EXHIBIT 10.2
EXECUTION COPY
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$139,750,000
5 - YEAR CREDIT AGREEMENT
among
DOW ▇▇▇▇▇ & COMPANY, INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
LLOYDS TSB BANK PLC
and
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as Co-Documentation Agents,
THE BANK OF NEW YORK
and
FLEET NATIONAL BANK,
as Co-Syndication Agents,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of June 25, 2001
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Lead Arranger and Book Runner
Table Of Contents
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Page
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 12
SECTION 2. AMOUNT AND TERMS OF LOAN COMMITMENTS 12
2.1 Revolving Credit Commitments 12
2.2 The Competitive Loans 13
2.3 Type of Revolving Credit Loans 16
2.4 Fees 17
2.5 Termination or Reduction of Loan Commitments 17
2.6 Repayment of Loans 18
2.7 Optional Prepayments 18
2.8 Interest Rate and Payment Dates 18
2.9 Computation of Interest and Fees 19
2.10 Inability to Determine Interest Rate 19
2.11 Pro Rata Borrowings and Payments 20
2.12 Taxes 21
2.13 Illegality 24
2.14 Requirements of Law 24
2.15 Indemnity 25
2.16 Increase of Loan Commitments 25
SECTION 3. REPRESENTATIONS AND WARRANTIES 26
3.1 Financial Condition 26
3.2 No Change 26
3.3 Corporate Existence; Compliance with Law 26
3.4 Corporate Power; Authorization; Enforceable Obligations 27
3.5 No Legal Bar 27
3.6 No Material Litigation 27
3.7 No Default 27
3.8 Ownership of Property; Liens 27
3.9 No Burdensome Restrictions 28
3.10 Taxes 28
3.11 Federal Regulations 28
3.12 ERISA 28
3.13 Investment Company Act 28
3.14 Subsidiaries 28
3.15 Purpose of Loans 28
SECTION 4. CONDITIONS PRECEDENT 29
4.1 Conditions to Effectiveness 29
Page
4.2 Conditions to All Loans 29
SECTION 5. AFFIRMATIVE COVENANTS 30
5.1 Financial Statements 30
5.2 Certificates; Other Information 30
5.3 Payment of Obligations 31
5.4 Conduct of Business and Maintenance of Existence 31
5.5 Maintenance of Property; Insurance 31
5.6 Inspection of Property; Books and Records; Discussions 31
5.7 Notices 32
SECTION 6. NEGATIVE COVENANTS 33
6.1 Limitation on Liens 33
6.2 Limitation on Mergers and Sales of Assets 34
6.3 Maintenance of Ratio of Consolidated Total Indebtedness to Annualized
Consolidated Cash Flow. 34
6.4 Maintenance of Ratio of Annualized Consolidated Cash Flow 34
SECTION 7. EVENTS OF DEFAULT 34
SECTION 8. THE ADMINISTRATIVE AGENT 36
8.1 Appointment 36
8.2 Delegation of Duties 37
8.3 Exculpatory Provisions 37
8.4 Reliance by Administrative Agent 37
8.5 Notice of Default 37
8.6 Non-Reliance on Administrative Agent; Other Lenders 38
8.7 Indemnification 38
8.8 Administrative Agent in Its Individual Capacity 39
8.9 Successor Administrative Agent 39
8.10 Documentation Agent and Syndication Agent 39
SECTION 9. MISCELLANEOUS 39
9.1 Amendments and Waivers 39
9.2 Notices 40
9.3 No Waiver; Cumulative Remedies 40
9.4 Survival of Representations and Warranties 40
9.5 Payment of Expenses and Taxes 40
9.6 Successors and Assigns; Participations; Purchasing Lenders 41
9.7 Adjustments; Set-off 45
9.8 Counterparts 45
9.9 Severability 45
9.10 Integration 46
9.11 Governing Law 46
9.12 Submission To Jurisdiction; Waivers 46
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Page
Schedules
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1.1 Loan Commitments
3.14 Subsidiaries of the Company
6.1 Existing Liens
9.2 Names and Addresses of Lenders
Exhibits
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A Form of Borrowing Notice for Revolving Credit Loans
B Form of Competitive Loan Request
C Form of Competitive Loan Offer
D Form of Competitive Loan Confirmation
E Form of Exemption Certificate
F Form of Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President, General
Counsel and Secretary
G Form of Officer's Certificate
H Form of Certificate of the Secretary of the Company
I Form of Competitive Loan Assignment
J Form of Assignment and Acceptance
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CREDIT AGREEMENT, dated as of June 25, 2001, among DOW ▇▇▇▇▇ & COMPANY,
INC., a Delaware corporation (the "Company"), the several banks and other
financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), LLOYDS TSB BANK PLC and WESTDEUTSCHE LANDESBANK
GIROZENTRALE, as co-documentation agents (in such capacity, the
"Documentation Agent"), THE BANK OF NEW YORK and FLEET NATIONAL BANK, as co-
syndication agents (in such capacity, the "Syndication Agent"), and THE CHASE
MANHATTAN BANK, as administrative agent (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Administrative Agent and certain of the
Lenders are parties to the Amended and Restated Credit Agreement dated as of
June 27, 2000, as amended (the "Existing Credit Agreement"), and the parties
hereto wish to replace the Existing Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms As used in this Agreement, the following terms
have the following meanings:
"Absolute Rate Competitive Loan Request": any Competitive Loan Request
requesting the Competitive Loan Lenders to offer to make Competitive Loans at
an absolute rate (as opposed to a rate composed of the Applicable Index Rate
plus (or minus) a margin).
"Affiliate": any Person (other than a Subsidiary) which, directly or
indirectly, is in control of, is controlled by, or is under common control
with such Person. For purposes of this definition, control of a Person shall
mean the power, direct or indirect, (i) to vote 10% or more of the securities
having ordinary voting power for the election of directors of such Person or
(ii) to direct or cause the direction of the management and policies of such
Person whether by contract or otherwise.
"Aggregate Loan Commitments": at any time, the sum of the aggregate
amount of the Loan Commitments then in effect and the aggregate amount of the
Loan Commitments (as defined in the Other Agreement) then in effect.
"Aggregate Loans": at a particular time, the sum of the then
outstanding principal amount of Revolving Credit Loans and Competitive Loans.
"Agreement": this Revolving Credit Agreement, as amended, supplemented
or modified from time to time.
"Alternate Base Rate": at any particular date, the highest of (a) the
Prime Rate, (b) 1/2 of 1% above the rate set forth for such date opposite the
caption "Federal Funds (Effective)" in the weekly statistical release
designated as "H.15 (519)," or any successor publication, published by the
Board of Governors of the Federal Reserve System and (c) the Base CD Rate in
effect on such date plus 1%. "Base CD Rate" shall mean a rate per annum
equal to the following:
Three-Month Secondary CD Rate + Assessment Rate
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1.00 - Reserve Percentage
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect on
such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board of Governors of the Federal Reserve System through
the public information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board of Governors of
the Federal Reserve System, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such rate shall
not be so reported on such day or such next preceding Business Day, the
average of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at
approximately 10:00 a.m., New York City time, on such day (or, if such day
shall not be a Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Base CD
Rate or the rate set forth in clause (b) above or both for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms thereof, the Alternate
Base Rate shall be determined without regard to clause (b) or (c), or both,
of the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any change in
the Alternate Base Rate due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the rate set forth in clause (b) shall be effective on
the effective day of such change in the such rate.
"Alternate Base Rate Loans": Revolving Credit Loans at such time as
they are made and/or being maintained at a rate of interest based upon the
Alternate Base Rate.
"Annualized Consolidated Cash Flow": as at the last day of any fiscal
quarter of the Company the Consolidated Cash Flow for the period of four
consecutive fiscal quarters ending on such day.
"Annualized Consolidated Interest Expense": as at the last day of any
fiscal quarter of the Company the Consolidated Interest Expense for the
period of four consecutive fiscal quarters ending on such day.
"Applicable Facility Fee Percentage": on any date, the rate per annum
set forth below which corresponds with the then current rating of the
Company's senior unsecured long-term debt issued by S&P and ▇▇▇▇▇'▇
respectively.
Ratings Applicable Facility Fee
Percentage
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AA-/Aa3 or higher 0.08%
A+/A1 0.09%
A/A2 or lower 0.10%
Changes in the Applicable Facility Fee Percentage shall become
effective on the date on which S&P and/or ▇▇▇▇▇'▇ changes the rating it has
issued for the Company's senior unsecured long-term debt. In the event of
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split ratings, the lower of such ratings shall apply; if only one of such two
agencies issues a rating, such rating shall apply.
"Applicable Index Rate": in respect of any Competitive Loan requested
pursuant to an Index Rate Competitive Loan Request, the Eurodollar Rate
applicable to the Interest Period for such Competitive Loan.
"Applicable Margin": on any date with respect to the Loans comprising
any Eurodollar Loans, the rate per annum set forth below which corresponds
with the then current rating of the Company's senior unsecured long-term debt
issued by S&P and ▇▇▇▇▇'▇ respectively.
Ratings Applicable Margin
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AA-/Aa3 or higher 0.17%
A+/A1 0.21%
A/A2 or lower 0.25%
Changes in the Applicable Margin shall become effective on the date on
which S&P and/or ▇▇▇▇▇'▇ changes the rating it has issued for the Company's
senior unsecured long-term debt. In the event of split ratings, the lower of
such ratings shall apply; if only one of such two agencies issues a rating,
such rating shall apply.
"Assessment Rate": for any day, the annual assessment rate in effect
on such day that is payable by a member of the Bank Insurance Fund maintained
by the Federal Deposit Insurance Corporation (the "FDIC") classified as well-
capitalized and within supervisory subgroup "B" (or a comparable successor
assessment risk classification) within the meaning of 12 C.F.R. 327.4 (or any
successor provision) to the FDIC (or any successor) for the FDIC's (or such
successor's) insuring time deposits at offices of such institution in the
United States.
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit J.
"Available Loan Commitment": as to any Lender, at a particular time,
an amount equal to such Lender's Commitment Percentage multiplied by the
difference between (a) the amount of the Loan Commitments at such time and
(b) the Aggregate Loans at such time; collectively, as to all the Lenders,
the "Available Loan Commitments."
"Base CD Rate": as defined in the definition of Alternate Base Rate.
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrowing Date": in respect of any Revolving Credit Loan, the date on
which such Revolving Credit Loan is made.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close.
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"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Closing Date": the date on which the conditions in Section 4 are
satisfied in full, which shall be a Business Day which is on or before the
date of the initial Loans.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Combined Loan Commitments": as to any Lender at any time, the sum of
such Lender's Loan Commitment then in effect and such Lender's Loan
Commitment (as defined in the Other Agreement) then in effect.
"Commitment Percentage": as to any Lender, the percentage of the
aggregate Loan Commitments constituted by such Lender's Loan Commitment, set
forth opposite such Lender's name on Schedule 1.1 hereto.
"Commitment Period": the period from and including the Closing Date to
but not including the Maturity Date or such earlier date as the Loan
Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Company within the meaning of Section
414(b) or (c) of the Code.
"Competitive Loan": each Competitive Loan made pursuant to subsection
2.2; the aggregate amount advanced by a Competitive Loan Lender pursuant to
subsection 2.2 on each Competitive Loan Date shall constitute one or more
Competitive Loans, as specified by such Competitive Loan Lender pursuant to
subsection 2.2(b)(vi).
"Competitive Loan Assignees": as defined in subsection 9.6(c).
"Competitive Loan Assignment": a Competitive Loan Assignment,
substantially in the form of Exhibit I.
"Competitive Loan Confirmation": each confirmation by the Company of
its acceptance of Competitive Loan Offers, which Competitive Loan
Confirmation shall be substantially in the form of Exhibit D and shall be
delivered to the Administrative Agent in writing, by telex or by facsimile
transmission.
"Competitive Loan Date": each date on which a Competitive Loan is made
pursuant to subsection 2.2.
"Competitive Loan Lenders": Lenders from time to time offering
Competitive Loans.
"Competitive Loan Offer": each offer by a Competitive Loan Lender to
make Competitive Loans pursuant to a Competitive Loan Request, which
Competitive Loan Offer shall contain the information specified in Exhibit C
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and shall be delivered to the Administrative Agent by telephone, immediately
confirmed by telex or facsimile transmission.
"Competitive Loan Request": each request by the Company for
Competitive Loan Lenders to submit bids to make Competitive Loans, which
shall contain the information in respect of such requested Competitive Loans
specified in Exhibit B and shall be delivered to the Administrative Agent in
writing, by telex or facsimile transmission, or by telephone, immediately
confirmed by telex or facsimile transmission.
"Consolidated Cash Flow": for any period, Consolidated Net Income of
the Company and its Subsidiaries for such period plus the aggregate amounts
deducted in determining such Consolidated Net Income in respect of (i)
Consolidated Interest Expense, (ii) amortization expenses, (iii) depreciation
expenses and (iv) income taxes, each of clauses (i), (ii), (iii) and (iv)
determined in accordance with GAAP, but after deducting in the calculation
thereof, (a) income representing equity in the earnings of Affiliates not
received in cash or, as the case may be, after restoring thereto deductions
representing equity in the losses of Affiliates for which neither the Company
nor any of its Subsidiaries is liable and (b) non-cash charges taken on or
prior to December 31, 2000 in respect of a writedown of the equity investment
of the Company in Bridge Information Systems and (c) non-cash charges taken
on or prior to June 30, 2001 in respect of the Guarantee Obligations of the
Company in connection with the contract for data, dated February 27, 1995,
entered into between Telerate, a Subsidiary of Bridge Information Systems,
Cantor ▇▇▇▇▇▇▇▇▇▇ Securities and Market Data Corporation.
"Consolidated Interest Expense": for any period, interest expense of
the Company and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income": for any period, the consolidated net income
(or deficit) of the Company and its Subsidiaries for such period (taken as a
cumulative whole), determined in accordance with GAAP.
"Consolidated Net Worth": at a particular date, all amounts which
would be included under shareholders' equity on a consolidated balance sheet
of the Company and its Subsidiaries at such date, determined in accordance
with GAAP.
"Consolidated Total Capitalization": at a particular date, the sum of
Consolidated Net Worth and Consolidated Total Indebtedness.
"Consolidated Total Indebtedness": at a particular date, all items
which would, in conformity with GAAP, be classified as Indebtedness on a
consolidated balance sheet of the Company and its Subsidiaries as at such
date, but in any event including without any duplication (a) indebtedness
arising under acceptance facilities and the face amount of all letters of
credit issued for the account of the Company or any Subsidiary and all drafts
drawn thereunder, (b) all Indebtedness secured by any Lien on any property
owned by the Company or any Subsidiary even though the Company or such
Subsidiary has not assumed or otherwise become liable for the payment thereof
and (c) all Guarantee Obligations of the Company and its Subsidiaries in
respect of Indebtedness of other Persons.
5
"Continuing Directors": the directors of the Company on the Closing
Date and each other director, if, in each case, such other director's
nomination for election to the board of directors of the Company is
recommended by at least a majority of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking
to which such Person is a party or by which it or any of its property is
bound.
"Default": any of the events specified in Section 7, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Page
3750 of the Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate screen (or otherwise on such
screen), the "Eurodollar Base Rate" shall be determined by reference to such
other comparable publicly available service for displaying eurodollar rates
as may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is
offered Dollar deposits at or about 11:00 A.M., New York City time, two
Business Days prior to the beginning of such Interest Period in the interbank
eurodollar market where its eurodollar and foreign currency and exchange
operations are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such
day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
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Eurodollar Base Rate
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1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 7, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, event or act has been satisfied.
"Existing Credit Agreement": as defined in the recitals hereto.
"Facility Fee": as defined in subsection 2.4; collectively, the
"Facility Fees."
"Financing Lease": (a) any lease of property, real or personal, the
then present value of the minimum rental commitment under which is required
to be capitalized on a consolidated balance sheet of the Company and its
Subsidiaries in accordance with GAAP, and (b) any other such lease to the
extent that the obligations thereunder are capitalized on a balance sheet of
the lessee.
"GAAP": generally accepted accounting principles in the United States
of America in effect from time to time except that for purposes of
subsections 6.3 and 6.4, GAAP shall be determined on the basis of such
principles in effect on the date hereof and consistent with those used in the
preparation of the most recent audited financial statements delivered
pursuant to subsection 3.1.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not
contingent (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c)
to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (d) otherwise
to assure or hold harmless the owner of any such primary obligation against
loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guarantee
Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
Company in good faith.
"Indebtedness": of a Person, at a particular date, the sum (without
duplication) at such date of (a) indebtedness for borrowed money (including,
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without limitation, any indebtedness evidenced by any note, bond, debenture
or other instrument) or for the deferred purchase price of property or
services in respect of which such Person is liable, as obligor, other than
accounts payable for the deferred purchase price of property or services
incurred in the ordinary course of business and which are not in excess of 90
days past the invoice or billing date, or if in excess of 90 days past the
invoice or billing date are being contested in good faith by appropriate
actions or proceedings, (b) obligations of such Person under Financing Leases
and (c) any obligations of such Person in respect of letters of credit,
acceptances, or similar obligations issued or created for the account of such
Person.
"Index Rate Competitive Loan Request": any Competitive Loan Request
requesting the Competitive Loan Lenders to offer to make Competitive Loans at
an interest rate equal to the Applicable Index Rate plus (or minus) a margin.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is Insolvent within the meaning of such term as used in
Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan, the
last day of each March, June, September and December, commencing on the first
of such days to occur after Alternate Base Rate Loans are made, (b) as to any
Eurodollar Loan in respect of which the Company has selected an Interest
Period of one, two or three months, the last day of such Interest Period and
(c) as to any Eurodollar Loan in respect of which the Company has selected a
longer Interest Period than the periods described in clause (b) above, the
last day of each March, June, September and December falling within such
Interest Period and the last day of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar Loan, the period
commencing on the Borrowing Date with respect to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the Company
in its notice of borrowing as provided in subsection 2.1(d);
(b) with respect to any Alternate Base Rate Loan, the period
commencing on the Borrowing Date with respect to such Alternate Base Rate
Loan and ending on the earliest to occur of the last day of March, June,
September or December following such Borrowing Date;
(c) with respect to any Competitive Loan made pursuant to a
Competitive Loan Request, the period commencing on the Competitive Loan Date
with respect to such Competitive Loan and ending on the date not less than 7
nor more than 180 days thereafter, as specified by the Company in such
Competitive Loan Request;
provided that the foregoing provisions are subject to the following:
(A) if any Interest Period pertaining to a Eurodollar Loan or a
Competitive Loan made pursuant to an Index Rate Competitive Loan Request
would otherwise end on a day which is not a Working Day, that Interest
Period shall be extended to the next succeeding Working Day unless the
result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on
the immediately preceding Working Day;
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(B) any Interest Period pertaining to a Eurodollar Loan that begins on
the last Working Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Working Day of a calendar month;
(C) if any Interest Period pertaining to an Alternate Base Rate Loan
or a Competitive Loan made pursuant to an Absolute Rate Competitive Loan
Request would otherwise end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day;
(D) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on such Maturity Date; and
(E) the Company shall select Interest Periods so as not to require a
prepayment of any Eurodollar Loan during an Interest Period for such
Loan.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority
or other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other
title retention agreement, any Financing Lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction in respect of any of the foregoing).
"Loan" and "Loans": the collective reference to the Revolving Credit
Loans and the Competitive Loans.
"Loan Commitment": as to any Lender, the obligation of such Lender, if
any, to make Revolving Credit Loans in an aggregate principal amount not to
exceed the amount set forth under the heading "Loan Commitment" opposite such
Lender's name on Schedule 1.1 or in the Assignment and Acceptance pursuant to
which such Lender became a party hereto, as the same may be changed from time
to time pursuant to the terms hereof (including, without limitation, pursuant
to the provisions of the second sentence of subsection 2.1(a)). The original
aggregate amount of the Loan Commitments is $139,750,000.
"Margin Stock": "margin stock" as such term is defined in Regulation U
of the Board of Governors of the Federal Reserve System.
"Maturity Date": means June 24, 2006.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Notes": the collective reference to any promissory notes evidencing
Loans.
"Other Agreement": the 364-Day Credit Agreement.
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"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any Note.
"Participants": as defined in subsection 9.6(b).
"Payment Sharing Notice": a written notice from the Company, or any
Lender, informing the Administrative Agent that an Event of Default has
occurred and is continuing and directing the Administrative Agent to allocate
payments thereafter received from the Company in accordance with subsection
2.11(c).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at any particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate": the rate of interest publicly announced by The Chase
Manhattan Bank in New York, New York from time to time as its prime rate.
The Prime Rate is not intended to be the lowest rate of interest charged by
The Chase Manhattan Bank in connection with extensions of credit to debtors.
"Purchasing Lenders": as defined in subsection 9.6(d).
"Ratings": the ratings of Moody's and S&P applicable to the Company's
senior unsecured non-credit-enhanced long-term debt obligations.
"Refunding Borrowing": a borrowing of Revolving Credit Loans which,
after application of the proceeds thereof, results in no net increase in the
aggregate outstanding principal amount of Revolving Credit Loans made by any
Lender.
"Register": as defined in subsection 9.6(e).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of such term
as used in Section 4245 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA or the regulations thereunder.
"Required Lenders": at any date, Lenders having Loan Commitments
aggregating over one-half of the total Loan Commitments (or, at any time the
Loan Commitments have expired or terminated, the Lenders having over one-half
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of the total Loans then outstanding).
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Reserve Percentage": for any day, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor), for determining
the maximum reserve requirement for a Depository Institution (as defined in
Regulation D of such Board as in effect from time to time) in respect of new
non-personal time deposits in Dollars having a maturity of 30 days or more.
"Responsible Officer": the Chief Executive Officer or the President of
the Company or, with respect to financial matters, the Chief Financial
Officer of the Company.
"Revolving Credit Loans": Loans made pursuant to subsection 2.1;
individually a "Revolving Credit Loan."
"S&P": Standard & Poor's Corporation.
"Single Employer Plan": any Plan which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers
of such corporation, partnership, limited liability company or other entity
are at the time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Company.
"Syndication Agent": as defined in the preamble hereto.
"Termination Date": June 24 2006, or such earlier date on which the
Loan Commitments are terminated.
"364-Day Credit Facility": the 364-Day Credit Facility, dated as of
the date hereof, among the Company, the several banks and other financial
institutions or entities from time to time parties thereto, Lloyds TSB Bank
plc and Westdeutsche Landesbank Girozentrale, as co-documentation agents, The
Bank of New York and Fleet National Bank, as co-syndication agents, and The
Chase Manhattan Bank, as administrative agent.
"Three-Month Secondary CD Rate": as defined in the definition of
Alternate Base Rate.
"Transfer Effective Date": as defined in each Assignment and
Acceptance.
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"Transferees": as defined in subsection 9.6(g).
"Type": as to any Revolving Credit Loan, its nature as an Alternate
Base Rate Loan or a Eurodollar Loan.
"Utilization Fee": as defined in subsection 2.4(b).
"Working Day": any day on which dealings in foreign currencies and
exchange between banks may be carried on in London, England and in New York,
New York.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
herein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto or thereto, (i) accounting terms
relating to the Company and its Subsidiaries not defined in subsection 1.1
and accounting terms partly defined in subsection 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP, (ii)
the words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation," (iii) the word "incur" shall be
construed to mean incur, create, issue, assume or become liable in respect of
(and the words "incurred" and "incurrence" shall have correlative meanings),
and (iv) the words "asset" and "property" shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, Capital Stock, securities, revenues,
accounts, leasehold interests and contract rights.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
SECTION 2. AMOUNT AND TERMS OF LOAN COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit
loans (individually a "Revolving Credit Loan") to the Company from time to
time during the Commitment Period in an aggregate principal amount at any one
time outstanding not to exceed the amount of such Lender's Loan Commitment;
provided that no Revolving Credit Loan shall be made hereunder which would
result in the Aggregate Loans outstanding hereunder being in excess of the
Loan Commitments then in effect. During the Commitment Period the Company
may use the Loan Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms
and conditions hereof.
(b) No Eurodollar Loan shall be made after the date that is 30 days
prior to the Maturity Date.
(c) Each Revolving Credit Loan shall finally mature on the Maturity
Date. Each Revolving Credit Loan shall bear interest on the unpaid principal
amount thereof from time to time outstanding at the applicable interest rate
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per annum determined as provided in, and shall be payable on the dates
specified in, subsections 2.8 and 2.9.
(d) The Company may borrow under the Loan Commitments during the
Commitment Period on any Working Day if the borrowing is a Eurodollar Loan or
on any Business Day if the borrowing is an Alternate Base Rate Loan; provided
that the Company shall give the Administrative Agent irrevocable notice
(which notice must be received by the Administrative Agent prior to 10:00
A.M., New York City time, (a) 3 Working Days prior to the requested Borrowing
Date, in the case of Eurodollar Loans, and (b) 1 Business Day prior to the
requested Borrowing Date, in the case of Alternate Base Rate). Each such
notice shall be given in writing, by telex or by facsimile transmission
substantially in the form of Exhibit A (with appropriate insertions) or shall
be given by telephone (specifying the information set forth in Exhibit A)
promptly confirmed by notice given in writing, by telex or by facsimile
transmission substantially in the form of Exhibit A (with appropriate
insertions). Each borrowing pursuant to the Loan Commitments shall be in an
aggregate principal amount equal to (a) the lesser of, in the case of
Alternate Base Rate Loans, (i) $10,000,000 or a whole multiple of $1,000,000
in excess thereof, and (ii) the Available Loan Commitments and (b) in the
case of Eurodollar Loans, $10,000,000 or a whole multiple of $1,000,000 in
excess thereof. Upon receipt of such notice from the Company the
Administrative Agent shall promptly notify each Lender thereof. Each Lender
will make the amount of its share of each borrowing available to the
Administrative Agent for the account of the Company at the office of the
Administrative Agent set forth in subsection 9.2 at or before 11:00 A.M. on
the Borrowing Date requested by the Company in funds immediately available to
the Administrative Agent as the Administrative Agent may direct. The
proceeds of all such Loans will then be made available to the Company by the
Administrative Agent at the office of the Administrative Agent specified in
subsection 9.2 by crediting the account of the Company on the books of such
office of the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
(e) If any Lender makes a Revolving Credit Loan on a day on which the
Company is to repay all or any part of any outstanding Revolving Credit Loan
from such Lender, such Lender shall apply the proceeds of the requested
Revolving Credit 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 Administrative Agent as
provided in paragraph (c) above, or remitted by the Company to the
Administrative Agent for the account of such Lender as provided in subsection
2.6, as the case may be.
2.2 The Competitive Loans. (a) The Lenders may make Competitive
Loans to the Company from time to time on any Business Day (in the case of
Competitive Loans made pursuant to an Absolute Rate Competitive Loan Request)
or any Working Day (in the case of Competitive Loans made pursuant to an
Index Rate Competitive Loan Request) during the period from the Closing Date
until the date occurring 14 days prior to the Maturity Date in the manner set
forth in this subsection 2.2 and in amounts such that the Aggregate Loans at
any time outstanding shall not exceed the aggregate amount of the Loan
Commitments at such time; provided, however, that the aggregate principal
amount of the outstanding Competitive Loans of a Lender may (but shall not be
required to) exceed its Loan Commitment.
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(b) (i) The Company shall request Competitive Loans by delivering a
Competitive Loan Request to the Administrative Agent, not later than 12:00
Noon (New York City time) four Working Days prior to the proposed Competitive
Loan Date (in the case of an Index Rate Competitive Loan Request), and not
later than 10:00 A.M. (New York City time) one Business Day prior to the
proposed Competitive Loan Date (in the case of an Absolute Rate Competitive
Loan Request); provided that (i) an Index Rate Competitive Loan request shall
not be made until at least one Business Day has passed since the most recent
Competitive Loan Date and (ii) an Absolute Rate Competitive Loan Request
shall not be made until at least four Business Days have passed since the
most recent Competitive Loan Date. Each Competitive Loan Request may solicit
bids for Competitive Loans in an aggregate principal amount of $10,000,000 or
an integral multiple in excess of $1,000,000 thereof and for not more than
three alternative maturity dates for such Competitive Loans. The maturity
date for each Competitive Loan shall be not less than 7 days nor more than
180 days after the Competitive Loan Date therefor (and in any event not after
the Maturity Date and in any event subject to the proviso to the definition
of "Interest Period"). The Administrative Agent shall promptly notify each
Lender by telex or facsimile transmission of the contents of each Competitive
Loan Request received by it.
(ii) In the case of an Index Rate Competitive Loan Request, upon receipt
of notice from the Administrative Agent of the contents of such Competitive
Loan Request, any Competitive Loan Lender that elects, in its sole
discretion, to do so, shall irrevocably offer to make one or more Competitive
Loans at the Applicable Index Rate plus or minus a margin for each such
Competitive Loan determined by such Competitive Loan Lender in its sole
discretion. Any such irrevocable offer shall be made by delivering a
Competitive Loan Offer to the Administrative Agent, before 10:30 A.M. (New
York City time) three Working Days before the proposed Competitive Loan Date,
setting forth the maximum amount of Competitive Loans for each maturity date,
and the aggregate maximum amount for all maturity dates, which such Lender
would be willing to make (which amounts may, subject to subsection 2.2(a),
exceed such Competitive Loan Lender's Loan Commitment) and the margin above
or below the Applicable Index Rate at which such Competitive Loan Lender is
willing to make each such Competitive Loan; the Administrative Agent shall
advise the Company before 11:15 A.M. (New York City time) three Working Days
before the proposed Competitive Loan Date, of the contents of each such
Competitive Loan Offer received by it. If the Administrative Agent in its
capacity as a Competitive Loan Lender shall, in its sole discretion, elect to
make any such offer, it shall advise the Company of the contents of its
Competitive Loan Offer before 10:15 A.M. (New York City time) three Working
Days before the proposed Competitive Loan Date.
(iii) In the case of an Absolute Rate Competitive Loan Request, upon
receipt of notice from the Administrative Agent of the contents of such
Competitive Loan Request, any Competitive Loan Lender that elects, in its
sole discretion, to do so, shall irrevocably offer to make one or more
Competitive Loans at a rate or rates of interest for each such Competitive
Loan determined by such Competitive Loan Lender in its sole discretion. Any
such irrevocable offer shall be made by delivering a Competitive Loan Offer
to the Administrative Agent, before 9:30 A.M. (New York City time) on the
proposed Competitive Loan Date, setting forth the maximum amount of
Competitive Loans for each maturity date, and the aggregate maximum amount
for all maturity dates, which such Competitive Loan Lender would be willing
to make (which amounts may, subject to subsection 2.2(a), exceed such
Competitive Loan Lender's Loan Commitment) and the rate or rates of interest
14
at which such Competitive Loan Lender is willing to make each such
Competitive Loan; the Administrative Agent shall advise the Company before
10:15 A.M. (New York City time) on the proposed Competitive Loan Date of the
contents of each such Competitive Loan Offer received by it. If the
Administrative Agent in its capacity as a Competitive Loan Lender shall, in
its sole discretion, elect to make any such offer, it shall advise the
Company of the contents of its Competitive Loan Offer before 9:15 A.M. (New
York City time) on the proposed Competitive Loan Date.
(iv) The Company shall before 11:30 A.M. (New York City time) three
Working Days before the proposed Competitive Loan Date (in the case of
Competitive Loans requested by an Index Rate Competitive Loan Request) and
before 10:30 A.M. (New York City time) on the proposed Competitive Loan Date
(in the case of Competitive Loans requested by an Absolute Rate Competitive
Loan Request) either, in its absolute discretion:
(A) cancel such Competitive Loan Request by giving the Administrative
Agent telephone notice to that effect, or
(B) accept one or more of the offers made by any Competitive Loan
Lender or Competitive Loan Lenders pursuant to clause (ii) or clause
(iii) above, as the case may be, by giving telephone notice to the
Administrative Agent (immediately confirmed by delivery to the
Administrative Agent of a Competitive Loan Confirmation) of the amount of
Competitive Loans for each relevant maturity date to be made by each
Competitive Loan Lender (which amount for each such maturity date shall
be equal to or less than the maximum amount for such maturity date
specified in the Competitive Loan Offer of such Competitive Loan Lender,
and for all maturity dates included in such Competitive Loan Offer shall
be equal to or less than the aggregate maximum amount specified in such
Competitive Loan Offer for all such maturity dates) and reject any
remaining offers made by Competitive Loan Lenders pursuant to clause (ii)
or clause (iii) above, as the case may be; provided, however, that (x)
the Company may not accept offers for Competitive Loans for any maturity
date in an aggregate principal amount in excess of the maximum principal
amount requested in the related Competitive Loan Request, (y) if the
Company accepts any of such offers, it must accept offers strictly based
upon pricing for such relevant maturity date and no other criteria
whatsoever and (z) if two or more Competitive Loan Lenders submit offers
for any maturity date at identical pricing and the Company accepts any of
such offers but does not wish to borrow the total amount offered by such
Competitive Loan Lenders with such identical pricing, the Company shall
accept offers from all of such Competitive Loan Lenders in amounts
allocated among them pro rata according to the amounts offered by such
Competitive Loan Lenders (or as nearly pro rata as shall be practicable
after giving effect to the requirement that any Competitive Loans made by
a Competitive Loan Lender on a Competitive Loan Date for each relevant
maturity date shall be in a principal amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, it being agreed that to the
extent that it is impossible to make allocations in accordance with the
provisions of this clause (B) such allocations shall be made in
accordance with the instructions of the Company).
(v) If the Company notifies the Administrative Agent that a Competitive
Loan Request is cancelled pursuant to clause (iv) (A) above, the
Administrative Agent shall give prompt telephone notice thereof to the
Competitive Loan Lenders, and the Competitive Loans requested thereby shall
not be made.
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(vi) If the Company accepts pursuant to clause (iv) (B) above one or
more of the offers made by any Competitive Loan Lender or Competitive Loan
Lenders, the Administrative Agent shall promptly notify each Competitive Loan
Lender which has made such an offer, of the aggregate amount of such
Competitive Loans to be made on such Competitive Loan Date for each maturity
date and of the acceptance or rejection of any offers to make such
Competitive Loans made by such Competitive Loan Lender. Each Competitive
Loan Lender which is to make a Competitive Loan shall, before 12:00 Noon (New
York City time) on the Competitive Loan Date specified in the Competitive
Loan Request applicable thereto, make available to the Administrative Agent
at its office set forth in subsection 9.2 the amount of Competitive Loans to
be made by such Competitive Loan Lender, in immediately available funds. The
Administrative Agent will make such funds available to the Company as soon as
practicable on such date at the Administrative Agent's aforesaid address. As
soon as practicable after each Competitive Loan Date, the Administrative
Agent shall notify each Lender of the aggregate amount of Competitive Loans
advanced on such Competitive Loan Date and the respective maturity dates
thereof.
(c) Within the limits and on the conditions set forth in this
subsection 2.2, the Company may from time to time borrow under this
subsection 2.2, repay pursuant to paragraph (d) below, and reborrow under
this subsection 2.2.
(d) The Company shall repay to the Administrative Agent for the
account of each Competitive Loan Lender which has made a Competitive Loan (or
the Competitive Loan Assignee in respect thereof, as the case may be) on the
maturity date of each Competitive Loan (such maturity date being that
specified by the Company for repayment of such Competitive Loan in the
related Competitive Loan Request) the then unpaid principal amount of such
Competitive Loan. The Company shall not have the right to prepay any
principal amount of any Competitive Loan.
(e) The Company shall pay interest on the unpaid principal amount of
each Competitive Loan from the Competitive Loan Date to the stated maturity
date thereof, at the rate of interest determined pursuant to paragraph (b)
above (calculated on the basis of a 360 day year for actual days elapsed),
payable on the interest payment date or dates specified by the Company for
such Competitive Loan in the related Competitive Loan Request. If all or a
portion of the principal amount of any Competitive Loan shall not be paid
when due (whether at the stated maturity, by acceleration or otherwise), such
overdue principal amount shall, without limiting any rights of any Lender
under this Agreement, bear interest from the date on which such payment was
due at a rate per annum which is 2% above the rate which would otherwise be
applicable thereto until the scheduled maturity date with respect thereto,
and for each day thereafter at a rate per annum which is 2% above the
Alternate Base Rate until paid in full (as well after as before judgment).
2.3 Type of Revolving Credit Loans. The Revolving Credit Loans may be
(i) Eurodollar Loans, (ii) Alternate Base Rate Loans or (iii) a combination
thereof. Each borrowing of Revolving Credit Loans shall be in an aggregate
principal amount of $10,000,000 or a whole multiple of $1,000,000 in excess
thereof.
2.4 Fees. (a) The Company agrees to pay, in immediately available
funds, to the Administrative Agent for the account of each Lender a facility
fee (a "Facility Fee") for the period from and including the date of this
Agreement to, but excluding, the Maturity Date, payable quarterly in arrears
16
on the last day of each March, June, September and December and on the
Maturity Date (or such earlier date on which the Loan Commitments shall
terminate and the Loans and all interest, fees and other amounts in respect
thereof shall have been paid in full), commencing on the first of such dates
to occur after the date hereof, at a rate per annum equal to the Applicable
Facility Fee Percentage from time to time in effect on each Lender's portion
of the daily average Loan Commitments in effect, whether used or unused,
during the period for which payment is being made.
(b) The Company agrees to pay, in immediately available funds, to the
Administrative Agent for the account of each Lender a fee (the "Utilization
Fee") based upon the average daily amount of the outstanding Loans of such
Lender at a rate per annum equal to 0.05%, when and for as long as the
aggregate outstanding principal amount of the sum of (a) the Loans hereunder
plus (b) the aggregate principal amount of the Loans (as defined therein)
under the Other Agreement exceeds 50% of (i) until the Termination Date (as
defined therein) of the Other Agreement, the Aggregate Loan Commitments, (ii)
from the Termination Date (as defined therein) of the Other Agreement through
the Maturity Date (as defined therein) of the Other Agreement, the aggregate
amount of the Loan Commitments plus the aggregate amount of the Loan
Commitments (as defined therein) under the Other Agreement in effect on the
Termination Date (as defined therein) of the Other Agreement immediately
prior to giving effect to any reduction thereof required to occur on such
date pursuant to the first proviso of the second sentence of subsection
2.1(a) of the Other Agreement and (iii) after the Maturity Date (as defined
therein) of the Other Agreement, the aggregate amount of the Loan Commitments
hereunder. The Utilization Fee shall be payable quarterly in arrears on the
last day of each March, June, September and December, commencing on the first
of such dates to occur after the date hereof, and on the Maturity Date (or
such earlier date on which the Loan Commitments shall terminate and the Loans
and all interest, fees and other amounts in respect thereof shall have been
paid in full).
2.5 Termination or Reduction of Loan Commitments. The Company shall
have the right, upon not less than 5 Business Days' notice to the
Administrative Agent, to terminate the Loan Commitments or, from time to
time, to reduce pro rata the amount of the Loan Commitments, provided that
(a) any such reduction shall be accompanied by prepayment of the Revolving
Credit Loans, together with accrued interest on the amount so prepaid to the
date of such prepayment, to the extent, if any, that the amount of the
Revolving Credit Loans then outstanding exceeds the amount of the Loan
Commitments as then reduced, (b) any such termination of the Loan Commitments
shall be accompanied by prepayment in full of the Revolving Credit Loans then
outstanding, together with accrued interest thereon to the date of such
prepayment, and the payment of any unpaid Facility Fee or Utilization Fee
then accrued hereunder and (c) any termination of the Loan Commitments while
Eurodollar Loans are outstanding and any reduction of the aggregate amount of
the Loan Commitments that reduces the amount of the Loan Commitments below
the principal amount of the Eurodollar Loans then outstanding may be made
only on the last day of the respective Interest Periods for such Eurodollar
Loans. Any such reduction shall be in an amount of $10,000,000 or a whole
multiple thereof, and shall reduce permanently the amount of the Loan
Commitments then in effect.
2.6 Repayment of Loans. Subject to subsection 2.1(e), the Company
will pay to the Administrative Agent for the account of each Lender the
unpaid principal amount of each Revolving Credit Loan made by such Lender,
plus all interest accrued thereon, on the last day of the Interest Period
applicable thereto.
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2.7 Optional Prepayments. (a) The Company may on the last day of the
relevant Interest Period if the Loans to be prepaid are in whole or in part
Eurodollar Loans, or at any time and from time to time if the Loans to be
prepaid are Alternate Base Rate Loans, prepay the Revolving Credit Loans, in
whole or in part, without premium or penalty, upon at least three Business
Days' (in the case of Eurodollar Loans) or one Business Day's (in the case of
Alternate Base Rate Loans) irrevocable notice to the Administrative Agent,
specifying the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans or Alternate Base Rate Loans or a combination thereof, and
if of a combination thereof, the amount of prepayment allocable to each.
Upon receipt of such notice the Administrative Agent shall promptly notify
each Lender thereof. If such notice is given, the Company shall make such
prepayment, and the payment amount specified in such notice shall be due and
payable on the date specified therein. Partial prepayments shall be in an
aggregate principal amount of $10,000,000 or a whole multiple thereof, and
may only be made if, after giving effect thereto, subsection 2.7(c) shall not
have been contravened.
(b) The Company may not prepay Competitive Loans without the consent
of the relevant Lender.
(c) All payments and prepayments hereunder shall be in such amounts
and be made pursuant to such elections so that, after giving effect thereto,
the aggregate principal amount of the Revolving Credit Loans which are
Eurodollar Loans having the same Interest Period shall not be less than
$10,000,000.
2.8 Interest Rate and Payment Dates. (a) The Eurodollar Loans shall
bear interest for each Interest Period with respect thereto on the unpaid
principal amount thereof at a rate per annum equal to the Eurodollar Rate
determined for such Interest Period plus the Applicable Margin.
(b) Alternate Base Rate Loans shall bear interest for the period from
and including the date thereof until maturity on the unpaid principal amount
thereof at a rate per annum equal to the Alternate Base Rate.
(c) (i) If all or a portion of the principal amount of any Loan shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal
to the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this subsection 2.8 plus 2%, and (ii) if all or a
portion of any interest payable on any Loan or any commitment fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to Alternate
Base Rate Loans plus 2%, in each case, with respect to clauses (i) and (ii)
above, from the date of such non-payment until such amount is paid in full
(as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
subsection 2.8 shall be payable from time to time on demand.
2.9 Computation of Interest and Fees. (a) All interest in respect of
Alternate Base Rate Loans shall be calculated on the basis of a 360 day year
for the actual days elapsed, except where the applicable interest rate for
such Loan is the Prime Rate, in which case the rate per annum shall be
computed on the basis of a 365 (or 366 as the case may be) day year for the
18
actual days elapsed. Facility Fees, Utilization Fees and interest in respect
of Eurodollar Loans shall be calculated on the basis of a 360 day year for
the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Company and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Alternate Base Rate, the Applicable Margin or the Reserve
Percentage shall become effective as of the opening of business on the day on
which such change in the Alternate Base Rate is announced or such Applicable
Margin changes as provided herein or such change in the Reserve Percentage
shall become effective. The Administrative Agent shall as soon as
practicable notify the Company and the Lenders of the effective date and the
amount of each such change.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding
on the Company and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Company, deliver to the
Company a statement showing the quotations used by the Administrative Agent
in determining any interest rate pursuant to subsection 2.8 (a) or (c).
2.10 Inability to Determine Interest Rate. (a) In the event that the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Company) that by reason of circumstances
affecting the interbank eurodollar market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for any requested Interest
Period with respect to proposed Loans that the Company has requested be made
as Eurodollar Loans, the Administrative Agent shall forthwith give telex or
facsimile notice of such determination, confirmed in writing, to the Company
and the Lenders at least one day prior to the requested Borrowing Date for
such Eurodollar Loans. If such notice is given any requested Eurodollar
Loans shall be made as Alternate Base Rate Loans. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans shall be
made.
(b) In the event that the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the Company) that
by reason of circumstances affecting the interbank eurodollar market,
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for any Interest Period with respect to proposed Competitive Loans to be
made pursuant to an Index Rate Competitive Loan Request, the Administrative
Agent shall forthwith give telex, telecopy or telephone notice of such
determination, confirmed in writing, to the Company and the Lenders at least
two Business Days prior to the proposed Competitive Loan Date, and such
Competitive Loans shall not be made on such Competitive Loan Date. Until any
such notice has been withdrawn by the Administrative Agent, no further Index
Rate Competitive Loan Requests shall be submitted by the Company.
2.11 Pro Rata Borrowings and Payments. (a) Each borrowing by the
Company of Revolving Credit Loans shall be made ratably from the Lenders in
accordance with their Commitment Percentages.
(b) Whenever any payment received by the Administrative Agent
underthis Agreement is insufficient to pay in full all amounts then due and
payable to the Administrative Agent and the Lenders under this Agreement, and
the Administrative Agent has not received a Payment Sharing Notice (or if the
Administrative Agent has received a Payment Sharing Notice but the Event of
Default specified in such Payment Sharing Notice has been cured or waived),
such payment shall be distributed and applied by the Administrative Agent and
the Lenders in the following order: first, to the payment of fees and
19
expenses due and payable to the Administrative Agent, acting as
Administrative Agent for the benefit of the Lenders, under and in connection
with this Agreement; second, to the payment of all expenses due and payable
under subsection 9.5, ratably among the Lenders in accordance with the
aggregate amount of such payments owed to each such Lender; third, to the
payment of fees due and payable under subsection 2.4, ratably among the
Lenders in accordance with their Commitment Percentages; fourth, to the
payment of interest then due and payable under this Agreement, ratably among
the Lenders in accordance with the aggregate amount of interest owed to each
such Lender; and fifth, to the payment of the principal amount of the Loans
which is then due and payable, ratably among the Lenders in accordance with
the aggregate principal amount owed to each such Lender.
(c) After the Administrative Agent has received a Payment Sharing
Notice which remains in effect, all payments received by the Administrative
Agent under this Agreement shall be distributed and applied by the
Administrative Agent and the Lenders in the following order: first, to the
payment of all amounts described in clauses first through third of the
foregoing paragraph (b), in the order set forth therein; and second, to the
payment of the interest accrued on and the principal amount of all of the
Loans, regardless of whether any such amount is then due and payable, ratably
among the Lenders in accordance with the aggregate accrued interest plus the
aggregate principal amount owed to such Lender.
(d) All payments (including prepayments) to be made by the Company on
account of principal, interest and fees shall be made without set-off or
counterclaim and shall be made to the Administrative Agent for the account of
the Lenders at the Administrative Agent's office specified in subsection 9.2
in Dollars and in immediately available funds. The Administrative Agent
shall distribute such payments to the Lenders entitled thereto promptly upon
receipt in like funds as received. If any payment hereunder of fees or
principal of or interest on Alternate Base Rate Loans or Competitive Loans
made pursuant to an Absolute Rate Competitive Loan Request, becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable during such extension at the rate then
applicable thereunder.
2.12 Taxes. (a) All payments made by the Company under this Agreement
shall be made free and clear of, and without deduction or withholding for or
on account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender as a
result of a present or former connection between the Administrative Agent or
such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from the Administrative Agent
or such Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or any Note). If any
such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
or withholdings ("Non-Excluded Taxes") or Other Taxes are required to be
withheld from any amounts payable to the Administrative Agent or any Lender
hereunder, the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to the Administrative
Agent or such Lender (after payment of all Non-Excluded Taxes and Other
Taxes) interest or any such other amounts payable hereunder at the rates or
in the amounts specified in this Agreement, provided, however, that the
20
Company shall not be required to increase any such amounts payable to any
Lender with respect to any Non-Excluded Taxes (i) that are attributable to
such Lender's failure to comply with the requirements of paragraph (d) or (e)
of this subsection 2.12 or failure to obtain either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 or any
applicable successor form from any Transferee that is a Participant or a
Competitive Loan Assignee certifying that such Participant is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes or (ii) that are United States
withholding taxes imposed on amounts payable to such Lender at the time the
Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to
receive additional amounts from the Company with respect to such Non-Excluded
Taxes pursuant to this paragraph.
(b) In addition, the Company shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
Company, as promptly as possible thereafter the Company shall send to the
Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Company, or other evidence of payment reasonably satisfactory
to the Administrative Agent, showing payment thereof. If the Company fails
to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent the required
receipts or other required documentary evidence, the Company shall indemnify
the Administrative Agent and the Lenders for any incremental taxes, interest
or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure.
(d) (i) Each Lender (or Transferee) that is not a citizen or resident
of the United States of America, a corporation, partnership or other entity
created or organized in or under the laws of the United States of America (or
any jurisdiction thereof), or any estate or trust that is subject to federal
income taxation regardless of the source of its income (a "Non-U.S. Lender")
shall deliver to the Company and the Administrative Agent (or, in the case of
a Participant, to the Lender from which the related participation shall have
been purchased, and in the case of a Competitive Loan Assignee, to the Lender
from which the related Competitive Loan shall have been assigned) two copies
of (A) either (1) U.S. Internal Revenue Service Form 1001 or Form 4224, or
(2) in the case of a Non-U.S. Lender that does not meet the requirements of
the documents described in clause (1) hereof claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest," a statement substantially in the
form of Exhibit E and (B) a Form W-8 or W-9, including, where applicable,
with respect to both clauses (1) and (2) above, any such forms required to be
provided to certify to such exemption on behalf of such Non-U.S. Lender's
beneficial owners, or, in each case, any subsequent versions thereof or
successors thereto, properly completed and duly executed by such Non-U.S.
Lender claiming complete exemption from, or a reduced rate of, U.S. federal
withholding tax on all payments by the Company under this Agreement and any
Notes. Such forms shall be delivered by each Non-U.S. Lender on or before
the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation, and in the case of a Competitive Loan Assignee, on or before
the date of such Competitive Loan Assignment). In addition, each Non-U.S.
Lender shall deliver such forms (and, where applicable, any such forms on
behalf of its beneficial owners) promptly upon the obsolescence or invalidity
21
of any form previously delivered by such Non-U.S. Lender. Each Non-U.S.
Lender shall promptly notify the Company at any time it determines that it is
no longer in a position to provide any previously delivered certificate to
the Company (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this
paragraph, a Non-U.S. Lender shall not be required to deliver any form
pursuant to this paragraph that such Non-U.S. Lender is not legally able to
deliver.
(ii) Each Lender which is not a Non-U.S. Lender shall deliver to the
Company and the Administrative Agent (or, in the case of a Participant, to
the Lender from which the related participation shall have been purchased,
and in the case of a Competitive Loan Assignee, to the Lender from which the
related Competitive Loan shall have been assigned) two copies of a statement
which shall contain the address of such Lender's office or place of business
in the United States and shall be signed by an authorized officer of such
Lender, together with two duly completed copies of Form W-9 (or any
applicable successor form) unless it establishes to the satisfaction of the
Company that it is otherwise eligible for an exemption from backup
withholding tax or other applicable withholding tax. Each such Lender shall
deliver to the Company and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have
been purchased, and in the case of a Competitive Loan Assignee, to the Lender
from which the related Competitive Loan shall have been assigned) two further
duly completed and signed forms and statements (or successor forms) at or
before the time any such form or statement becomes obsolete.
(iii) Each Lender agrees to indemnify and hold harmless the Company and
the Administrative Agent from and against any taxes imposed by or on behalf
of the United States or any taxing jurisdiction thereof, penalties, additions
to tax, fines, interest or other liabilities, costs or losses, including,
without limitation, reasonable attorney's fees and expenses incurred or
payable by the Company or the Administrative Agent as a result of the failure
of the Company or the Administrative Agent to comply with its obligations to
deduct or withhold any taxes imposed by or on behalf of the United States or
any taxing jurisdiction thereof (including penalties, additions to tax, fines
or interest on such taxes) from any payments made pursuant to this Agreement
which failure resulted from the Company's or the Administrative Agent's
reliance on any representation, covenant, form, statement, certificate or
other information provided to it by such Lender pursuant to this subsection
2.12(d).
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the
Company is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Company (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Company, such properly
completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate,
provided that such Lender is legally entitled to complete, execute and
deliver such documentation and in such Lender's reasonable judgment such
completion, execution or submission would not materially prejudice the legal
position of such Lender.
(f) Without limiting the other provisions of this subsection 2.12,
each Lender claiming entitlement to additional amounts under this subsection
2.12 agrees to use reasonable efforts, including designating a different
lending office for funding or booking its Loans hereunder, to avoid or to
22
minimize any amounts which might otherwise be payable pursuant to this
subsection; provided, however, that such efforts shall not cause the
imposition on such Lender of any additional costs or legal or regulatory
burdens deemed in the sole reasonable judgment of such Lender to be material.
(g) If any Lender or Participant identifies a refund of or credit with
respect to an amount of taxes with respect to which the Company paid to or on
behalf of such Lender an additional amount pursuant to this subsection 2.12
(a "Tax Credit"), the Lender shall promptly notify the Company of such Tax
Credit. The Lender shall use commercially reasonable efforts to take such
action as, in the sole reasonable discretion of the Lender, is then
practicable under the circumstances to give the benefit of such Tax Credit to
the Company.
(h) The Company shall be permitted to replace any Lender that (i)
requests reimbursement for amounts owing pursuant to subsection 2.12(a) or
2.14 or (ii) defaults in its obligation to make Loans hereunder, with a
replacement financial institution; provided that (A) such replacement does
not conflict with any Requirement of Law, (B) no Event of Default shall have
occurred and be continuing at the time of such replacement, (C) prior to any
such replacement, such Lender shall have taken no action under subsection
2.12(f) so as to eliminate the continued need for payment of amounts owing
pursuant to subsection 2.12(a) or 2.14, (D) the replacement financial
institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (E) the Company shall
be liable to such replaced Lender under subsection 2.15 if any Eurodollar
Loan owing to such replaced Lender shall be purchased other than on the last
day of the Interest Period relating thereto, (F) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (G) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of subsection 9.6 (provided
that the Company shall be obligated to pay the registration and processing
fee referred to therein), (H) until such time as such replacement shall be
consummated, the Company shall pay all additional amounts (if any) required
pursuant to subsection 2.12(a) or 2.14, as the case may be, and (I) any such
replacement shall not be deemed to be a waiver of any rights that the
Company, the Administrative Agent or any other Lender shall have against the
replaced Lender.
(i) The agreements in this subsection shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.13 Illegality. Notwithstanding any other provisions herein, if any
Requirement of Law or any change therein or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of
such Lender hereunder to make Eurodollar Loans shall forthwith be cancelled
and (b) such Lender's Loans then outstanding as Eurodollar Loans, if any,
shall be converted automatically to Alternate Base Rate Loans on the
respective next succeeding Interest Payment Date(s) for such Loans or within
such earlier period as required by law. The Company hereby agrees promptly
to pay any Lender, upon its demand, any additional amounts necessary to
compensate such Lender for any costs incurred by such Lender in making any
conversion in accordance with this subsection 2.13 including, but not limited
to, any interest or fees payable by such Lender to lenders of funds obtained
by it in order to make or maintain its Eurodollar Loans hereunder (such
Lender's notice of such costs, as certified to the Company through the
Administrative Agent, to be conclusive absent manifest error).
23
2.14 Requirements of Law. Subject to subsection 2.12:
(a) In the event that any Requirement of Law or any change therein or
in the interpretation or application thereof or compliance by any Lender with
any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority:
(i) does or shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note or any Loans made by it, or change
the basis of taxation of payments to such Lender of principal, fees, interest
or any other amount payable hereunder (except for changes in the rate of tax
on the overall net income of such Lender);
(ii) does or shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, or
deposits or other liabilities in or for the account of, advances or loans by,
or other credit extended by, or any other acquisition of funds by, any office
of such Lender which are not otherwise included in the determination of the
Eurodollar Rate hereunder; or
(iii) does or shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender
of making, renewing or maintaining advances or extensions of credit or to
reduce any amount receivable hereunder, in each case, in respect of its
Eurodollar Loans, then, in any such case, the Company shall promptly pay such
Lender, upon its demand, any additional amounts necessary to compensate such
Lender for such additional cost or reduced amount receivable which such
Lender deems to be material as determined by such Lender with respect to such
Eurodollar Loans. If a Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Company,
through the Administrative Agent, of the event by reason of which it has
become so entitled.
(b) In the event that any Lender shall have determined that the
adoption of any law, rule or regulation regarding capital adequacy, or any
change therein or in the interpretation or application thereof or compliance
by such Lender or any corporation controlling such Lender with any request or
directive regarding capital adequacy (whether or not having the force of law)
from any central bank or Governmental Authority, does or shall have the
effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, within 15 days
after demand by such Lender, the Company shall pay to such Lender such
additional amount as shall be requested by such Lender as being required to
compensate it for such reduction.
(c) A certificate as to any additional amounts payable pursuant to
this subsection submitted by such Lender (with a copy to the Administrative
Agent) to the Company shall be conclusive in the absence of manifest error.
This subsection 2.14 shall survive the termination of this Agreement and
payment of the Loans and all other amounts payable hereunder.
2.15 Indemnity. The Company agrees to indemnify each Lender and to
hold such Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Company in payment of
24
the principal amount of or interest on any Eurodollar Loans of such Lender,
including, but not limited to, any such loss or expense arising from interest
or fees payable by such Lender to lenders of funds obtained by it in order to
make or maintain its Eurodollar Loans hereunder, (b) default by the Company
in making a borrowing after the Company has given a notice in accordance with
subsection 2.1(d) or 2.2(b)(iv)(B), including, but not limited to, any such
loss or expense arising from interest or fees payable by such Lender to
lenders of funds obtained by it to make or maintain its Eurodollar Loans
hereunder and (c) default by the Company in making any prepayment after the
Company has given a notice in accordance with subsection 2.7 or (d) a
prepayment, voluntary or involuntary, of a Eurodollar Loan on a day which is
not the last day of an Interest Period with respect thereto, including, but
not limited to, any such loss or expense arising from interest or fees
payable by such Lender to lenders of funds obtained by it in order to
maintain its Eurodollar Loans hereunder. This subsection 2.15 shall survive
termination of this Agreement and payment of the Loans and all other amounts
payable hereunder.
2.16 Increase of Loan Commitments. The Company may from time to time,
by notice to the Administrative Agent (which shall promptly deliver a copy to
each of the Lenders), request that the Aggregate Loan Commitments be
increased by an amount that is not less than $50,000,000 and will not result
in the Aggregate Loan Commitments exceeding $750,000,000. Each such notice
shall set forth the requested amount of the increase in the Aggregate Loan
Commitments and the date on which such increase is to become effective (which
shall be not fewer than twenty days after the date of such notice), and shall
offer each Lender the opportunity to increase its Combined Loan Commitments
by its ratable share, based on the percentage (determined on the date of such
notice) which such Lender's Combined Loan Commitments constitutes of the
Aggregate Loan Commitments, of the requested increase in the aggregate amount
of the Loan Commitments. Each Lender shall, by notice to the Company and the
Administrative Agent given not more than ten Business Days after the date of
the Company's notice, either agree to increase its Combined Loan Commitments
by all or a portion of the offered amount or decline to increase its Combined
Loan Commitments (and any Lender that does not deliver such a notice within
such period of ten Business Days shall be deemed to have declined to increase
its Combined Loan Commitments). In the event that, on the tenth Business Day
after the Company shall have delivered a notice pursuant to the first
sentence of this paragraph, the Lenders shall have agreed pursuant to the
preceding sentence to increase their respective Combined Loan Commitments by
an aggregate amount less than the increase in the Aggregate Loan Commitments
requested by the Company, the Company shall have the right to arrange for one
or more banks or other financial institutions (any such bank or other
financial institution being called an "Augmenting Lender"), which may include
any Lender, to extend Combined Loan Commitments or increase their existing
Combined Loan Commitments in an aggregate amount equal to the unsubscribed
amount, provided that each Augmenting Lender, if not already a Lender
hereunder, shall be subject to the approval of the Administrative Agent
(which approval shall not be unreasonably withheld or delayed) and shall
execute all such documentation as the Administrative Agent shall specify to
evidence its status as a Lender hereunder. If (and only if) Lenders
(including Augmenting Lenders) shall have agreed to increase their respective
Combined Loan Commitments or to extend new Combined Loan Commitments in an
aggregate amount not less than $50,000,000, such increases and such new
Combined Loan Commitments shall become effective on the date specified in the
notice delivered by the Company pursuant to the first sentence of this
Section. Any increase in the Aggregate Loan Commitments effected pursuant to
this Section shall be allocated between this Agreement and the Other
Agreement as substantially ratably as possible based on the respective
25
amounts of the Loan Commitments and the Loan Commitments (as defined therein)
under the Other Agreement. If, on the effective date of any increase in the
Aggregate Loan Commitments pursuant to this Section, any Loans shall be
outstanding, the Company shall on such date prepay all such Loans, and, if it
wishes to reborrow all or a portion of such Loans so prepaid, such borrowing
shall be made in accordance with the terms and conditions of this Agreement
from the Lenders in accordance with their respective Loan Commitments after
giving effect to such increase.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans herein provided for, the Company hereby
represents and warrants to the Administrative Agent and to each Lender that:
3.1 Financial Condition. The consolidated balance sheets of the
Company and its consolidated Subsidiaries as at December 31, 1999 and
December 31, 2000 and the related consolidated statements of income and
stockholders' equity and cash flow for the fiscal years ended on such dates,
reported on by PricewaterhouseCoopers LLP, copies of which have heretofore
been furnished to each Lender, are complete and correct in all material
respects and present fairly the consolidated financial condition of the
Company and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and changes in financial position
for the fiscal years then ended. The unaudited consolidated balance sheet of
the Company and its consolidated Subsidiaries as at March 31, 2001 and the
related unaudited consolidated statements of income and cash flow for the
three-month period ended on such date, copies of which have heretofore been
furnished to each Lender, are complete and correct in all material respects
and present fairly the consolidated financial condition of the Company and
its consolidated Subsidiaries as at such date, and the consolidated results
of their operations and cash flow for the three-month period then ended
(subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved. Neither the Company nor any of its consolidated Subsidiaries had
on March 31, 2001 any material Guarantee Obligation, contingent liabilities
or liability for taxes, long-term lease or unusual forward or long-term
commitment, which is not reflected in the unaudited consolidated balance
sheet as at March 31, 2001 or in the notes thereto.
3.2 No Change. Since December 31, 2000 there has been no material
adverse change in the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole.
3.3 Corporate Existence; Compliance with Law. Each of the Company and
its Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, (b) has the
corporate power and authority and the legal right to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification and where the failure to be so qualified would
have a material adverse effect upon the business operations, property or
financial or other condition of the Company and its Subsidiaries taken as a
whole and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a material adverse effect on the business,
26
operations, property or financial or other condition of the Company and its
Subsidiaries taken as a whole and could not materially adversely affect the
ability of the Company to perform its obligations under this Agreement.
3.4 Corporate Power; Authorization; Enforceable Obligations. The
Company has the corporate power and authority and the legal right to make,
deliver and perform this Agreement and any Note and to borrow hereunder and
has taken all necessary corporate action to authorize the borrowings on the
terms and conditions of this Agreement and to authorize the execution,
delivery and performance of this Agreement and any Note. No consent or
authorization of, filing with or other act by or in respect of any
Governmental Authority is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any Note. This Agreement has been, and
any Note will be, duly executed and delivered on behalf of the Company. This
Agreement constitutes, and any Note when executed and delivered will
constitute, a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (whether enforcement is sought
by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of this
Agreement and any Note, the borrowings hereunder and the use of the proceeds
thereof, will not violate any Requirement of Law or any Contractual
Obligation of the Company or of any of its Subsidiaries, and will not result
in, or require, the creation or imposition of any Lien on any of its or their
respective properties or revenues pursuant to any Requirement of Law or
Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of the Company, threatened by or against the Company or
any of its Subsidiaries or against any of its or their respective properties
or revenues (a) with respect to this Agreement or any Note or any of the
transactions contemplated hereby, or (b) which could reasonably be expected
to have a material adverse effect on the business, operations, property or
financial or other condition of the Company and its Subsidiaries taken as a
whole.
3.7 No Default. Neither the Company nor any of its Subsidiaries is in
default in any material respect under or with respect to any Contractual
Obligation which could reasonably be expected to be materially adverse to the
business, operations, property or financial or other condition of the Company
and its Subsidiaries taken as a whole or which could materially adversely
affect the ability of the Company or any Subsidiary to perform its
obligations under this Agreement and any Note. No Default or Event of
Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the Company and its
Subsidiaries has good record and marketable title in fee simple to or valid
leasehold interests in all its real property which is material to the Company
and its Subsidiaries, and good title to all its other property which is
material to the Company and its Subsidiaries and none of such property is
subject to any Lien of any nature whatsoever which is prohibited by
subsection 6.1 hereof.
27
3.9 No Burdensome Restrictions. No Contractual Obligation of the
Company or any of its Subsidiaries and no Requirement of Law materially
adversely affects, or insofar as the Company may reasonably foresee may so
affect, the business, operations, property or financial or other condition of
the Company and its Subsidiaries taken as a whole.
3.10 Taxes. Each of the Company and its Subsidiaries has filed or
caused to be filed all material tax returns which to the reasonable knowledge
of the Company are required to be filed and has paid all taxes shown to be
due and payable on said returns or on any assessment made against it or any
of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than those the
amount or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Company or its Subsidiaries, as
the case may be, or which are otherwise individually or in the aggregate not
material); and no tax liens have been filed and, to the reasonable knowledge
of the Company, no claims are being asserted with respect to any such taxes,
fees or other charges.
3.11 Federal Regulations. No part of the proceeds of any Loans
hereunder will be used for the purpose, whether immediate, incidental, or
ultimate, of purchasing any Margin Stock of any corporation or carrying any
Margin Stock of any corporation, or for any purpose which violates Regulation
U of the Board of Governors of the Federal Reserve System, or which would be
inconsistent with or violate, the provisions of any of the Regulations of
such Board of Governors. If requested by any Lender or the Administrative
Agent, the Company will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR
Form U-1 referred to in said Regulation U.
3.12 ERISA. None of the Company, any of its Subsidiaries or any
commonly controlled entity has incurred any material liability related to the
withdrawal from any Multiemployer Plan or the termination of any Single
Employer Plan. The withdrawal by the Company or any of its Subsidiaries or
any Commonly Controlled Entity from all Multiemployer Plans in which they
participate would not have a material adverse effect on the business,
operations, property or financial or other condition of the Company and its
Subsidiaries taken as a whole. The Company has not been notified that any
Multiemployer Plan to which the Company, any of its Subsidiaries or any
Commonly Controlled Entity contributes is either in Reorganization or
Insolvent. All Single Employer Plans maintained by the Company, any of its
Subsidiaries or any Commonly Controlled Entity are in material compliance
with all applicable requirements of law. The sum of the present value of all
accrued benefits vested under all Single Employer Plans maintained by the
Company or any of its Subsidiaries or any Commonly Controlled Entity (based
on assumptions used to fund such Plans) did not, as of December 31, 2000,
exceed the value of the assets of such Plans allocable to such vested
benefits.
3.13 Investment Company Act. The Company is not an "investment
company," or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
3.14 Subsidiaries. All of the Subsidiaries of the Company at the date
hereof are set forth on Schedule 3.14.
3.15 Purpose of Loans. The proceeds of the Loans shall be used by the
Company for general corporate purposes.
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SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The obligation of each Lender to make
an initial Loan hereunder is subject to the satisfaction of the following
conditions precedent:
(a) Legal Opinion. The Administrative Agent shall have received, with
a counterpart for each Lender, an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice
President, Secretary of the Company, dated the Closing Date and addressed to
the Administrative Agent and the Lenders, substantially in the form of
Exhibit F. Such opinion shall also cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent or
any Lender shall reasonably require.
(b) Officer's Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, an Officer's Certificate of the
Company dated the Closing Date, substantially in the form of Exhibit G, with
appropriate insertions and attachments, satisfactory in form and substance to
the Administrative Agent and its counsel, executed by the President or Vice
President and the Secretary or Assistant Secretary of the Company.
(c) Secretary's Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the Secretary
or Assistant Secretary of the Company dated the Closing Date, substantially
in the form of Exhibit H, with appropriate insertions and attachments,
satisfactory in form and substance to the Administrative Agent and its
counsel.
(d) Compliance. Each of the Lenders shall have determined that the
making of such Loan and the use of the proceeds thereof will not violate any
Regulation of the Board of Governors of the Federal Reserve System, and each
Lender shall have received such documents and information (including without
limitation, a duly completed and signed Form U-1) as such Lenders shall
require to make such determination.
(e) Existing Credit Agreement. All principal, interest and fees under
the Existing Credit Agreement through the Closing Date shall have been paid,
and all commitments to lend thereunder shall have been terminated.
(f) Fees. All fees payable to the Administrative Agent or any Lender
on the Closing Date shall have been paid.
(g) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Administrative Agent and the
Lenders and their counsel.
4.2 Conditions to All Loans. The obligation of each Lender to make any
Loan (including the initial Loan to be made by it hereunder) to be made by it
hereunder is subject to the satisfaction of the following conditions
precedent on the relevant Borrowing Date:
(a) Representations and Warranties. The representations and warranties
made by the Company herein or which are contained in any certificate,
document or financial or other statement furnished at any time under or in
connection herewith (except the representation and warranty set forth in
subsection 3.2 and except, in the case of a Refunding Borrowing, the
representations and warranties set forth in subsections 3.2, 3.5, 3.6, 3.7,
29
3.8, 3.9, 3.10, 3.12 and 3.14) shall be correct on and as of the Borrowing
Date as if made on and as of such date.
(b) No Default or Event of Default. In the case of a Refunding
Borrowing, no Event of Default shall have occurred and be continuing on the
date of such Loan after giving effect to the Loans to be made on such date
and in the case of any other Loan no Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the Loan to
be made on such Borrowing Date.
(c) Additional Conditions to Competitive Loans. If such Loan is made
pursuant to subsection 2.2, all conditions set forth in such subsection shall
have been satisfied.
Each borrowing by the Company hereunder shall constitute a representation and
warranty by the Company as of the date of such borrowing that the conditions
in clauses (a), (b) and (c) of this subsection have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Loan Commitments remain
in effect, any Loan remains outstanding and unpaid or any other amount is
owing to any Lender or the Administrative Agent hereunder, the Company shall
and in the case of the agreements set forth in subsections 5.3, 5.4, 5.5 and
5.6 cause each of its Subsidiaries to:
5.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days after the end
of each fiscal year of the Company, a copy of the consolidated balance sheet
of the Company and its consolidated Subsidiaries as at the end of such year
and the related consolidated statements of income and stockholders' equity
and cash flow for such year, setting forth in each case in comparative form
the figures for the previous year, reported on without a "going concern" or
like qualification or exception, or qualification arising out of the scope of
the audit, by independent certified public accountants of nationally
recognized standing; and
(b) as soon as available, but in any event not later than 60 days after
the end of each of the first three quarterly periods of each fiscal year of
the Company, the unaudited consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of each such quarter and the related
unaudited consolidated statements of income and cash flow of the Company and
its consolidated Subsidiaries for such quarterly period setting forth in each
case in comparative form the figures for the comparable quarter of the
previous year in the case of the consolidated statements of income and the
end of the immediately preceding fiscal year in the case of the consolidated
balance sheet, certified by the chief financial officer of the Company
(subject to normal year-end audit adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein (except as
approved by such accountants or officer, as the case may be, and disclosed
therein).
5.2 Certificates; Other Information. Furnish to each Lender:
30
(a) concurrently with the delivery of the financial statements referred
to in subsection 5.1(a) above, a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements referred
to in subsections 5.1(a) and (b) above, a certificate of a Responsible
Officer (i) stating that, to the best of such officer's knowledge, the
Company during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this Agreement
and in any Note to be observed, performed or satisfied by it, and that such
officer has obtained no knowledge of any Default or Event of Default except
as specified in such certificate, and (ii) showing in detail the calculations
supporting such statement in respect of subsections 6.3 and 6.4;
(c) within five days after the same are sent, copies of all financial
statements and reports which the Company sends to its stockholders, and
within five days after the same are filed, copies of all financial statements
and reports which the Company may make to, or file with, the Securities and
Exchange Commission or any successor or analogous Governmental Authority; and
(d) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except when the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on
the books of the Company or its Subsidiaries, as the case may be.
5.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business except as
otherwise permitted pursuant to subsection 6.2; comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to
comply therewith could not, in the aggregate, reasonably be expected to have
a material adverse effect on the business, operations, property or financial
or other condition of the Company and its Subsidiaries taken as a whole.
5.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks as are
usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to each Lender, upon written request,
full information as to the insurance carried.
5.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and
permit representatives of any Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records
at any reasonable time and as often as may reasonably be desired, and to
31
discuss the business, operations, properties and financial and other
conditions of the Company and its Subsidiaries with officers and employees of
the Company and its Subsidiaries and with its independent certified public
accountants.
5.7 Notices. Promptly give notice to the Administrative Agent and
each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any default or event of default under any material Contractual
Obligation of the Company or any of its Subsidiaries;
(c) of any litigation, investigation or proceeding which may exist at
any time between the Company or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely determined, as
the case may be, would have a material adverse effect on the business,
operations, property or financial or other condition of the Company and its
Subsidiaries taken as a whole;
(d) of any litigation or proceeding affecting the Company or any of its
Subsidiaries in which (i) the amount involved is $50,000,000 or more and not
covered by insurance or (ii) injunctive or similar relief is sought which if
adversely determined would have a material adverse effect on the business,
operations, property or financial or other condition of the Company and its
Subsidiaries taken as a whole;
(e) of the following events, as soon as possible and in any event
within 30 days after the Company knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to any
Plan, or (ii) the institution of proceedings or the taking or expected taking
of any other action by PBGC or the Company or any Commonly Controlled Entity
to terminate or withdraw or partially withdraw from any Plan and, with
respect to a Multiemployer Plan, the Reorganization (as defined in Section
4241 of ERISA) or Insolvency (as defined in Section 4245 of ERISA) of such
Plan and in addition to such notice, deliver to the Administrative Agent and
each Lender whichever of the following may be applicable: (A) a certificate
of a Responsible Officer setting forth details as to such Reportable Event
and the action that the Company or Commonly Controlled Entity proposes to
take with respect thereto, together with a copy of any notice of such
Reportable Event that may be required to be filed with PBGC, or (B) any
notice delivered by PBGC evidencing its intent to institute such proceedings
or any notice to PBGC that such Plan is to be terminated, as the case may be;
and
(f) of a material adverse change in the business, operations, property
or financial or other condition of the Company and its Subsidiaries taken as
a whole.
Each notice pursuant to this subsection shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Company proposes to take with respect
thereto. For all purposes of clause (e) of this subsection, the Company
shall be deemed to have all knowledge or knowledge of all facts attributable
to the administrator of such Plan.
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SECTION 6. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Loan Commitments remain
in effect, any Loan remains outstanding and unpaid or any other amount is
owing to any Lender or the Administrative Agent hereunder, the Company shall
not, nor in the case of the agreements set forth in subsections 6.1 or 6.2
shall it permit any of its Subsidiaries to, directly or indirectly:
6.1 Limitation on Liens. Create, incur, assume or suffer to exist any Lien
upon any of its properties or assets, whether now owned or hereafter
acquired, except:
(a) Liens existing on the date hereof which are described in Schedule
6.1 hereto;
(b) Liens created in favor of the Administrative Agent, for the ratable
benefit of the Lenders;
(c) Liens for taxes or assessments either (i) not yet delinquent or
(ii) the validity of which is being contested in good faith and as to which
any reserves required by GAAP have been set aside;
(d) deposits or pledges to secure the payment of workmen's
compensation, unemployment insurance or other social security benefits or
obligations, or to secure the performance of bids, trade contracts, leases,
public or statutory obligations, surety or appeal bonds or other obligations
of a like nature incurred in the ordinary course of business;
(e) materialmen's, mechanics', workmen's, repairmen's, employees', or
other like Liens either (i) arising in the ordinary course of business and
securing obligations not more than 90 days overdue or (ii) being contested in
good faith and as to which any reserves required by GAAP have been set aside
or as to which adequate bonds have been obtained;
(f) minor defects, easements, exceptions, reservations and
irregularities in the title to real property which do not, in the aggregate,
materially impair the use of such property for the purposes for which it is
or may reasonably be expected to be held;
(g) Liens on assets, each of which Liens (i) existed on such assets
before the time of their acquisition by the Company or such Subsidiary, or
(ii) existed on such assets of any Subsidiary before the time it became a
Subsidiary, or (iii) was created solely for the purpose of securing, and was
created substantially contemporaneously with the incurring of, Indebtedness
representing, or incurred to finance, the cost of such assets; provided that,
with respect to Liens referred to in clause (iii), (A) such Liens shall at
all times be confined to the assets so acquired and improvements,
alterations, replacements and modifications thereto and (B) the principal
amount of the Indebtedness secured by such Liens shall in no case exceed 100%
of the lesser of the cost or the fair market value of the assets subject
thereto at the time of acquisition thereof, and provided, further that with
respect to each Lien referred to in this paragraph (g), any extension,
renewal or replacement thereof shall be permitted only to the extent that the
principal amount of Indebtedness secured thereby shall not exceed the
principal amount of Indebtedness so secured at the time of such extension,
renewal or replacement; and
(h) Liens not otherwise permitted by this subsection 6.1 so long as
neither (i) the aggregate outstanding principal amount of the obligations
33
secured thereby nor (ii) the aggregate fair market value (determined as of
the date such Lien is incurred) of the assets subject thereto exceeds (as to
the Company and all Subsidiaries) 5% of Consolidated Total Assets at any
time.
6.2 Limitation on Mergers and Sales of Assets. (a) Consolidate or
merge with or into, or sell, convey, transfer or lease in a single
transaction or in a series of related transactions any substantial part of
the assets of the Company and its consolidated Subsidiaries taken as a whole
to, any other Person, except (i) any such consolidation, merger, sale,
conveyance, transfer or lease when the only parties to such transaction or
series of transactions are one of its Subsidiaries and one or more of its
other Subsidiaries, (ii) any such sale, conveyance, transfer or lease to the
Company by one or more of its Subsidiaries and (iii) the merger or
consolidation of the Company with another corporation, provided that the
Company is the surviving corporation and that, after giving effect to such
consolidation or merger, no Default or Event of Default has occurred and is
continuing.
(b) Convey, transfer or lease, or sell and lease-back, any significant
fixed asset used or useable in its business or the shares of the capital
stock of any Subsidiary, except (i) to the Company by any of its Subsidiaries
or to any of the Company's Subsidiaries by one or more of its other
Subsidiaries, (ii) for a sale or conveyance of such a fixed asset in
connection with the replacement thereof or in the ordinary course of business
or (iii) if such conveyance, transfer, lease or sale is for fair value as
determined by the Board of Directors or any executive officer of the Company
and not materially adverse to the Lenders.
6.3 Maintenance of Ratio of Consolidated Total Indebtedness to
Annualized Consolidated Cash Flow.
Permit the ratio of Consolidated Total Indebtedness to Annualized
Consolidated Cash Flow as at the last day of any fiscal quarter of the
Company to exceed 2.50 to 1.00.
6.4 Maintenance of Ratio of Annualized Consolidated Cash Flow. Permit
the ratio of (a) Annualized Consolidated Cash Flow as at the end of any
fiscal quarter of the Company to (b) Annualized Consolidated Interest Expense
as at the end of such fiscal quarter, to be less than 2.0 to 1.
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) The Company shall fail to pay (i) any principal of any Loan when
due in accordance with the terms thereof or (ii) any interest on any Loan, or
any other amount payable hereunder, within five days after any such interest
or other amount becomes due in accordance with the terms thereof or hereof;
or
(b) Any representation or warranty made or deemed made by the Company
herein or which is contained in any certificate, document or financial or
other statement furnished at any time under or in connection with this
Agreement shall prove to have been incorrect in any material respect on or as
of the date made or deemed made; or
(c) The Company shall default in the observance or performance of any
agreement contained in Section 6; or
34
(d) The Company shall default in any material respect in the observance
or performance of any other agreement contained in this Agreement, and such
default shall continue unremedied for a period of 30 days; or
(e) The Company or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness for more than
$2,000,000 (other than the Loans) or in the payment of any Guarantee
Obligation in excess of $2,000,000 beyond the period of grace (not to exceed
30 days), if any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, if such default or other event or condition causes,
or permits the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to become due prior to its
stated maturity or such Guarantee Obligation to become payable; or
(f) (i) The Company or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee, custodian or
other similar official for it or for all or any substantial part of its
assets, or the Company or any of its Subsidiaries shall make a general
assignment for the benefit of its creditors; or (ii) there shall be commenced
against the Company or any of its Subsidiaries any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in the
entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or
(iii) there shall be commenced against the Company or any of its Subsidiaries
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) the
Company or any of its Subsidiaries shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) the Company or any
of its Subsidiaries shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence
to have a trustee appointed, or a trustee shall be appointed, to administer
or to terminate, any Single Employer Plan, which Reportable Event or
institution of proceedings or appointment of a trustee is, in the reasonable
opinion of the Required Lenders, likely to result in the termination of such
Plan for purposes of Title IV of ERISA, and, in the case of a Reportable
Event, the continuance of such Reportable Event unremedied for ten days after
35
notice of such Reportable Event pursuant to Section 4043(a), (c) or (d) of
ERISA is given and, in the case of the institution of proceedings, the
continuance of such proceedings for ten days after commencement thereof, (iv)
any Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) any of the Company, any of its Subsidiaries or any commonly controlled
entity shall incur material liability relating to the withdrawal from any
Multiemployer Plan or the termination of any Single Employer Plan or (vi) any
other event or condition shall occur or exist, with respect to a Single
Employer Plan; provided, that in the case of each of clauses (i) through (vi)
above, such event or condition, together with all other such events or
conditions, if any, could subject the Company or any of its Subsidiaries to
any tax, penalty or other liabilities that in the aggregate would be material
in relation to the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole; or
(h) One or more judgments or decrees shall be entered against the
Company or any of its Subsidiaries involving in the aggregate a liability (to
the extent not paid or covered by insurance) of $50,000,000 or more and all
such judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 90 days from the entry thereof; or
(i) (i) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than members of the ▇▇▇▇▇▇▇▇ family or any trusts for
their benefit, shall become, or obtain rights (whether by means or warrants,
options or otherwise) to become, the "beneficial owner" (as defined in Rules
13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of
shares of Capital Stock representing more than 35% of the total voting power
of the Company, or (ii) the board of directors of the Company shall cease to
consist of a majority of Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above, automatically the
Loan Commitments shall immediately terminate and the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement
and any Note shall immediately become due and payable, and (B) if such event
is any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative
Agent shall, by notice to the Company declare the Loan Commitments to be
terminated forthwith, whereupon the Loan Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice of default to the Company, declare the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and any Note to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly
provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. The Lenders from time to time party to this Credit
Agreement, whether as original signatories or as Purchasing Lenders pursuant
to subsection 9.6, hereby irrevocably designate and appoint The Chase
Manhattan Bank as the Administrative Agent of such Lender under this
Agreement, and each such Lender irrevocably authorizes The Chase Manhattan
Bank, as the Administrative Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and to exercise such powers and
36
perform such duties as are expressly delegated to the Administrative Agent by
the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care.
8.3 Exculpatory Provisions. Neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement (except
for its or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Company or any officer thereof
contained in this Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement
or any Note or for any failure of the Company to perform its obligations
hereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any
of the agreements contained in, or conditions of, this Agreement, or to
inspect the properties, books or records of the Company.
8.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation,
counsel to the Company), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed
with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement
unless it shall first receive such advice or concurrence of the Required
Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and any Note in
accordance with a request of the Required Lenders, or all the Lenders where
unanimity is required pursuant to subsection 9.1, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
8.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
37
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Company referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default." In
the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders, or
all the Lenders where unanimity is required pursuant to subsection 9.1;
provided that unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests
of the Lenders.
8.6 Non-Reliance on Administrative Agent; Other Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs
of the Company, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Company and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Company. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, financial and
other condition or creditworthiness of the Company which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Company and without limiting the obligation of the Company to do so),
ratably according to the respective amounts of their original Loan
Commitments, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including without
limitation at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating
to or arising out of this Agreement, or any documents contemplated by or
referred to herein or the transactions contemplated hereby or any action
taken or omitted by the Administrative Agent under or in connection with any
of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from the Administrative Agent's gross negligence or willful misconduct. The
agreements in this subsection shall survive the payment of the Loans and all
other amounts payable hereunder.
38
8.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Company as though
the Administrative Agent were not the Administrative Agent hereunder. With
respect to its Loans made or renewed by it and any Note issued to it, the
Administrative Agent shall have the same rights and powers under this
Agreement as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this
Agreement, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders which successor agent shall be approved by
the Company, whereupon such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term "Administrative
Agent" shall mean such successor agent effective upon its appointment, and
the former Administrative Agent's rights, powers and duties as Administrative
Agent shall be terminated, without any other or further act or deed on the
part of such former Administrative Agent or any of the parties to this
Agreement or any holders of the Loans. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
subsection 8.9 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement.
8.10 Documentation Agent and Syndication Agent. Neither the Documentation
Agent nor the Syndication Agent shall have any duties or responsibilities
hereunder in its capacity as such.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. With the written consent of the Required
Lenders, the Administrative Agent and the Company may, from time to time,
enter into written amendments, supplements or modifications hereto for the
purpose of adding any provisions to this Agreement or any Note or changing in
any manner the rights of the Lenders or of the Company hereunder or
thereunder or waiving, on such terms and conditions as the Administrative
Agent may specify in such instrument, any of the requirements of this
Agreement or any Note or any Default or Event of Default and its
consequences; provided, however, that (i) such amendments, supplements or
modifications may only be made pursuant to this subsection 9.1 and (ii) no
such waiver and no such amendment, supplement or modification shall (a)
extend the maturity of any Loan, or reduce the rate or extend the time of
payment of interest thereon, or reduce any fee payable to the Lenders
hereunder, or reduce the principal amount of any Loan, or increase the amount
or extend the expiration date of any Lender's Loan Commitment or amend,
modify or waive any provision of this subsection or reduce the percentage
specified in the definition of Required Lenders, or consent to the assignment
or transfer by the Company of any of its rights and obligations under this
Agreement, in each case without the written consent of each Lender affected
thereby, or (b) amend, modify or waive any provision of Section 8 without the
written consent of the then Administrative Agent. Any such waiver and any
such amendment, supplement or modification shall apply equally to each of the
Lenders and shall be binding upon the Company, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Company, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under any Notes,
and any Default or Event of Default waived shall be deemed to be cured and
39
not continuing; but no such waiver shall extend to any subsequent or other
default or Event of Default, or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing, including by
telecopy, and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or when deposited in the
mail, postage prepaid, or, in the case of telecopy notice, when received,
addressed as follows in the case of the Company and the Administrative Agent,
and as set forth in Schedule 9.2 in the case of the other parties hereto, or
to such other address as may be hereafter notified by the respective parties
hereto and any future holders of the Loans:
The Company: Dow ▇▇▇▇▇ & Company, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
The Administrative Agent: The Chase Manhattan Bank
Agent Bank Services Group
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with copy to: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative
Agent or the Lenders pursuant to subsections 2.1(d), 2.2, 2.5 and 2.7 shall
not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the Loans
hereunder.
9.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this
Agreement and any Notes and any other documents prepared in connection
herewith, and the consummation of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements
40
of counsel to the Administrative Agent, (b) to pay or reimburse each Lender
and the Administrative Agent for all their costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, any Notes and any such other documents, including, without
limitation, reasonable fees and disbursements of counsel to the
Administrative Agent and to the several Lenders, (c) to pay, indemnify, and
hold each Lender and the Administrative Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any
waiver or consent under or in respect of, this Agreement, any Notes and any
such other documents, and (d) to pay, indemnify, and hold each Lender and the
Administrative Agent and their respective officers, directors, employees,
affiliates, agents and controlling persons (each, an "Indemnitee") harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever arising out of the execution, delivery,
enforcement, performance and administration of this Agreement, or the use by
the Company of the proceeds of the Loans (including, without limitation, any
such use that would result in a violation of Regulation U or X of the Board
of Governors of the Federal Reserve System) (all the foregoing in this clause
(d), collectively, the "Indemnified Liabilities"), provided, that the Company
shall have no obligation hereunder to any Indemnitee with respect to
Indemnified Liabilities to the extent such Indemnified Liabilities are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of such
Indemnitee. The agreements in this subsection 9.5 shall survive repayment of
the Loans and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations; Purchasing Lenders. (a)
This Agreement shall be binding upon and inure to the benefit of the Company,
the Lenders, the Administrative Agent, all future holders of the Loans, and
their respective successors and assigns, except that the Company may not
assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or
more banks or other entities ("Participants") participating interests in any
Loan owing to such Lender, any Loan Commitment of such Lender or any other
interest of such Lender hereunder or under any Note. In the event of any
such sale by a Lender of participating interests to a Participant, such
Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and any Note and the Company and
the Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and any Note. In no event shall any Participant under any such
participation have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by
the Company therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Loans or any fees
payable hereunder, or postpone the date of the final maturity of the Loans,
in each case to the extent subject to such participation. The Company agrees
that if amounts outstanding under this Agreement and the Loans are due or
41
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement
to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed
to share with the Lenders the proceeds thereof as provided in subsection
9.7(a) as fully as if it were a Lender hereunder. The Company also agrees
that each Participant shall be entitled to the benefits of subsections 2.12,
2.13, 2.14, 2.15 and 9.5 with respect to its participation in the Loan
Commitments and the Loans outstanding from time to time; provided, that no
Participant shall be entitled to receive any greater amount pursuant to such
subsections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in accordance with applicable law, at any time
assign to one or more banks or other entities ("Competitive Loan Assignees")
any Competitive Loan owing to such Lender and any Note held by such Lender
evidencing such Competitive Loan, pursuant to a Competitive Loan Assignment
executed by the assignor Lender and the Competitive Loan Assignee. Upon such
execution, from and after the date of such Competitive Loan Assignment, the
Competitive Loan Assignee shall, to the extent of the assignment provided for
in such Competitive Loan Assignment, be deemed to have the same rights and
benefits of payment and enforcement with respect to such Competitive Loan and
any such Note and the same rights of setoff and obligation to share pursuant
to subsection 9.7 as it would have had if it were a Lender hereunder;
provided, that unless such Competitive Loan Assignment shall otherwise
specify and a copy of such Competitive Loan Assignment shall have been
delivered to the Administrative Agent for its acceptance and recording in the
Register in accordance with subsection 9.6(f), the assignor thereunder shall
act as collection agent for the Competitive Loan Assignee thereunder, and the
Administrative Agent shall pay all amounts received from the Company which
are allocable to the assigned Competitive Loan and Note, if any, directly to
such assignor without any further liability to such Competitive Loan
Assignee. A Competitive Loan Assignee under a Competitive Loan Assignment
shall not, by virtue of such Competitive Loan Assignment, become a party to
this Agreement or have any rights to consent to or refrain from consenting to
any amendment, waiver or other modification of any provision of this
Agreement or any related document; provided, no Competitive Loan Assignee
shall be entitled to receive any greater amount than the Lender would have
been entitled to receive in respect of the amount of the Competitive Loan
Assignment by such Lender to such Competitive Loan Assignee had no such
assignment occurred; provided, further, that (x) the assignor under such
Competitive Loan Assignment and such Competitive Loan Assignee may, in their
discretion, agree between themselves upon the manner in which such assignor
will exercise its rights under this Agreement and any related document, and
(y) if a copy of such Competitive Loan Assignment shall have been delivered
to the Administrative Agent for its acceptance and recording in the Register
in accordance with subsection 9.6(f), neither the principal amount of, the
interest rate on, nor the maturity date of any Competitive Loan and Note, if
any, assigned to the Competitive Loan Assignee thereunder will be modified
without the written consent of such Competitive Loan Assignee. If a
Competitive Loan Assignee has caused a Competitive Loan Assignment to be
recorded in the Register in accordance with subsection 9.6(f), such
Competitive Loan Assignee may thereafter, in the ordinary course of its
business and in accordance with applicable law, assign such Competitive Loan
42
and Note, if any, to any Lender, to any affiliate or subsidiary of such
Competitive Loan Assignee or to any other financial institution that has
total assets in excess of $1,000,000,000 and that in the ordinary course of
its business extends credit of the same type as such Competitive Loan, and
the foregoing provisions of this paragraph (c) shall apply, mutatis mutandis,
to any such assignment by a Competitive Loan Assignee. Except in accordance
with the preceding sentence, Competitive Loans and any related Notes may not
be further assigned by a Competitive Loan Assignee, subject to any legal or
regulatory requirement that the Competitive Loan Assignee's assets must
remain under its control.
(d) Any Lender may, in accordance with applicable law, at any time and
from time to time sell to any other Lender or any affiliate thereof all or
any part of such transferor Lender's rights and obligations under this
Agreement (other than its rights with respect to Competitive Loans,
assignment of which shall be governed by paragraph (c) above) pursuant to an
Assignment and Acceptance, executed by such purchasing Lender and such
transferor Lender and delivered to the Administrative Agent for its
acceptance and recording in the Register. In addition, with the consent of
the Company and the Administrative Agent (which in each case shall not be
unreasonably withheld), any Lender may, in accordance with applicable law, at
any time and from time to time sell to one or more additional banks,
financial institutions or other entities that are not then Lenders or
affiliates thereof (together with purchasing Lenders pursuant to the
preceding sentence (including, without limitation, any affiliate through
which Loans were not previously booked), each a "Purchasing Lender"), all or
any part of its rights and obligations under this Agreement pursuant to an
Assignment and Acceptance, executed by such Purchasing Lender, such
transferor Lender, the Company and the Administrative Agent, and delivered to
the Administrative Agent for its acceptance and recording in the Register,
provided that no such assignment to a Purchasing Lender (other than any
Lender or any affiliate of any Lender) shall be in an aggregate principal
amount of less than $5,000,000 (other than in the case of an assignment of
all of a Lender's interests under this Agreement), unless otherwise agreed by
the Company and the Administrative Agent. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Purchasing Lender
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Loan Commitment as set forth therein, and (y) the transferor
Lender thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of a transferor
Lender's rights and obligations under this Agreement, such transferor Lender
shall cease to be a party hereto). Notwithstanding any provision of this
subsection 9.6, the consent of the Company shall not be required for any
assignment that occurs when an Event of Default pursuant to subsection 7(f)
shall have occurred and be continuing with respect to the Company. Such
Assignment and Acceptance shall be deemed to amend this Agreement to the
extent, and only to the extent, necessary to reflect the addition of such
Purchasing Lender and the resulting adjustment of Commitment Percentages
arising from the purchase by such Purchasing Lender of all or a portion of
the rights and obligations of such transferor Lender under this Agreement.
(e) The Administrative Agent shall, on behalf of the Company, maintain
at its address referred to in subsection 9.2 a copy of each Competitive Loan
Assignment and each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of (i) the names and addresses of the
43
Lenders and the Loan Commitment of, and principal amount and stated interest
of the Loans owing to, each Lender from time to time, and (ii) with respect
to each Competitive Loan Assignment delivered to the Administrative Agent,
the name and address of the Competitive Loan Assignee and the principal
amount and stated interest of each Competitive Loan owing to such Competitive
Loan Assignee. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Company, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as the
owner of the Loan and any Notes evidencing the Loans recorded therein for all
purposes of this Agreement. Any assignment of any Loan, whether or not
evidenced by a Note, shall be effective only upon appropriate entries with
respect thereto being made in the Register (and each Note shall expressly so
provide). Any assignment or transfer of all or part of a Loan evidenced by a
Note shall be registered on the Register only upon surrender for registration
of assignment or transfer of the Note evidencing such Loan, accompanied by a
duly executed Assignment and Acceptance, and thereupon one or more new Notes
shall be issued to the designated Assignee. The Register shall be available
for inspection by the Company or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(f) Upon its receipt of a Competitive Loan Assignment executed by an
assignor Lender and a Competitive Loan Assignee, together with payment from
the assignor or assignee Lender to the Administrative Agent of a registration
and processing fee of $2,000.00, the Administrative Agent shall promptly
accept such Competitive Loan Assignment, record the information contained
therein in the Register and give notice of such acceptance and recordation to
the assignor Lender, the Competitive Loan Assignee and the Company. Upon its
receipt of an Assignment and Acceptance executed by a transferor Lender and a
Purchasing Lender (and, in the case of a Purchasing Lender that is not then a
Lender or an affiliate thereof, by the Company and the Administrative Agent)
together with payment from the assignor or assignee Lender to the
Administrative Agent of a registration and processing fee of $4,000.00, the
Administrative Agent shall promptly accept such Assignment and Acceptance and
promptly record the information contained therein and the effective date
determined pursuant thereto in the Register.
(g) The Company authorizes each Lender to disclose to any Participant,
Competitive Loan Assignee or Purchasing Lender (each, a "Transferee") and any
prospective Transferee any and all financial information in such Lender's
possession concerning the Company and its affiliates which has been delivered
to such Lender by or on behalf of the Company pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of the Company in
connection with such Lender's credit evaluation of the Company and its
affiliates prior to becoming a party to this Agreement.
(h) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection 9.6 concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
(i) The Borrower, upon receipt of written notice from the relevant
Lender, agrees to issue Notes to any Lender requiring Notes to facilitate
transactions of the type described in paragraph (h) above.
44
9.7 Adjustments; Set-off. (a) If any Lender or Transferee (a
"benefitted Lender") shall at any time receive any payment of all or part of
its Loans, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in clause (f) of Section 7, or
otherwise) in a greater proportion than any such payment to and collateral
received by any other Lender, if any, in respect of such other Lender's
Loans, or interest thereon, such benefitted Lender shall purchase for cash
from the other Lenders such portion of each such other Lender's Loan, or
shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such benefitted Lender
to share the excess payment or benefits of such collateral or proceeds
ratably with each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without interest.
The Company agrees that each Lender so purchasing a portion of another
Lender's Loan may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if
such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Company,
any such notice being expressly waived by the Company to the extent permitted
by applicable law, upon the occurrence and continuance of an Event of Default
to set-off and apply against any indebtedness, whether matured or unmatured,
of the Company to such Lender, any amount owing from such Lender to the
Company, at or at any time after the happening of any of the above mentioned
events, and the aforesaid right of set-off may be exercised by such Lender
against the Company or against any trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor of the Company, or against anyone else
claiming through or against the Company or such trustee in bankruptcy, debtor
in possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by such Lender prior to the making,
filing or issuance, or service upon such Lender of, or of notice of, any such
petition; assignment for the benefit of creditors; appointment or application
for the appointment of a receiver; or issuance of execution, subpoena, order
or warrant. Each Lender agrees promptly to notify the Company and the
Administrative Agent after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
9.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Company and the Administrative Agent.
9.9 Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
45
9.10 Integration. This Agreement and any Notes represent the
agreement of the Company, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or
any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in any such Notes.
9.11 Governing Law. This Agreement and the rights and obligations of
the parties under this Agreement shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
9.12 Submission To Jurisdiction; Waivers. (a) The Company hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or proceeding
relating to this Agreement, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of America
for the Southern District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in such
courts, and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action
or proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(iii) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Company at its
address set forth in subsection 9.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to
▇▇▇ in any other jurisdiction.
(b) COMPANY AND THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
46
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
DOW ▇▇▇▇▇ & COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Finance and
Controller
47
THE CHASE MANHATTAN BANK,
As Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇.▇.▇.,
▇▇▇ ▇▇▇▇ BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: First Vice President
49
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
50
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
51
HSBC BANK USA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
52
LLOYDS TSB BANK PLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director, Corporate Banking, USA
D061
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Credit Services, USA
R156
53
MELLON BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
54
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
55
NATIONAL AUSTRALIA BANK LIMITED,
A.C.N. 004044937
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Sector Head, Media & Entertainment
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
57
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Credit Portfolio Manager
58
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By: /s/ Pascal Kabemba
---------------------------------
Name: Pascal Kabemba
Title: Associate Director
SCHEDULE 1.1
------------
------------------------------------------------------------
Lender Loan Commitment
------------------------------------------------------------
The Chase Manhattan Bank $16,250,000.00
Fleet National Bank $16,250,000.00
The Bank of New York $16,250,000.00
Lloyds TSB Bank plc $16,250,000.00
Westdeutsche Landesbank Girozentrale $16,250,000.00
Bank of Tokyo-Mitsubishi Trust Company $11,375,000.00
HSBC Bank USA $11,375,000.00
The Northern Trust Company $9,750,000.00
Banca Nazionale Del Lavoro S.p.A $6,500,000.00
Mellon Bank, N.A. $6,500,000.00
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA $6,500,000.00
National Australia Bank Limited A.C.N.
004044937 $6,500,000.00
------------------------------------------------------------
Total $139,750,000.00
------------------------------------------------------------
SCHEDULE 3.14
-------------
SUBSIDIARIES OF THE COMPANY
Name of Subsidiary
------------------
DJBI, LLC
Dow ▇▇▇▇▇ & Company (Australia) Pty Limited
Dow ▇▇▇▇▇ & Company (Schweiz) GmbH
Dow ▇▇▇▇▇ & Company (Singapore) Pte Limited
Dow ▇▇▇▇▇ AER Company, Inc.
Economic Research Company, Inc.
Dow ▇▇▇▇▇ ▇▇ Services, Inc.
Dow ▇▇▇▇▇ Broadcasting (Asia), Inc.
Dow ▇▇▇▇▇ Broadcasting (Europe), Inc.
Dow ▇▇▇▇▇ Broadcasting (USA), Inc.
Dow ▇▇▇▇▇ Business Portal Company, Inc.
Dow ▇▇▇▇▇ Canada, Inc.
Dow ▇▇▇▇▇ Consulting (Shanghai) Limited
Dow ▇▇▇▇▇ Financial Publishing Corp.
Dow ▇▇▇▇▇ Information Publishing, Inc.
Dow ▇▇▇▇▇ Information Services International (HK) Ltd.
Dow ▇▇▇▇▇ International GmbH
Dow ▇▇▇▇▇ International Ltd.
Dow ▇▇▇▇▇ International Marketing Services, Inc.
Dow ▇▇▇▇▇ Italia Srl
Dow ▇▇▇▇▇ (Japan) ▇.▇.
▇▇▇ ▇▇▇▇▇, ▇.▇.
Dow ▇▇▇▇▇ Newsprint Company, Inc.
Dow ▇▇▇▇▇ Newswires Holdings, Inc.
Dow ▇▇▇▇▇ Printing Company (Asia), Inc.
Dow ▇▇▇▇▇ Publishing Company (Asia), Inc. (90% owned)
Dow ▇▇▇▇▇ Distribution Co. (Asia), Inc.
Dow ▇▇▇▇▇ Publishing Company (Europe), Inc.
The Wall Street Journal Europe S.P.R.L. (51% owned)
JV GmbH II (51% owned)
Dow ▇▇▇▇▇ Southern Holding Company, Inc.
Nanbei, Ltd. (61% owned)
Nanbei U.S., Inc.
Dow ▇▇▇▇▇ Ventures V, Inc.
Dow ▇▇▇▇▇ Ventures VI, Inc.
Dow ▇▇▇▇▇ Cash Management, Inc.
▇▇▇▇▇▇▇ Newspapers, Inc.
▇▇▇▇▇▇▇ Newspapers of Pennsylvania Holdings, Inc.
▇▇▇▇▇▇▇ Newspapers of Pennsylvania, ▇.▇.
▇▇▇▇▇▇▇ Newspapers of Delaware SMLLC
Seacoast Newspapers, Inc.
Essex County Newspapers, Inc.
Inquirer & Mirror, Inc.
2
▇▇▇▇▇▇▇ Newspapers of Pennsylvania Management, Inc.
ONI National Publishing, Inc.
The Mail Tribune, Inc.
The Traverse City Record-Eagle, Inc.
The Daily Independent, Inc.
The Joplin Globe, Inc.
The Santa ▇▇▇▇ County Sentinel, Inc.
The Free Press, Inc.
Federal Filings, Incorporated
IDD LP Holdings, Inc.
National Delivery Service, Inc.
Review Publishing Company Limited
SCHEDULE 6.1
------------
EXISTING LIENS
None.
SCHEDULE 9.2
------------
Names and Addresses of Lenders
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Banca Nazionale Del Lavoro S.p.A.,
New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
HSBC Bank USA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Lloyds TSB Bank plc
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Mellon Bank, N.A.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA
▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
National Australia Bank Limited, A.C.N. 004044937
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
The Northern Trust Company
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Westdeutsche Landesbank Girozentrale,
New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
EXHIBIT A
---------
FORM OF BORROWING NOTICE FOR REVOLVING CREDIT LOANS
Date:
The Chase Manhattan Bank, as Administrative Agent under the
Credit Agreement referred to below
Gentlemen:
Pursuant to subsection 2.1 of the 5-Year Credit Agreement, dated as of
June 25, 2001, among Dow ▇▇▇▇▇ & Company, Inc. (the "Company"), the Lenders
parties thereto, The Chase Manhattan Bank, as Administrative Agent, Lloyds
TSB Bank plc and Westdeutsche Landesbank Girozentrale, as Co-Documentation
Agents, and The Bank of New York and Fleet National Bank, as Co-Syndication
Agents (as the same may be amended, supplemented or otherwise modified, the
"Credit Agreement"), the Company hereby requests that the following Revolving
Credit Loans be made on [date] as follows:
(1). Total Amount of Revolving Credit Loans.......$
---------------
(2). Amount of (1) to be allocated to
Eurodollar Loans.............................$
---------------
(3). Amount of (1) to be allocated to
Alternate Base Rate Loans....................$
---------------
(4). Interest Periods and amounts to be allocated
thereto in respect of Eurodollar Loans
(amounts must total (2)):
(i) one month............................. $
---------------
(ii) two months.............................$
---------------
(iii) three months...........................$
---------------
(iv) six months............................$
---------------
Total Eurodollar Loans.......................$
---------------
NOTE: EACH AMOUNT APPEARING IN EACH LINE ABOVE MUST BE AT LEAST EQUAL
TO $10,000,000 AND IN A WHOLE MULTIPLE OF $1,000,000.
The Company hereby certifies that the conditions set forth in Section
4.2 of the Credit Agreement have been satisfied.
2
Terms defined in the Credit Agreement shall have the same meanings
when used herein.
Very truly yours,
DOW ▇▇▇▇▇ & COMPANY, INC.
By:
-----------------------------
Name:
Title:
EXHIBIT B
---------
FORM OF COMPETITIVE LOAN REQUEST
----------,-----
The Chase Manhattan Bank, as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Reference is made to the 5-Year Credit Agreement, dated as of June 25,
2001, among Dow ▇▇▇▇▇ & Company, Inc. (the "Company"), the Lenders parties
thereto, The Chase Manhattan Bank, as Administrative Agent, Lloyds TSB Bank
plc and Westdeutsche Landesbank Girozentrale, as Co-Documentation Agents, and
The Bank of New York and Fleet National Bank, as Co-Syndication Agents (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein as
therein defined.
This is an [Index Rate] [Absolute Rate] Competitive Loan Request
pursuant to subsection 2.2 of the Credit Agreement requesting quotes for the
following Competitive Loans:
Aggregate Principal Amount $ $ $
-------- -------- --------
Competitive Loan Date
-------- -------- --------
[Interest Period]*
-----------------------
Maturity Date**
-----------------------
Interest Payment Dates
-----------------------
Very truly yours,
DOW ▇▇▇▇▇ & COMPANY, INC.
By:
-----------------------------
Name:
Title:
Note: Pursuant to the Credit Agreement, a Competitive Loan Request may be
transmitted in writing, by telex or by facsimile transmission, or by
telephone, immediately confirmed by telex or facsimile transmission. In any
case, a Competitive Loan Request shall contain the information specified in
the second paragraph of this form.
* Insert only in an Index Rate Competitive Loan Request.
** In an Index Rate Competitive Loan Request, insert last day of Interest
Period.
EXHIBIT C
---------
FORM OF COMPETITIVE LOAN OFFER
----------,-----
The Chase Manhattan Bank, as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Reference is made to the 5-Year Credit Agreement, dated as of June 25,
2001, among Dow ▇▇▇▇▇ & Company, Inc. (the "Company"), the Lenders parties
thereto, The Chase Manhattan Bank, as Administrative Agent, Lloyds TSB Bank
plc and Westdeutsche Landesbank Girozentrale, as Co-Documentation Agents, and
The Bank of New York and Fleet National Bank, as Co-Syndication Agents (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein as
therein defined.
In accordance with subsection 2.2 of the Credit Agreement, the
undersigned Lender offers to make Competitive Loans thereunder in the
following amounts with the following maturity dates:
Competitive Loan Date:
-------------, -----
Aggregate Maximum Amount: $
----------------
Maturity Date 1:
Maximum Amount $
--------------
Rate* Amount $
-------- --------
Rate* Amount $
-------- --------
Maturity Date 2:
Maximum Amount $
--------------
Rate* Amount $
-------- --------
Rate* Amount $
-------- --------
2
Maturity Date 3:
Maximum Amount $____________
Rate* _____ Amount $________
Rate* _____ Amount $________
Very truly yours,
[NAME OF OFFERING LENDER]
By:
-----------------------------
Name:
Title:
Telephone No.:
Fax No.:
--------------------------
* In the case of Index Rate Competitive Loans, insert margin bid. In the
case of Absolute Rate Competitive Loans, insert fixed rate bid.
EXHIBIT D
---------
FORM OF COMPETITIVE LOAN CONFIRMATION
----------,-----
The Chase Manhattan Bank, as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Reference is made to the 5-Year Credit Agreement, dated as of June 25,
2001, among Dow ▇▇▇▇▇ & Company, Inc. (the "Company"), the Lenders parties
thereto, The Chase Manhattan Bank, as Administrative Agent, Lloyds TSB Bank
plc and Westdeutsche Landesbank Girozentrale, as Co-Documentation Agents, and
The Bank of New York and Fleet National Bank, as Co-Syndication Agents (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein as
therein defined.
In accordance with subsection 2.2 of the Credit Agreement, the
undersigned accepts and confirms the offers by Competitive Loan Lender(s) to
make Competitive Loans to the undersigned on , [Competitive Loan Date]
under said subsection 2.2 in the (respective) amount(s) set forth on the
attached list of Competitive Loans offered.
Very truly yours,
DOW ▇▇▇▇▇ & COMPANY, INC.
By:
-----------------------------
Name:
Title:
(Company to attach Competitive Loan offer list prepared by
Administrative Agent with accepted amount entered by the Company to right of
each Competitive Loan offer).
EXHIBIT E
---------
FORM OF EXEMPTION CERTIFICATE
Reference is made to the 5-Year Credit Agreement, dated as of June 25,
2001 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among Dow ▇▇▇▇▇ & Company, Inc., a Delaware corporation
(the "Company"), the several banks and other financial institutions or
entities from time to time parties to this Agreement (the "Lenders"), The
Chase Manhattan Bank, as Administrative Agent, Lloyds TSB Bank plc and
Westdeutsche Landesbank Girozentrale, as Co-Documentation Agents, and The
Bank of New York and Fleet National Bank, as Co-Syndication Agents.
Capitalized terms used herein that are not defined herein shall have the
meanings ascribed to them in the Credit Agreement. (the
"Non-U.S. Lender") is providing this certificate pursuant to subsection
2.12(d) of the Credit Agreement. The Non-U.S. Lender hereby represents and
warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner of
the Loans or the obligations evidenced by Notes in respect of which it is
providing this certificate;
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code").
In this regard, the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other legal
requirements as a bank in any jurisdiction;
(b) the Non-U.S. Lender has not been treated as a bank for purposes
of any tax, securities law or other filing or submission made to any
Governmental Authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other legal
requirements; and
(c) the Non-U.S. Lender is acquiring an interest in the Loans or
Notes for its own account, and the Non-U.S. Lender will not hold such an
interest, directly or indirectly, for or on behalf of, or as nominee for, any
bank.
3. The Non-U.S. Lender meets all of the requirements under Code
Section 871(h) or 881(c) to be eligible for a complete exemption from
withholding of taxes on interest payments made to it under the Credit
Agreement, including without limitation that it is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Company and is not a controlled foreign corporation related to the Company
(within the meaning of Section 864(d)(4) of the Code); and
4. The Non-U.S. Lender shall promptly notify the Company and the
Administrative Agent if any of the representations and warranties made herein
are no longer true and correct.
2
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[NAME OF NON-U.S. LENDER]
By:
-----------------------------
Name:
Title:
Date:
----------------
EXHIBIT F
---------
FORM OF OPINION OF ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
, 2001
The Chase Manhattan Bank,
as Administrative Agent
under the Agreement, as
hereinafter defined,
Lloyds TSB Bank plc,
Westdeutsche Landesbank Girozentrale,
as Co-Documentation Agents under
the Agreement,
The Bank of New York,
Fleet National Bank,
as Co-Syndication Agents
under the Agreement
and
Each of the Lenders parties to the
Agreement
Ladies and Gentlemen:
In my capacity as General Counsel, I have acted as counsel for Dow
▇▇▇▇▇ & Company, Inc., a Delaware corporation (the "Company"), in connection
with the execution and delivery of the 5-Year Credit Agreement, dated as of
June 25, 2001, among Dow ▇▇▇▇▇ & Company, Inc. (the "Company"), the Lenders
parties thereto, The Chase Manhattan Bank, as Administrative Agent, Lloyds
TSB Bank plc and Westdeutsche Landesbank Girozentrale, as Co-Documentation
Agents, and The Bank of New York and Fleet National Bank, as Co-Syndication
Agents (as the same may be amended, supplemented or otherwise modified, the
"Agreement").
This opinion is delivered to you pursuant to Section 4 of the
Agreement. Terms used herein which are defined in the Agreement shall have
the respective meanings set forth in the Agreement, unless otherwise defined
herein.
In connection with this opinion, I have examined executed copies of
the Agreement and such corporate documents and records of the Company and its
Subsidiaries, certificates of public officials and officers of the Company
and its Subsidiaries, and such other documents, as I have deemed necessary or
appropriate for the purposes of this opinion. In stating my opinion, I have
assumed the genuineness of all signatures of, and the authority of, persons
signing the Agreement on behalf of parties thereto other than the Company,
the authenticity of all documents submitted to me as originals and the
conformity to authentic original documents of all documents submitted to me
as certified, conformed or photostatic copies.
2
Based upon the foregoing, I am of the opinion that:
1. Each of the Company and its Subsidiaries (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its incorporation, (b) has the corporate power and authority and the legal
right to own and operate its property, to lease the property it operates
under lease and to conduct the business in which it is currently engaged and
(c) to the best of my knowledge, is duly qualified as a foreign corporation
and in good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification and where the failure to be so qualified would have a material
adverse effect on the Company and its Subsidiaries taken as a whole.
2. The Company has the corporate power and authority to make, deliver
and perform the Agreement and to borrow thereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of the Agreement and to authorize the execution, delivery and
performance of the Agreement and any promissory notes that may be issued
after the date hereof to evidence the loans consistent with the terms of the
Agreement. No consent or authorization of, filing with, or other act by or
in respect of any Governmental Authority, is required to be obtained by the
Company in connection with the borrowings thereunder or with the execution,
delivery, performance, validity or enforceability of the Agreement.
3. The Agreement has been duly executed and delivered on behalf of
the Company and constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law). No opinion is
expressed as to the availability of the remedy of specific performance.
4. The execution, delivery and performance of the Agreement by the
Company and the use of the proceeds of the borrowings thereunder as provided
therein, will not violate any provision of any existing law or regulation
applicable to the Company, or, to the best of my knowledge, of any order,
judgment, award or decree of any court, arbitrator or governmental authority
binding upon or applicable to the Company, or of the Certificate of
Incorporation or By-Laws of the Company, or, to the best of my knowledge, of
any securities issued by the Company, or, to the best of my knowledge, of any
mortgage, indenture, lease, contract or other agreement, instrument or
undertaking by which the Company or any of its Subsidiaries or any of their
respective assets may be bound, and, to the best of my knowledge, will not
result in or require the creation or imposition of any Lien on any of its or
their respective properties, assets or revenues pursuant to the provisions of
any such mortgage, indenture, lease, contract or other agreement, instrument
or undertaking.
5. To the best of my knowledge, no litigation, investigation or
proceeding of or before any court, arbitrator or governmental authority is
pending or threatened by or against the Company or any of its Subsidiaries or
against any of its or their respective properties or revenues (a) with
respect to the Agreement or any of the transactions contemplated thereby, or
3
(b) which, if adversely determined, would have a material adverse effect on
the business, operations, property or financial or other condition of the
Company and its Subsidiaries taken as a whole.
6. The Company is not an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended, or a "holding company," or a "subsidiary
company" of a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
7. Assuming that the Company will comply with the provisions of the
Credit Agreement relating to the use of proceeds, the making of the Loans
under the Credit Agreement will not violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System.
The opinions expressed herein are solely for the benefit of the
Administrative Agent, the Co-Documentation Agents, the Co-Syndication Agents
and the Lenders in connection with the Agreement and may not be relied on in
any manner or for any purpose by any other person or entity.
Very truly yours,
EXHIBIT G
---------
FORM OF OFFICER'S CERTIFICATE
Pursuant to Section 4 of the 5-Year Credit Agreement, dated as of June
25, 2001, among Dow ▇▇▇▇▇ & Company, Inc. (the "Company"), the Lenders
parties thereto, The Chase Manhattan Bank, as Administrative Agent, Lloyds
TSB Bank plc and Westdeutsche Landesbank Girozentrale, as Co-Documentation
Agents, and The Bank of New York and Fleet National Bank, as Co-Syndication
Agents (as the same may be amended, supplemented or otherwise modified, the
"Credit Agreement"), the undersigned hereby certify as follows:
1. The representations and warranties of the Company set forth in the
Credit Agreement or which are contained in any certificate, document or
financial or other statement furnished pursuant to or in connection with the
Credit Agreement are true and correct on and as of the date hereof with the
same effect as if made on the date hereof; and
2. On the date hereof, no Default or Event of Default (both as
defined in the Credit Agreement) has occurred and is continuing under the
Credit Agreement as of the date hereof or after giving effect to any Loans to
be made on the date hereof.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his name.
DOW ▇▇▇▇▇ & COMPANY, INC.
By:
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Finance and
Controller
By:
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer and Assistant
Secretary
Date:
EXHIBIT H
---------
FORM OF CERTIFICATE OF THE
SECRETARY OF THE COMPANY
Pursuant to Section 4 of the 5-Year Credit Agreement, dated as of June
25, 2001, among Dow ▇▇▇▇▇ & Company, Inc. (the "Company"), the Lenders
parties thereto, The Chase Manhattan Bank, as Administrative Agent, Lloyds
TSB Bank plc and Westdeutsche Landesbank Girozentrale, as Co-Documentation
Agents, and The Bank of New York and Fleet National Bank, as Co-Syndication
Agents (as the same may be amended, supplemented or otherwise modified, the
"Credit Agreement"), the undersigned Secretary of the Company hereby
certifies as follows:
1. Attached hereto as Annex I is a true and complete copy of
resolutions duly adopted by the Board of Directors of the Company on February
21, 1996, and such resolutions have not in any way been rescinded or modified
and have been in full force and effect since their adoption to and including
the date hereof and are now in full force and effect; and such resolutions
are the only corporate proceedings of the Company now in force relating to or
affecting the matters referred to therein.
2. Attached hereto as Annex II is a true and complete copy of the By-
laws of the Company as in effect at all times since May 17, 1989, to and
including the date hereof.
3. Attached hereto as Annex III is a true and complete copy of the
Restated Certificate of Incorporation of the Company, as amended, as in
effect at all times since April 25, 1989, to and including the date hereof,
and no action has been taken to amend, repeal, modify or revoke such
certificate.
4. The following persons are now duly elected and qualified officers
of the Company, holding the offices indicated next to their respective names
below, and such officers have held such offices with the Company at all times
since the respective dates set forth opposite their names, to and including
the date hereof, and the signatures appearing opposite their respective names
below are the true and genuine signatures of such officers, and each of such
officers is duly authorized to execute and deliver on behalf of the Company
the Credit Agreement, any Notes of the Company to be issued pursuant thereto
and any certificate or other document to be delivered by the company pursuant
to the Credit Agreement and to act as Responsible Officers on behalf of the
Company under the Credit Agreement:
Month & Year
Name Office Signature of Election
---- ------ --------- -----------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Executive Vice
President and Chief
Financial Officer April 2001
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Vice President, Finance
and Controller April 2001
2
Month & Year
Name Office Signature of Election
---- ------ --------- -----------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Treasurer and Assistant
Secretary April 2001
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Assistant Treasurer April 2001
IN WITNESS WHEREOF, the undersigned has hereunto set his name and
affixed the corporate seal of the Company.
Dated: June 25, 2001
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Executive Vice President,
General Counsel and Secretary
(CORPORATE SEAL)
3
I, ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Finance and Controller of the
Company, hereby certify that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, whose genuine signature
appears above, is, and has been at all times since April 18, 2001, a duly
elected, qualified and acting Secretary of the Company.
Dated: June 25, 2001
-----------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President, Finance and
Controller
EXHIBIT I
---------
FORM OF
COMPETITIVE LOAN ASSIGNMENT
Reference is made to the 5-Year Credit Agreement, dated as of June 25,
2001 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Dow ▇▇▇▇▇ & Company, Inc. (the "Company"), the
Lenders named therein, The Chase Manhattan Bank, as administrative agent for
the Lenders (in such capacity, the "Administrative Agent"), Lloyds TSB Bank
plc and Westdeutsche Landesbank Girozentrale, as Co-Documentation Agents, and
The Bank of New York and Fleet National Bank, as Co-Syndication Agents.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor") and the
Assignee identified on Schedule l hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as
of the Effective Date (as defined below), the Competitive Loan (the "Assigned
Loan") and any Note evidencing such Competitive Loan described in Schedule 1
hereto.
2. The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any Notes or any other
instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned
by it hereunder and that such interest is free and clear of any such adverse
claim; (b) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Company, any of its
Subsidiaries or any other obligor or the performance or observance by the
Company, any of its Subsidiaries or any other obligor of any of their
respective obligations under the Credit Agreement, any Notes or any other
instrument or document furnished pursuant hereto or thereto; and (c) attaches
any Notes held by it evidencing the Assigned Loan and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange the attached
Notes for a new Note or Notes payable to the Assignee and (ii) if the
Assignor has retained any interest in any Note evidencing the Assigned Loan,
requests that the Administrative Agent exchange the attached Notes for a new
Note or Notes payable to the Assignor, in each case in amounts which reflect
the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Competitive Loan Assignment; (b) confirms that
it has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 3.1 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Competitive Loan Assignment;
(c) agrees that it will, independently and without reliance upon the
Assignor, the Administrative Agent or any Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action permitted by the
2
Credit Agreement, any Notes or any other instrument or document furnished
pursuant hereto or thereto; (d) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
and discretion under the Credit Agreement, any Notes or any other instrument
or document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the terms and
conditions contained in the Credit Agreement applicable to it (including,
without limitation, the terms and conditions contained in subsections 9.6 and
9.7 thereof) and will perform in accordance with such terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it, including its obligations pursuant to subsection 2.12 of the
Credit Agreement.
4. The effective date of this Competitive Loan Assignment shall be
the Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Competitive Loan
Assignment, it will be delivered to the Administrative Agent for acceptance
by it and recording by the Administrative Agent pursuant to the Credit
Agreement, effective as of the Effective Date (which shall not, unless
otherwise agreed to by the Administrative Agent, be earlier than five
Business Days after the date of such acceptance and recording by the
Administrative Agent).
5. [Option 1: Upon such acceptance and recording, from and after the
Effective Date, the Assignor shall act as collection agent for the Assignee
hereunder, and the Administrative Agent shall pay all amounts (including
payments of principal, interest, fees and other amounts) received from the
Company which are allocable to the Assigned Loan and any Note evidencing such
Assigned Loan directly to the Assignor without any further liability to the
Assignee.] [Option 2: Upon such acceptance and recording, from and after
the Effective Date, the Administrative Agent shall make all payments in
respect of the Assigned Loan and any Note evidencing such Assigned Loan
(including payments of principal, interest, fees and other amounts) to the
Assignor for amounts which have accrued to the Effective Date and to the
Assignee for amounts which have accrued subsequent to the Effective Date.]
6. Any payments to the Competitive Loan Assignee in respect of the
Assigned Loan shall be made in accordance with the payment instructions set
forth on Schedule 2 hereto.
7. This Competitive Loan Assignment shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Competitive
Loan Assignment to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Competitive Loan Assignment
Name of Assignor:
--------------------------------
Name of Assignee:
--------------------------------
Address for Notices:
Contact:
--------------------------------
Title:
----------------------------------
Telephone No.:
---------------------------
Fax No.:
--------------------------------
Lending Office Address:
------------------
Contact:
------------------------------
Title:
------------------------------
Telephone No.:
---------------------------
Fax No.:
--------------------------------
Effective Date of Assignment:
--------------------
------------------------- ------------------------- -----------------------
Competitive Loan Assigned Principal Amount Assigned Maturity Date
$
---------------
------------------------------------ ------------------------------------
(Name of Assignee) (Name of Assignee)
By: By:
------------------------------- ------------------------------
Name: Name:
Title: Title:
----------------------------------
Accepted:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:
--------------------------------
Name:
Title:
Schedule 2
to Competitive Loan Assignment
Payment Instructions
--------------------
EXHIBIT J
---------
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 5-Year Credit Agreement, dated as of June 25,
2001 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Dow ▇▇▇▇▇ & Company, Inc. (the "Company"), the
Lenders named therein, The Chase Manhattan Bank, as administrative agent for
the Lenders (in such capacity, the "Administrative Agent"), Lloyds TSB Bank
plc and Westdeutsche Landesbank Girozentrale, as Co-Documentation Agents, and
The Bank of New York and Fleet National Bank, as Co-Syndication Agents.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor") and the
Assignee identified on Schedule l hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as
of the Effective Date (as defined below), the interest described in Schedule
1 hereto (the "Assigned Interest") in and to the Assignor's rights and
obligations under the Credit Agreement.
2. The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any Notes or any other
instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned
by it hereunder and that such interest is free and clear of any such adverse
claim; (b) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Company, any of its
Subsidiaries or any other obligor or the performance or observance by the
Company, any of its Subsidiaries or any other obligor of any of their
respective obligations under the Credit Agreement, any Notes or any other
instrument or document furnished pursuant hereto or thereto; and (c) attaches
any Notes held by it evidencing the Assigned Interest and (i) requests that
the Administrative Agent, upon request by the Assignee, exchange the attached
Notes for a new Note or Notes payable to the Assignee and (ii) if the
Assignor has retained any interest in any Note evidencing the Assigned
Interest, requests that the Administrative Agent exchange the attached Notes
for a new Note or Notes payable to the Assignor, in each case in amounts
which reflect the assignment being made hereby (and after giving effect to
any other assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 3.1 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance;
(c) agrees that it will, independently and without reliance upon the
Assignor, the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue
2
to make its own credit decisions in taking or not taking action under the
Credit Agreement, any Notes or any other instrument or document furnished
pursuant hereto or thereto; (d) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
and discretion under the Credit Agreement or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are incidental
thereto; and (e) agrees that it will be bound by the provisions of the Credit
Agreement and will perform in accordance with its terms all the obligations
which by the terms of the Credit Agreement are required to be performed by it
as a Lender, including its obligations pursuant to subsection 2.12 of the
Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent for acceptance by it and recording
by the Administrative Agent pursuant to the Credit Agreement, effective as of
the Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of
such acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to the Effective Date
and to the Assignee for amounts which have accrued subsequent to the
Effective Date.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender thereunder and
shall be bound by the provisions thereof, and (b) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance
Name of Assignor:
--------------------------------
Name of Assignee:
--------------------------------
Effective Date of Assignment:
---------------------
---------------------------- -------------------------------
Principal Amount Assigned Commitment Percentage Assigned1
$ %
--------------- -------
------------------------------------ ------------------------------------
(Name of Assignee) (Name of Assignee)
By: By:
------------------------------- ------------------------------
Name: Name:
Title: Title:
---------------------------------- ------------------------------------
Accepted: Consented To:
THE CHASE MANHATTAN BANK, as DOW ▇▇▇▇▇ & COMPANY, INC.
Administrative Agent
By: By:
------------------------- ----------------------------
Name: Name:
Title: Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By: ---------------------------
Name:
Title:
-------------------------------------
1. Calculated the Commitment Percentage that is assigned to at least 15
decimal places and show as a percentage of the aggregate commitments
of all Lenders.