the Borrower nor any of its other
Subsidiaries is obligated (except as guarantor of completion or performance) to
pay any Indebtedness (including lease obligations) incurred to construct, own,
lease or operate any such Project or any other Indebtedness of such Subsidiary.
"Specified Percentage" shall have the meaning set forth in Section 2.12
hereof.
"Standard Notice" shall mean an irrevocable notice provided to the
Funding Agent on a Business Day which is
(a) At least two Business Day in advance in the case of
selection of, conversion to or renewal of the CD Rate Option or
prepayment of CD Rate Portion;
(b) At least three Business Days in advance in the case of
selection of, conversion to or renewal of the Euro-Rate Option or
prepayment of any Euro-Rate Portion; and
(c) On the same Business Day in the case of selection of,
conversion to or renewal of the Base Rate Option or prepayment of Base
Rate Portion.
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Standard Notice must be provided no later than 10:00 a.m., Pittsburgh time, on
the last day permitted for such notice in the case of notices given pursuant to
clauses (c) and (d) above, and no later than 1:00 p.m., Pittsburgh time, on the
last day permitted for such notice in the case of notices given pursuant to
clauses and (a) and (b) above.
"Stock Payment" by any Person shall mean any dividend, distribution or
payment of any nature (whether in cash, securities, or other property) on
account of or in respect of any shares of the capital stock (or warrants,
options or rights therefor) of such Person, including but not limited to any
payment on account of the purchase, redemption, retirement, defeasance or
acquisition of any shares of the capital stock (or warrants, options or rights
therefor) of such Person, in each case regardless of whether required by the
terms of such capital stock (or warrants, options or rights) or any other
agreement or instrument.
"Subsidiary" of a Person at any time shall mean any corporation of
which a majority (by number of shares or number of votes) of any class of
outstanding capital stock normally entitled to vote for the election of one or
more directors (regardless of any contingency which does or may suspend or
dilute the voting rights of such class) is at such time owned directly or
indirectly, beneficially or of record, by such Person or one or more
Subsidiaries of such Person, and any trust of which a majority of the
beneficial interest is at such time owned directly or indirectly, beneficially
or of record, by such Person or one or more Subsidiaries of such Person.
"Taxes" shall have the meaning set forth in Section 2.15 hereof.
"Total Revolving Credit Commitment" shall mean at any time, the
aggregate Revolving Credit Committed Amounts of all Lenders hereunder at such
time.
"Transfer Effective Date" shall have the meaning set forth in the
applicable Transfer Supplement.
"Transfer Supplement" shall have the meaning set forth in Section
9.14(c) hereof.
"Unutilized Commitment" shall have the meaning set forth in Section
2.12 hereof.
"Voting Stock" shall mean, with respect to any corporation, the
capital stock of such corporation having the power to vote for a majority of
the board of directors of such corporation under ordinary circumstances.
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1.02. Construction. Unless the context of this Agreement
otherwise clearly requires, references to the plural include the singular, the
singular the plural and the part the whole; "or" has the inclusive meaning
represented by the phrase "and/or"; and "property" includes all properties and
assets of any kind or nature, tangible or intangible, real, personal or mixed.
References in this Agreement to "determination" (and similar terms) by either
Agent or by any Lender include reasonable and good faith estimates by such Agent
or by such Lender (in the case of quantitative determinations) and good faith
beliefs by such Agent or by such Lender (in the case of qualitative
determinations). The words "hereof," "herein," "hereunder" and similar terms in
this Agreement refer to this Agreement as a whole and not to any particular
provision of this Agreement. The section and other headings contained in this
Agreement and the Table of Contents preceding this Agreement are for reference
purposes only and shall not control or affect the construction of this Agreement
or the interpretation thereof in any respect. Section, subsection and exhibit
references are to this Agreement unless otherwise specified.
1.03. Accounting Principles. (a) As used herein, "GAAP"
shall mean generally accepted accounting principles as such principles shall be
in effect at the Relevant Date, subject to the provisions of this Section 1.03.
As used herein, "Relevant Date" shall mean the date a relevant computation or
determination is to be made or the date of relevant financial statements, as the
case may be.
(b) Except as otherwise provided in this Agreement, all
computations and determinations as to accounting or financial matters shall be
made, and all financial statements to be delivered pursuant to this Agreement
shall be prepared, in accordance with GAAP (including principles of
consolidation where appropriate), and all accounting or financial terms shall
have the meanings ascribed to such terms by GAAP.
(c) If any change in GAAP after the date of this Agreement
is or shall be required to be applied to transactions then or thereafter in
existence, and a violation of one or more provisions of this Agreement shall
have occurred or in the opinion of the Borrower would likely occur which would
not have occurred or be likely to occur if no change in accounting principles
had taken place,
(i) The parties agree that such violation shall not be
considered to constitute an Event of Default or a Potential Default for
a period of 60 days from the date the Borrower notifies the
Administrative Agent of the application of this Section 1.03(c);
(ii) The parties agree in such event to negotiate in good
faith an amendment of this Agreement which shall
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approximate to the extent possible the financial effect of the original
financial covenants after taking into account such change in GAAP; and
(iii) If the parties are unable to negotiate such an
amendment within 60 days, the Borrower shall have the option of
prepaying the Loans (subject to Section 2.13(b) hereof). If the
Borrower does not exercise such option within said period, then as used
in this Agreement, "GAAP" shall mean generally accepted accounting
principles in effect at the Relevant Date.
(d) If any change in GAAP after the date of this Agreement
is required to be applied to transactions or conditions then or thereafter in
existence, and the Administrative Agent shall assert that the effect of such
change is or shall likely be to distort materially the effect of any of the
definitions of financial terms in Article I hereof or any of the covenants of
the Borrower in Article VI hereof (the "Financial Provisions"), so that the
intended financial effect of any of the Financial Provisions will not in fact be
accomplished,
(i) The Administrative Agent shall notify the Borrower of
such assertion, specifying the change in GAAP which is objected to, and
until otherwise determined as provided below, the specified change in
GAAP shall not be made by the Borrower in its financial statements for
the purpose of applying the Financial Provisions; and
(ii) The parties shall follow the procedures set forth in
paragraph (ii) and the first sentence of paragraph (iii) of subsection
(c) of this Section. If the parties are unable to agree on an
amendment as provided in said paragraph (ii) and if the Borrower does
not exercise the option set forth in the first sentence of said
paragraph (iii) within the specified period, then as used in this
Agreement "GAAP" shall mean generally accepted accounting principles in
effect at the Relevant Date, except that the specified change in GAAP
which is objected to by the Administrative Agent shall not be made in
applying the Financial Provisions.
(e) All expenses of compliance with this Section 1.03
shall be paid for by the Borrower upon demand.
1.04. Designated Subsidiaries. (a) The Borrower may from
time to time designate any Subsidiary (other than a Special Purpose Subsidiary)
as a Designated Subsidiary by notice to the Administrative Agent, and such
Subsidiary shall continue to be a Designated Subsidiary until the Borrower
provides notice to the contrary to the Administrative Agent provided that, (i)
the Subsidiaries (other than Special Purpose Subsidiaries) of any Designated
Subsidiary shall also constitute Designated Subsidiaries, (ii) at the time of
such notice, and at each time
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thereafter that the Borrower furnishes the financial statements pursuant to
Section 5.01(a) hereof, such Subsidiary (when taken together with its
Subsidiaries) does not qualify as a Significant Subsidiary under clause (b) of
the definition of "Significant Subsidiary" and (iii) at the time of such
notice, and at each time thereafter that the Borrower furnishes the financial
statements pursuant to Section 5.01(a) hereof, the Designated Subsidiaries in
the aggregate account for no more than 20% of the consolidated assets and no
more than 20% of the consolidated income of the Borrower for the most recent
fiscal year. The initial list of Designated Subsidiaries is attached hereto as
Schedule 1.04.
ARTICLE II
THE CREDITS
2.01. Revolving Credit Loans.
(a) Revolving Credit Commitments. Subject to the terms
and conditions and relying upon the representations and warranties herein set
forth, each Lender, severally and not jointly, agrees (such agreement being
herein called such Lender's "Revolving Credit Commitment") to make loans (the
"Revolving Credit Loans") to the Borrower from time to time on or after the date
hereof and to but not including the Revolving Credit Maturity Date. A Lender
shall have no obligation to make any Revolving Credit Loan to the extent that,
upon the making of such Revolving Credit Loan, the aggregate principal amount of
such Lender's outstanding Loans (other than Competitive Bid Loans notice of the
request for which is received by the Funding Agent after the Funding Agent's
receipt of the Borrower's request for such Revolving Credit Loan) would exceed
such Lender's Revolving Credit Committed Amount. No Revolving Credit Loans
shall be made hereunder to the extent that such Revolving Credit Loans would
cause the aggregate outstanding principal amount of all Loans outstanding
hereunder to exceed the Total Revolving Credit Commitment. Each Lender's
"Revolving Credit Committed Amount" at any time shall be equal to the amount set
forth as its "Initial Revolving Credit Committed Amount" below its name on the
signature pages hereof, as such amount may have been reduced pursuant to Section
2.02(c) or 2.02(d) hereof at such time, and subject to transfer to another
Lender as provided in Section 9.14 hereof.
(b) Nature of Credit. Within the limits of time and
amount set forth in this Section 2.01, and subject to the provisions of this
Agreement, the Borrower may borrow, repay and reborrow Revolving Credit Loans
hereunder.
(c) Revolving Credit Notes. The obligation of the
Borrower to repay the unpaid principal amount of the Revolving Credit Loans made
to it by each Lender and to pay interest thereon shall be evidenced in part by
promissory notes of the Borrower, one to each Lender, dated the Closing Date
(the "Revolving Credit
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Notes") in substantially the form attached hereto as Exhibit A, with the blanks
appropriately filled, payable to the order of such Lender in a face amount equal
to such Lender's Initial Revolving Credit Committed Amount.
(d) Maturity. To the extent not due and payable earlier,
the Revolving Credit Loans shall be due and payable on the Revolving Credit
Maturity Date.
2.02. Fees; Reduction of the Committed Amounts.
(a) Facility Fee. The Borrower shall pay to the Funding
Agent for the account of each Lender a fee (the "Facility Fee") for each day
from and including the date hereof and to but not including the Revolving Credit
Maturity Date, on the amount of such Lender's Revolving Credit Committed Amount
(whether borrowed or unborrowed) on such day (based upon a year of 365 or 366
days and actual days elapsed) equal to (i) 0.08% per annum for each Level I Day,
(ii) 0.100% per annum for each Level II Day, (iii) 0.125% per annum for each
Level III Day, (iv) 0.175% per annum for each Level IV Day and (v) 0.325% per
annum for each Level V Day. Facility Fees shall be due and payable for the
preceding period for which such fees have not been paid on each Regular Payment
Date and on the Revolving Credit Maturity Date.
(b) Other Fees. The Borrower shall pay to each Agent an
agency fee and other fees at the times and in the amounts previously agreed upon
among the Agents and the Borrower.
(c) Optional Reduction of the Revolving Credit Committed
Amounts. The Borrower may at any time or from time to time reduce Pro Rata the
Revolving Credit Committed Amounts of the Lenders to an aggregate amount (which
may be zero) not less than the sum of the unpaid principal amount of the
Revolving Credit Loans and Competitive Bid Loans then outstanding plus the
principal amount of all Revolving Credit Loans and Competitive Bid Loans not yet
made as to which notice has been given by Borrower under Section 2.06 hereof, as
the case may be. Any reduction of the Revolving Credit Committed Amounts shall
be in an aggregate amount not less than $10,000,000 which is an integral
multiple of $1,000,000. Reduction of the Revolving Credit Committed Amounts
shall be made by providing not less than three Business Days notice (which
notice shall be irrevocable) to such effect to the Funding Agent. After the
date specified in such notice the Facility Fee shall be calculated upon the
Revolving Credit Committed Amounts as so reduced. The Funding Agent will
promptly send copies of such notice to the Lenders.
(d) Mandatory Reduction of the Revolving Credit Committed
Amounts. On each date after the date hereof when the Borrower has incurred
indebtedness for borrowed money having a maturity of one year or more (other
than pursuant to the Revolving Credit Agreement of even date herewith, by and
among the Borrower,
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certain lenders, the Funding Agent and the Administrative Agent), the Revolving
Credit Committed Amounts of the Lenders shall be reduced Pro Rata in an
aggregate amount equal to the principal amount of such indebtedness for borrowed
money; provided, that this sentence shall cease to be applicable when the
Revolving Credit Committed Amounts have been reduced by $100,000,000. For
purposes of the preceding sentence, the principal amount of the Borrower's 8.58%
Unsecured Promissory Notes with a final maturity date of October 1, 1998
outstanding at the earlier of the Pyro Time and November 30, 1995 shall be
deemed to be indebtedness for borrowed money of the Borrower incurred after the
date hereof. As used herein, "Pyro Time" means the opening of business on the
first date, on or after the closing date of the Borrower's proposed acquisition
of ▇▇▇▇▇▇▇▇ Pyropower Sector, on which (after giving effect to Loans proposed to
be made on such date) the unborrowed amount of the aggregate Revolving Credit
Commitments of the Lenders would be less than the then outstanding principal
amount of such 8.58% Unsecured Promissory Notes. The Borrower shall give the
Funding Agent notice of the incurrence of such indebtedness, setting forth the
particulars thereof in reasonable detail, not later than the date on which such
indebtedness is incurred, and shall give the Funding Agent notice of reduction
of the Revolving Credit Committed Amounts so that such notice shall become
effective not later than three Business Days after the dated on which such
indebtedness is incurred. After the date specified in such notice (and any
prepayment required by Section 2.10(b) hereof) the Facility Fee shall be
calculated upon the Revolving Credit Committed Amounts as so reduced.
2.03. Competitive Bid Loans.
(a) Making of Competitive Bid Loans. In addition to
Revolving Credit Loans, the Borrower may, as set forth in this Section 2.03,
request the Lenders to make offers to make one or more Competitive Bid Loans to
the Borrower. Each Lender may, but shall have no obligation to, make one or
more such offers and, subject to the terms and provisions hereof, the Borrower
may, but shall have no obligation to, accept any such offers in the manner set
forth in this Section 2.03. Competitive Bid Loans may be Base Rate Loans, CD
Rate Loans, Absolute Rate Loans or LIBOR-based Loans (each a "type" of
Competitive Bid Loan) and, subject to Section 2.03(r) hereof, may be in any
freely available currency agreed upon by the Borrower and each Lender.
Competitive Bid Loans shall be due and payable on the earlier of the Competitive
Bid Expiration Date and the applicable Competitive Bid Loan Maturity Date.
(b) Competitive Bid Loan Quote Requests. When the
Borrower wishes to request offers to make Competitive Bid Loans under this
Section 2.03, it shall transmit to the Funding Agent by telex or telecopy, at
its Office, notice (a "Competitive Bid Loan Quote Request") so as to be received
no later than 11:00 a.m. Pittsburgh time on (x) the fourth Business Day prior to
the date
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of borrowing proposed therein, in the case of a LIBOR Auction or (y) the
Business Day next preceding the date of borrowing proposed therein, in the case
of a Base Rate Auction, CD Rate Auction or Absolute Rate Auction (or, in any
case, such other time as the Borrower and Funding Agent may agree). The
Borrower may request offers to make Competitive Bid Loans for different Interest
Periods in a single notice; provided that the request for each separate Interest
Period shall be deemed to be a separate Competitive Bid Loan Quote Request for a
separate Competitive Bid Loan (all Competitive Bid Loans proposed to be made at
one time herein collectively referred to as a "Competitive Bid Borrowing"). Each
such notice shall be substantially in the form of Exhibit B hereto and in any
case shall specify as to each Competitive Bid Borrowing:
(i) The proposed date of such Competitive Bid Borrowing,
which shall be a Business Day;
(ii) The currency or currencies in which such Competitive
Borrowing is to be made;
(iii) The aggregate amount of such Competitive Bid Borrowing
which shall be a Dollar Equivalent Amount of at least $5,000,000 (or a
higher integral multiple of $1,000,000) (to the extent practical in the
case of Eurocurrency Loans), but shall not cause the limits specified
in Section 2.04 hereof to be violated;
(iv) The duration of the initial Interest Period or Periods
applicable thereto, subject to the provisions of the definition of
"Interest Period" (including without limitation that no such Interest
Period shall end after the Competitive Bid Expiration Date); and
(v) Whether the Competitive Bid Loan Quotes requested are
to set forth a LIBOR-based Margin, a Base Rate Margin, a CD Rate Margin
or an Absolute Rate.
(c) Invitation for Competitive Bid Loan Quotes. Not later
than 3:00 p.m. Pittsburgh time on the date of receipt of a Competitive Bid Loan
Quote Request, the Funding Agent shall transmit to the Lenders by telex or
telecopy notice of such request, which notice shall constitute an invitation by
the Borrower to each Lender to submit Competitive Bid Loan Quotes offering to
make Competitive Bid Loans in accordance with such Competitive Bid Loan Quote
Request.
No Competitive Bid Loan Request shall be given if such request
could result in more than six Competitive Bid Loans being outstanding at any
one time unless otherwise permitted by the Funding Agent.
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(d) Submission and Contents of Competitive Bid Loan
Quotes.
(i) Each Lender may submit one or more Competitive Bid
Loan Quotes, each containing an offer to make a Competitive Bid Loan in
response to any Competitive Bid Loan Quote Request; provided that, if
the Borrower's request under Section 2.03(b) hereof specifies more than
one Interest Period, such Lender may make a single submission
containing one or more Competitive Bid Loan Quotes for each such
Interest Period. Each Competitive Bid Loan Quote must comply with the
requirements of this Section 2.03(d) and must be submitted to the
Funding Agent by telex or telecopy at its Office not later than (x)
11:00 a.m. Pittsburgh time on the third Business Day prior to the
proposed date of borrowing, in the case of a LIBOR Auction or (y) 10:00
a.m. Pittsburgh time on the proposed date of borrowing, in the case of
a Base Rate Auction, CD Rate Auction or an Absolute Rate Auction (or,
in either case upon reasonable notice to the Lenders, such other time
and date as the Borrower and the Funding Agent may agree); provided
that any Competitive Bid Loan Quote submitted by the Funding Agent (or
an Affiliate of the Funding Agent) in the capacity of a Lender may be
submitted, and may only be submitted, if the Funding Agent (or such
Affiliate) notifies the Borrower of the terms of the offer or offers
contained therein not later than (x) 10:30 a.m. Pittsburgh time on the
third Business Day prior to the proposed date of borrowing, in the case
of a LIBOR Auction or (y) 9:30 a.m. Pittsburgh time on the proposed
date of borrowing, in the case of a Base Rate Auction, CD Rate Auction
or an Absolute Rate Auction. Subject to Sections 2.13, 2.03(r) and 4.01
hereof, any Competitive Bid Loan Quote so made shall be irrevocable
except with the written consent of the Funding Agent given on the
written instructions of the Borrower.
(ii) Each Competitive Bid Loan Quote shall be substantially
in the form of Exhibit C hereto and shall in any case specify:
(A) The proposed date of borrowing, the proposed currency
and the Interest Period therefor;
(B) The principal amount of the Competitive Bid Loan for
which each such offer is being made, which principal amount
shall be a Dollar Equivalent Amount of at least $5,000,000 or a
higher integral multiple of $1,000,000; provided that the
aggregate principal amount of all Competitive Bid Loans for
which a Lender submits Competitive Bid Loan Quotes (x) may be
greater than, less than or equal to the Revolving Credit
Committed Amount of such Lender but (y) may not exceed the
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principal amount of the Competitive Bid Borrowing for which
offers were requested in the related Competitive Bid Loan Quote
Request;
(C) In the case of a LIBOR Auction, the margin above (or, if a
negative margin is offered, below) the applicable LIBO-Rate
(the "LIBOR-based Margin") offered for each such Competitive
Bid Loan, expressed as a percentage (rounded upwards, if
necessary, to the nearest 1/10,000th of 1%) to be added to the
applicable LIBO-Rate;
(D) In the case of a CD Rate Auction, the margin above (or, if
a negative margin is offered, below) the applicable CD Rate
(the "CD Rate Margin") offered for each such Competitive Bid
Loan expressed as a percentage (rounded upward, if necessary,
to the nearest 1/10,000th of 1%) to be added to the applicable
CD Rate;
(E) In the case of a Base Rate Auction, the margin above (or,
if a negative margin is offered, below) the applicable Base
Rate (the "Base Rate Margin") offered for each such Competitive
Bid Loan, expressed as a percentage (rounded upward, if
necessary, to the nearest 1/10,000th of 1%) to be added to the
applicable Base Rate;
(F) In the case of an Absolute Rate Auction, the rate of
interest per annum, calculated on the basis of a 360-day year
(rounded upwards, if necessary, to the nearest 1/10,000th of
1%) (the "Absolute Rate") offered for each such Competitive Bid
Loan; and
(G) The identity of the quoting Lender.
(iii) No Competitive Bid Loan Quote shall contain
qualifying, conditional or similar language or propose terms other than
or in addition to those set forth in the applicable Competitive Bid
Loan Quote Request and, in particular, no Competitive Bid Loan Quote
may be conditioned upon acceptance by the Borrower of all (or some
specified minimum) of the principal amount of the Competitive Bid Loan
for which such Competitive Bid Loan Quote is being made, and the
Funding Agent shall disregard any Competitive Bid Loan Quote that
contains such language or terms or conditions or that arrives at the
Funding Agent's Office after the time set forth for submission of
Competitive Bid Loan Quotes in Section 2.03(d)(i) hereof.
(e) Notice to the Borrower. The Funding Agent shall (x)
in the case of a LIBOR Auction, by 12:00 Noon Pittsburgh time on the
day (which shall be a Business Day) a Competitive Bid Loan Quote is
submitted or (y) in the case of a Base Rate Auction, CD
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Rate Auction or an Absolute Rate Auction, by 10:15 a.m. Pittsburgh time on the
day (which shall be a Business Day) a Competitive Bid Loan Quote is submitted,
notify the Borrower by telex or telecopy of the terms (i) of any Competitive Bid
Loan Quote submitted by a Lender that is in accordance with Section 2.03(d)
hereof and (ii) of any Competitive Bid Loan Quote that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid Loan Quote submitted by
such Lender with respect to the same Competitive Bid Loan Quote Request. Any
such subsequent Competitive Bid Loan Quote shall be disregarded by the Funding
Agent unless such subsequent Competitive Bid Loan Quote is submitted solely to
correct a manifest error in such former Competitive Bid Loan Quote. The Funding
Agent's notice to the Borrower shall specify (A) the aggregate principal amount
of each Competitive Bid Loan for which Competitive Bid Loan Quotes have been
received for each Interest Period specified in the related Competitive Bid Loan
Quote Request, (B) the respective principal amounts and LIBOR-based Margins, CD
Rate Margins, Base Rate Margins, or Absolute Rates, as the case may be, so
offered by each Lender, identifying the Lender that made each Competitive Bid
Loan Quote and (C) if the Funding Agent is notifying the Borrower of more than
one Competitive Bid Loan Quote for a single Interest Period, the Funding Agent
shall arrange the Competitive Bid Loan Quotes in ascending yield order.
(f) Acceptance and Notice by the Borrower. Not later than
(x) 12:30 p.m. Pittsburgh time on the third Business Day prior to the proposed
date of the borrowing, in the case of a LIBOR Auction or (y) 10:45 a.m.
Pittsburgh time on the proposed date of the borrowing, in the case of a Base
Rate Auction, CD Rate Auction or an Absolute Rate Auction (or, in either case
upon reasonable prior notice to the Lenders, such other time and date as the
Borrower and the Funding Agent may agree), the Borrower shall notify the Funding
Agent by telex or telecopy at its Office of its acceptance or nonacceptance of
the Competitive Bid Loan Quotes so notified to it pursuant to Section 2.03(e)
hereof (and the failure of the Borrower to give such notice by such time shall
constitute nonacceptance) and the Funding Agent shall promptly notify each
affected Lender in accordance with Section 2.03(h) hereof. In the case of
acceptance, such notice shall specify the aggregate principal amount of
Competitive Bid Loan Quotes for each Interest Period that are accepted. The
Borrower may accept one or more Competitive Bid Loan Quotes in whole or in part
(provided that any Competitive Bid Loan Quote accepted in part shall be a Dollar
Equivalent Amount of at least $5,000,000 or a higher integral multiple of
$1,000,000, to the extent practical in the case of Eurocurrency Loans); provided
that:
(i) The aggregate principal amount of each Competitive Bid
Borrowing may not exceed the applicable amount set forth in the related
Competitive Bid Loan Quote Request;
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(ii) The aggregate principal amount of each Competitive Bid
Borrowing shall be a Dollar Equivalent Amount of at least $5,000,000
(or a higher integral multiple of $1,000,000);
(iii) Acceptance of offers may be made only in ascending
yield order of LIBOR-based Margins, CD Rate Margins, Base Rate Margins
or Absolute Rates, as the case may be; and
(iv) The Borrower shall not accept any offer where the
Funding Agent has advised the Borrower that such offer fails to comply
with Section 2.03(d)(ii) hereof or otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Funding Agent. If Competitive Bid Loan
Quotes are made by two or more Lenders with the same LIBOR-based
Margins, CD Rate Margins, Base Rate Margins or Absolute Rates, as the
case may be, for a greater aggregate principal amount than the amount
in respect of which Competitive Bid Loan Quotes are accepted for the
related Interest Period, the principal amount of Competitive Bid Loans
in respect of which such Competitive Bid Loan Quotes are accepted shall
be allocated by the Funding Agent among such Lenders as nearly as
possible (in such multiples, not less than $500,000, as the Funding
Agent may deem appropriate) in proportion to the aggregate principal
amount of such offers. If two or more such Competitive Bid Loan Quotes
cannot be allocated evenly within the limits set forth in the
immediately preceding sentence, the Funding Agent shall have discretion
to allocate a larger share of such Competitive Bid Loans to one or more
of the successful Lenders and in making such allocation shall use
reasonable efforts to take into account previous allocations of unequal
shares to one or more of such Lenders in connection with other
Competitive Bid Loans. Determinations by the Funding Agent of the
amounts of Competitive Bid Loans to be allocated to each such Lender
shall be conclusive absent manifest error.
(h) Notice to Lenders. On the date the Borrower notifies
the Funding Agent of its acceptance of one or more of the offers made
by any Lender or Lenders pursuant to Section 2.03(f) hereof, the
Funding Agent shall (x) not later than 4:00 p.m. Pittsburgh time on
such date, in the case of a LIBOR Auction or (y) as promptly as
practicable on such date, in the case of a Base Rate Auction, CD Rate
Auction or an Absolute Rate Auction notify each Lender which has made
an offer (i) of the aggregate amount of each Competitive Bid Borrowing
with respect to which the Borrower accepted one or more Competitive Bid
Loan Quotes and such Lender's share of such Competitive Bid Borrowing
or (ii) that the Borrower accepted no offers, such notice to be by
telex or telecopy.
(i) Funding of Competitive Bid Loans. Any Lender whose
offer to make any Competitive Bid Loan has been accepted shall, not
later than 1:00 p.m. Pittsburgh time, on the date specified in the
related Competitive Bid Loan Quote Request for the making of
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such Competitive Bid Loan, make the amount of such Competitive Bid Loan
available to the Borrower at the Funding Agent's Office in immediately available
funds. If any Lender makes a new Competitive Bid Loan hereunder on a day on
which the Borrower is to repay all or any part of an outstanding Competitive Bid
Loan from such Lender, such Lender shall apply the proceeds of its new
Competitive Bid Loan to make such repayment and only an amount equal to the
difference (if any) between the amount being borrowed and the amount being
repaid shall be made available by such Lender to the Borrower as provided by
this Section 2.03(i), or remitted by the Borrower to the Funding Agent as
provided in Section 2.13 hereof, as the case may be.
(j) Competitive Bid Loan Maturity Dates. The principal
amount of each Competitive Bid Loan shall be due and payable on the last day of
the applicable Interest Period specified in the related Competitive Bid Loan
Quote Request (the "Competitive Bid Loan Maturity Date").
(k) Competitive Bid Loan Interest Payment Dates. Interest
on each Competitive Bid Loan shall be due and payable on the Competitive Bid
Loan Maturity Date thereof and thereafter on demand at the rates provided for in
Section 2.03(o), and if any Interest Period is longer than 90 days, also on each
90th day of such Interest Period.
(l) Competitive Bid Register. The Funding Agent shall
maintain a register for the recordation of the names and addresses of Lenders
that have made Competitive Bid Loans and the principal amount of the Competitive
Bid Loans owing to each Lender from time to time together with the Competitive
Bid Loan Maturity Dates and interest rates applicable to each such Competitive
Bid Loan, and other terms applicable thereto (the "Competitive Bid Register").
The entries in the Competitive Bid Register shall be prima facie evidence with
respect to the entries therein.
(m) Inspection of Competitive Bid Register. The
Competitive Bid Register shall be available for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(n) Interest Rates for Competitive Bid Loans. The
outstanding principal amount of each Competitive Bid Loan shall bear interest
for each day until due at the following rate or rates per annum:
(i) For each LIBOR-based Loan, a rate per annum (computed
on the basis of a year of 360 days and actual days elapsed) equal to
the LIBO Rate applicable to the Interest Period therefor plus the
LIBOR-based Margin quoted by the Lender making such Loan in the related
Competitive Bid Loan Quote submitted in accordance with Section 2.03(d)
hereof;
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(ii) For each Base Rate Loan, a rate per annum (computed on
the basis of a year of 365 or 366 days and actual days elapsed) equal
to the Base Rate as in effect from time to time plus the Base Rate
Margin quoted by the Lender making such Loan in the related Competitive
Bid Loan Quote submitted in accordance with Section 2.03(d) hereof;
(iii) For each CD Rate Loan, a rate per annum (computed on
the basis of a year of 360 days and actual days elapsed) equal to the
CD Rate applicable to the Interest Period therefor plus the CD Rate
Margin quoted by the Lender making such Loan in the related Competitive
Bid Loan Quote submitted in accordance with Section 2.03(d) hereof;
(iv) For each Absolute Rate Loan, a rate per annum
(computed on the basis of a year of 360 days and actual days elapsed)
equal to the Absolute Rate quoted by the Lender making such Loan in the
related Competitive Bid Loan Quote submitted in accordance with Section
2.03(d) hereof.
(o) Interest After Maturity for Competitive Bid Loans.
After the principal amount of any Competitive Bid Loan shall have become due (by
acceleration or otherwise), such Loan shall bear interest for each day until
paid (before and after judgment) (i) until the Competitive Bid Loan Maturity
Date of the applicable Interest Period of such Loan, at a rate per annum 2%
above the rate applicable to such Loan prior to such Competitive Bid Loan
Maturity Date and (ii) thereafter at a rate per annum equal to 2% in excess of
the Base Rate, such interest rate to change automatically from time to time
effective as of the effective date of each change in the Base Rate.
(p) Competitive Bid Notes. The obligation of the Borrower
to repay the unpaid principal amount of any Competitive Bid Loans made by any
Lender and to pay interest thereon shall be evidenced by a single promissory
note of the Borrower (a "Competitive Bid Note") in substantially the form
attached hereto as Exhibit D, with the blanks appropriately filled. The
Competitive Bid Note payable to each Lender shall be dated the Closing Date,
shall bear interest as provided in Section 2.03(n) or as otherwise provided
herein, and shall be payable to the order of the Lender named as payee therein
in a maximum face amount of $200,000,000. The Competitive Bid Note for each
Lender shall be delivered, duly executed by the Borrower to the Funding Agent at
or prior to the funding of the first Competitive Bid Loan made by such Lender
hereunder and the Funding Agent shall promptly forward such Competitive Bid Note
to such Lender.
The outstanding principal amount of each Competitive Bid Loan
evidenced by each Competitive Bid Note from time to time, the Competitive Bid
Loan Maturity Date of such Competitive Bid Loan and the rate of interest and the
amount of accrued and unpaid interest payable in respect thereof shall be
determined from the
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records of the Funding Agent, which shall be conclusive absent manifest error.
In the event the holder of a Competitive Bid Note shall assign said Competitive
Bid Note, it shall attach thereto a schedule, which shall be verified by the
Funding Agent, setting forth the then outstanding principal amount of each
Competitive Bid Loan evidenced by such Competitive Bid Note and the Competitive
Bid Loan Maturity Date thereof.
(q) Payments. All payments to be made by the Borrower
in Dollars in respect of any Competitive Bid Loan shall be payable at 12:00
o'clock Noon, Pittsburgh time, on the day when due without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived, and an
action therefor shall immediately accrue, without setoff, counterclaim,
withholding or other deduction of any kind or nature, except for payments to a
Lender subject to a withholding deduction under Section 2.15(c) hereof. Such
payments shall be made to the Funding Agent at its Office in Dollars in funds
immediately available at such Office. Any payment received by the Funding Agent
or such Lender after 12:00 o'clock Noon, Pittsburgh time, on any day shall be
deemed to have been received on the next succeeding Business Day. The Funding
Agent shall distribute to the Lenders all such payments received by it from the
Borrower as promptly as practicable after receipt by the Funding Agent. If and
to the extent that the Funding Agent has not forwarded to any Lender such
Lender's share of any such payment on the same Business Day as such payment is
received (or deemed received) from the Borrower, the Funding Agent shall pay to
such Lender interest on such amount at the Federal Funds Effective Rate for each
day until such payment is made. All payments of any Competitive Bid Loans to be
made in any currency other than Dollars shall be made by payment in that
currency in immediately available and freely transferable funds by the time
required by relevant local regulation and practice in the principal financial
center in the country of such currency for value on the applicable payment date
and such payment shall be due without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived, and an action therefor shall
immediately accrue, without setoff, counterclaim, withholding or other deduction
of any kind or nature, except for payments to a Lender subject to a withholding
deduction under Section 2.15(c) hereof.
(r) Multiple Currency Option. (i) Competitive Bid Loans
may be made in any currency requested by the Borrower and acceptable to the
applicable Lender (each a "Eurocurrency Loan"). If Eurocurrency Loans are to be
made or are made, the amount of such Loans (the "Dollar Equivalent Amount")
shall be deemed to be, for purposes of determining Unutilized Commitments and
other provisions of this Agreement, equal to the amount of Dollars which the
amount of such currency could purchase at noon, London time, two Business Days
prior to the date of determination (as set forth below), based upon the average
quoted spot rates of the Funding Agent at which its applicable branch or office
offers to exchange
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Dollars for such Eurocurrency in the foreign exchange market, such determination
to be made on the date of such Loans. If the aggregate Dollar Equivalent Amount
of all Eurocurrency Loans outstanding on the day of any such determination plus
the outstanding Loans made in Dollars exceeds the Total Revolving Credit
Commitment as then in effect, the Funding Agent shall immediately notify the
Borrower and the Borrower shall prepay on such day Base Rate Loans and then, if
necessary, Eurocurrency Loans to the extent required so that such aggregate
unpaid amount (calculating the Dollar Equivalent Amount as aforesaid) will not
exceed the Commitments as then in effect; such prepayment being subject however
to Section 2.13(b) hereof. The Borrower will designate the Loans to be prepaid
by notice to the Funding Agent at least two Business Days before each such
prepayment, provided that no such notice shall be required if at the time all
outstanding Loans were made on the same date.
(ii) Changes in Law Rendering Eurocurrency Loans Unlawful.
In the event that any change in Law or guideline or interpretation or
application thereof should at any time make it unlawful for any Lender to make,
maintain or fund its Eurocurrency Loans, such Lender shall promptly notify the
Borrower and the Funding Agent thereof. Thereupon, (i) the obligation of such
Lender to make its Eurocurrency Loans shall, upon the later of the effectiveness
of such event and the receipt of such notice, be suspended for the duration of
such illegality, and (ii) the Borrower shall, on the applicable Competitive Bid
Loan Maturity Date with respect to such Eurocurrency Loans (or, if later, on the
last Competitive Bid Loan Maturity Date with respect to such Eurocurrency Loans
to end prior to the effectiveness of such change) or, in any event, if such
Lender so requests, on such earlier date as may be required by the relevant Law,
prepay or repay such Eurocurrency Loans.
2.04. Maximum Aggregate Amount of Loans. No Revolving
Credit Loan or Competitive Bid Loan shall be made or requested or permitted to
remain outstanding hereunder if the making or maintenance of such Loan would
cause the aggregate amount of all Loans to the Borrower outstanding hereunder to
exceed the aggregate Revolving Credit Committed Amounts of all Lenders.
2.05. [Intentionally Omitted].
2.06. Making of Loans. Whenever the Borrower desires that
the Lenders make Revolving Credit Loans, the Borrower shall provide Standard
Notice to the Funding Agent setting forth the following information:
(a) The date, which shall be a Business Day, on which such
proposed Revolving Credit Loans are to be made;
(b) The aggregate principal amount of such proposed Loans,
which shall be the sum of the principal amounts
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selected pursuant to clause (e) of this Section 2.06, and which shall
be an integral multiple of $1,000,000 not less than $5,000,000;
(c) The interest rate Option or Options selected in
accordance with Section 2.07(a) hereof and the principal amounts
selected in accordance with Section 2.07(d) hereof of the Base Rate
Portion and each Funding Segment of the CD Rate Portion and the
Euro-Rate Portion, as the case may be, of such proposed Loans; and
(d) With respect to each such Funding Segment of proposed
Revolving Credit Loans, the Funding Period to apply to such Funding
Segment, selected in accordance with Section 2.07(c) hereof.
Standard Notice having been so provided, the Funding Agent shall promptly
notify each Lender of the information contained therein and of the amount of
such Lender's Loan, calculated in accordance with Section 2.12. Unless any
applicable condition specified in Article IV hereof has not been satisfied, on
the date specified in such Standard Notice each Lender shall make the proceeds
of its Loan available to the Funding Agent at the Funding Agent's Office, no
later than 12:00 o'clock Noon, Pittsburgh time, in funds immediately available
at such Office. The Funding Agent will make the funds so received available to
the Borrower in funds immediately available at the Funding Agent's Office. If
and to the extent that the Funding Agent does not make such funds available to
the Borrower on the date specified in such Standard Notice the Funding Agent
shall pay to each Lender interest on the amount made available by such Lender
at the Federal Funds Effective Rate for each day until either (i) the date such
funds are made available to the Borrower or (ii) the date such amounts are
returned to such Lender.
2.07. Interest Rates.
(a) Optional Bases of Borrowing. The unpaid principal
amount of the Revolving Credit Loans shall bear interest for each day from and
including the date on which funds are made available to the Borrower by the
Funding Agent and to but excluding the date of repayment on one or more bases
selected by the Borrower from among the interest rate Options set forth below.
Subject to the provisions of this Agreement the Borrower may select different
Options to apply simultaneously to different Portions of the Loans and may
select different Funding Segments to apply simultaneously to different parts of
the CD Rate Portion or the Euro-Rate Portion of the Loans. Each selection of a
rate Option shall apply separately and without overlap to the Revolving Credit
Loans as a class. The aggregate number of Funding Segments applicable to the CD
Rate Portion and the Euro-Rate Portion of the Revolving Credit Loans at any time
shall not exceed ten unless otherwise permitted by the Funding Agent.
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(i) Base Rate Option: A rate per annum (computed on the
basis of a year of 365 or 366 days and actual days elapsed) for each
day equal to the Base Rate for such day. The "Base Rate" for any day
shall mean the greater of (A) the Prime Rate for such day or (B) 0.50%
plus the Federal Funds Effective Rate for such day, such interest rate
to change automatically from time to time effective as of the effective
date of each change in the Prime Rate or the Federal Funds Effective
Rate.
(ii) CD Rate Option: A rate per annum (based on a year of
360 days and actual days elapsed) for each day equal to the CD Rate for
such day plus the Applicable Margin for such day. "CD Rate" for any
day shall mean for each Funding Segment of the CD Rate Portion
corresponding to a proposed or existing CD Rate Funding Period the rate
per annum determined by the Funding Agent by adding
(A) the rate per annum (which shall be the same for
each day in such CD Rate Funding Period) determined in good
faith by the Funding Agent in accordance with its usual
procedures (which determination shall be conclusive absent
manifest error) to be the arithmetic average of the secondary
market bid rates at or about 11:00 a.m., Eastern time, on the
first day of such CD Rate Funding Period by dealers of
recognized standing in negotiable certificates of deposit for
the purchase at face value of negotiable certificates of
deposit of major money center banks for delivery on such day in
amounts comparable to such Funding Segment and having
maturities comparable to such CD Rate Funding Period plus
(B) the Assessment Rate.
"Assessment Rate" for any day shall mean the rate per annum
(rounded upward to the nearest 1/100 of 1%) determined in good faith by
the Funding Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be the
maximum effective rate per annum payable by a depository institution
insured by the Federal Deposit Insurance Corporation (or any successor)
for such day as an assessment for insurance on Dollar time deposits,
exclusive of any credit that is or may be allowed against such
assessment on account of assessment payments made or to be made by such
depository institution. The CD Rate shall be adjusted automatically as
of the effective date of each change in the Assessment Rate. The CD
Rate Option shall be calculated in accordance with the foregoing if any
Lender is actually required to pay FDIC assessments or, if required to
pay such assessments, is required to pay such assessments at the
"Assessment Rate" as herein defined.
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The Funding Agent shall give prompt notice to the Borrower and
to the Lenders of the CD Rate determined or adjusted in accordance with
the definition of CD Rate, which determination or adjustment shall be
conclusive if made in good faith.
(iii) Euro-Rate Option: A rate per annum (based on a year
of 360 days and actual days elapsed) for each day equal to the
Euro-Rate for such day plus, in each case, the Applicable Margin for
such day. "Euro-Rate" for any day, as used herein, shall mean for each
Funding Segment of the Euro-Rate Portion corresponding to a proposed or
existing Euro-Rate Funding Period the rate per annum determined by the
Funding Agent to be the rate of interest (which shall be the same for
each day in such Euro-Rate Funding Period) determined in good faith by
the Funding Agent in accordance with its usual procedures from the
Reuters Screen LIBO page (which determination shall be conclusive
absent manifest error) to be the average of the rates per annum for
deposits in Dollars offered to the leading banks in the London
interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the first day of such Euro-Rate Funding Period for
delivery on the first day of such Euro-Rate Funding Period in amounts
comparable to such Funding Segment and having maturities comparable to
such Funding Period.
The Funding Agent shall give prompt notice to the Borrower and
to the Lenders of the Euro-Rate determined in accordance with the
definition of the Euro-Rate, which determination shall be conclusive if
made in good faith.
(b) Applicable Margins. The "Applicable Margin" with
respect to the CD Rate Option shall be 0.345% for each Level I Day, 0.400% for
each Level II Day, 0.450% for each Level III Day, 0.525% for each Level IV Day
and 0.750% for each Level V Day. The Applicable Margin with respect to the
Euro-Rate Option shall be 0.220% for each Level I Day, 0.275% for each Level II
Day, 0.325% for each Level III Day, 0.400% for each Level IV Day and 0.625% for
each Level V Day.
(c) Funding Periods. At any time when the Borrower shall
select, convert to or renew the CD Rate Option or the Euro-Rate Option to apply
to any part of the Loans, the Borrower shall specify one or more periods (the
"Funding Periods") during which each such Option shall apply, such Funding
Periods being as set forth below:
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Interest Rate Option Available Funding Periods
-------------------- -------------------------
CD Rate Option 30, 60, 90 or 180 days or such longer
period as may be offered by all of the
Lenders ("CD Rate Funding Period"); and
Euro-Rate Option One, two, three or six months or such
longer period as may be offered by all of
the Lenders ("Euro-Rate Funding Period");
provided, that:
(i) Each CD Rate Funding Period which would otherwise end
on a day which is not a Business Day shall be extended to the next
succeeding Business Day;
(ii) Each Euro-Rate Funding Period shall begin on a
Business Day, and the term "month", when used in connection with a
Euro-Rate Funding Period, shall be construed in accordance with
prevailing practices in the interbank eurodollar market at the
commencement of such Euro-Rate Funding Period, as determined in good
faith by the Funding Agent (which determination shall be conclusive);
and
(iii) In the case of Revolving Credit Loans, the Borrower
may not select a Funding Period that would end after the Revolving
Credit Maturity Date.
(d) Transactional Amounts. Every selection of, conversion
from, conversion to or renewal of an interest rate Option and every payment or
prepayment of any Loans shall be in a principal amount such that after giving
effect thereto the aggregate principal amount of the Base Rate Portion of the
Revolving Credit Loans, or the aggregate principal amount of each Funding
Segment of the CD Rate Portion or the Euro-Rate Portion of the Revolving Credit
Loans, shall be $5,000,000 and integral multiples of $1,000,000 thereof.
(e) CD Rate or Euro-Rate Unascertainable;
Impracticability. If
(i) on any date on which a CD Rate or a Euro-Rate would
otherwise be set the Funding Agent (in the case of clauses (A) or (B) below)
shall have determined in good faith (which determination shall be conclusive
absent manifest error) that:
(A) adequate and reasonable means do not exist for
ascertaining such CD Rate or Euro-Rate, or
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(B) a contingency has occurred which materially and
adversely affects the secondary market for negotiable
certificates of deposit maintained by dealers of recognized
standing or the interbank eurodollar market, as the case may
be, or
(ii) at any time any Lender shall have determined in good
faith (which determination shall be conclusive absent manifest error)
that the making, maintenance or funding of any part of the CD Rate
Portion or the Euro-Rate Portion has been made impracticable or
unlawful by compliance by such Lender or a Notional Euro-Rate Funding
Office in good faith with any Law or guideline or interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof or with any request or
directive of any such Governmental Authority (whether or not having the
force of law);
then, and in any such event, the Funding Agent or such Lender, as the case may
be, may notify the Borrower of such determination (and any Lender giving such
notice shall notify the Funding Agent). Upon such date as shall be specified
in such notice (which shall not be earlier than the date such notice is given),
the obligation of each of the Lenders to allow the Borrower to select, convert
to or renew the CD Rate Option or Euro-Rate Option, as the case may be, shall
be suspended until the Funding Agent or such Lender, as the case may be, shall
have later notified the Borrower (and any Lender giving such notice shall
notify the Funding Agent) of the Funding Agent's or such Lender's determination
in good faith (which determination shall be conclusive absent manifest error)
that the circumstance giving rise to such previous determination no longer
exist.
If any Lender notifies the Borrower of a determination under
subsection (ii) of this Section 2.07(e), the CD Rate Portion or the Euro-Rate
Portion, as the case may be, of the Loans of such Lender (the "Affected
Lender") shall, subject to Section 2.13(b) hereof, automatically be converted
to the Base Rate Option as of the last day of the then current Funding Period
with respect to such Loans (in the case of a determination that the making,
maintenance or funding of any CD Rate Portion or Euro-Rate Portion of such
Loans is impracticable) and the last day on which the making, maintenance or
funding of any CD Rate Portion or Euro- Rate Portion of such Loans is not
unlawful (in the case of a determination that the making, maintenance or
funding of any CD Rate Portion or Euro-Rate Portion of such Loans is unlawful)
and accrued interest thereon shall be due and payable on such date.
If at the time the Funding Agent or a Lender makes a
determination under subsection (i) or (ii) of this Section 2.07(e) the Borrower
previously has notified the Funding Agent that it wishes to select, convert to
or renew the CD Rate Option or the Euro-Rate Option, as the case may be, with
respect to any proposed
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Loans but such Loans have not yet been made, such notification shall be deemed
to provide for selection of, conversion to or renewal of the Base Rate Option
instead of the CD Rate Option or the Euro-Rate Option, as the case may be, with
respect to such Loans or, in the case of a determination by a Lender, such Loans
of such Lender.
2.08. Conversion or Renewal of Interest Rate Options.
(a) Conversion or Renewal. Subject to the provisions of
Section 2.13(b) hereof the Borrower may convert any part of its Revolving Credit
Loans from any interest rate Option or Options to one or more different interest
rate Options and may renew the CD Rate Option or the Euro-Rate Option as to any
Funding Segment of the CD Rate Portion or the Euro-Rate Portion:
(i) At any time with respect to conversion from the Base
Rate Option; or
(ii) At the expiration of any Funding Period with respect
to conversions from or renewals of the CD Rate Option or the Euro-Rate
Option, as the case may be, as to the Funding Segment corresponding to
such expiring Funding Period.
Whenever the Borrower desires to convert or renew any interest rate Option or
Options, the Borrower shall provide to the Funding Agent Standard Notice
setting forth the following information:
(w) The date, which shall be a Business Day, on which the
proposed conversion or renewal is to be made;
(x) The principal amounts selected in accordance with
Section 2.07(d) hereof of the Base Rate Portion and each Funding
Segment of the CD Rate Portion and the Euro-Rate Portion, as the case
may be, to be converted from or renewed;
(y) The interest rate Option or Options selected in
accordance with Section 2.07(a) hereof and the principal amounts
selected in accordance with Section 2.07(d) hereof of the Base Rate
Portion and each Funding Segment of the CD Rate Portion and the
Euro-Rate Portion, as the case may be, to be converted to; and
(z) With respect to each Funding Segment to be converted
to or renewed, the Funding Period selected in accordance with Section
2.07(c) hereof to apply to such Funding Segment.
Standard Notice having been so provided, after the date specified in such
Standard Notice, interest shall be calculated upon the principal amount of the
Loans as so converted or renewed.
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(b) Failure to Convert or Renew. Absent due notice from
the Borrower of conversion or renewal in the circumstances described in Section
2.08(a)(ii) hereof, any part of the CD Rate Portion or Euro-Rate Portion for
which such notice is not received shall be converted automatically to the Base
Rate Option on the last day of the expiring Funding Period.
2.09. Prepayments Generally. Whenever the Borrower desires
or is required to prepay any part of its Loans, it shall provide Standard Notice
to the Funding Agent setting forth the following information:
(a) The date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(b) The total principal amount of such prepayment, which
shall be the sum of the principal amounts selected pursuant to clause
(c) of this Section 2.09; and
(c) The principal amounts selected in accordance with
Section 2.07(d) hereof of the Base Rate Portion and each part of each
Funding Segment of the CD Rate Portion and the Euro-Rate Portion, as
the case may be, to be prepaid.
2.10. Optional Prepayments; Mandatory Prepayments. (a)
Optional Prepayments. The Borrower shall have the right at its option from time
to time to prepay its Revolving Credit Loans in whole or part without premium or
penalty (subject, however, to Section 2.13(b) hereof):
(i) At any time with respect to any part of the Base Rate
Portion; or
(ii) At the expiration of any Funding Period with respect
to prepayment of the CD Rate Portion or the Euro-Rate Portion, as the
case may be, with respect to any part of the Funding Segment
corresponding to such expiring Funding Period.
(b) Mandatory Prepayments. (i) The Borrower shall,
within 15 days after a Change in Control, prepay in full all outstanding Loans
(subject to Section 2.13(b) hereof) and terminate, permanently and irrevocably,
all existing Commitments of the Lenders hereunder.
(ii) The Borrower shall, upon a reduction of the Revolving
Credit Committed Amounts pursuant to Section 2.02(d) hereof, prepay
(subject to Section 2.13(b) hereof) its Revolving Credit Loans (and, if
necessary, Competitive Bid Loans), such prepayment in the aggregate to
be in the amount by which the outstanding Loans on the date of such
reduction exceed the Revolving Credit Committed Amounts as so reduced.
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(c) General. All prepayments shall be made in accordance
with Section 2.09 hereof. No prepayments shall be permitted with respect to
Competitive Bid Loans except as required by Sections 2.17 and 9.17.
2.11. Interest Payment Dates. Interest on the Base Rate
Portion shall be due and payable on the date of any conversion of all or part of
the Base Rate Portion to a different interest rate Option on the amount
converted, any prepayment of any part of the Base Rate Portion on the amount
prepaid, and on each Regular Payment Date. Interest on each Funding Segment of
the CD Rate Portion shall be due and payable on the last day of the
corresponding CD Rate Funding Period and, if such CD Rate Funding Period is
longer than 90 days, also every 90th day during such CD Rate Funding Period.
Interest on each Funding Segment of the Euro-Rate Portion shall be due and
payable on the last day of the corresponding Euro-Rate Funding Period and, if
such Euro-Rate Funding Period is longer than three months, also on the last day
of every third month during such Funding Period. After maturity of any part of
the Loans (by acceleration or otherwise), interest on such part of the Loans
shall be due and payable on demand.
2.12. Pro Rata Treatment.
(a) Certain Definitions. As used in this Agreement, the
following terms have the meanings indicated:
"Pro Rata" means from or to each Lender: (i) in the case of
payments of Facility Fee, reductions pursuant to Section 2.02(c) or 2.02(d)
hereof of the Revolving Credit Committed Amounts and indemnification payments
under Section 8.07 hereof, ratably in accordance with such Lender's Commitment
Percentage; (ii) in the case of payments of principal of and interest on, and
conversions and renewals of interest rate options with respect to, any
particular Funding Segments, ratably in accordance with such Lender's percentage
share of such Funding Segment; (iii) in the case of payments of principal and
conversions and renewals of interest rate options with respect to, the Base Rate
Portion of some or all of the Revolving Credit Loans, ratably in accordance with
such Lender's percentage share of such Base Rate Portion; and (iv) in the case
of payments of interest for any day with respect to the Base Rate Portion of
some of all of the Revolving Credit Loans, ratably in accordance with such
Lender's percentage share of such Base Rate Portion on such day.
"Specified Percentage" means, with respect to a Lender, the
quotient obtained by dividing the outstanding Revolving Credit Loans made by
such Lender by such Lender's Revolving Credit Committed Amount.
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"Unutilized Commitment" means, with respect to a Lender, the
difference obtained by subtracting (i) the aggregate outstanding principal
amount of the Revolving Credit Loans and Competitive Bid Loans made by such
Lender from (ii) the Revolving Credit Committed Amount of such Lender.
(b) Making of Revolving Credit Loans. Revolving Credit
Loans shall be made by the Lenders ratably in accordance with their respective
Commitment Percentages; provided, however, that if the Specified Percentage of
any Lender would, upon the making of such Loans in accordance with such
allocation, be different from the Specified Percentage of any other Lender, or
if such allocation of any Revolving Credit Loans requested by the Borrower (the
"Requested Loans") would result in any Lender having an aggregate principal
amount of Competitive Bid Loans and Revolving Credit Loans which would exceed
such Lender's Revolving Credit Commitment, then the amount of such Requested
Loans to be made by each Lender shall be calculated as follows:
(i) any Lender which, on the date such Requested Loans are
to be made and (unless the proceeds of such Requested Loans are to be
used to pay such Lender's Competitive Bid Loans at maturity in
accordance with paragraph (d) of this Section 2.12) without giving
effect to such Requested Loans, has an Unutilized Commitment equal to
zero shall not make any portion of such Requested Loans;
(ii) the Funding Agent shall determine the identity of each
Lender which on the date such Requested Loans are to be made has an
Unutilized Commitment greater than zero (each such Lender herein called
an "Initially Applicable Lender") and the Funding Agent shall determine
the Specified Percentage of each Initially Applicable Lender;
(iii) if any Initially Applicable Lender would, immediately
prior to the making of the Requested Loans, have a Specified Percentage
which is smaller than the Specified Percentage of one or more other
Initially Applicable Lenders, the Funding Agent shall rank the
respective Specified Percentages in the order of size and shall
allocate the Requested Loans to the Initially Applicable Lenders in a
manner that eliminates or (if the amount of the Requested Loans is not
sufficient to eliminate) minimizes the difference between the smallest
and the largest Specified Percentages and the Requested Loans (or the
initial portion thereof) shall be made in accordance with such
allocation, provided, however, that such allocation shall not cause any
Initially Applicable Lender to have an aggregate principal amount of
Loans which would exceed its Revolving Credit Committed Amount;
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(iv) if clause (iii) above is inapplicable or if the
allocation referred to in clause (iii) above does not provide for the
making of all of the Requested Loans, the Funding Agent shall determine
the identity of each Lender which on the date such Requested Loans are
to be made (and after the application, if any, of clause (iii) above)
has an Unutilized Commitment greater than zero (each such Lender herein
called an "Applicable Lender") and the Funding Agent shall calculate
the percentage (the "Applicable Percentage") equal to the quotient
obtained by dividing each Applicable Lender's Committed Amount by the
aggregate Committed Amounts of all Applicable Lenders;
(v) if, after the making of the Requested Loans (or, if
clause (iii) above is applicable, the remaining portion thereof) in
accordance with the respective Applicable Percentages of the Applicable
Lenders, each Applicable Lender would have an Unutilized Commitment of
either zero or greater than zero, then the Requested Loans (or such
portion) shall be made in accordance with such Applicable Percentages;
(vi) if, after the making of the Requested Loans in
accordance with the respective Applicable Percentages of the Applicable
Lenders, any Applicable Lender would have an aggregate principal amount
of Loans which would exceed its Revolving Credit Committed Amount, then
the Funding Agent shall then identify the portion of the Requested
Loans which, when made in accordance with the respective Applicable
Percentages, would result in each Applicable Lender having an
Unutilized Commitment of either zero or greater than zero, and such
portion of the Requested Loans shall be made in accordance with the
Applicable Percentages, with the Lenders whose Unutilized Commitments
are greater than zero after such portion is made being referred to as
the "Remaining Applicable Lenders";
(vii) if the procedure in clause (vi) above is applicable,
the Funding Agent shall calculate the percentage equal to the quotient
obtained by dividing each Remaining Applicable Lender's Committed
Amount by the aggregate Committed Amounts of all Remaining Applicable
Lenders (the "Revised Applicable Percentage") and shall calculate the
next portion of the Requested Loans which, when made in accordance with
the Revised Applicable Percentage, would result in each Applicable
Lender having an Unutilized Commitment of either zero or greater than
zero, and such portion of the Requested Loans shall be made in
accordance with such Revised Applicable Percentage; and
(viii) the Funding Agent shall continue to make calculations
of Revised Percentages in accordance with clause (vii) above until the
entire amount of the Requested Loans is allocated among Lenders.
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(c) Calculation not to Include Certain Loans. In making
calculations under paragraph (b) of this Section 2.12 with respect to any
Requested Loans, no effect shall be given to Competitive Bid Loans notice of the
request for which has not been received by the Funding Agent prior to the
Funding Agent's receipt of the Borrower's request for such Requested Loans.
(d) Use of Proceeds of Certain Revolving Credit Loans. If
any Competitive Bid Loans mature on a day on which Revolving Credit Loans are
being made, the proceeds of such Revolving Credit Loans (to the extent not used
to pay other Revolving Credit Loans) shall be applied to pay such Competitive
Bid Loans. The Funding Agent shall take such application into account in making
the calculations required under paragraph (b) of this Section 2.12.
(e) Several Obligations. The failure of any Lender to
make a Revolving Credit Loan shall not relieve any other Lender of its
obligation to lend hereunder, but neither Agent nor any Lender shall be
responsible for the failure of any other Lender to make a Revolving Credit Loan.
2.13. Additional Compensation in Certain Circumstances.
(a) Increased Costs or Reduced Return Resulting From
Taxes, Reserves, Capital Adequacy Requirements, Expenses, Etc. If any Law or
change therein or guideline or interpretation or application thereof by any
Governmental Authority charged with the interpretation or administration thereof
or compliance with any request or directive of any Governmental Authority
(whether or not having the force of law) adopted or made after the date hereof:
(i) subjects any Lender or any Notional Euro-Rate Funding
Office to any tax or changes the basis of taxation with respect to this
Agreement, the Notes, the Loans or payments by the Borrower of
principal, interest, commitment fee or other amounts due from the
Borrower hereunder or under the Notes (except for taxes on the overall
net income or overall gross receipts of such Lender or such Notional
Euro-Rate Funding Office imposed by the jurisdictions (federal, state
and local) in which the Lender's principal office or Notional Euro-Rate
Funding Office is located),
(ii) imposes, modifies or deems applicable any reserve,
special deposit or similar requirement against credits or commitments
to extend credit extended by, assets (funded or contingent) of,
deposits with or for the account of, other acquisitions of funds by,
such Lender or any Notional Euro-Rate Funding Office (other than
requirements expressly included herein in the determination of the CD
Rate or the Euro-Rate, as the case may be, hereunder),
(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement (A) against assets (funded or
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contingent) of, or credits or commitments to extend credit extended by,
any Lender or any Notional Euro-Rate Funding Office, or (B) otherwise
applicable to the obligations of any Lender or any Notional Euro-Rate
Funding Office under this Agreement, or
(iv) imposes upon any Lender or any Notional Euro-Rate
Funding Office any other condition or expense directly related to this
Agreement, the Notes or its making, maintenance or funding of any Loan
and the result of any of the foregoing is determined by any Lender to increase
the cost to, reduce the income receivable by, or impose any expense (including
loss of margin) upon such Lender, any Notional Euro-Rate Funding Office or, in
the case of clause (iii) hereof, any Person controlling a Lender, with respect
to this Agreement, the Notes or the making, maintenance or funding of any Loan
(or, in the case of any capital adequacy or similar requirement, to have the
effect of reducing the rate of return on such Lender's or controlling Person's
capital, taking into consideration such Lender's or controlling Person's
policies with respect to capital adequacy) by an amount which such Lender deems
to be material (such Lender being deemed for this purpose to have made,
maintained or funded each Funding Segment of the CD Rate Portion and the
Euro-Rate Portion from a Corresponding Source of Funds), such Lender may from
time to time promptly notify the Borrower of the amount determined in good faith
(using any reasonable averaging and attribution methods) by such Lender (which
determination shall be conclusive absent manifest error) to be necessary to
compensate such Lender or such Notional Euro-Rate Funding Office for such
increase, reduction or imposition. The Borrower shall have no obligation to
reimburse a Lender under this Section 2.13(a) for any amount with respect to any
such increase, reduction or imposition which amount is attributable to a period
of more than 60 days ending prior to the date of such Lender's first notice to
the Borrower of such increase, reduction or imposition. Each Lender will notify
the Borrower and each Agent of any event occurring after the date of this
Agreement which will entitle such Lender to compensation pursuant to this
Section 2.13 as promptly as practicable after it obtains knowledge thereof and
determines to request such compensation. Each Lender will furnish the Borrower
and each Agent with a statement setting forth in reasonable detail the basis,
the manner of calculation and the amount of each request by such Lender for
compensation from the Borrower under this Section 2.13. Such amount shall be
due and payable by the Borrower to such Lender five Business Days after such
notice is given. In the event that after the Borrower shall have paid any
additional amount under this Section 2.13(a) with respect to any Loan such
Lender shall have successfully contested such law, regulation, treaty, order,
directive, interpretation or condition, then, to the extent that such Lender is
or will be placed in the same position it was prior to the incurrence of the
additional costs received or receivable (on an after-tax basis)
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and its contest of such law, regulation or other condition, such Lender shall
refund to the Borrower such additional amount or any portion thereof with
respect to which such Lender is or will be placed in such position.
(b) Funding Breakage. In addition to the compensation
required under Section 2.13(a) hereof, the Borrower shall indemnify each Lender
against any loss or expense (including loss of margin) which such Lender has
incurred as a consequence of:
(i) any payment, prepayment or conversion of any part of
any Funding Segment of any CD Rate Portion or Euro-Rate Portion of the
Loans on a day other than the last day of the corresponding Funding
Period or any prepayment of any Competitive Bid Loan (whether or not
such payment, prepayment or conversion is mandatory or automatic and
whether or not such payment or prepayment is then due),
(ii) any attempt by the Borrower to revoke (expressly, by
later inconsistent notices or otherwise) in whole or in part any notice
stated herein to be irrevocable (the Funding Agent having in its sole
discretion the options (A) to give effect to such attempted revocation
provided that indemnity under this Section 2.13(b) is obtained or (B)
to treat such attempted revocation as having no force or effect, as if
never made), or
(iii) any failure of the Borrower to pay when due (by
acceleration or otherwise) any principal, interest, commitment fee,
facility fee or any other amount due hereunder or under any Note.
If any Lender sustains or incurs any such loss or expense it
shall from time to time notify the Borrower and the Funding Agent in writing
setting forth in reasonable detail the amount determined in good faith by such
Lender (which determination shall be conclusive absent manifest error) to be
necessary to indemnify such Lender for such loss or expense. Such amount shall
be due and payable by the Borrower to the Funding Agent for the account of such
Lender, five Business Days after such notice is given.
(c) Additional Interest. (i) So long as any Lender shall
be required under regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets consisting of
or including loans made with reference to the CD Rate, such Lender may require
the Borrower to pay, but only in respect of any period during which such
reserves shall actually be maintained by such Lender, additional interest on the
unpaid principal amount of the CD Rate Portion of the Loans, at an interest rate
per annum equal at all times during each CD Rate Funding Period to the
difference obtained by subtracting (A) the CD Rate for such CD Rate Funding
Period from
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(B) the rate obtained by dividing such CD Rate referred to in clause (A) above
by that percentage equal to 100% minus the CD Rate Reserve Percentage of such
Lender for such CD Rate Funding Period, payable on each date on which interest
is payable on such CD Rate Portion.
(ii) So long as any Lender shall be required under
regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities, such Lender may require the
Borrower to pay, but only in respect of any period during which such
reserves shall actually be maintained by such Lender, additional
interest on the unpaid principal amount of the Euro-Rate Portion of the
Loans, at an interest rate per annum equal at all times during each
Euro-Rate Funding Period to the difference obtained by subtracting (A)
the Euro-Rate for such Euro- Rate Funding Period from (B) the rate
obtained by dividing such Euro-Rate referred to in clause (A) above by
that percentage equal to 100% minus the Euro-Rate Reserve Percentage of
such Lender for such Euro-Rate Funding Period, payable on each date on
which interest is payable on such Euro-Rate Portion.
(iii) If any Lender shall claim entitlement to any
additional amount pursuant to this Section 2.13(c), then such Lender
shall deliver to the Borrower a certificate setting forth the basis for
the determination thereof as promptly as practicable. More than one
such certificate may be so delivered. Each such certificate shall be
conclusive and binding for all purposes as to the amount due absent
manifest error. The Borrower shall pay to each Lender the amount shown
as due on any such certificate within five days after its receipt of
the same.
2.14 Payments Generally; Interest on Overdue Amounts.
(a) Payments Generally. All payments and prepayments to
be made by the Borrower in respect of principal, interest, fees, indemnity,
expenses or other amounts due from the Borrower hereunder or under any Loan
Document in Dollars shall be payable at 12:00 o'clock Noon, Pittsburgh time, on
the day when due without presentment, demand, protest or notice of any kind, all
of which are hereby expressly waived, and an action therefor shall immediately
accrue, without setoff, counterclaim, withholding or other deduction of any kind
or nature, except for payments to a Lender subject to a withholding deduction
under Section 2.15(c) hereof. Except for payments under Sections 2.03(q), 2.13
and 9.06 hereof, such payments shall be made to the Funding Agent at its Office
in Dollars in funds immediately available at such Office, and payments under
Sections 2.13 and 9.06 hereof shall be made to the applicable Lender at such
domestic account as it shall specify to the Borrower from time to time in funds
immediately available at such account. Any payment or prepayment received by
the
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Funding Agent or such Lender after 12:00 o'clock Noon, Pittsburgh time, on any
day shall be deemed to have been received on the next succeeding Business Day.
The Funding Agent shall distribute to the Lenders all such payments received by
it from the Borrower as promptly as practicable after receipt by the Funding
Agent. If and to the extent that the Funding Agent has not forwarded to any
Lender such Lender's share of any such payment on the same Business Day as such
payment is received (or deemed received) from the Borrower, the Funding Agent
shall pay to such Lender interest on such amount at the Federal Funds Effective
Rate for each day until such payment is made. Upon termination of this
Agreement and payment in full of all principal, interest, fees, expenses and
other amounts due from the Borrower hereunder or under any other Loan Document,
each Lender will promptly ▇▇▇▇ its Notes "cancelled" and forward them to the
Administrative Agent for delivery to the Borrower.
(b) Interest on Overdue Amounts. To the extent permitted
by law, after there shall have become due (by acceleration or otherwise)
principal, interest, fees, indemnity, expenses or any other amounts due from the
Borrower hereunder or under any other Loan Document, such amounts shall bear
interest for each day until paid (before and after judgment), payable on demand,
at a rate per annum based on a year of 365 or 366 days, as the case may be, and
actual days elapsed (in the case of any Portion of Loans bearing interest at the
Base Rate Option) and 360 days and actual days elapsed (in the case of any
Portion of Loans bearing interest at the CD Rate Option or the Euro-Rate Option)
which for each day shall be equal to the following:
(i) In the case of any part of the CD Rate Portion or
Euro-Rate Portion of any Loans, (A) until the end of the applicable
then-current Funding Period at a rate per annum 2% above the rate
otherwise applicable to such part, and (B) thereafter in accordance
with the following clause (ii); and
(ii) In the case of any other amount due from any Borrower
hereunder or under any Loan Document, 2% above the then-current Base
Rate.
2.15 Taxes.
(a) Payments Net of Taxes. All payments made by the
Borrower under this Agreement shall be made free and clear of, and without
reduction 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, and all liabilities with respect thereto,
excluding
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(i) in the case of each Agent and each Lender, income or
franchise taxes imposed on such Agent or such Lender by the
jurisdiction under the laws of which such Agent or such Lender is
organized or any political subdivision or taxing authority thereof or
therein or as a result of a connection between such Lender and any
jurisdiction other than a connection resulting solely from this
Agreement and the transactions contemplated hereby, and
(ii) in the case of each Lender, income or franchise taxes
imposed by any jurisdiction in which such Lender's lending offices
which make or book Loans are 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 withheld or deducted from any amounts payable to either Agent or any Lender
under this Agreement or any other Loan Document, the Borrower shall pay the
relevant amount of such Taxes and the amounts so payable to such Agent or such
Lender shall be increased to the extent necessary to yield to such Agent or
such Lender (after payment of all Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement
and the other Loan Documents. Whenever any Taxes are paid by the Borrower with
respect to payments made in connection with this Agreement, as promptly as
possible thereafter, the Borrower shall send to the Funding Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. In the event that after the Borrower shall have paid any additional
amount under this Section 2.15(a) with respect to any Loan the Lender shall
have received a refund of any Taxes paid by the Borrower with respect to
payments made in connection with this Agreement, then, to the extent that such
Lender receives a refund of all or a portion of such Taxes from the
Governmental Authority to whom such Taxes were paid by the Borrower, such
Lender shall refund to the Borrower such additional amount or any portion
thereof with respect to which such Lender receives such refund. Nothing
contained in this paragraph (a) shall require any Lender or Agent to make
available any of its tax returns (or any other information relating to its
taxes which it deems to be confidential.
(b) Indemnity. The Borrower hereby indemnifies each Agent
and each of the Lenders for the full amount of all Taxes attributable to
payments by or on behalf of the Borrower hereunder or under any of the other
Loan Documents, any such Taxes paid by such Agent or such Lender, as the case
may be, any present or future claims, liabilities or losses with respect to or
resulting from any omission of the Borrower to pay or delay in paying any Taxes
(including any incremental Taxes, interest or penalties that may become payable
by such Agent or such Lender as a result of any failure of the Borrower to pay
such Taxes), whether or not such
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Taxes were correctly or legally asserted. Such indemnification shall be made
within 30 days from the date such Lender or such Agent, as the case may be,
makes written demand therefor.
(c) Withholding and Backup Withholding. Each Lender that
is incorporated or organized under the laws of any jurisdiction other than the
United States or any State thereof agrees that, on or prior to the Closing Date
(or, with respect to any Lender which becomes a party to this Agreement pursuant
to Section 9.14 hereof, the Transfer Effective Date), it will furnish to the
Borrower and each Agent
(i) two valid, duly completed copies of United States
Internal Revenue Service Form 4224 or United States Internal Revenue
Form 1001 or successor applicable form, as the case may be, certifying
in each case that such Lender is entitled to receive payments under
this Agreement and the other Loan Documents without deduction or
withholding of any United States federal income taxes, and
(ii) a valid, duly completed Internal Revenue Service Form
W-8 or W-9 or successor applicable form, as the case may be, to
establish an exemption from United States backup withholding tax.
Each Lender which so delivers to the Borrower and each Agent a Form 1001 or 4224
and Form W-8 or W-9 applicable forms (the "Forms") agrees to deliver to the
Borrower and each Agent two further copies of the 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 otherwise is required to be resubmitted as a
condition to obtaining an exemption from withholding tax, or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it, and such extensions or renewals thereof as may reasonably be
requested by the Borrower and either Agent, certifying in the case of a Form
1001 or Form 4224 that such Lender is entitled to receive payments under this
Agreement or any other Loan Document without deduction or withholding of any
United States federal income taxes, unless in any such cases an event (including
any changes in Law) 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 Lender from duly completing and delivering any such letter or
form with respect to it and such Lender advises the Borrower and each Agent that
it is not capable of receiving payments without any deduction or withholding of
United States federal income tax, and in the case of a Form W-8 or W-9,
establishing an exemption from United States backup withholding tax.
Notwithstanding anything to the contrary contained herein, the Borrower shall
not be required to pay any additional amounts pursuant to this Section 2.15 or
pursuant to Section 2.13 if the obligation to pay such additional amounts would
not have arisen but for the failure by any Lender to comply
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with its obligations hereunder, or if such Lender shall have delivered the
appropriate Forms and such Lender is not entitled to exemption from deduction or
withholding of U.S. federal income tax in respect of payments made by the
Borrower hereunder for any reason other than a change in U.S. law or regulations
or in the official interpretation thereof after the date of delivery of such
Forms.
2.16. Funding by Branch, Subsidiary or Affiliate.
(a) Notional Funding. Each Lender shall have the right from
time to time, prospectively or retrospectively, without notice to the Borrower,
to deem any branch, subsidiary or affiliate of such Lender to have made,
maintained or funded any part of the Euro-Rate Portion at any time. Any branch,
subsidiary or affiliate so deemed shall be known as a "Notional Euro-Rate
Funding Office." Such Lender shall deem any part of the Euro-Rate Portion of
the Loans or the funding therefor to have been transferred to a different
Notional Euro-Rate Funding Office if such transfer would avoid or cure an event
or condition described in Section 2.07(e)(ii) hereof or would lessen
compensation payable by the Borrower under Sections 2.13(a) or 2.15(b) hereof,
and provided that such Lender determines in its sole discretion that such
transfer would be practicable and would not have a material adverse effect on
such part of the Loans, such Lender or any Notional Euro-Rate Funding Office (it
being assumed for purposes of such determination that each part of the Euro-Rate
Portion is actually made or maintained by or funded through the corresponding
Notional Euro-Rate Funding Office). Notional Euro-Rate Funding Offices may be
selected by such Lender without regard to such Lender's actual methods of
making, maintaining or funding Loans or any sources of funding actually used by
or available to such Lender.
(b) Actual Funding. Each Lender shall have the right from
time to time to make or maintain any part of the Euro-Rate Portion by arranging
for a branch, subsidiary or affiliate of such Lender to make or maintain such
part of the Euro-Rate Portion. Such Lender shall have the right to (i) hold any
applicable Note payable to its order for the benefit and account of such branch,
subsidiary or affiliate or (ii) request the Borrower to issue one or more
promissory notes in the principal amount of such Euro-Rate Portion, in
substantially the form attached hereto as Exhibit A with the blanks
appropriately filled, payable to such branch, subsidiary or affiliate and with
appropriate changes reflecting that the holder thereof is not obligated to make
any additional Loans to the Borrower. The Borrower agrees to comply promptly
with any request under subsection (ii) of this Section 2.16(b). If any Lender
causes a branch, subsidiary or affiliate to make or maintain any part of the
Euro-Rate Portion hereunder, all terms and conditions of this Agreement shall,
except where the context clearly requires otherwise, be applicable to such part
of the Euro-Rate Portion and to any note payable to the order of such
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branch, subsidiary or affiliate to the same extent as if such part of the
Euro-Rate Portion were made or maintained and such note were a Revolving Credit
Note payable to such Lender's order.
2.17. Extension of Revolving Credit Maturity Date. The
Revolving Credit Maturity Date may be extended with respect to a Lender for an
additional 364 day period with the express written consent of such Lender as
provided below. If the Borrower desires to extend the Revolving Credit Maturity
Date it shall send a request therefor, which shall be made to all Lenders, to
the Administrative Agent. Not later than the date 60 days prior to the
Revolving Credit Maturity Date the Borrower shall, at its option, in a written
notice to the Administrative Agent request that the Revolving Credit Maturity
Date be extended for a period of 364 days. The Administrative Agent shall
promptly inform the Lenders of such request. Each Lender that agrees with such
request shall deliver to the Administrative Agent its express written consent
thereto on the day prior to the Revolving Credit Maturity Date. With respect to
each Lender which has consented to an extension of the Revolving Credit Maturity
Date as provided in the immediately preceding sentence, the Revolving Credit
Maturity Date shall be extended for, and shall thereafter be the date, 364 days
after the then effective Revolving Credit Maturity Date. If any Lender notifies
the Administrative Agent in writing prior to such then effective Revolving
Credit Maturity Date that it will not consent to such Extension Request or shall
not have in writing expressly consented to any such Extension Request as
provided in the preceding sentence, then the Administrative Agent shall so
notify the Borrower and the Borrower, at its option, may replace each
Nonextending Lender with another commercial lending institution reasonable
satisfactory to each Agent (a "Replacement Lender") by giving notice of the name
of such Replacement Lender to the Administrative Agent. Upon receipt by it of
any such notice, the Administrative Agent shall inform the Funding Agent of the
name of such proposed Replacement Lender. Unless either Agent shall object to
the identity of such proposed Replacement Lender on or before the day prior to
the then effective Revolving Credit Maturity Date, upon notice from the
Administrative Agent, each Nonextending Lender shall promptly (but in no event
later than the close of business on the then effective Revolving Credit Maturity
Date) assign all of its interests hereunder to such Replacement Lender in
accordance with the provisions of Section 9.14(c) hereof. Such Replacement
Lender shall have a Revolving Credit Commitment and shall have a Revolving
Credit Committed Amount equal to the then most recently effective Revolving
Credit Commitment Amount of the related Nonextending Lender. To the extent any
Nonextending Lender is not replaced with a Replacement Lender by the close of
business on the then effective Revolving Credit Maturity Date, on such date the
Total Revolving Credit Commitments shall be reduced by the Revolving Credit
Committed Amount of each such Nonextending Lender which is not so replaced. If
the Revolving Credit Maturity Date with respect to a Lender is extended pursuant
to this Section 2.17, the Competitive Bid
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Expiration Date with respect to such Lender shall be deemed to have been
extended for, and shall be the date, not more than 364 days after the then
effective Competitive Bid Expiration Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to each Agent and
each Lender as follows:
3.01. Corporate Status. The Borrower and each Subsidiary
thereof (a) is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation; (b) has corporate
power and authority to own its property and to transact the business in which it
is engaged or presently proposes to engage; and (c) is duly qualified to do
business as a foreign corporation and is in good standing in all jurisdictions
in which the ownership of its properties or the nature of its activities or both
makes such qualification necessary, except for matters that, individually or in
the aggregate, could not have a Material Adverse Effect. Schedule 3.01 hereof
states as of the date hereof the jurisdiction of incorporation of the Borrower,
each Significant Subsidiary and each Special Purpose Subsidiary.
3.02. Corporate Power and Authorization. The Borrower has
the corporate power to execute, deliver and perform the Loan Documents to be
executed by it, has the power to borrow hereunder and has taken all necessary
corporate action to authorize the borrowings hereunder on the terms and
conditions of this Agreement, has taken all necessary action, corporate or
otherwise, to authorize the execution, delivery and performance of this
Agreement and the other Loan Documents to be executed by it. No consent or
approval of any Person (including, without limitation, any stockholder of the
Borrower), no consent or approval of any landlord or mortgagee, no waiver of any
Lien of right or distraint or other similar right and no consent, license,
approval, authorization or declaration of any governmental authority, bureau or
agency, is or will be required in connection with the execution, delivery or
performance by it, or the validity, enforcement or priority, of the Loan
Documents to be executed by it, except as set forth on Schedule 3.02 hereto,
each of which either has been duly and validly obtained on or prior to the date
hereof and is now in full force and effect and is sufficient for its intended
purpose.
3.03. Execution and Binding Effect. This Agreement and each
other Loan Document to which the Borrower is a party has been, or upon its
execution and delivery will be, duly executed and delivered by the Borrower and
each constitutes, or upon its execution and delivery will constitute, the valid
and legally binding obligation of the Borrower, enforceable in accordance with
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its terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other similar laws, now or hereafter
in effect, relating to or affecting the enforcement of creditors' rights
generally and except that the remedy of specific performance and other equitable
remedies are subject to judicial discretion. There is no action, suit,
proceeding or investigation pending or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Subsidiaries which
questions the validity or the enforceability of any of the Loan Documents.
3.04. Governmental Approvals and Filings. No approval,
order, consent, authorization, certificate, license, permit or validation of, or
exemption or other action by, or filing, recording or registration with, or
notice to, any Governmental Authority (collectively, "Governmental Action") is
or will be necessary or advisable in connection with execution and delivery of
this Agreement or any other Loan Document, consummation by the Borrower of the
transactions herein or therein contemplated, or performance of or compliance
with the terms and conditions hereof or thereof. Neither the Borrower nor any
Subsidiary thereof is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940 or to any Federal or state statute or regulation
limiting the Borrower's ability to incur Indebtedness for money borrowed.
Neither the Borrower nor any Subsidiary thereof is an "investment company" or a
company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
3.05. Absence of Conflicts. The execution and delivery by
the Borrower of this Agreement and each other Loan Document to which it is a
party and performance by it hereunder and thereunder, will not violate any Law
(including, without limitation, Regulations G, U, T and X of the Federal Reserve
Board) and will not conflict with or result in a breach of any order, writ,
injunction, ordinance, resolution, decree, or other similar document or
instrument of any court or governmental authority, bureau or agency, domestic or
foreign, or its certificate of incorporation or by-laws or create (with or
without the giving of notice or lapse of time, or both) a default under or
breach of any agreement, bond, note or indenture to which it is a party (by
successor in interest or otherwise), or by which it is bound or any of its
properties or assets is affected, or result in the imposition of any Lien of any
nature whatsoever upon any of the properties or assets owned by or used in
connection with the business of the Borrower or any of its Subsidiaries.
3.06. Audited Financial Statements. The Borrower has
heretofore furnished to each Agent and each Lender consolidated balance sheets
of the Borrower and its consolidated Subsidiaries as of December 31, 1993 and
December 30, 1994 and the related consolidated statements of income, cash flows
and changes in
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stockholders' equity for the fiscal years then ended, as examined and reported
on by Coopers & ▇▇▇▇▇▇▇, independent certified public accountants for the
Borrower, who delivered an unqualified opinion in respect thereof. Such
financial statements (including the notes thereto) present fairly the financial
condition of the Borrower and its consolidated Subsidiaries as of the end of
each such fiscal year and the results of their operations and their cash flows
for the fiscal years then ended, all in conformity with GAAP.
3.07. Absence of Undisclosed Liabilities. Neither the
Borrower nor any Subsidiary of the Borrower has any liability or obligation of
any nature whatever (whether absolute, accrued, contingent or otherwise, whether
or not due), forward or long-term commitments or unrealized or anticipated
losses from unfavorable commitments, except (a) as disclosed in the financial
statements referred to in Section 3.06 hereof, (b) matters that, individually or
in the aggregate, in the Borrower's reasonable judgment, could not have a
Material Adverse Effect and (c) liabilities, obligations, commitments and losses
incurred after December 30, 1994 in the ordinary course of business and
consistent with past practices. As of the Closing Date, neither the Borrower
nor any Subsidiary of the Borrower has any Indebtedness other than the
Indebtedness of the Borrower and its Subsidiaries set forth on Schedule 3.07
hereto.
3.08. Absence of Material Adverse Changes. Since December
31, 1994, there has been no material adverse change in the business, operations,
properties, assets or condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole.
3.09. Accurate and Complete Disclosure. No information
heretofore, contemporaneously or hereafter provided by or on behalf of the
Borrower or any Subsidiary thereof in writing to either Agent or any Lender in
writing pursuant to or in connection with any Loan Document or any transaction
contemplated hereby or thereby contains any untrue statement of a material fact
or omits to state any material fact necessary to make such information (taken as
a whole) not misleading at such time in light of the circumstances in which it
was provided. The Borrower has disclosed to each Agent and each Lender in
writing every fact or circumstance known to the Borrower which has, or which in
the foreseeable future will have, a Material Adverse Effect.
3.10. Margin Regulations. No part of the proceeds of any
Loan hereunder will be used for the purpose of buying or carrying any "margin
stock", as such term is used in Regulations G and U of the Board of Governors of
the Federal Reserve System, as amended from time to time, or to extend credit to
others for the purpose of buying or carrying any "margin stock." Neither the
Borrower nor any Subsidiary thereof is engaged in the business of extending
credit to others for the purpose of buying or carrying
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"margin stock." Neither the making of any Loan nor any use of proceeds of any
such Loan will violate or conflict with the provisions of Regulation G, T, U or
X of the Board of Governors of the Federal Reserve System, as amended from time
to time.
3.11. Subsidiaries. Schedule 3.11 hereof states as of the
Closing Date each Significant Subsidiary of the Borrower and the percentage of
outstanding shares owned by the Borrower and by each Significant Subsidiary. The
outstanding shares of each Subsidiary of the Borrower have been duly authorized
and validly issued and are fully paid and nonassessable. The Borrower and each
Significant Subsidiary thereof owns beneficially and of record and has good
title to all of the shares represented by the ownership percentage shown in such
Schedule 3.11, free and clear of any Lien. There are no options, warrants,
calls, subscriptions, conversion rights, exchange rights, preemptive rights or
other rights, agreements or arrangements (contingent or otherwise) which may in
any circumstances now or hereafter obligate any Subsidiary to issue any shares
of its capital stock or any other securities. As of the Closing Date, no
Subsidiary has outstanding any class of preferred stock or any class of common
stock with a prior right to dividends.
3.12. Partnerships, etc. As of the Closing Date, neither
the Borrower nor any Significant Subsidiary thereof is a partner (general or
limited) of any partnership, is a party to any joint venture or owns
(beneficially or of record) any equity or similar interest in any Person
(including but not limited to any interest pursuant to which the Borrower or
such Significant Subsidiary has or may in any circumstance have an obligation to
make capital contributions to, or be generally liable for or on account of the
liabilities, acts or omissions of such other Person), except for the partnership
interests set forth in Schedule 3.12 hereof.
3.13. Litigation. There is no pending or (to the Borrower's
knowledge) threatened action, suit, proceeding or investigation by or before any
Governmental Authority against or affecting the Borrower or any Subsidiary of
the Borrower, except for (a) matters described in the financial statements
referred to in Section 3.06 hereof, and (b) matters that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
3.14. Absence of Events of Default. No event has occurred
and is continuing and no condition exists which constitutes an Event of Default
or Potential Default.
3.15. Absence of Other Defaults. Neither the Borrower nor
any Subsidiary thereof is in default under any agreement, ordinance, resolution,
decree, bond, note, indenture, order or judgment to which it is a party (by
successor in interest or otherwise) or by which it is bound, or any other
agreement or
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other instrument by which any of the properties or assets owned by it or used in
the conduct of its business is affected, which individually or in the aggregate,
would have a Material Adverse Effect. The Borrower and each Subsidiary thereof
have complied and are in compliance in all respects with all Laws, except for
such instances of non-compliance that, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
3.16. Insurance. The policies, binders or self-insurance
programs for fire, liability, product liability, workmen's compensation,
vehicular and other insurance currently held by or on behalf of the Borrower and
each Subsidiary thereof insure its properties and business activities against
such losses and risks as are adequate to protect its properties in accordance
with customary industry practice when entered into or renewed. To the best
knowledge of the Borrower, all such policies, binders and self-insurance
programs are in full force and effect. As of the date hereof, neither the
Borrower nor, to the best knowledge of the Borrower, any of its Subsidiaries has
received notice from any insurer or agent of such insurer that substantial
capital improvements or other expenditures will have to be made in order to
continue such insurance and, to the best knowledge of the Borrower, no such
improvements or expenditures are required. As of the date hereof, neither the
Borrower nor, to the best knowledge of the Borrower, any of its Subsidiaries has
received notice of cancellation of any material insurance policy or binder.
3.17. Title to Property. The Borrower and each Subsidiary
thereof has good and marketable title in fee simple to all real property owned
or purported to be owned by it and necessary for the operation of its business
and good title to all other property of whatever nature owned or purported to be
owned by it, including but not limited to all property reflected in the most
recent audited balance sheet referred to in Section 3.06 hereof or submitted
pursuant to Section 5.01(a) hereof, as the case may be (except as sold or
otherwise disposed of in the ordinary course of business after the date of such
balance sheet or, after the Closing Date, as otherwise expressly permitted by
the Loan Documents) in each case free and clear of all Liens, other than
Permitted Liens or Liens permitted pursuant to Section 6.02 hereof.
3.18. Intellectual Property. The Borrower and each
Subsidiary thereof owns, or is licensed or otherwise has the right to use, all
the patents, trademarks, service marks, names (trade, service, fictitious or
otherwise), copyrights, technology (including but not limited to computer
programs and software), processes, data bases and other rights, free from
burdensome restrictions, necessary to own and operate its properties and to
carry on its business as presently conducted and presently planned to be
conducted without conflict with the rights of others, except
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for such instances of non-compliance that, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
3.19. Taxes. The Borrower and each Subsidiary thereof have
filed all Federal, state and local tax returns required to be filed by it and
has not failed to pay any taxes, or interest and penalties relating thereto, on
or before the due dates thereof except for taxes not yet due and except for
those the amount or validity of which is currently being contested in good faith
by appropriate proceedings. Except to the extent that reserves therefor are
reflected in the financial statements, to the best knowledge of the Borrower (a)
there are no material Federal, state or local tax liabilities of the Borrower or
any of its Subsidiaries due or to become due for any tax year ended on or prior
to the Closing Date relating to the Borrower or any of its Subsidiaries, whether
incurred in respect of or measured by the income of the Borrower or any of its
Subsidiaries, which are not properly reflected in the financial statements
delivered pursuant to Section 3.06, and (b) there are no material claims
pending, proposed or threatened against the Borrower or any of its Subsidiaries
for past Federal, state or local taxes, except those, if any, as to which proper
reserves in accordance with GAAP are reflected in such financial statements.
3.20. Employee Benefits. (a) No borrowing contemplated by
this Agreement is a transaction which is subject to the prohibitions of Section
406 of ERISA or in connection with which a tax could be imposed pursuant to
Section 4975 of the Code or a civil penalty assessed pursuant to Section 502(i)
of ERISA (assuming that monies other than monies representing plan assets are
borrowed hereunder). Neither the Borrower, any of its Subsidiaries nor any
other Person, including any fiduciary, has engaged in any prohibited transaction
(as defined in Section 4975 of the Code or Section 406 of ERISA) which could
subject any of the Benefit Plans, the Borrower, or any Subsidiary (or any entity
which they have an obligation to indemnify) to any tax or penalty imposed under
4975 of the Code or Section 502(i) of ERISA or any other material liability
under a foreign law of similar nature which alone or together with any other
item described in this Section 3.20 would have a Material Adverse Effect.
(b) Neither the Borrower nor any of its Significant
Subsidiaries (including any member of their respective Controlled Group) (i) has
incurred or expects to incur any liability under Title IV of ERISA or Section
502(g) of ERISA or any analogous provision relating to Section 515 of ERISA or
(ii) has become subject or expects to be subject to the lien described in
Section 412(n) of the Code, which alone or together with any other item
described in this Section 3.20 would have a Material Adverse Effect.
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(c) The Pension Plans do not have an "accumulated funding
deficiency" (whether or not waived) within the meaning of Section 412 of the
Code or Section 302 of ERISA. No Pension Plan has benefit liabilities as
defined in Section 4001(a)(16) of ERISA which exceed the assets of such Pension
Plan by such an amount that the termination of such Pension Plan alone or
together with any other item described in this Section would have a Material
Adverse Effect. The Borrower has received a favorable determination letter
from the IRS with respect to all Pension Plans except for such Pension Plans
with respect to which the failure to receive such a favorable determination
would not alone or together with any other item described in this Section 3.20
have a Material Adverse Effect and nothing has happened since the date of such
letter that has adversely affected such qualification. There is no Lien
outstanding or security interest given in connection with a Pension Plan or
under Title IV of ERISA which would exceed the percentage limitations of
Section 6.02(a) hereof. As of the date hereof, the Borrower has received both
IRS and PBGC approval with respect to any terminated Benefit Plans subject to
Title IV of ERISA.
(d) Neither the Borrower nor any of its Subsidiaries
(including any member of their respective Controlled Group) is in default in any
material respect under any Benefit Plan and all Benefit Plans are administered
in accordance with their terms and are in all material respects in compliance
with all applicable Laws, except where any such default or failure to comply
would not alone or together with any other item described in this Section 3.20
have a Material Adverse Effect.
3.21 Environmental Matters
(a) The Borrower and each Significant Subsidiary of the
Borrower, to its knowledge, has been operated in compliance with all applicable
Requirements of Law, except for (i) matters set forth in Schedule 3.21(a) hereof
and (ii) matters which, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
(b) The Borrower and each Significant Subsidiary of the
Borrower, to its knowledge, has obtained all Environmental Permits required by
applicable Requirements of Law for the ownership and operation of their
respective properties, and all such Environmental Permits are in full force and
effect or the Borrower and each Significant Subsidiary of the Borrower, as the
case may be, has made all appropriate filings for issuance or renewal of such
Environmental Permits, except for (i) matters set forth in Schedule 3.21(b)
hereof, and (ii) matters which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(c) The Borrower and each Significant Subsidiary of the
Borrower, to its knowledge, is not aware of any acts, omissions,
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events or circumstances that may interfere with or prevent continued compliance
with the Requirements of Law and Environmental Permits referred to in (a) and
(b) above, except for (i) matters set forth in Schedule 3.21(c) hereof, and (ii)
matters which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(d) The Borrower and each Significant Subsidiary of the
Borrower will use its best efforts to comply with all Requirements of Law and
obtain all Environmental Permits which may be legally imposed in the future in
jurisdictions in which the Borrower and each Significant Subsidiary, as the case
may be, may then be doing business; provided, however, that the Borrower and
each Significant Subsidiary shall not be deemed to be in violation of Section
3.21 of this Agreement as a result of any failure to comply with any provisions
of such Requirements of Law and Environmental Permits (i) the applicability or
validity of which is being contested by the Borrower or any of its Significant
Subsidiaries in good faith and by appropriate proceedings, or (ii) the
noncompliance with which would not result in fines, penalties, injunctive relief
of other civil or criminal liabilities which, individually or in the aggregate,
would have a Material Adverse Effect.
(e) The Borrower and each Significant Subsidiary of the
Borrower, to its knowledge, has not received notice of any asserted or
threatened claim, action, suit, proceeding, hearing, investigation or request
for information relating to any Environmental Matter, except for (i) matters set
forth in Schedule 3.21(e) hereof, and (ii) matters which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
(f) The Borrower and each Significant Subsidiary of the
Borrower, to its knowledge, has not received notice from any governmental
authority that any of them is a potentially responsible party under any
Requirements of Law at any disposal site containing Hazardous Materials, nor
received any notice that any lien under any Requirements of Law against any
property of the Borrower or Significant Subsidiary of the Borrower exists,
except for (i) matters setting forth in Schedule 3.21(f) hereof, and (ii)
matters, which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
ARTICLE IV
CONDITIONS OF LENDING
4.01. Conditions to Initial Loans. The obligation of each
Lender to make Loans on the Closing Date is subject to the satisfaction,
immediately prior to or concurrently with the making of such Loan, of the
following conditions precedent, in addition to the conditions precedent set
forth in Section 4.02 hereof:
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(a) Agreement; Notes. The Administrative Agent shall have
received executed counterparts of this Agreement for each Lender, duly executed
by the Borrower, each Agent and each Lender, and executed Revolving Credit Notes
and Competitive Bid Loan Notes conforming to the requirements hereof, duly
executed on behalf of the Borrower.
(b) Corporate Proceedings. The Administrative Agent shall
have received, with a counterpart for each Lender, certificates by the Secretary
or Assistant Secretary of the Borrower dated as of the Closing Date as to (i)
true copies of the articles of incorporation and by-laws (or other constituent
documents) of the Borrower in effect on such date, (ii) true copies of all
corporate action taken by the Borrower relative to this Agreement and the other
Loan Documents and (iii) the incumbency and signature of the respective officers
of the Borrower executing this Agreement and the other Loan Documents to which
the Borrower is a party, together with satisfactory evidence of the incumbency
of such Secretary or Assistant Secretary. The Administrative Agent shall have
received, with a copy for each Lender, certificates from the appropriate
Secretary of State or other applicable Governmental Authority dated not more
than 30 days before the Closing Date showing the good standing of the Borrower
in its state of incorporation.
(c) Financial Statements. The Administrative Agent shall
have received, with a counterpart for each Lender, copies of the consolidated
financial statements referred to in Section 3.06 hereof.
(d) Legal Opinion of Counsel to the Borrowers. The
Administrative Agent shall have received, with an executed counterpart for each
Lender, opinions addressed to the Agents and each Lender, dated the Closing
Date, of (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire, Deputy General Counsel of the
Borrower, and (ii) White & Case, special New York counsel to the Borrower, each
in a form reasonably satisfactory to the Administrative Agent.
(e) Fees, Expenses, etc. All fees and other compensation
required to be paid to each Agent or the Lenders pursuant hereto or pursuant to
any other written agreement on or prior to the Closing Date shall have been paid
or received.
(f) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other matters in connection with
the transactions contemplated by this Agreement and the other Loan Documents
shall be reasonably satisfactory in form and substance to each Agent and each
Lender.
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4.02. Conditions to All Loans. The obligation of each
Lender to make any Loan (including the initial Loans) is subject to satisfaction
of the following further conditions precedent:
(a) Notice. Appropriate notice of such Loan shall have
been given by the Borrower as provided in Article II hereof.
(b) Representations and Warranties. Each of the
representations and warranties made by the Borrower herein shall be
true and correct in all material respects on and as of such date as if
made on and as of such date (except with respect to representations and
warranties which specifically refer to an earlier date, which shall be
true and correct in all material respects as of such earlier date),
both before and after giving effect to the Loans requested to be made
on such date, except that the foregoing shall not apply to the
representations and warranties set forth in 3.08 hereof in the case of
any Loans the proceeds of which are used solely to repay Loans maturing
on such date.
(c) No Defaults. No Event of Default or Potential Default
shall have occurred and be continuing on such date or after giving
effect to the Loans requested to be made on such date.
(d) No Violations of Law, etc. Neither the making nor use
of the Loans shall cause any Lender to violate or conflict with any
Law.
Each request by the Borrower for any Loan (including the initial Loans) shall
constitute a representation and warranty by the Borrower that the conditions set
forth in this Section 4.02 have been satisfied as of the date of such request.
Failure of the Funding Agent to receive notice from the Borrower to the contrary
before such Loan is made shall constitute a further representation and warranty
by the Borrower that the conditions referred to in this Section 4.02 have been
satisfied as of the date such Loan is made.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower hereby covenants to each Agent and each Lender as
follows:
5.01. Basic Reporting Requirements.
(a) Annual Audit Reports. The Borrower shall deliver to
the Administrative Agent, with a copy for each Lender, as soon as available, but
in any event within 90 days after the last day of each of its fiscal years, a
consolidated balance sheet of the Borrower as at such last day of the fiscal
year, and the related
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consolidated statement of income and retained earnings and changes in financial
position, for such fiscal year, each prepared in accordance with GAAP (except as
required by any change in accounting principles or concurred in by the
Borrower's independent certified public accountants), in reasonable detail, and,
as to the financial statements, certified without qualification (other than
relating to a change in accounting principles with which such accountants concur
and other than any other qualification which the Administrative Agent and the
Required Lenders deem, in their reasonable judgment, to be immaterial) by
Coopers & ▇▇▇▇▇▇▇ or another firm of independent certified public accountants
satisfactory to the Administrative Agent as fairly presenting the financial
position and the results of operations of the Borrower as at and for the year
ending on such date and as having been prepared in accordance with GAAP.
(b) Quarterly Consolidated Reports. The Borrower shall
deliver to the Administrative Agent, with a copy for each Lender, as soon as
available, but in any event within 45 days after the end of each of the
Borrower's fiscal quarterly periods, a consolidated balance sheet of the
Borrower as of the last day of such quarter and consolidated statement of income
and retained earnings and changes in financial position, for such quarter, and
on a comparative basis figures for the corresponding period of the immediately
preceding fiscal year, all in reasonable detail, each such statement to be
certified in a certificate of a Responsible Officer of the Borrower, as the case
may be, as fairly presenting the financial position and the results of
operations of the Borrower as at such date and for such quarter and as having
been prepared in accordance with GAAP (subject to customary year-end audit
adjustments).
(c) Quarterly Compliance Certificates. The Borrower shall
deliver to the Administrative Agent, with a copy for each Lender, a Quarterly
Compliance Certificate in substantially the form set forth as Exhibit E hereto,
duly completed and signed by a Responsible Officer of the Borrower concurrently
with the delivery of the financial statements referred to in subsections (a) and
(b) of this Section 5.01. Each such Quarterly Compliance Certificate shall in
addition include a listing, as of the end of the most recently completed fiscal
quarter, showing the respective amounts of Indebtedness for borrowed money of
each Subsidiary (other than any Special Purpose Subsidiary) of the Borrower
which is organized under the laws of a jurisdiction outside the United States.
To the extent such information is not included in the financial statements
delivered pursuant to Section 5.01(a) hereof, each Quarterly Compliance
Certificate with respect to the last quarter of a fiscal year shall in addition
include a listing, as of the end of such quarter, of the respective amounts of
Indebtedness for borrowed money of each Special Purpose Subsidiary of the
Borrower which is organized under the laws of a jurisdiction outside the United
States.
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(d) Certain Other Reports and Information. Promptly upon
their becoming available to the Borrower, the Borrower shall deliver to the
Administrative Agent, with a copy for each Lender, a copy of (i) all regular or
special reports, registration statements and amendments to the foregoing which
the Borrower or any Subsidiary shall file with the Securities and Exchange
Commission (or any successor thereto) or any securities exchange, and (ii) all
reports, proxy statements, financial statements and other information
distributed by the Borrower to its stockholders or bondholders.
(e) Further Information. The Borrower will promptly
furnish to the Administrative Agent, with a copy for each Lender, such other
information and in such form as either Agent or any Lender may reasonably
request from time to time.
(f) Notice of Certain Events. Promptly upon becoming
aware of any of the following, the Borrower shall give the Administrative Agent
notice thereof, together with a written statement of a Responsible Officer of
the Borrower setting forth the details thereof and any action with respect
thereto taken or proposed to be taken by the Borrower:
(i) Any Event of Default or Potential Default; provided,
however, that the Borrower shall not be required to deliver notice of
any violation of any covenant contained in Article V hereof (other than
Section 5.01 hereof) during the 30 days immediately following the first
occurrence of such violation if the Borrower reasonably believes that
such violation will be cured within such 30 day period; and provided,
further, that the Borrower shall not be required to deliver notice of
any violation of any covenant contained in Section 5.01 hereof (other
than subparagraph (f)(i) thereof) during the first 10 days after the
first occurrence of such violation if the Borrower reasonably believes
that such violation will be cured within such 10 day period.
(ii) Any change in the business, operations or condition
(financial or otherwise) of the Borrower and its Subsidiaries taken as
a whole which could reasonably be expected to have a Material Adverse
Effect.
(iii) Any pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against the
Borrower or any Subsidiary, except for matters that, if adversely
decided, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(iv) Any violation, breach or default by the Borrower or
any Subsidiary of the Borrower of or under any agreement or instrument
material to the business, operations or
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condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole which could in the reasonable judgment
of the Borrower have a Material Adverse Effect.
(v) Any material correspondence with the PBGC, the
Secretary of Labor or any representative of the IRS with respect to any
Benefit Plan or Pension Plan, relating to an actual or threatened
change or development which would materially and adversely affect the
financial condition of the Borrower and its Subsidiaries taken as a
whole; and (ii) copies of any notices from the PBGC to the Borrower
with respect to the intent of the PBGC to institute involuntary
proceedings.
(vi) Any Environmental Claim pending or threatened against
the Borrower or any Significant Subsidiary of the Borrower, or any past
or present acts, omissions, events or circumstances (including but not
limited to any dumping, leaching, deposition, removal, abandonment,
escape, emission, discharge or release of any Hazardous Material at, on
or under any facility or property now or previously owned, operated or
leased by the Borrower or any Significant Subsidiary of the Borrower)
that could form the basis of such Environmental Claim, which
Environmental Claim, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
(g) Visitation; Verification. The Borrower shall, and
shall cause each of its Subsidiaries to, permit the Lenders to make or cause to
be made, at their own expense (and with respect to the Administrative Agent on
behalf of the Lenders, after the occurrence of and during the continuance of an
Event of Default, at the Borrower's expense), inspections and audits of any of
its books, records and papers and to make extracts therefrom and copies thereof,
or to make inspections and examinations of any of its properties and facilities
(including, without limitation, any Project sites), on reasonable notice, at all
such reasonable times and as often as any Lender may reasonably require, in
order to assure that the Borrower and its Subsidiaries are and will be in
compliance with their respective obligations under the Loan Documents or to
evaluate the Lenders' investment in the then outstanding Notes. The Borrower
shall have the right to have an authorized representative present during the
inspection and examination of any of the Borrower's or any of its Subsidiaries'
properties and facilities; provided, however, that the exercise of such right
shall not delay or hinder the Lenders' right to such inspection and examination.
(h) Designated Subsidiaries List. At the time of delivery
of financial statements pursuant to Section 5.01(a) hereof and at the time of
each change in the composition of Subsidiaries which are Designated Subsidiaries
the Borrower will
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furnish to the Administrative Agent a complete list of the Designated
Subsidiaries.
The Administrative Agent shall promptly deliver to each Lender
copies of all notices received pursuant to this Section 5.01.
5.02. Insurance. The Borrower shall, and shall cause each
of its Subsidiaries to, maintain, at its expense, and keep in effect with
responsible insurance companies, such liability insurance for bodily injury and
third party property damage as is customary in the case of corporations engaged
in the same or similar business or having similar properties, similarly
situated, provided, however, that the Borrower may maintain a system of
self-insurance in accordance with sound business practice as is customary for
corporations having a similar net worth as the Borrower. The Borrower shall,
and shall cause each of its Subsidiaries to, keep and maintain, at its expense,
its real and personal property insured against loss or damage by fire, theft,
explosion, spoilage, and all other risks ordinarily insured against by other
owners or users of such properties in similar businesses in an amount equal to
the full replacement or cash value thereof, subject to deductible amounts which
the Borrower, in its reasonable judgment, deems prudent. The Borrower shall,
and shall cause each of its Subsidiaries to, carry all insurance required by Law
to cover its obligations to the PBGC.
5.03. Payment of Taxes and Other Potential Charges and
Priority Claims. The Borrower shall, and shall cause each Subsidiary to, pay or
discharge
(a) on or prior to the date on which penalties are imposed
by a taxing authority with respect thereto, all taxes, assessments and
other governmental charges imposed upon it or any of its properties;
(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other
like Persons which, if unpaid, might result in the creation of a Lien
upon any such property; and
(c) on or prior to the date when due, all other lawful
claims which, if unpaid, might result in the creation of a Lien upon
any such property or which, if unpaid, might give rise to a claim
entitled to priority over general creditors of the Borrower or such
Subsidiary in a case under Title 11 (Bankruptcy) of the United States
Code, as amended;
provided, that unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced the Borrower or such Subsidiary need not
pay or discharge any such tax, assessment, charge or claim so long as (x) the
validity thereof is contested in good faith and by appropriate proceedings
diligently
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conducted, (y) such reserves or other appropriate provisions as may be required
by GAAP shall have been made therefor, and (z) such failure will not have a
Material Adverse Effect.
5.04. Preservation of Corporate Status. 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 corporate existence
and all permits, rights and privileges necessary for the proper conduct of its
business; provided, however, that nothing in this Section 5.04 shall prevent the
withdrawal by the Borrower or any of its Subsidiaries of its qualification as a
foreign corporation in any jurisdiction where such withdrawal could not
reasonably be expected to have a material adverse effect on the business of such
entity; and provided further, that nothing in this Section 5.04 shall prevent
the Borrower or any of its Subsidiaries from failing to maintain or terminating
any right, privilege or permit, if such failure or termination is not
disadvantageous in any material respect to the Lenders, is not in violation of,
will not cause an Event of Default under, any provision of this Agreement and
does not have a material adverse effect on the ability of the Borrower to
perform its obligations hereunder.
5.05. Governmental Approvals and Filings. The Borrower
shall, and shall cause each Subsidiary to, keep and maintain in full force and
effect all Governmental Actions necessary in connection with execution and
delivery of any Loan Document, consummation of the transactions hereon or
therein contemplated, performance of or compliance with the terms and conditions
hereof or thereof or to ensure the legality, validity, binding effect,
enforceability or admissibility in evidence hereof or thereof.
5.06. Maintenance of Properties. The Borrower shall, and
shall cause each Subsidiary to, maintain or cause to be maintained in good
repair, working order and condition the properties now or hereafter owned,
leased or otherwise possessed by it and shall make or cause to be made all
needful and proper repairs, renewals, replacements and improvements thereto so
that they are able to serve the functions for which they are currently being
used, except to the extent that the failure to do so would not have a Material
Adverse Effect.
5.07. Avoidance of Other Conflicts. The Borrower shall not,
and shall not permit any of its Subsidiaries to, violate or conflict with, be in
violation of or conflict with, or be or remain subject to any liability
(contingent or otherwise) on account of any violation or conflict with
(a) any Law,
(b) its articles of incorporation of by-laws (or other
constituent documents), or
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(c) any agreement or instrument to which it is party or by
which any of them or any of their respective Subsidiaries is a party or
by which any of them or any of their respective properties (now owned
or hereafter acquired) may be subject or bound
except for matters which, individually or in the aggregate could not reasonably
be expected to have a Material Adverse Effect.
5.08. Financial Accounting Practices. The Borrower shall,
and shall cause each of its Subsidiaries to, keep proper books of record and
account in accordance with normal business practice in which full and
appropriate entries shall be made of all dealings or transactions in relation to
its business and activities.
5.09. Use of Proceeds. The Borrower shall apply the
proceeds of Loans hereunder for general corporate purposes. The Borrower shall
not use the proceeds of any Loans hereunder directly or indirectly for any
unlawful purpose or in any manner inconsistent with any other provision of any
Loan Document.
5.10. Continuation of or Change in Business. The Borrower
and each of its Significant Subsidiaries shall continue to engage in
substantially the same lines of business conducted and operated during the
present and preceding fiscal year and reasonably related extensions thereof, and
the Borrower shall not, and shall not permit any Significant Subsidiary to,
engage in any other unrelated businesses.
5.11. Consolidated Tax Return. The Borrower shall not, and
shall not suffer any of its Subsidiaries to, file or consent to the filing of
any consolidated income tax return with any Person other than the Borrower and
its Subsidiaries.
5.12. Fiscal Year. The Borrower shall not, and shall not
suffer any of its Subsidiaries to, change its fiscal year or fiscal quarter
except in accordance with GAAP.
5.13. ERISA. The Borrower shall, and shall cause each of
its Subsidiaries to
(a) comply with all applicable provisions of ERISA now and
hereafter in effect, non-compliance with which would have a
Material Adverse Effect; and
(b) as soon as possible and, in any event, within 10 days
after the Borrower knows or has reason to know that a Reportable
Event has occurred with respect to a Pension Plan, that a
transaction prohibited under ERISA, the Code or a foreign law of
similar nature has occurred resulting in a material liability to a
Benefit Plan, the Borrower or any of its Subsidiaries (or any entity
which they have an obligation
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to indemnify), that an accumulated funding deficiency has been incurred
or an application is to be or has been made to the Secretary of the
Treasury for a waiver of the minimum funding standard with respect to
an accumulation funding deficiency of $100,000 or more, that a failure
to make timely contributions to a Pension Plan may give or has given
rise to a lien in a material amount, that an amendment to a Pension
Plan may require or requires the granting of a security interest in a
material amount, that proceedings are likely to be or have been
instituted to terminate a Pension Plan, or that the Borrower, any of
its Significant Subsidiaries or a member of their respective Controlled
Group will or may incur any material liability under Section 502(g) or
any analogous provision relating to Section 515 or Title IV of ERISA,
the Borrower will deliver to the Lenders a certificate of a financial
officer setting forth details as to such occurrence and action, if any,
which the Borrower, such Subsidiary or the respective member of their
Controlled Group is required or proposes to take, together with any
notices required or proposed to be filed with or by the Borrower, such
Subsidiary or the member of their respective Controlled Group, the PBGC
or the plan administrator with respect thereto. For purposes of this
Section, an item is material if alone or taken with any other item in
this Section, it results in a liability of $1,000,000 or more. Copies
of any notices required to be delivered to the Lenders hereunder shall
be delivered not later than 10 days after the later of the date such
notice has been filed with the IRS or the PBGC or received by the
Borrower, any of its Subsidiaries or members of their respective
Controlled Group. Upon the request of the Agent or any of the Lenders
made from time to time, the Borrower will deliver a copy of the most
recent actuarial report and annual report completed with respect to any
Benefit Plan and any other financial information the Borrower has with
respect to the Benefit Plan.
5.14. Ratings. In the event that the Borrower has no rated
senior unsecured long-term debt outstanding, the Borrower will request ▇▇▇▇▇'▇
to assign the Borrower a "hypothetical senior long-term debt rating" and will
request S&P to assign the Borrower an "issuer credit rating," such request to be
made (i) not later than thirty days after delivery to the Administrative Agent
of the financial statements called for by Section 5.01(a) hereof and, in
addition, (ii) not later than thirty days after instructions by the Required
Lenders to make such request, which instructions may be given no more frequently
than once during any six-month period.
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ARTICLE VI
NEGATIVE COVENANTS
The Borrower hereby covenants to each Agent and each
Lender as follows:
6.01. Financial Covenants.
(a) Consolidated Fixed Charges Coverage Ratio. The
Consolidated Fixed Charges Coverage Ratio shall be greater than 2.50 for each
period of four consecutive fiscal quarters.
(b) Consolidated Leverage Ratio. The Consolidated_Leverage
Ratio shall not at any time prior to June 30, 1996 (or, if earlier, the date on
which the Borrower has received cumulative net proceeds of $100,000,000 from
the issuance of equity securities after the date of this Agreement) exceed 0.60
to 1.00 and shall not at any time thereafter exceed 0.50 to 1.00; provided,
however, that in the calculation of Indebtedness solely for purposes of this
Section 6.01(b), (i) Indebtedness shall not include indebtedness for money
borrowed incurred solely for the purpose of hedging foreign currency exchange
risk for which the sole source of repayment is a cash collateral deposit, (ii)
Indebtedness shall not include Indebtedness of any Special Purpose Subsidiary,
(iii) with respect to Guarantees of obligations of any Special Purpose
Subsidiary other than Guarantees solely for completion or operation of the
related Project, an amount shall be included in Indebtedness of the Borrower
equal to the lesser of the Indebtedness of such Special Purpose Subsidiary and
the amount of such Guarantee, and (iv) with respect to Guarantees of completion
or operation obligations of any Special Purpose Subsidiary, an amount shall be
included in Indebtedness of the Borrower equal to 25% of the lesser of the
outstanding amount of the Indebtedness of such Special Purpose Subsidiary and
the maximum amount payable by the Borrower pursuant to such Guarantee (after
giving effect to any Guarantee of obligations of such Special Purpose
Subsidiaries included in clause (iii) above) until completion of the Project
and operation thereof in accord with the operating standards required under the
terms of the financing agreement of the Indebtedness of such Special Purpose
Subsidiary, after which time no amount shall be included in such calculation,
except that if at any time such Special Purpose Subsidiary is in default of its
obligations (until such default is remedied or cured) under the financing
agreement of such Indebtedness and the Borrower is obligated to make payments
pursuant to such Guarantee, the amount to be included shall be 25% of the
outstanding amount of the Indebtedness of such Special Purpose Subsidiary; and
provided, further, that in the calculation of Indebtedness of the Borrower
solely for the purposes of this Section 6.01(b), an amount shall be included on
account of Letters of Credit equal to monetary damages, if any, which are due
but unpaid according to the terms of any Project Documents to which the
beneficiary of such Letter of Credit is entitled.
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6.02. Liens. The Borrower shall not and shall not permit
any of its Subsidiaries to create, or assume or permit to exist, any Lien on any
of the properties or assets of the Borrower or any of its Subsidiaries (other
than any Special Purpose Subsidiary), whether now owned or hereafter acquired
except:
(a) ERISA Liens and Liens not otherwise permitted under
this Section 6.02 securing Indebtedness of the Borrower or any of its
Subsidiaries which Indebtedness and, in the case of ERISA Liens, the amount of
the ERISA Liens, in the aggregate at any time outstanding, does not exceed 15%
of the Consolidated Net Worth of the Borrower;
(b) Liens by a Borrower or Subsidiary on property or
assets securing all or part of the purchase price thereof and Liens (whether or
not assumed) existing on property or assets at the time of purchase thereof by
the Borrower or a Subsidiary (hereinafter referred to individually as a
"Purchase Money Security Interest"); provided, however, that:
(i) Such Purchase Money Security Interest is created
before or substantially simultaneously with the purchase of such
property or assets by the Borrower or such Subsidiary;
(ii) The transaction in which any Purchase Money Security
Interest is proposed to be created is not then prohibited by this
Agreement;
(iii) Any Purchase Money Security Interest shall attach only
to the property or asset so acquired in such transaction or any
addition thereto or replacement thereof and shall not extend to or
cover any other assets or properties of the Borrower or any of its
Subsidiaries; and
(iv) The Indebtedness secured or covered by any Purchase
Money Security Interest together with any other Indebtedness secured by
the property or asset acquired shall not exceed 100% of the lesser of
the cost or fair market value of the property or asset acquired and
shall not be renewed, extended or prepaid from the proceeds of any
borrowing by the Borrower or any of its Subsidiaries;
(c) Liens on the property or assets of the Borrower and
its Subsidiaries in existence immediately prior to the Closing Date as listed on
Schedule 6.02 hereto, provided that no such Lien is spread to cover any
additional property after the Closing Date and the amount of Indebtedness
secured thereby is not increased, provided that the maturity of such
Indebtedness may be extended or renewed;
(d) Liens on all or any part of the property or the assets
of any Subsidiary in favor of the Borrower or any other
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Subsidiary (other than a Special Purpose Subsidiary) as security for the
Indebtedness owing to the Borrower or such other Subsidiary;
(e) Liens (whether or not assumed) existing on property or
assets at the time of purchase thereof by the Borrower or any Subsidiary,
provided that: (i) such Lien is created before the purchase of such property by
the Borrower or such Subsidiary, (ii) such Lien is confined solely to the
property so purchased, improvements thereto and proceeds thereof and (iii) the
aggregate amount secured by all Liens permitted by this Section 6.02(e) shall
not at any time exceed $1,000,000; and
(f) Permitted Liens.
6.03. Indebtedness. The Borrower shall not, and shall not
permit any Subsidiary to, at any time create, incur, assume or suffer to exist
or have outstanding any Indebtedness if, immediately after giving effect to such
Indebtedness and the receipt and application of any proceeds thereof, there
would exist an Event of Default or Potential Default hereunder, or any
Indebtedness of any domestic Subsidiary (other than a Special Purpose
Subsidiary) other than (i) Indebtedness set forth on Schedule 3.07 hereof, (ii)
intercompany Indebtedness between or among the Borrower and its Subsidiaries and
(iii) Indebtedness of domestic Subsidiaries (other than Special Purpose
Subsidiaries) not otherwise permitted under clauses (i) or (ii) above which in
the aggregate at any time does not exceed $20,000,000.
6.04. Loans, Advances and Certain Investments. The Borrower
shall not, and shall not permit any Subsidiary to, at any time make or suffer to
exist or remain outstanding any Investment in any Special Purpose Subsidiary
other than Investments by the Borrower and its Subsidiaries in Special Purpose
Subsidiaries which do not exceed, in the aggregate at any time, 50% of the
Borrower's Consolidated Net Worth.
6.05. Changes in Business. The Borrower shall not, and
shall not permit any Significant Subsidiary to, (a) liquidate or dissolve itself
(or suffer any liquidation or dissolution), or (b) convey, sell, assign,
transfer or otherwise dispose of any capital stock of or other ownership
interest in any Significant Subsidiaries (other than Special Purpose
Subsidiaries) held by it, provided that, so long as no Default or Event of
Default has occurred and is continuing or would result therefrom, the Borrower
may in any fiscal year convey, sell, assign, transfer or otherwise dispose of
capital stock or other ownership interest in one or more Significant
Subsidiaries which did not account for an aggregate of 20% of the consolidated
assets of the Borrower at the end of the prior fiscal year.
6.06. Amendment of Certain Documents. The Borrower shall
not, and shall not permit any Significant Subsidiary to,
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modify, amend, supplement or terminate, or agree to modify, amend, supplement or
terminate its certificate of incorporation or by-laws, in any manner which would
materially and adversely affect the interests of any of the Lenders hereunder.
6.07. Mergers; Acquisitions. The Borrower shall not, and
shall not permit any of its Significant Subsidiaries to, merge or consolidate
with any Person; provided, however, that the Borrower or any Subsidiary thereof
may merge with another Person if (i) in the case of a merger involving the
Borrower, the Borrower is the surviving corporation, (ii) in the case of a
merger involving a Significant Subsidiary, a Subsidiary of the Borrower or, if
the Borrower is also party to such merger, the Borrower, is the surviving
corporation, and (iii) after giving effect to such merger no Potential Default
or Event of Default would then exist.
6.08. ERISA Obligations. The Borrower shall not, and shall
not permit any of its Subsidiaries to, engage in a transaction in connection
with which the Benefit Plans, the Borrower, any of its Subsidiaries or any
entity which they have an obligation to indemnify could be subject to liability
for either a civil penalty assessed pursuant to Section 502(i) or 502(1) of
ERISA or a tax imposed by Section 4975 of the Code or any other material
liability Plan or Benefit Plan, take any other action with respect to any such
Pension Plan or Benefit Plan if such termination or other action could result in
liability, or take any action or fail to take any action which could result in
withdrawal liabilities under Title IV of ERISA or liability under Section 502(g)
of ERISA or any analogous provision relating to Section 515 of ERISA; fail to
make any payments on a timely basis which are required under Applicable Law
(including Section 412 of the Code) to be paid as contributions to Pension
Plans; incur an accumulated funding deficiency (as defined in Section 302 of
ERISA and Section 412 of the Code), whether or not waived, with respect to any
Pension Plan; amend any Pension Plan in a manner which would require the
granting of a security interest to maintain the continued qualification of such
Pension Plan under Section 401(a)(29) of the Code, if, in any case described
herein, or together with any other event described herein, such action, failure
to act, event or transaction would (i) result in an ERISA Lien exceeding the
percentage limitations of Section 6.02(a) or (ii) have a Material Adverse
Effect.
6.09. Principal Foreign Affiliates. The Borrower shall not
permit any of its Principal Foreign Affiliates to create, assume or permit to
exist any Indebtedness, the terms of which, prior to a payment default
thereunder, would restrict dividends to be paid with respect to the consolidated
net income of such Affiliate for any fiscal year by more than 40% of the
consolidated net income of such Affiliate for such fiscal year. For purposes of
this Section, "Principal Foreign Affiliates" shall mean ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ Limited (Reading), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ France, S.A., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Italiana,
S.p.A., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Iberia, S.A., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Energia, S.A. and their
respective successors.
6.10. Certain Agreements. The Borrower will not become or
be a party to any agreement or instrument relating to Indebtedness for borrowed
money (other than agreements and instruments relating to Indebtedness for
borrowed money in an aggregate principal amount not exceeding $15,000,000 at any
time outstanding and other than (with respect to debt securities offered and
sold in a public offering in a principal amount not exceeding $500,000,000) the
Indenture between the Borrower and ▇▇▇▇▇▇ Trust and Savings Bank, as Trustee, as
amended and supplemented from time to time, filed as an exhibit to the
Borrower's Registration Statement on Form S-3 (registration no. 33-61809)) which
contains any covenant or event of default which could result in such
Indebtedness becoming or being declared to be due and payable prior to its
stated maturity (including by a requirement for purchase or prepayment) upon the
occurrence of an event or condition which is not an event or condition the
occurrence of which could cause the Loans to become or be declared to be (other
than pursuant to Section 7.01(f) hereto) due and payable prior to their stated
maturity, unless the Borrower shall make an "Amendment Offer" (as hereinafter
defined); provided that this covenant shall not be violated by an agreement to
pay the principal of and interest on such Indebtedness in accordance with its
terms or to provide to the holders of such Indebtedness or an agent or trustee
for such holders any information which the Borrower is obligated to provide to
the Lender or an Agent hereunder. As used herein, an "Amendment Offer" is an
effective offer by the Borrower to the Administrative Agent to amend this
Agreement, which offer shall be made no later than ten days after the Borrower
becoming party to an agreement or instrument referred to in the first sentence
of this Section 6.10, to amend this Agreement (without deleting or overriding
any term or provision of this Section 6.10) in a way that the first sentence of
this Section would not otherwise be applicable to such agreement or instrument.
The Administrative Agent, if instructed to do so by the Required Lenders, shall
accept or decline such Amendment Offer within thirty days thereof, and a failure
to so respond shall be deemed a declination of such Amendment Offer.
ARTICLE VII
DEFAULTS
7.01. Events of Default. An Event of Default shall mean the
occurrence or existence of one or more of the following events or conditions
(for any reason, whether voluntary, involuntary or effected or required by Law):
(a) The Borrower shall fail to pay when due principal of
any Loan.
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(b) The Borrower shall fail to pay when due interest on
any Loan, any fees, indemnity or expenses, or any other amount due
hereunder or under any other Loan Document and such failure shall have
continued for a period of five Business Days.
(c) Any representation or warranty made or deemed made by
the Borrower or any Subsidiary of the Borrower in or pursuant to any
Loan Document or in any certificate delivered thereunder, or any
statement made by the Borrower or any Subsidiary of the Borrower in any
financial statement, certificate, report, exhibit or document furnished
by the Borrower or any Subsidiary of the Borrower to either Agent or
any Lender pursuant to or in connection with any Loan Document, shall
prove to have been false or misleading in any material respect as of
the time when made or deemed made (including by omission of material
information necessary to make such representation, warranty or
statement not misleading).
(d) The Borrower shall default in the performance or
observance of any covenant contained in Article VI hereof which shall
remain unremedied for a period of five days after the occurrence
thereof or the Borrower shall default in the observance of any covenant
contained in Sections 5.01(f) hereof.
(e) The Borrower shall default in the performance or
observance of any other covenant, agreement or duty under this
Agreement or any other Loan Document and (i) in the case of a default
under Section 5.01 hereof (other than as referred to in subsection (f)
thereof) such default shall have continued for a period of ten days
after notice of such default from the Administrative Agent to the
Borrower and (ii) in the case of any other default such default shall
have continued for a period of 30 days after notice of such default
from the Administrative Agent to the Borrower.
(f) (i) The Borrower or any Significant Subsidiary (other
than a Special Purpose Subsidiary) of the Borrower shall fail to
perform or observe any term, condition or covenant of any bond, note,
debenture, loan agreement, indenture, guaranty, trust agreement,
mortgage or similar instrument to which the Borrower or any such
Significant Subsidiary (other than a Special Purpose Subsidiary) is a
party or by which it is bound, or by which any of its properties or
assets may be affected (a "Debt Instrument"), so that, as a result of
any such failure to perform, the Indebtedness included therein or
secured or covered thereby may at the time be declared due and payable
prior to the date on which such Indebtedness would otherwise become due
and payable; or (ii) any event or condition referred to in any Debt
Instrument shall occur or fail to occur, so that, as a
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result thereof, the Indebtedness included therein or secured or covered
thereby may at such time be declared due and payable prior to the date
on which such Indebtedness would otherwise become due and payable; or
(iii) the Borrower or any Significant Subsidiary of the Borrower (other
than any Special Purpose Subsidiary) shall fail to pay any Indebtedness
when due, pursuant to demand under any Debt Instrument or otherwise,
subject to any applicable grace period; provided, however, that the
provisions of this Section 7.01(f) shall not be applicable to
Indebtedness or any Debt Instrument or Debt Instruments which relate to
or evidence Indebtedness which, on the date this Section 7.01(f) would
otherwise be applicable thereto, is in the principal amount of less
than $10,000,000 in the aggregate.
(g) One or more final, non-appealable judgments for the
payment of money shall have been entered against the Borrower or any
Significant Subsidiary (other than a Special Purpose Subsidiary), which
judgment or judgments exceed $15,000,000 in the aggregate, and such
judgment or judgments shall have remained undischarged and unstayed for
a period of sixty consecutive days.
(h) One or more final, non-appealable writs or warrants of
attachment, garnishment, execution, distraint or similar process
exceeding in value the aggregate amount of $15,000,000 shall have been
issued against the Borrower or any Significant Subsidiary (other than a
Special Purpose Subsidiary) or any of their respective properties and
shall have remained undischarged and unstayed for a period of sixty
consecutive days.
(i) This Agreement or term or provision hereof shall cease
to be in full force and effect, or the Borrower shall, or shall purport
to, terminate, repudiate, declare voidable or void or otherwise
contest, this Agreement or term or provision thereof or any obligation
or liability of the Borrower hereunder.
(j) (i) Any Pension Plan is terminated pursuant to Section
4041 or 4042 of ERISA and the benefit liabilities exceed the assets
based upon the assumptions used by the PBGC on plan termination by an
amount such that the termination of such Pension Plan would have a
Material Adverse Effect; (ii) the Borrower or any of its Subsidiaries
(or a member of their respective Controlled Group) incur a liability
under Section 4062, 4063 or 4064 of ERISA for an amount that such
liability would materially and adversely affect the financial condition
of the Borrower and its Subsidiaries taken as a whole; or (iii) any
other event or events shall occur with respect to any employee benefit
plan whether or not subject to ERISA which individually or in the
aggregate results in liability of $15,000,000.
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(k) A proceeding shall have been instituted in respect of the
Borrower or any Significant Subsidiary (other than a Special Purpose
Subsidiary)
(i) seeking to have an order for relief entered in
respect of such Person, or seeking a declaration or entailing a
finding that such Person is insolvent or a similar declaration or
finding, or seeking dissolution, winding-up, charter revocation or
forfeiture, liquidation, reorganization, arrangement, adjustment,
composition or other similar relief with respect to such Person, its
assets or its debts under any Law relating to bankruptcy,
insolvency, relief of debtors or protection of creditors,
termination of legal entities or any other similar Law now or
hereafter in effect, or
(ii) seeking appointment of a receiver, trustee,
liquidator, assignee, sequestrator or other custodian for such
Person or for all or any substantial part of its property
and such proceeding shall result in the entry, making or grant of any such
order for relief, declaration, finding, relief or appointment, or such
proceeding shall remain undismissed and unstayed for a period of 60
consecutive days.
(l) The Borrower or any Significant Subsidiary (other than a
Special Purpose Subsidiary) shall state that it is unable to pay its debts
as they become due; shall voluntarily suspend transaction of its or his
business; shall make a general assignment for the benefit of creditors;
shall institute (or fail to controvert in a timely and appropriate manner)
a proceeding described in Section 7.01(k)(i) hereof, or (whether or not
any such proceeding has been instituted) shall consent to or acquiesce in
any such order for relief, declaration, finding or relief described
therein; shall institute (or fail to controvert in a timely and
appropriate manner) a proceeding described in Section 7.01(k)(ii) hereof,
or (whether or not any such proceeding has been instituted) shall consent
to or acquiesce in any such appointment or to the taking of possession by
any such custodian of all or any substantial part of its or his property;
shall dissolve, wind-up, revoke or forfeit its charter (or other
constituent documents) or liquidate itself or any substantial part of its
property; or shall take any action in furtherance of any of the foregoing.
7.02. Consequences of an Event of Default.
(a) If an Event of Default specified in subsections (a) through
(j) of Section 7.01 hereof shall occur and be continuing or shall exist, then,
in addition to all other rights and remedies which either Agent or any Lender
may have hereunder or under any
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other Loan Document, at law, in equity or otherwise, the Lenders shall be under
no further obligation to make Loans hereunder, and the Administrative Agent may,
and upon the written request of the Required Lenders shall, by notice to the
Borrower, from time to time do any or all of the following:
(i) Declare the Commitments terminated, whereupon the
Commitments will terminate and any fees hereunder shall be immediately
due and payable without presentment, demand, protest or further notice
of any kind, all of which are hereby waived, and an action therefor
shall immediately accrue.
(ii) Declare the unpaid principal amount of the Loans,
interest accrued thereon and all other Obligations to be immediately
due and payable without presentment, demand, protest or further notice
of any kind, all of which are hereby waived, and an action therefor
shall immediately accrue.
(b) If an Event of Default specified in subsection (k) or
(l) of Section 7.01 hereof shall occur or exist, then, in addition to all other
rights and remedies which either Agent or any Lender may have hereunder or under
any other Loan Document, at law, in equity or otherwise, the Commitments shall
automatically terminate and the Lenders shall be under no further obligation to
make Loans, and the unpaid principal amount of the Loans, interest accrued
thereon and all other Obligations shall become immediately due and payable
without presentment, demand, protest or notice of any kind, all of which are
hereby waived, and an action therefor shall immediately accrue.
ARTICLE VIII
THE AGENTS
8.01. Appointments. (a) Appointment of Funding Agent.
Each Lender hereby irrevocably appoints Mellon Bank, N.A. to act as Funding
Agent for such Lender under this Agreement and the other Loan Documents. Each
Lender hereby irrevocably authorizes the Funding Agent to take such action on
behalf of such Lender under the provisions of this Agreement and the other Loan
Documents, and to exercise such powers and to perform such duties, as are
expressly delegated to or required of the Funding Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto. Mellon
Bank, N.A. hereby agrees to act as Funding Agent on behalf of the Lenders on the
terms and conditions set forth in this Agreement and the other Loan Documents,
subject to its right to resign as provided in Section 8.10 hereof. Each Lender
hereby irrevocably authorizes the Funding Agent to execute and deliver each of
the Loan Documents and to accept delivery of such of the other Loan Documents as
may not require execution by the Funding Agent. Each Lender agrees
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that the rights and remedies granted to the Funding Agent under the Loan
Documents shall be exercised exclusively by the Funding Agent, and that no
Lender shall have any right individually to exercise any such right or remedy,
except to the extent expressly provided herein or therein.
(b) Appointment of Administrative Agent. Each Lender
hereby irrevocably appoints National Westminster Bank PLC to act as
Administrative Agent for such Lender under this Agreement and the other Loan
Documents. Each Lender hereby irrevocably authorizes the Administrative Agent
to take such action on behalf of such Lender under the provisions of this
Agreement and the other Loan Documents, and to exercise such powers and to
perform such duties, as are expressly delegated to or required of the
Administrative Agent by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto. National Westminster Bank PLC hereby
agrees to act as Administrative Agent on behalf of the Lenders on the terms and
conditions set forth in this Agreement and the other Loan Documents, subject to
its right to resign as provided in Section 8.10 hereof. Each Lender hereby
irrevocably authorizes the Administrative Agent to execute and deliver each of
the Loan Documents and to accept delivery of such of the other Loan Documents as
may not require execution by the Administrative Agent. Each Lender agrees that
the rights and remedies granted to the Administrative Agent under the Loan
Documents shall be exercised exclusively by the Administrative Agent, and that
no Lender shall have any right individually to exercise any such right or
remedy, except to the extent expressly provided herein or therein.
8.02. General Nature of Agents' Duties. Notwithstanding
anything to the contrary elsewhere in this Agreement or in any other Loan
Document:
(a) Neither Agent shall have duties or responsibilities
except those expressly set forth in this Agreement and the other Loan
Documents, and no implied duties or responsibilities on the part of
either Agent shall be read into this Agreement or any Loan Document or
shall otherwise exist.
(b) The duties and responsibilities of each Agent under
this Agreement and the other Loan Documents shall be mechanical and
administrative in nature, and neither Agent shall have a fiduciary
relationship in respect of any Lender.
(c) Each Agent is and shall be solely the agent of the
Lenders. Neither Agent assumes, and shall not at any time be deemed to
have, any relationship of agency or trust with or for, or any other
duty or responsibility to, the Borrower, any Subsidiary of the Borrower
or any other Person (except
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only for its relationship as agent for, and its express duties and
responsibilities to, the Lenders as provided in this Agreement and the
other Loan Documents).
(d) Neither Agent shall be under any obligation to take
any action hereunder or under any other Loan Document if such Agent
believes in good faith after consultation with counsel that taking such
action may conflict with any Law or any provision of this Agreement or
any other Loan Document, or may require such Agent to qualify to do
business in any jurisdiction where it is not then so qualified.
8.03. Exercise of Powers. Each Agent shall take any action
of the type specified in this Agreement or any other Loan Document as being
within such Agent's rights, powers or discretion in accordance with directions
from the Required Lenders (or, to the extent this Agreement or such Loan
Document expressly requires the direction or consent of some other Person or set
of Persons, then instead in accordance with the directions of such other Person
or set of Persons). In the absence of such directions, each Agent shall have
the authority (but under no circumstances shall be obligated), in its sole
discretion, to take any such action, except to the extent this Agreement or such
Loan Document expressly requires the direction or consent of the Required
Lenders (or some other Person or set of Persons), in which case such Agent shall
not take such action absent such direction or consent. Any action or inaction
pursuant to such direction, discretion or consent shall be binding on all the
Lenders. Neither Agent shall have any liability to any Person as a result of
(x) either Agent acting or refraining from acting in accordance with the
directions of the Required Lenders (or other applicable Person or set of
Persons), (y) either Agent refraining from acting in the absence of instructions
to act from the Required Lenders (or other applicable Person or set of Persons),
whether or not either Agent taking discretionary power to take such action, or
(z) either Agent taking discretionary action it is authorized to take under this
Section.
8.04. Certain Provisions. Notwithstanding anything to the
contrary elsewhere in this Agreement or any other Loan Document:
(a) Neither Agent shall be liable for any action taken or
omitted to be taken by it under or in connection with this Agreement or
any other Loan Document, unless caused by its own gross negligence or
willful misconduct.
(b) Neither Agent shall be responsible for (i) the
execution, delivery, effectiveness, enforceability, genuineness,
validity or adequacy of this Agreement or any other Loan Document, (ii)
any recital, representation, warranty, document, certificate, report or
statement in, provided for in, or received under or in connection with,
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this Agreement or any other Loan Document or (iii) any failure of the
Borrower or any Subsidiary of the Borrower or Lender to perform any of
their respective obligations under this Agreement or any other Loan
Document.
(c) Neither Agent shall be under any obligation to
ascertain, inquire or give any notice relating to (i) the performance
or observance of any of the terms or conditions of this Agreement or
any other Loan Document on the part of the Borrower or any Subsidiary
of the Borrower, (ii) the business, operations, condition (financial or
otherwise) or prospects of the Borrower or any other Person, or (iii)
except to the extent set forth in Section 8.05(f) hereof, the existence
of any Event of Default or Potential Default.
(d) Neither Agent shall be under any obligation, either
initially or on a continuing basis, to provide any Lender with any
notices, reports or information of any nature, whether in its
possession presently or hereafter, except for such notices, reports and
other information expressly required by this Agreement or any other
Loan Document to be furnished by such Agent to such Lender.
8.05. Administration by the Agents.
(a) Either Agent may rely in good faith upon any notice or
other communication of any nature (written or oral, including but not limited to
telephone conversations, whether or not such notice or other communication is
made in a manner permitted or required by this Agreement or any Loan Document)
purportedly made by or on behalf of the proper party or parties, and neither
Agent shall have any duty to verify the identity or authority of any Person
giving such notice or other communication.
(b) Either Agent may consult with legal counsel
(including, without limitation, in-house counsel for such Agent or in-house or
other counsel for the Borrower), independent public accountants and any other
experts selected by it from time to time, and such Agent shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts.
(c) Either Agent may conclusively rely upon the truth of
the statements and the correctness of the opinions expressed in any certificates
or opinions furnished to such Agent in accordance with the requirements of this
Agreement or any other Loan Document. Whenever either Agent shall deem it
necessary or desirable that a matter be proved or established with respect to
the Borrower or any Lender, such matter may be established by a certificate of
the Borrower or Lender, as the case may be, and such Agent may conclusively rely
upon such certificate (unless other evidence with respect to such matter is
specifically prescribed in this Agreement or another Loan Document).
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(d) Either Agent may fail or refuse to take any action
unless it shall be indemnified to its reasonable satisfaction from time to time
against any and all amounts, liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature which may be imposed on, incurred by or asserted against such
Agent by reason of taking or continuing to take any such action.
(e) Either Agent may perform any of its duties under this
Agreement or any other Loan Document by or through agents or attorneys-in-fact.
Neither Agent shall be responsible for the negligence or misconduct of any
agents or attorneys-in fact selected by it with reasonable care.
(f) Neither Agent shall be deemed to have any knowledge or
notice of the occurrence of any Event of Default or Potential Default unless
such Agent has actual knowledge or has received notice from a Lender or the
Borrower referring to this Agreement, describing such Event of Default or
Potential Default, and stating that such notice is a "notice of default." If
either Agent receives such a notice, such Agent shall give prompt notice thereof
to the other Agent and each Lender.
8.06. Lender Not Relying on Agents or Other Lenders. Each
Lender acknowledges as follows: (a) Neither Agent nor any other Lender has made
any representations or warranties to it, and no act taken hereafter by either
Agent or any other Lender shall be deemed to constitute any representation or
warranty by such Agent or such other Lender to it. (b) It has, independently
and without reliance upon either Agent or any other Lender, and based upon such
documents and information as it has deemed appropriate, made its own credit and
legal analysis and decision to enter into this Agreement and the other Loan
Documents. (c) It will, independently and without reliance upon either Agent or
any other Lender, and based upon such documents and information as it shall deem
appropriate at the time, make its own decisions to take or not take action under
or in connection with this Agreement and the other Loan Documents.
8.07. Indemnification. Each Lender agrees to reimburse and
indemnify each Agent and its directors, officers, employees and agents (to the
extent not reimbursed by the Borrower and without limitation of the obligations
of the Borrower to do so), Pro Rata, from and against any and all amounts,
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature (including,
without limitation, the fees and disbursements of counsel for such Agent or such
other Person in connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not such Agent or such other
Person shall be designated a party thereto) that may at any time be imposed on,
incurred by or asserted against such Agent or such other Person as a result of,
or arising out of, or in any way
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related to or by reason of, this Agreement, any other Loan Document, any
transaction from time to time contemplated hereby or thereby, or any transaction
financed in whole or in part or directly or indirectly with the proceeds of any
Loan, provided that no Lender shall be liable for any portion of such amounts,
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements resulting solely from the gross
negligence or willful misconduct of such Agent or such other Person, as finally
determined by a court of competent jurisdiction.
8.08. Agents in their Individual Capacities. With respect
to its Commitments and the Obligations owing to it, each Agent shall have the
same rights and powers under this Agreement and each other Loan Document as any
other Lender and may exercise the same as though it were not a Agent, and the
terms "Lenders," "holders of Notes" and like terms shall include each Agent in
its individual capacity as such. Each Agent and its affiliates may, without
liability to account, make loans to, accept deposits from, acquire debt or
equity interests in, act as trustee under indentures of, and engage in any other
business with, the Borrower and any stockholder, Subsidiary or Affiliate of the
Borrower, as though such Agent were not a Agent hereunder.
8.09. Holders of Notes. Each Agent may deem and treat the
Lender which is payee of a Note as the owner and holder of such Note for all
purposes hereof unless and until a Transfer Supplement with respect to the
assignment or transfer thereof shall have been filed with the Administrative
Agent in accordance with Section 9.14 hereof. Any authority, direction or
consent of any Person who at the time of giving such authority, direction or
consent is shown in the Register as being a Lender shall be conclusive and
binding on each present and subsequent holder, transferee or assignee of any
Note or Notes payable to such Lender or of any Note or Notes issued in exchange
therefor.
8.10. Successor Agents. Either Agent may resign at any time
by giving 30 days' written notice thereof to the Lenders and the Borrower.
Either Agent may be removed by the Required Lenders at any time by giving 10
days' prior written notice thereof to such Agent, the other Lenders and the
Borrower. Upon any such resignation or removal, the Borrower shall have the
right to appoint a successor Agent; provided, that the Required Lenders or the
remaining Agent shall have the right to disapprove such successor Agent. If no
successor Agent shall have been so appointed and consented to, and shall have
accepted such appointment, within 30 days after such notice of resignation or
removal, then the remaining Agent shall succeed to the obligations of such Agent
hereunder. Each successor Agent shall be a commercial bank or trust company
organized or licensed under the laws of the United States of America or any
State thereof and having a combined capital and surplus of at least
$1,000,000,000. Upon the acceptance by a successor Agent of its appointment as
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Agent hereunder, such successor Agent shall thereupon succeed to and become
vested with all the properties, rights, powers, privileges and duties of the
former Agent, without further act, deed or conveyance. Upon the effective date
of resignation or removal of a retiring Agent, such Agent shall be discharged
from its duties under this Agreement and the other Loan Documents, but the
provisions of this Agreement shall inure to its benefit as to any actions taken
or omitted by it while it was Agent under this Agreement. If and so long as no
successor Agent shall have been appointed, then any notice or other
communication required or permitted to be given by the Agent shall be
sufficiently given if given by the Required Lenders, all notices or other
communications required or permitted to be given to the Agent shall be given to
each Lender, and all payments to be made to the Agent shall be made directly to
the Borrower or Lender for whose account such payment is made.
8.11. Calculations. Neither Agent shall be liable for any
calculation, apportionment or distribution of payments made by it in good faith.
If such calculation, apportionment or distribution is subsequently determined to
have been made in error, the sole recourse of any Lender to whom payment was due
but not made shall be to recover from the other Lenders any payment in excess of
the amount to which they are determined to be entitled or, if the amount due was
not paid by the Borrower, to recover such amount from the Borrower.
8.12. Funding by Funding Agent. Unless the Funding Agent
shall have been notified in writing by any Lender not later than the close of
business on the day before the day on which Loans are requested by the Borrower
to be made that such Lender will not make its ratable share of such Loans, the
Funding Agent may assume that such Lender will make its ratable share of the
Loans, and in reliance upon such assumption the Funding Agent may (but in no
circumstances shall be required to) make available to the Borrower a
corresponding amount. If and to the extent that any Lender fails to make such
payment to the Funding Agent on such date, such Lender shall pay such amount on
demand (or, if such Lender fails to pay such amount on demand, the Borrower
shall pay such amount on demand), together with interest, for the Funding
Agent's own account, for each day from and including the date of the Funding
Agent's payment to and including the date of repayment to the Funding Agent
(before and after judgment) at the Federal Funds Effective Rate for the first
day and thereafter at the rate or rates per annum applicable to such Loans. All
payments to the Funding Agent under this Section shall be made to the Funding
Agent at its Office in Dollars in funds immediately available at such Office,
without set-off, withholding, counterclaim or other deduction of any nature.
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ARTICLE IX
MISCELLANEOUS
9.01. Holidays. Whenever any payment or action to be made
or taken hereunder or under any other Loan Document shall be stated to be due on
a day which is not a Business Day, such payment or action shall be made or taken
on the next following Business Day and such extension of time shall be included
in computing interest or fees, if any, in connection with such payment or
action.
9.02. Records. The unpaid principal amount of the Loans
owing to each Lender, the unpaid interest accrued thereon, the interest rate or
rates applicable to such unpaid principal amount, the duration of such
applicability, each Lender's Committed Amount shall at all times be ascertained
from the records of the Funding Agent, which shall be conclusive absent manifest
error.
9.03. Amendments and Waivers. Neither this Agreement nor
any Loan Document may be amended, modified or supplemented except in accordance
with the provisions of this Section. The Required Lenders and the Borrower may
from time to time amend, modify or supplement the provisions of this Agreement
or any other Loan Document for the purpose of amending, adding to, or waiving
any provisions or changing in any manner the rights and duties of the Borrower,
Agent or any Lender. Any such amendment, modification or supplement made by the
Borrower and the Agents in accordance with the provisions of this Section shall
be binding upon the Borrower, each Lender and each Agent. The Agents shall
enter into such amendments, modifications, supplements or waivers from time to
time as directed by the Required Lenders, and only as so directed, provided,
that no such amendment, modification, waiver or supplement may be made which
will:
(a) Increase the Committed Amount of any Lender over the
amount thereof then in effect, or extend the Revolving Credit Maturity
Date or the Competitive Bid Loan Expiration Date without the written
consent of each Lender affected thereby;
(b) Reduce the principal amount of or extend the time for
any payment of any Loan, or reduce the amount of or rate of interest or
extend the time for payment of interest borne by any Loan or extend the
time for payment of or reduce the amount of any Facility Fee or reduce
or postpone the date for payment of any other fees, expenses,
indemnities or amounts payable under any Loan Document, without the
written consent of each Lender affected thereby;
(c) Change the definition of "Required Lenders" or amend
this Section 9.03, Section 9.13 hereof or any provision
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of this Agreement that states a requirement for the consent of all
Lenders, without the written consent of all the Lenders; or
(d) Amend or waive any of the provisions of Article VIII
hereof, or impose additional duties upon either Agent or otherwise
adversely affect the rights, interests or obligations of either Agent,
without the written consent of such Agent; or
and provided further, that Transfer Supplements may be entered into in the
manner provided in Section 9.14 hereof. Any such amendment, modification or
supplement must be in writing and shall be effective only to the extent set
forth in such writing. Any Event of Default or Potential Default waived or
consented to in any such amendment, modification or supplement shall be deemed
to be cured and not continuing to the extent and for the period set forth in
such waiver or consent, but no such waiver or consent shall extend to any other
or subsequent Event of Default or Potential Default or impair any right
consequent thereto.
9.04. No Implied Waiver; Cumulative Remedies. No course of
dealing and no delay or failure of either Agent or any Lender in exercising any
right, power or privilege under this Agreement or any other Loan Document shall
affect any other or future exercise thereof or exercise of any other right,
power or privilege; nor shall any single or partial exercise of any such right,
power or privilege or any abandonment or discontinuance of steps to enforce such
a right, power or privilege preclude any further exercise thereof or of any
other right, power or privilege. The rights and remedies of the Agents and the
Lenders under this Agreement and any other Loan Document are cumulative and not
exclusive of any rights or remedies which either Agent or any Lender would
otherwise have hereunder or thereunder, at law, in equity or otherwise.
9.05. Notices.
(a) Except to the extent otherwise expressly permitted
hereunder or thereunder, all notices, requests, demands, directions and other
communications (collectively "notices") under this Agreement or any Loan
Document shall be in writing (including telexed and telecopied communication)
and shall be sent by first-class mail, or by nationally-recognized overnight
courier, or by telex or telecopier (with confirmation in writing mailed
first-class or sent by such an overnight courier), or by personal delivery. All
notices shall be sent to the applicable party at the address stated on the
signature pages hereof or in accordance with the last unrevoked written
direction from such party to the other parties hereto, in all cases with postage
or other charges prepaid. Any such properly given notice shall be effective on
the earliest to occur of receipt, telephone confirmation of receipt of
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telex or telecopy communication, one Business Day after delivery to a
nationally-recognized overnight courier, or three Business Days after deposit in
the mail.
(b) Any Lender giving any notice to the Borrower shall
simultaneously send a copy thereof to each Agent, and each Agent shall promptly
notify the other Lenders of the receipt by it of any such notice.
(c) Each Agent and each Lender may rely on any notice
(whether or not such notice is made in a manner permitted or required by this
Agreement or any Loan Document) purportedly made by or on behalf of the
Borrower, and neither Agent nor any Lender shall have any duty to verify the
identity or authority of any Person giving such notice.
9.06. Expenses; Taxes; Indemnity.
(a) The Borrower agrees to pay or cause to be paid and to
save each Agent and each of the Lenders harmless against liability for the
payment of all reasonable out-of-pocket costs and expenses (including but not
limited to reasonable fees and expenses of counsel to the Agents and, with
respect to costs incurred by the Agents, or any Lender pursuant to clause (iii)
below, such counsel (including allocated costs of in-house counsel to the extent
that outside counsel has not been retained by such Lender), local counsel,
auditors, consulting engineers, appraisers, and all other professional,
accounting, evaluation and consulting costs) incurred by either Agent or, in the
case of clause (iii) below any Lender from time to time arising from or relating
to (i) the negotiation, preparation, execution, delivery, administration and
performance of this Agreement and the other Loan Documents, (ii) any requested
amendments, modifications, supplements, waivers or consents (whether or not
ultimately entered into or granted) to this Agreement or any Loan Document, and
(iii) the enforcement or preservation of rights under this Agreement or any Loan
Document (including but not limited to any such costs or expenses arising from
or relating to (A) collection or enforcement of an outstanding Loan or any other
amount owing hereunder or thereunder by either Agent or any Lender, and (B) any
litigation, proceeding, dispute, work-out, restructuring or rescheduling related
in any way to this Agreement or the Loan Documents).
(b) The Borrower hereby agrees to pay all stamp, document,
transfer, recording, filing, registration, search, sales and excise fees and
taxes and all similar impositions now or hereafter determined by either Agent or
any Lender to be payable in connection with this Agreement or any other Loan
Documents or any other documents, instruments or transactions pursuant to or in
connection herewith or therewith, and the Borrower agrees to save each Agent and
each Lender harmless from and against any and all
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present or future claims, liabilities or losses with respect to or resulting
from any omission to pay or delay in paying any such fees, taxes or impositions.
(c) The Borrower hereby agrees to reimburse and indemnify
each of the Indemnified Parties from and against any and all losses,
liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnified Party in connection with any investigative, administrative
or judicial proceeding commenced or threatened, whether or not such Indemnified
Party shall be designated a party thereto) that may at any time be imposed on,
asserted against or incurred by such Indemnified Party as a result of, or
arising out of, or in any way related to or by reason of, this Agreement or any
other Loan Document, any transaction from time to time contemplated hereby or
thereby, or any transaction financed in whole or in part or directly or
indirectly with the proceeds of any Loan (and without in any way limiting the
generality of the foregoing, including any violation or breach of any
Requirement of Law or any other Law by the Borrower or any Subsidiary); or any
exercise by either Agent or any Lender of any of its rights or remedies under
this Agreement or any other Loan Document); but excluding any such losses,
liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements resulting primarily from the gross
negligence or willful misconduct of such Indemnified Party. If and to the
extent that the foregoing obligations of the Borrower under this subsection (c),
or any other indemnification obligation of the Borrower hereunder or under any
other Loan Document, are unenforceable for any reason, the Borrower hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable Law.
9.07. Severability. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
9.08. Prior Understandings. This Agreement and the other
Loan Documents supersede all prior and contemporaneous understandings and
agreements, whether written or oral, among the parties hereto relating to the
transactions provided for herein and therein.
9.09. Duration; Survival. All representations and
warranties of the Borrower contained herein or in any other Loan Document or
made in connection herewith shall survive the making
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of, and shall not be waived by the execution and delivery, of this Agreement or
any other Loan Document, any investigation by or knowledge of either Agent or
any Lender, the making of any Loan, or any other event or condition whatever.
All covenants and agreements of the Borrower contained herein or in any other
Loan Document shall continue in full force and effect from and after the date
hereof so long as any Borrower may borrow hereunder and until payment in full of
all Obligations other than indemnity Obligations not yet due and payable.
Without limitation, all obligations of the Borrower hereunder or under any other
Loan Document to make payments to or indemnify each Agent or any Lender shall
survive the payment in full of all other Obligations, termination of the
Borrower's right to borrow hereunder, and all other events and conditions
whatever. In addition, all obligations of each Lender to make payments to or
indemnify the Agents shall survive the payment in full by the Borrower of all
Obligations, termination of the Borrower's right to borrow hereunder, and all
other events or conditions whatever.
9.10. Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
9.11. Limitation on Payments. The parties hereto intend to
conform to all applicable Laws in effect from time to time limiting the maximum
rate of interest that may be charged or collected. Accordingly, notwithstanding
any other provision hereof or of any other Loan Document, the Borrower shall not
be required to make any payment to or for the account of any Lender, and each
Lender shall refund any payment made by the Borrower, to the extent that such
requirement or such failure to refund would violate or conflict with nonwaivable
provisions of applicable Laws limiting the maximum amount of interest which may
be charged or collected by such Lender.
9.12. Set-Off. The Borrower hereby agrees that, to the
fullest extent permitted by law, if any Obligation of the Borrower shall be due
and payable (by acceleration or otherwise), each Lender shall have the right,
without notice to the Borrower, to set-off against and to appropriate and apply
to the Obligation any indebtedness, liability or obligation of any nature owing
to the Borrower by such Lender, including but not limited to all deposits
(whether time or demand, general or special, provisionally credited or finally
credited, whether or not evidenced by a certificate of deposit) now or hereafter
maintained by the Borrower with such Lender. Such right shall be absolute and
unconditional in all circumstances and, without limitation, shall exist whether
or not such Lender or any other Person shall have given notice or made any
demand to the Borrower or any other Person, whether such indebtedness,
obligation or liability owed to the Borrower is contingent, absolute, matured or
unmatured (it
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being agreed that such Lender may deem such indebtedness, obligation or
liability to be then due and payable at the time of such setoff), and regardless
of the existence or adequacy of any collateral, guaranty or any other security,
right or remedy available to any Lender or any other Person. The Borrower
hereby agrees that, to the fullest extent permitted by law, any Participant and
any branch, subsidiary or affiliate of any Lender or any Participant shall have
the same rights of set-off as a Lender as provided in this Section (regardless
of whether such Participant, branch, subsidiary or affiliate would otherwise be
deemed in privity with or a direct creditor of such Borrower). The rights
provided by this Section are in addition to all other rights of set-off and
banker's lien and all other rights and remedies which any Lender (or any such
Participant, branch, subsidiary or affiliate) may otherwise have under this
Agreement, any other Loan Document, at law or in equity, or otherwise, and
nothing in this Agreement or any Loan Document shall be deemed a waiver or
prohibition of or restriction on the rights of set-off or bankers' lien of any
such Person.
9.13. Sharing of Collections. The Lenders hereby agree
among themselves that if any Lender shall receive (by voluntary payment,
realization upon security, set-off or from any other source) any amount on
account of the Loans, interest thereon, or any other Obligation contemplated by
this Agreement or the other Loan Documents to be made by the Borrower pro rata
to all Lenders in greater proportion than any such amount received by any other
Lender, then the Lender receiving such proportionately greater payment shall
notify each other Lender and the Agents of such receipt, and equitable
adjustment will be made in the manner stated in this Section so that, in effect,
all such excess amounts will be shared ratably among all of the Lenders. The
Lender receiving such excess amount shall purchase (which it shall be deemed to
have done simultaneously upon the receipt of such excess amount) for cash from
the other Lenders a participation in the applicable Obligations owed to such
other Lenders in such amount as shall result in a ratable sharing by all Lenders
of such excess amount (and to such extent the receiving Lender shall be a
Participant). If all or any portion of such excess amount is thereafter
recovered from the Lender making such purchase, such purchase shall be rescinded
and the purchase price restored to the extent of such recovery, together with
interest or other amounts, if any, required by Law to be paid by the Lender
making such purchase. The Borrower hereby consents to and confirms the
foregoing arrangements. Each Participant shall be bound by this Section as
fully as if it were a Lender hereunder.
9.14. Successors and Assigns; Participations; Assignments.
(a) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Borrower, the Lenders, all future
holders of the Notes, each Agent and their
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respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights hereunder or interests herein without the prior
written consent of all the Lenders and each Agent, and any purported assignment
without such consent shall be void.
(b) Participations. Any Lender may, in the ordinary
course of its commercial banking business and in accordance with applicable Law,
at any time sell participations to one or more commercial banks or other Persons
(each a "Participant") in all or a portion of its rights and obligations under
this Agreement and the other Loan Documents (including, without limitation, all
or a portion of its Commitments and the Loans owing to it and any Note held by
it); provided, that
(i) any such Lender's obligations under this Agreement and
the other Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations,
(iii) the parties hereto shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan Documents,
(iv) such Participant shall be bound by the provisions of
Section 9.13 hereof, and the Lender selling such participation shall
obtain from such Participant a written confirmation of its agreement to
be so bound,
(v) no Participant (unless such Participant is an
affiliate of such Lender, or is itself a Lender) shall be entitled to
require such Lender to take or refrain from taking action under this
Agreement or under any other Loan Document, except that such Lender may
agree with such Participant that such Lender will not, without such
Participant's consent, take action of the type described in subsections
(a), (b), or (c) of Section 9.03 hereof; notwithstanding the foregoing,
in no event shall any participation by an Lender have the effect of
releasing such Lenders from its obligations hereunder, and
(vi) no Participant shall be an Affiliate of the Borrower.
The Borrower agrees that any such Participant shall be entitled to the benefits
of Sections 2.13, 2.15 and 9.06 with respect to its participation in the
Commitments and the Loans outstanding from time to time but only to the extent
such Participant sustains such losses; provided, that no such Participant shall
be entitled to receive any greater amount pursuant to such Sections than the
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transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred to such Participant had no such transfer
occurred.
(c) Assignments. Any Lender may, in the ordinary course
of its commercial banking business and in accordance with applicable Law, at any
time assign all or a portion of its rights and obligations under this Agreement
and the other Loan Documents (including, without limitation, all or any portion
of its Commitments and Loans owing to it and any Note held by it) to any Lender,
any affiliate of a Lender or to one or more additional commercial banks or other
Persons (each a "Purchasing Lender"); provided, that
(i) any such assignment to a Purchasing Lender which is
not a Lender shall be made only with the consent of the Borrower and
each Agent which with respect to each Agent shall not be unreasonably
withheld,
(ii) if a Lender makes such an assignment of less than all
of its then remaining rights and obligations under this Agreement and
the other Loan Documents, such transferor Lender shall retain, after
such assignment, a minimum principal amount of $4,000,000 of the
Commitments and Loans then outstanding, and such assignment shall be in
a minimum aggregate principal amount of $4,000,000 of the Commitments
and Loans then outstanding,
(iii) each such assignment shall be of a constant, and not a
varying, percentage of each Commitment of the transferor Lender and of
all of the transferor Lender's rights and obligations under this
Agreement and the other Loan Documents, and
(iv) each such assignment shall be made pursuant to a
Transfer Supplement in substantially the form of Exhibit F to this
Agreement, duly completed (a "Transfer Supplement").
In order to effect any such assignment, the transferor Lender and the Purchasing
Lender shall execute and deliver to the Administrative Agent a duly completed
Transfer Supplement (including the consents required by clause (i) of the
preceding sentence) with respect to such assignment, together with any Note or
Notes subject to such assignment (the "Transferor Lender Notes") and (except in
the case of a transfer required by the borrower under Section 9.17 hereof) a
processing and recording fee of $5,000 (which shall be divided between the
Agents); and, upon receipt thereof, the Administrative Agent shall accept such
Transfer Supplement. Notwithstanding the foregoing, no such processing and
recording fee shall be payable in the case of a replacement of a Lender pursuant
to Sections 2.17 or 9.17. Upon receipt of the Purchase Price Receipt Notice
pursuant to such Transfer Supplement, the Administrative Agent shall record such
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acceptance in the Register. Upon such execution, delivery, acceptance and
recording, from and after the Transfer Effective Date specified in such Transfer
Supplement
(x) the Purchasing Lender shall be a party hereto and, to
the extent provided in such Transfer Supplement, shall have the rights
and obligations of a Lender hereunder, and
(y) the transferor Lender thereunder shall be released
from its obligations under this Agreement to the extent so transferred
(and, in the case of an Transfer Supplement covering all or the
remaining portion of a transferor Lender's rights and obligations under
this Agreement, such transferor Lender shall cease to be a party to
this Agreement) from and after the Transfer Effective Date.
On or prior to the Transfer Effective Date specified in an Transfer Supplement,
the Borrower, at its expense, shall execute and deliver to the Administrative
Agent (for delivery to the Purchasing Lender) new Notes evidencing such
Purchasing Lender's assigned Commitments or Loans and (for delivery to the
transferor Lender) replacement Notes in the principal amount of the Loans or
Commitments retained by the transferor Lender (such Notes to be in exchange for,
but not in payment of, those Notes then held by such transferor Lender). Each
such Note shall be dated the date and be substantially in the form of the
predecessor Note. The Administrative Agent shall ▇▇▇▇ the predecessor Notes
"exchanged" and deliver them to the Borrower. Accrued interest and accrued fees
shall be paid to the Purchasing Lender at the same time or times provided in the
predecessor Notes and this Agreement.
A transfer of by a Lender of its rights under this Agreement
from one of such Lender's branches to another of its branches shall not be
considered to be an assignment for the purposes of this Section 9.14 and shall
be permitted without the consent of the Borrower or of the Agents, provided that
to the extent such transfer would, at the time of such transfer, result in
increased costs under Sections 2.13 or 2.15 from those being charged by the
transferring branch, the Borrower shall not be obligated to pay such increased
costs (although the Borrower shall be obligated to pay any other increased costs
of the type described above resulting from changes after the date of the
respective transfer).
(d) Register. The Administrative Agent shall maintain at
its office a copy of each Transfer Supplement delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and the Commitment of, and principal amount of the Loans owing to, each Lender
from time to time. The entries in the Register shall be conclusive absent
manifest error and the Borrower, the Agent and the Lenders may treat each person
whose name is recorded in the Register as a Lender hereunder for
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all purposes of the Agreement. The Register shall be available for inspection
by the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Financial and Other Information. The Borrower
authorizes each Agent and each Lender to disclose to any Participant or
Purchasing Lender (each, a "transferee") and any prospective transferee any and
all financial and other information in such Person's possession concerning the
Borrower and its Subsidiaries and Affiliates which has been or may be delivered
to such Person by or on behalf of the Borrower in connection with this Agreement
or any other Loan Document or such Person's credit evaluation of the Borrower
and its Subsidiaries and Affiliates; subject, however, to the provisions of
Section 9.16 hereof.
9.15. Governing Law; Submission to Jurisdiction: Waiver of
Jury Trial.
(a) Governing Law. THIS AGREEMENT AND ALL OTHER LOAN
DOCUMENTS (EXCEPT TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH
OTHER LOAN DOCUMENTS) SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CHOICE OF LAW
PRINCIPLES.
(b) Certain Waivers. THE BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY
PERSON ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT
OCCURRING IN CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED
LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION SITTING IN ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND TO THE FULLEST EXTENT
PERMITTED BY LAW AGREES THAT IT WILL NOT BRING ANY RELATED LITIGATION
IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
AGENT OR ANY LENDER TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY
OTHER FORUM);
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO
THE LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH
COURT, WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH
RESPECT TO ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH
COURT DOES NOT HAVE JURISDICTION OVER THE BORROWER;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY
REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE BORROWER AT
THE ADDRESS FOR NOTICES DESCRIBED IN SECTION 9.05 HEREOF, AND CONSENTS
AND AGREES THAT SUCH SERVICE SHALL
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CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING
HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN
ANY OTHER MANNER PERMITTED BY LAW); AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED
LITIGATION.
9.16. Confidentiality. Except as may be required by Law,
each Lender and each Agent covenants and agrees to use its best efforts not to
permit any data or information relating to the Borrower or the business of the
Borrower (other than any data or information which is otherwise publicly
available or which is received by any such party in a capacity in which such
party is not bound by any restriction of a nature similar to that imposed by
this Section 9.16), which data or information such Lender or either Agent
possesses due to such party's relation to the transactions contemplated by the
Loan Documents, to be out of such party's possession or the contents thereof to
be divulged to any other Person engaged in the project construction business;
provided, however, that such data or information may be disclosed to the lawyers
or accountants of such Lender or either Agent and to any Person empowered by Law
to examine the records of any such Person and to any potential participant in,
or assignee or transferee of, its rights under any Loan Documents which
potential participant, assignee or transferee shall have, in each case, agreed
with such party to comply with the terms of this Section 9.16.
9.17. Replacement of Lenders. If (a) the Borrower is
required to make a payment to a particular Lender pursuant to Sections 2.13 or
2.15 hereof (or pursuant to a comparable provision in any agreement with respect
to the Borrower's Indebtedness for borrowed money between the Borrower, such
Lender and at least five other lenders) or (b) the Borrower is precluded from
requesting Loans of any type from a particular Lender pursuant to Section
2.07(e) hereof, the Borrower may, upon not less than 15 Business Days' notice to
the Administrative Agent, either (x) immediately terminate the Commitments of
such Lender, prepay (subject to Section 2.13(b) hereof) such Lender's Loans,
together with interest accrued thereon and all other amounts payable with
respect thereto, and pay all other amounts then due and owing to such Lender (in
which event the Total Revolving Credit Commitment shall be reduced by the amount
of such Lender's Committed Amount) or (y) cause a Replacement Lender reasonably
satisfactory to the Agents (which may be one of the other Lenders) to purchase
all of such Lender's interests in accordance with the provisions of Section
9.14(c) hereof.
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IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed and delivered this Agreement as of the
date first above written.
ATTEST: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
By/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------- -----------------------------------
Title: Vice President Title: Vice President and
and Secretary Treasurer
[Corporate Seal]
Address for Notices:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Vice President and Treasurer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
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102
MELLON BANK, N.A., individually, and
as Funding Agent
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
-----------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $18,000,000
Commitment Percentage: 9%
Address for Notices:
Corporate Banking Department
Mellon Financial Center
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Mellon Bank, N.A.
Three Mellon Bank Center
Room 2303
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
or
▇▇▇-▇▇▇-▇▇▇▇ or 2028
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NATIONAL WESTMINSTER BANK PLC, NEW
YORK BRANCH, individually, and as
Administrative Agent
By/s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Title: Vice President
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH, individually, and as
Administrative Agent
By/s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $18,000,000
Commitment Percentage: 9%
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: ▇▇▇▇▇▇/▇▇▇▇▇▇
(▇▇▇▇▇▇▇▇▇▇: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-98-
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, NATIONAL TRUST &
SAVINGS ASSOCIATION, individually,
and as Co-Agent
By/s/▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $14,000,000
Commitment Percentage: 7%
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Ms. Christi Schifferele
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ or 7728
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-99-
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BANK OF MONTREAL, individually, and
as Co-Agent
By/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Director
Initial Revolving Credit
Committed Amount: $14,000,000
Commitment Percentage: 7%
Address for Notices:
U.S. Corporate Banking
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-100-
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, individually,
and as Co-Agent
By/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Senior Relationship
Manager
Initial Revolving Credit
Committed Amount: $14,000,000
Commitment Percentage: 7%
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ or 5091
with a copy to:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ or 5091
-101-
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ AKTIENGESELLSCHAFT,
individually, and as Co-Agent
By/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Vice President
By/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President
Initial Revolving Credit
Committed Amount: $14,000,000
Commitment Percentage: 7%
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-102-
108
FIRST FIDELITY BANK, N.A.,
individually, and as Co-Agent
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
-----------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $14,000,000
Commitment Percentage: 7%
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ or 3450
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Lending Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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TORONTO DOMINION (NEW YORK), INC.,
individually, and as Co-Agent
By/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $14,000,000
Commitment Percentage: 7%
Address for Notices:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-104-
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
BRANCH, individually, and as Co-
Agent
By/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Assistant Vice President
By/s/ ▇▇▇▇▇▇ ▇. High
-----------------------------------
Title: Assistant Treasurer
Initial Revolving Credit
Committed Amount: $14,000,000
Commitment Percentage: 7%
Address for Notices:
New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Loan Servicing Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-105-
111
MIDLANTIC BANK, N.A.
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $12,000,000
Commitment Percentage: 6%
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-106-
112
ABN AMRO BANK N.V. NEW YORK BRANCH
By/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Vice President
By/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $8,000,000
Commitment Percentage: 4%
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 62374
(Answerback: ABN UW)
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 62734
(Answerback: ABN UW)
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-107-
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ BANKING
GROUP LIMITED
By/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: First Vice President
Initial Revolving Credit
Committed Amount: $8,000,000
Commitment Percentage: 4%
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-108-
114
THE BANK OF TOKYO TRUST COMPANY
By/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $8,000,000
Commitment Percentage: 4%
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ or 4314
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
1251 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇
Operations Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-109-
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ di
TORINO, S.p.A.
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: First Vice President
Initial Revolving Credit
Committed Amount: $8,000,000
Commitment Percentage: 4%
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-110-
116
SOCIETE GENERALE
By/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $8,000,000
Commitment Percentage: 4%
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 428802
(Answerback: SOCIEGEN)
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 428802
(Answerback: SOCIEGEN)
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-111-
117
STANDARD CHARTERED BANK
By/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $8,000,000
Commitment Percentage: 4%
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-112-
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.▇.
By/s/ Abdel-Fattah Tahoun
-----------------------------------
Title: Senior Vice President
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
Initial Revolving Credit
Committed Amount: $6,000,000
Commitment Percentage: 3%
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
(Answerback: )
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-113-
119
Exhibit A
to
Credit Agreement
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
Revolving Credit Note
$_____________ New York, New York
__________________, 1995
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CORPORATION, a New York corporation (the "Borrower"), promises to pay to the
order of [NAME OF LENDER] (the "Lender") on or before the Revolving Credit
Maturity Date, and at such earlier dates as may be required by the Agreement (as
defined below), the lesser of (i) the principal sum of __________ ($________) or
(ii) the aggregate unpaid principal amount of all Revolving Credit Loans made by
the Lender to the Borrower from time to time pursuant to the Agreement. The
Borrower further promises to pay to the order of the Lender interest on the
unpaid principal amount hereof from time to time outstanding at the rate or
rates per annum determined pursuant to the Agreement, payable on the dates set
forth in the Agreement.
This Note is one of the "Revolving Credit Notes" as referred to
in, and is entitled to the benefits of, the Short Term Revolving Credit
Agreement, dated as of September 20, 1995, by and among the Borrower, the
Lenders parties thereto from time to time, Mellon Bank, N.A., as Funding Agent,
and National Westminster Bank PLC, as Administrative Agent (as the same may be
amended, modified or supplemented from time to time, the "Agreement"), which
among other things provides for the acceleration of the maturity hereof upon the
occurrence of certain events and for prepayments in certain circumstances and
upon certain terms and conditions. Terms defined in the Agreement have the same
meanings herein.
Except as otherwise set forth in the Agreement, the Borrower
hereby expressly waives presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Note and the Agreement, and an action for amounts
due hereunder or thereunder shall immediately accrue.
This Note shall be governed by, construed and enforced in
accordance with the laws of the State of New York, without regard to principles
of choice of law.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
By
---------------------------
Title:
120
Exhibit B
to
Credit Agreement
[Form of Competitive Bid Loan Quote Request]
______________, 1995
To: Mellon Bank, N.A., as Funding Agent
From: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation
Re: Competitive Bid Loan Quote Request
Pursuant to Section 2.03(b) of the Short Term Revolving Credit
Agreement dated as of September 20, 1995, by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Corporation, the lenders parties thereto, Mellon Bank, N.A., as Funding Agent,
and National Westminster Bank PLC, as Administrative Agent (as the same may from
time to time be amended or modified, the "Agreement"), we hereby give notice
that we request Competitive Bid Loan Quotes for the following proposed
Competitive Bid Borrowing(s):
Borrowing Principal Interest
Date Amount(1) Type(2) Period(3) Currency
--------- --------- ------- --------- --------
________________
(1) Each amount must be a Dollar Equivalent Amount of $5,000,000 or a
higher integral multiple of $1,000,000 (to the extent practical in the
case of Eurocurrency Loans).
(2) Insert either "LIBOR-based Margin" (in the case of LIBOR-based Loans),
"CD Rate Margin" (in the case of CD Rate Loans), "Base Rate Margin" (in
the case of Base Rate Loans) or "Absolute Rate" (in the case of
Absolute Rate Loans).
(3) Each Interest Period must be not less than seven days or more than 180
days.
121
Terms used herein have the meanings assigned to them in the
Agreement.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
By:
-----------------------------
Title:
--------------------------
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122
Exhibit C
to
Credit Agreement
[Form of Competitive Bid Loan Quote]
Mellon Bank, N.A.,
as Funding Agent
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: __________________________
Re: Competitive Bid Loan Quote to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation (the "Borrower")
This Competitive Bid Loan Quote is given in accordance with
Section 2.03(d) of the Short Term Revolving Credit Agreement dated as of
September 20, 1995, by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation, a New York
corporation (the "Borrower"), the lenders parties thereto, Mellon Bank, N.A., as
Funding Agent, and National Westminster Bank PLC, as Administrative Agent (as
the same may from time to time be amended or modified, the "Agreement"). Terms
defined in the Agreement are used herein as defined therein.
In response to the Borrower's invitation dated _________, 19__,
we hereby make the following Competitive Bid Loan Quote(s) on the following
terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. We hereby offer to make Competitive Bid Loan(s) in the
following principal amounts, for the following Interest Periods and at the
following rates:
123
Borrowing Principal Interest
Date(1) Amount(2) Type(3) Period(4) Rate(5) Currency
---- ------ ---- ------ ---- --------
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the
Agreement, irrevocably obligate(s) us to make the Competitive Bid Loan(s) for
which any offer(s) [is] [are] accepted, in whole or in part (subject to Section
2.03(g) of the Agreement).
Very truly yours,
[LENDER]
Dated: By:
------------------------
Authorized Officer
______________
(1) As specified in the related Competitive Bid Loan Quote Request.
(2) The principal amount bid for each Interest Period may not exceed the
principal amount of Competitive Bid Loans requested. Bids must be made
for a Dollar Equivalent Amount of at least $5,000,000 or a higher
integral multiple of $1,000,000.
(3) Indicate "LIBOR-based Margin" (in the case of LIBOR-based Loans), "CD
Rate Margin" (in the case of CD Rate Loans), "Base Rate Margin" (in the
case of Base Rate Loans) or "Absolute Rate" (in the case of Absolute
Rate Loans).
(4) Must be not less than seven days or more than 180 days, as specified in
the related Competitive Bid Loan Quote Request.
(5) For a LIBOR-based Loan, specify margin over or under the LIBO-Rate
determined for the applicable Interest Period. For a CD Rate Loan,
specify margin over or under the CD Rate determined for the applicable
Interest Period. For a Base Rate Loan, specify margin over or under
the Base Rate determined for the applicable Interest Period. In each
case, specify percentage (rounded to the nearest 1/10,000 of 1%) and
specify whether "PLUS" or "MINUS". For an Absolute Rate Loan, specify
rate of interest per annum (rounded to the nearest 1/10,000 of 1%).
-2-
124
Exhibit D
to
Credit Agreement
[Form of Competitive Bid Note]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
Promissory Note
$ , 1995
---------------- ---------------
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CORPORATION, a New York corporation (the "Borrower"), hereby promises to pay to
the order of ____________________ (the "Lender) on the Competitive Bid Loan
Maturity Date of each Competitive Bid Loan made by the Lender to the Borrower
pursuant to the Agreement described below, the lesser of (i) the principal sum
_________________ of Dollars ($__________) or (ii) the unpaid principal amount
of all such Competitive Bid Loans made by the Lender maturing on such
Competitive Bid Loan Maturity Date. The Borrower further promises to pay to the
order of the Lender interest on the unpaid principal amount of each such
Competitive Bid Loan from time to time outstanding at the rate or rates per
annum determined pursuant to Section 2.03 of, or as otherwise provided in, the
Agreement, payable on the dates set forth in Sections 2.03(k) and 2.14 of, or as
otherwise provided in, the Agreement.
This Competitive Bid Note is one of the "Competitive Bid Notes"
referred to in, and is entitled to the benefits provided by, the Short Term
Revolving Credit Agreement dated as of September 20, 1995, by and among the
Borrower, the lenders parties thereto, Mellon Bank, N.A., as Funding Agent for
the lenders, and National Westminster Bank PLC, as Administrative Agent for the
lenders (as the same may from time to time be amended or modified, the
"Agreement"). Said Agreement, among other things, contains provisions for
acceleration of the maturity of Competitive Bid Loans evidenced hereby upon the
happening of certain stated events, upon the terms and conditions therein
specified. Terms defined in the Agreement shall have the same meanings herein.
Subject to the provisions of the Agreement, payments of both
principal and interest shall be made at the office of Mellon Bank, N.A. located
at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in lawful money of
the United States of America in immediately available funds.
Except as otherwise set forth in the Agreement, the Borrower
hereby expressly waives presentment, demand, notice,
125
protest and all other demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this Competitive Bid Note and
the Agreement, and an action for amounts due hereunder or thereunder shall
immediately accrue.
This Competitive Bid Note shall be governed by and construed
and enforced in accordance with the laws of the State of New York.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
By
---------------------------
Title
------------------------
-2-
126
Exhibit E
to
Credit Agreement
Quarterly Compliance Certificate
I have conducted a review of the terms and conditions of the
Short Term Revolving Credit Agreement dated as of September 20, 1995, (the
"Agreement"), the Notes and the other Loan Documents, and the financial
statements of the Borrower. Defined terms used herein without definition are
used as defined in the Agreement. Such review has not disclosed nor does the
signer have any knowledge of the existence as of the date of this certificate of
any condition or event which constitutes a Potential Default or Event of
Default.
I further certify that all representations and warranties
contained in the Agreement are true and correct in all material respects with
the same effect as though such representations and warranties were made on the
date of this certificate.
Attached are Schedules 1, 2 and 3 which are detailed
calculations indicating compliance with the covenants contained in Sections
6.01, 6.02 and 6.03 of the Agreement as of the date of this certificate.
Date: By:
-------------------
Title:
----------------
127
Exhibit F
to
Credit Agreement
TRANSFER SUPPLEMENT
THIS TRANSFER SUPPLEMENT, dated as of the date specified in
Item 1 of Schedule I hereto, among the Transferor Lender specified in Item 2 of
Schedule I hereto (the "Transferor Lender"), each Purchasing Lender specified in
Item 3 of Schedule I hereto (each a "Purchasing Lender"), Mellon Bank, N.A., as
Funding Agent for the Lenders under the Short Term Revolving Credit Agreement
described below and National Westminster Bank PLC, as Administrative Agent for
the Lenders under the Credit Agreement described below.
Recitals:
A. This Transfer Supplement is being executed and delivered
in accordance with Section 9.14(c) of the Short Term Revolving Credit Agreement,
dated as of September 20, 1995, by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation, a New
York corporation (the "Borrower"), the Lenders parties thereto from time to
time, Mellon Bank, N.A., a national banking association, Funding Agent for the
Lenders and National Westminster Bank PLC, as Administrative Agent for the
Lenders (as the same may be amended, modified or supplemented from time to time,
the "Credit Agreement"). Capitalized terms used herein without definition have
the meaning specified in the Credit Agreement.
B. Each Purchasing Lender (if it is not already a Lender)
wishes to become a Lender party to the Credit Agreement.
C. The Transferor Lender is selling and assigning to each
Purchasing Lender, and each Purchasing Lender is purchasing and assuming, a
certain portion of the Transferor Lender's rights and obligations under the
Credit Agreement, including, without limitation, the Transferor Lender's
Commitments and Loans owing to it and any Notes held by it (the "Transferor
Lender's Interests").
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Transfer Effective Notice. Upon receipt by the
Administrative Agent of five counterparts of this Transfer Supplement (to each
of which is attached a fully completed Schedule I and Schedule II), and each of
which has been executed by the Transferor Lender, by each Purchasing Lender and
by any other Person required by Section 9.14(c) of the Credit Agreement to
execute this Transfer Supplement, the Administrative Agent will transmit to the
Borrower, the Transferor Lender and each Purchasing Lender a transfer effective
notice, substantially in the form of Schedule III to this Transfer Supplement (a
"Transfer Effective Notice"). The date specified in such Transfer Effective
Notice as the date on which the transfer effected by this Transfer Supplement
shall become effective (the "Transfer Effective Date")
128
shall be the fifth Business Day following the date of such Transfer Effective
Notice or such other date as shall be agreed upon among the Transfer Lender, the
Purchasing Lender, the Funding Agent, the Administrative Agent and the Borrower.
From and after the Transfer Effective Date each Purchasing Lender (if not
already a Lender party to the Credit Agreement) shall be a Lender party to the
Credit Agreement for all purposes thereof having the respective interests in the
Transferor Lender's interests reflected in this Transfer Supplement.
2. Purchase Price; Sale. At or before 12:00 Noon, local time
at the Transferor Lender's office specified in Schedule III, on the Transfer
Effective Date, each Purchasing Lender shall pay to the Transferor Lender, in
immediately available funds, an amount equal to the purchase price, as agreed
between the Transferor Lender and such Purchasing Lender (the "Purchase Price"),
of the portion being purchased by such Purchasing Lender (such Purchasing
Lender's "Purchased Percentage") of the Transferor Lender's Interests. Effective
upon receipt by the Transferor Lender of the Purchase Price from a Purchasing
Lender, the Transferor Lender hereby irrevocably sells, assigns and transfers to
such Purchasing Lender, without recourse, representation or warranty (express or
implied) except as set forth in Section 6 hereof, and each Purchasing Lender
hereby irrevocably purchases, takes and assumes from the Transferor Lender such
Purchasing Lender's Purchased Percentage of the Transferor Lender's Interests.
The Transferor Lender shall promptly notify the Administrative Agent of the
receipt of the Purchase Price from a Purchasing Lender ("Purchase Price Receipt
Notice"). Upon receipt by the Administrative Agent of such Purchase Price
Receipt Notice, the Administrative Agent shall record in the Register the
information with respect to such sale and purchase as contemplated by Section
9.14(d) of the Credit Agreement.
3. Principal, Interest and Fees. All principal payments,
interest, fees and other amounts that would otherwise be payable from and after
the Transfer Effective Date to or for the account of the Transferor Lender in
respect of the Transferor Lender's Interests shall, instead, be payable to or
for the account of the Transferor Lender and the Purchasing Lenders, as the case
may be, in accordance with their respective interests as reflected in this
Transfer Supplement.
4. Closing Documents. Concurrently with the execution and
delivery hereof, the Transferor Lender will request that the Borrower provide to
each Purchasing Lender (if it is not already a Lender party to the Credit
Agreement) conformed copies of all documents delivered to such Transferor Lender
on the Closing Date in satisfaction of conditions precedent set forth in the
Credit Agreement.
-2-
129
5. Further Assurances. Each of the parties to this Transfer
Supplement agrees that at any time and from time to time upon the written
request of any other party, it will execute and deliver such further documents
and do such further acts and things as such other party may reasonably request
in order to effect the purposes of this Transfer Supplement.
6. Certain Representations and Agreements. By executing and
delivering this Transfer Supplement, the Transferor Lender and each Purchasing
Lender confirm to and agree with each other and the Administrative Agent, the
Funding Agent and the Lenders as follows:
(a) Other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, the Transferor Lender makes no
representation or warranty and assumes no responsibility with respect
to (i) the execution, delivery, effectiveness, enforceability,
genuineness, validity or adequacy of the Credit Agreement or any other
Loan Document, (ii) any recital, representation, warranty, document,
certificate, report or statement in, provided for in, received under or
in connection with, the Credit Agreement or any other Loan Document, or
(iv) the existence, validity, enforceability, perfection, recordation,
priority, adequacy or value, now or hereafter, of any Lien or other
direct or indirect security afforded or purported to be afforded by any
of the Loan Documents or otherwise from time to time.
(b) The Transferor Lender makes no representation or warranty
and assumes no responsibility with respect to (i) the performance or
observance of any of the terms or conditions of the Credit Agreement or
any other Loan Document on the part of the Borrower or any other
Borrower, (ii) the business, operations, condition (financial or
otherwise) or prospects of the Borrower or any other Borrower or any
other Person, or (iii) the existence of any Event of Default or
Potential Default.
(c) Each Purchasing Lender confirms that it has received a
copy of the Credit Agreement and each of the other Loan Documents,
together with copies of the financial statements referred to in Section
3.06 thereof, the most recent financial statements delivered pursuant
to Section 5.01 thereof, if any, and such other documents and
information as it has deemed appropriate to make its own credit and
legal analysis and decision to enter into this Transfer Supplement.
Each Purchasing Lender confirms that it has made such analysis and
decision independently and without reliance upon the Administrative
Agent, the Funding Agent, the Transferor Lender or any other Lender.
-3-
130
(d) Each Purchasing Lender, independently and without reliance
upon the Administrative Agent, the Funding Agent, the Transferor Lender
or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, will make its own decisions to take
or not take action under or in connection with the Credit Agreement or
any other Loan Document.
(e) Each Purchasing Lender irrevocably appoints (i) the
Administrative Agent to act as Administrative Agent for such Purchasing
Lender under the Agreement and the other Loan Documents and (ii) the
Funding Agent to act as Funding Agent for such Purchasing Lender under
the Agreement and the other Loan Documents, all in accordance with
Article VIII of the Credit Agreement and the other provisions of the
Credit Agreement and the other Loan Documents.
(f) Each Purchasing Lender agrees that it will perform in
accordance with their terms all of the obligations which by the terms
of the Credit Agreement and the other Loan Documents are required to be
performed by it as a Lender.
7. Schedule II. Schedule II hereto sets forth the revised
Commitments of the Transferor Lender and each Purchasing Lender as well as
administrative information with respect to each Purchasing Lender.
8. Governing Law. This Transfer Supplement shall be governed
by, construed and enforced in accordance with the laws of the State of New York,
without regard to principles of choice of law.
9. Counterparts. This Transfer Supplement may be executed on
any number of counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Transfer Supplement to be executed by their respective duly authorized officers
on Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
-4-
131
Schedule I
to
Transfer Supplement
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Short Term Revolving Credit Agreement, dated as of September 20, 1995, by
and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation, a New York corporation (the
"Borrower"), the Lenders parties thereto from time to time, Mellon Bank
N.A., a national banking association, as Funding Agent for the Lenders and
National Westminster Bank PLC, as Administrative Agent for the Lenders (as
amended, modified or supplemented from time to time, the "Credit
Agreement")
Item 1 (Date of [Insert date of
Assignment Supplement): Assignment Supplement]
Item 2 (Transferor Lender): [Insert name of Transferor
Lender]
Item 3 (Purchasing Lender[s]): [Insert name[s] of
Purchasing Lender[s]]
Item 4 (Signatures of Parties
to Transfer Supplement):
[Name of Transferor Lender] ,
---------------------------------------
as Transferor Lender
By:
------------------------------------
Title:
[Name of Purchasing Lender] ,
--------------------------------------
as Purchasing Lender
By:
------------------------------------
Title:
[Name of Purchasing Lender] ,
-------------------------------------
as Purchasing Lender
By:
-------------------------------------
Title:
132
[Following two consents required
only when Purchasing Lender is not
already a Lender [or an Affiliate of
a Lender]]
CONSENTED TO AND ACKNOWLEDGED:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
By:
--------------------------------
Title:
NATIONAL WESTMINSTER BANK PLC,
as Administrative Agent
By:
--------------------------------
Title:
MELLON BANK, N.A., as Funding Agent
By:
--------------------------------
Title:
ACCEPTED FOR RECORDATION
IN PURCHASING LENDER REGISTER:
NATIONAL WESTMINSTER BANK PLC,
as Administrative Agent
By:
--------------------------------
Title:
-2-
133
Schedule II
to
Transfer Supplement
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITTED AMOUNTS
[Name of Transferor
Lender] Revised Commitment and Loan Amounts:
Revolving Credit
Committed Amount $
--------------
Additional Committed Amount $
--------------
Revised Commitment Percentage: --------------
[Name of Purchasing
Lender] New Commitment and Loan Amounts:
Revolving Credit
Committed Amount $
--------------
Additional Committed Amount $
--------------
New Commitment Percentage: --------------
Administrative Information
for Purchasing Lender:
Address:
---------------
---------------
Attention:
---------------
Telephone:
---------------
Telex:
---------------
(Answerback: )
Telecopier:
---------------
134
Schedule III
to
Transfer Supplement
Transfer Effective Notice
To: [Insert Name of Borrower, Transferor
Lender and each Purchasing Lender]
The undersigned, as Administrative Agent under the Short Term
Revolving Credit Agreement, dated as of September 20, 1995, by and among ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Corporation, a New York corporation (the "Borrower"), the Lenders
parties thereto from time to time, Mellon Bank N.A., a national banking
association, as Funding Agent for the Lenders and National Westminster Bank PLC,
as Administrative Agent for the Lenders (as amended, modified or supplemented
from time to time, the "Credit Agreement"), acknowledges receipt of five
executed counterparts of a completed Transfer Supplement, dated __________, 199_
, from [name of Transferor Lender] to [name of each Purchasing Lender] (the
"Transfer Supplement"). Terms defined in the Transfer Supplement are used
herein as therein defined.
1. Pursuant to the Transfer Supplement, you are advised that
the Transfer Effective Date will be __________, 199_. [Insert fifth Business
Day following date of Transfer Effective Notice or other date agreed to among
the Transferor Lender, the Purchasing Lender, the Administrative Agent, the
Funding Agent and the Borrower.]
2. Pursuant to Section 9.14(c) of the Credit Agreement, the
Transferor Lender has delivered to the Administrative Agent the Transferor
Lender Notes.
3. Section 9.14(c) of the Credit Agreement provides that the
Borrower is to deliver to the Administrative Agent on or before the Assignment
Effective Date the following Notes, each dated the date of the Note it replaces.
[Describe each new Revolving Credit Note and Competitive Bid
Note for Transferor Lender and Purchasing Lender as to date (as required by the
Credit Agreement), principal amount and payee.]
4. The Transfer Supplement provides that each Purchasing
Lender is to pay its Purchase Price to the Transferor Lender at or before 12:00
o'clock Noon, local time at the Transferor Lender's lending office specified in
Schedule II to the Transfer Supplement, on the Transfer Effective Date in
immediately available funds.
Very truly yours,
NATIONAL WESTMINSTER BANK PLC, as
Administrative Agent
By:
------------------------------
Title:
135
SCHEDULE 1.04
DESIGNATED SUBSIDIARIES
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Limited (Canada)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Constructors, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Real Estate Development Corporation
FW Management Operations, Ltd.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Iberia ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ France, S.A.
136
SCHEDULE 3.01
CORPORATE STATUS
State of Incorporation
----------------------
1. Borrower
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation New York
2. Significant Subsidiaries
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Italiana, S.p.A. Italy
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Limited United Kingdom
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Power Systems, Inc. Delaware
Glitsch International, Inc. Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ USA Corporation Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Energy Corporation Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Energia SpA Spain
3. Special Purpose Subsidiaries
Camden County Energy Recovery Corporation Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bedminster, Inc. Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bridgewater, Inc. Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ County, Inc. Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Camden County, Inc. Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Charleston Resource Recovery, Inc. Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Falls, Inc. Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mt. Carmel, Inc. Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Passaic, Inc. Delaware
La Societe d'Energie ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Ltd. Canada
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Penn Resources Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Twin Cities Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc. Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Facilities Delaware
Management Delaware, Inc.
FWPS Specialty Products, Inc. Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Illinois, Inc. Delaware
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Resources, Inc. Delaware
Chapleau Co-Generation Ltd. Canada
137
SCHEDULE 3.02
AUTHORIZATIONS
None
138
SCHEDULE 3.07
INDEBTEDNESS
BANK LOANS
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation
Revolving Credit Agreement $130,000,000
Short Term Credit Agreement 30,000,000
Uncommitted Lines of Credit $15,000,000
Banco Nationale Del Lavoro 20,000,000
Gulf International Bank 10,000,000 45,000,000
----------- ------------
$205,000,000
------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Italiana SpA
Banco Commerciale Italiana $2,640,559
Banco Nationale Del Lavoro 1,265,231
Credito Italiano 1,341,538
Instituto Bancario San Paolo Torino 1,677,538
Re: Foreign Exchange Hedging
Banca Commericale Italiana 1,119,407
Instituto Bancario San Paolo Torino 9,566,850 17,611,123
----------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Limited (Canada)
ABN-AMRO Bank (Can$) 4,187,647
Canadian Imperial Bank of
Commerce (Can$) 5,580,750
The Toronto Dominion Bank (Can$) 4,400,241
(US$) 4,000,000 18,168,638
----------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Energia, S.A.
Banesto (Pta) 4,170,087
National Westminster Bank (Pta) 2,424,291 6,594,378
----------- ------------
Glitsch International
Credit Lyonnais (FFR) 481,233
Banque Francaise Du Commerce
Exteriur (FFR) 125,259
Societe Generale (CZC) 370,600
Societe Generale (FFR) 631,975
Deutsche Bank (DEM) 102,285 1,711,352
----------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Power Systems
Bank of Montreal 11,161,500
------------
TOTAL BANK LOANS $260,246,991
============
139
SCHEDULE 3.11
SIGNIFICANT SUBSIDIARIES
Glitsch International, Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Italiana S.p.A. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Ltd. (U.K.) 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Power Systems, Inc. 100%
Camden County Energy Recovery Corporation 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ USA Corporation 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Energy Corporation 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Energia SpA 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bedminster, Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bridgewater, Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ County, Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Camden County, Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Charleston Resource Recovery, Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Falls, Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mt. Carmel, Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Passaic, Inc. 100%
La Societe d'Energie ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Ltd. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Penn Resources, Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Twin Cities, Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Facilities Management
Delaware, Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Illinois, Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Wood Resources, Inc. 100%
Chapleau Co-Generation Ltd. 100%
140
SCHEDULE 3.12
PARTNERSHIP INTERESTS
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
PERCENTAGE INTEREST
Adirondack Resource Recovery Associates 80%
Crossroads Business Center Associates 50%
Camden County Energy Recovery Associates 100%
Fiat Avio-▇▇▇▇▇▇ ▇▇▇▇▇▇▇ per I'Energia SpA 40%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Crossroads Limited Partnership 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Somerset Limited Partnership 100%
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Limited Partnership 50%
Somerset Corporate Center Associates 50%
Cogeneradora Petropower Limitada 85%
▇▇▇▇▇▇▇ Resource Recovery Partners L.P. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Greenhouses, L.P. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Coque Verde, L.P. 100%
Compania De Hidrogeno ▇▇ ▇▇▇▇▇▇▇▇▇▇ Ltde 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Power Machinery Company, Ltd. 52%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Group Holding Ltd. 49%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Petroleum Development & Associates Ltd 49%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Nigeria) Ltd 60%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Pty) Ltd. 50%
Sorco AS 44.4%
Project Management Holdings Ltd 25%
Fibrowatt Ltd 20%
141
SCHEDULE 3.21
ENVIRONMENTAL MATTERS
3.21(a) Requirements of Law
None
3.21(b) Environmental Permits
None
3.21(c) Continuation of Requirements of Law and Environmental Permits
None
3.21(e) Notice of Claims Etc.
None
3.21(f) Government Notices of Any Liens
None
142
GUARANTEES
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation on Behalf of:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 18,142,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Crossroads-Bedminster 2,750,000
Somerset Corporate Center-Bridgewater 6,444,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Andina 2,000,000
Centro Energia 7,180,000 36,516,000
---------- ----------
Glitsch International
Glitsch Japan ((Y)147,000,000) 1,434,146
TOTAL GUARANTEES 37,950,146
----------
143
LONG TERM DEBT
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation
8.58% Unsecured Promissory Notes
Due 10/1/98 88,000,000
-----------
Special Purpose Project Debt
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
Collateralized note payable, interest varies
based on one of several money market rates,
(1994 Year end rate 4%) due semiannually
January 31, 1989 through July 20, 2006 56,886,660
-----------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mt. Carmel, Inc.
Floating/Fixed rate Resource Recovery Revenue
Bonds, interest varies based on tax-exempt
money market rates, due semiannually 3,104,221
August 1, 1990 through February 1, 1996 48,552,334
-----------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Falls, Inc.
Resource Recovery Revenue Bonds, interest 7.90%
to 10.00%, due annually December 15, 1995
through 2012 75,804,987
-----------
Camden County Energy Recovery Associates
Solid Waste Disposal and Resource
Recovery System revenue Bonds, interest
at fixed rates between 7.125% and 7.50%
due annually December 1, 1999 through
December 1, 2010 120,150,000
-----------
TOTAL PROJECT DEBT 301,393,981
-----------
Other Long Term Debt
Glitsch International
Medio Credito Di Roma 354,403
EfiBanca 1,213,283 1,567,686
----------- -----------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Italiana
Government of Italy Ministry of Industry 492,308
-----------
TOTAL LONG TERM DEBT 391,453,975
-----------
144
SCHEDULE 6.02
LIENS
I ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Italiana
Banca Commerciale Italiana $ 1,119,407 Pledge Securities
Instituto Bancario San Paolo Torino 9,566,850 Pledge Securities
---------
10,686,257
---------
II ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Energia
Banesto $ 4,170,087 Receivables
National Westminster 2,424,291 Receivables
---------
6,594,378
---------
TOTAL LIENS $17,280,635
===========