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EXHIBIT 10
CONFORMED COPY
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CREDIT AGREEMENT
dated as of July 16, 1998,
among
ISPAT INLAND, L.P.,
INLAND STEEL COMPANY,
▇▇▇▇▇▇▇ TRUCKING COMPANY, INC.,
INCOAL COMPANY,
THE LENDERS NAMED HEREIN
and
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
---------------
CREDIT SUISSE FIRST BOSTON,
as Arranger
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇,
as Syndication Agent
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[CS&M Ref No. 5865-029]
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TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined Terms.....................................................................1
SECTION 1.02. Terms Generally..................................................................20
ARTICLE II
The Credits
SECTION 2.01. Commitments......................................................................20
SECTION 2.02. Loans............................................................................20
SECTION 2.03. Borrowing Procedure..............................................................21
SECTION 2.04. Evidence of Debt; Repayment of Loans.............................................22
SECTION 2.05. Fees.............................................................................22
SECTION 2.06. Interest on Loans................................................................23
SECTION 2.07. Default Interest.................................................................23
SECTION 2.08. Alternate Rate of Interest.......................................................23
SECTION 2.09. Termination and Reduction of Commitments.........................................23
SECTION 2.10. Conversion and Continuation of Borrowings.......................................24
SECTION 2.11. Repayment of Borrowings..........................................................25
SECTION 2.12. Optional Prepayment..............................................................27
SECTION 2.13. Prepayment Offers................................................................28
SECTION 2.14. Reserve Requirements; Change in Circumstances....................................28
SECTION 2.15. Change in Legality...............................................................30
SECTION 2.16. Indemnity........................................................................30
SECTION 2.17. Pro Rata Treatment...............................................................31
SECTION 2.18. Sharing of Setoffs...............................................................31
SECTION 2.19. Payments.........................................................................32
SECTION 2.20. Taxes............................................................................32
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate.................................................................33
SECTION 2.22. Letter of Credit.................................................................34
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.............................................................37
SECTION 3.02. Authorization....................................................................37
SECTION 3.03. Enforceability...................................................................38
SECTION 3.04. Governmental Approvals...........................................................38
SECTION 3.05. Financial Statements.............................................................38
SECTION 3.06. No Material Adverse Change.......................................................38
SECTION 3.07. Title to Properties; Possession Under Leases.....................................39
SECTION 3.08. Subsidiaries.....................................................................39
SECTION 3.09. Litigation; Compliance with Laws.................................................39
SECTION 3.10. Agreements.......................................................................39
SECTION 3.11. Federal Reserve Regulations......................................................40
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SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act.............................................................40
SECTION 3.13. Use of Proceeds.................................................40
SECTION 3.14. Tax Returns.....................................................40
SECTION 3.15. No Material Misstatements.......................................40
SECTION 3.16. Employee Benefit Plans..........................................40
SECTION 3.17. Environmental Matters...........................................41
SECTION 3.18. Insurance.......................................................41
SECTION 3.19. Security Documents..............................................41
SECTION 3.20. Location of Real Property and Leased Premises...................42
SECTION 3.21. Labor Matters...................................................42
SECTION 3.22. Solvency........................................................42
SECTION 3.23. Year 2000.......................................................42
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events...............................................43
SECTION 4.02. First Credit Event..............................................43
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties............................45
SECTION 5.02. Insurance.......................................................46
SECTION 5.03. Obligations and Taxes...........................................46
SECTION 5.04. Financial Statements, Reports, etc..............................47
SECTION 5.05. Litigation and Other Notices....................................48
SECTION 5.06. Employee Benefits...............................................48
SECTION 5.07. Maintaining Records; Access to Properties and Inspections.......48
SECTION 5.08. Use of Proceeds.................................................48
SECTION 5.09. Compliance with Environmental Laws..............................48
SECTION 5.10. Preparation of Environmental Reports............................49
SECTION 5.11. Further Assurances..............................................49
SECTION 5.12. Interest Rate Protection Agreements.............................49
ARTICLE VI
Negative Covenants
SECTION 6.01. Liens...........................................................49
SECTION 6.02. Limitation on Indebtedness......................................51
SECTION 6.03. Limitation on Restricted Payments...............................53
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SECTION 6.04. Limitation on Sales of Assets and Subsidiary Stock..............54
SECTION 6.05. Mergers, Consolidations, Sales of Assets........................55
SECTION 6.06. Transactions with Affiliates....................................55
SECTION 6.07. Business of Borrower and Subsidiaries...........................55
SECTION 6.08. Restrictions on Ability of Restricted Subsidiaries to
Pay Dividends...................................................55
SECTION 6.09. Consolidated EBITDA.............................................56
SECTION 6.10. Amendment of Indenture..........................................56
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent and the Collateral Agent
ARTICLE IX
Guarantee
SECTION 9.01. Guarantee.......................................................60
SECTION 9.02. Limitation on Liability.........................................62
SECTION 9.03. Successors and Assigns..........................................62
ARTICLE X
Miscellaneous
SECTION 10.01. Notices........................................................62
SECTION 10.02. Survival of Agreement..........................................63
SECTION 10.03. Binding Effect.................................................63
SECTION 10.04. Successors and Assigns.........................................63
SECTION 10.05. Expenses; Indemnity............................................65
SECTION 10.06. Right of Setoff................................................66
SECTION 10.07. Applicable Law.................................................67
SECTION 10.08. Waivers; Amendment.............................................67
SECTION 10.09. Interest Rate Limitation.......................................67
SECTION 10.10. Entire Agreement...............................................68
SECTION 10.11. WAIVER OF JURY TRIAL...........................................68
SECTION 10.12. Severability...................................................68
SECTION 10.13. Counterparts...................................................68
SECTION 10.14. Headings.......................................................68
SECTION 10.15. Jurisdiction; Consent to Service of Process....................68
SECTION 10.16. Judgment Currency..............................................69
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SECTION 10.17. Confidentiality................................................70
SCHEDULES:
Schedule 1.01(a) -- Guarantors
Schedule 1.01(b) -- Unrestricted Subsidiaries
Schedule 1.01(c) -- Mortgaged Properties
Schedule 2.01 -- Commitments and L/C Participation Commitments
Section 3.07(c) -- Proceedings Affecting Mortgaged Property
Schedule 3.08 -- Subsidiaries
Schedule 3.09 -- Litigation
Schedule 3.17 -- Environmental Matters
Schedule 3.18 -- Insurance
Schedule 3.20 -- Real Property
Schedule 3.20(b) -- Leased Property
Schedule 6.01 -- Existing Liens
Schedule 6.02 -- Existing Indebtedness
EXHIBITS:
Exhibit A -- Form of Administrative Questionnaire
Exhibit B -- Form of Assignment and Acceptance
Exhibit C -- Form of Borrowing Request
Exhibit D -- Form of Guarantee
Exhibit E -- Form of Letter of Credit
Exhibit F -- Form of Pledge Agreement
Exhibit G-1 -- Form of Opinion of Borrower's Counsel
Exhibit G-2 -- Form of Opinion of General Counsel
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CREDIT AGREEMENT dated as of July 16, 1998, among ISPAT
INLAND, L.P., a Delaware limited partnership (the
"Borrower"), INLAND STEEL COMPANY, a Delaware corporation
("Inland"), ▇▇▇▇▇▇▇ TRUCKING COMPANY, INC., a Delaware
corporation, INCOAL COMPANY, a Delaware corporation, the
Lenders (as defined in Article I), and CREDIT SUISSE FIRST
BOSTON, a bank organized under the laws of Switzerland,
acting through its New York branch, as issuing bank (in such
capacity, the "Issuing Bank"), and as administrative agent
(in such capacity, the "Administrative Agent") and
collateral agent (in such capacity, the "Collateral Agent")
for the Lenders.
Pursuant to the Merger Agreement (such term and each other
capitalized term used but not defined herein having the meaning given it in
Article I), (a) Merger Sub will merge (the "Merger") with and into Inland with
Inland being the surviving corporation in the Merger and (b) the then
outstanding capital stock of Inland will be converted into the right to receive
aggregate cash consideration of $888,200,000 (the "Merger Consideration"),
subject to adjustment as set forth in the Merger Agreement.
The Borrower has requested the Lenders to extend credit in the
form of (a) Tranche B Loans on the Closing Date, in an aggregate principal
amount not in excess of $350,000,000, (b) Tranche C Loans on the Closing Date,
in an aggregate principal amount not in excess of $350,000,000 and (c) a Letter
of Credit for the benefit of PBGC in an aggregate face amount at any time
outstanding not in excess of $160,000,000. The proceeds of the Loans are to be
used solely (a) to make cash capital contributions to finance an indirect
intercompany loan (the "Inland Loan") to Inland, which will use the proceeds
thereof (i) to pay a portion of the Merger Consideration, (ii) to repay all
outstanding intercompany Indebtedness to ISI and (iii) to repay or defease the
Series T Bonds (such Indebtedness of Inland, together with the Indebtedness
referred to in clause (ii) above, being referred to herein as the "Existing
Inland Debt") and (b) to pay related fees and expenses. The Letter of Credit
will be issued for the benefit of PBGC to support certain potential pension
obligations of Inland.
The Lenders are willing to extend such credit to the Borrower and
the Issuing Bank is willing to issue the Letter of Credit for the account of the
Borrower and Inland on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Administrative Agent Fees" shall have the meaning assigned to
such term in Section 2.05(a).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A or such other form as shall be specified
by the Administrative Agent from time to time.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
person specified; provided, however, that for purposes of Section 6.06 only,
beneficial ownership of 10% or more of the voting securities of a person shall
be deemed to be Control for purposes of the definition of the term "Affiliate".
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. 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 Federal Funds Effective Rate
for any reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms of the definition
thereof, the Alternate Base Rate shall be determined without regard to clause
(b) of the preceding sentence 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 or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively. The term "Prime
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Rate" shall mean the rate of interest per annum publicly announced from time to
time by the Administrative Agent as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective on the
date such change is publicly announced as being effective. The term "Federal
Funds Effective Rate" shall mean, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations for
the day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Applicable Percentage" shall mean, for any day, with respect to
any Eurodollar Loan, ABR Loan or any L/C Participation Fees, as the case may be,
the applicable percentage set forth below under the caption "Eurodollar
Spread-Tranche B Loans", "Eurodollar Spread-Tranche C Loans", "ABR
Spread-Tranche B Loans", "ABR Spread-Tranche C Loans" or "L/C Participation
Fees", as the case may be, based upon the Consolidated Leverage Ratio as of the
relevant date of determination:
Eurodollar Eurodollar ABR
Spread- Spread- ABR Spread- Spread- L/C
Tranche B Tranche C Tranche B Tranche C Participation
Consolidated Leverage Ratio Loans Loans Loans Loans Fees
--------------------------- ---------- ---------- ----------- --------- -------------
Category 1
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Greater than or equal to 2.50
to 1.00 2.25% 2.75% 1.25% 1.75% 2.00%
Category 2
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Greater than or equal to 1.75
to 1.00 but less than 2.50 to
1.00 2.00% 2.50% 1.00% 1.50% 2.00%
Category 3
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Less than 1.75 to 1.00 1.75% 2.25% .75% 1.25% 1.75%
Each change in the Applicable Percentage resulting from a change in the
Consolidated Leverage Ratio shall be effective with respect to all Loans and the
Letter of Credit outstanding on and after the date of delivery to the
Administrative Agent of the
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financial statements and certificates required by Section 5.04(a) or (b)
indicating such change until the date immediately preceding the next date of
delivery of such financial statements and certificates indicating another such
change. Notwithstanding the foregoing, (a) at any time during which the Borrower
has failed to deliver the financial statements and certificates required by
Section 5.04(a) or (b) and until such statements and certificates are delivered,
or (b) at any time after the occurrence and during the continuance of an Event
of Default, the Consolidated Leverage Ratio shall be deemed to be in Category 1
for purposes of determining the Applicable Percentage. Notwithstanding the
foregoing, until receipt of the financial statements with respect to the fiscal
year ending December 31, 1998, the Consolidated Leverage Ratio shall be deemed
to be in Category 1 for purposes of determining the Applicable Percentage.
"Approved Fund" shall mean, with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Asset Sale" shall mean the sale, transfer or other disposition (by way
of merger or otherwise and including by way of casualty, condemnation or Sale
and Leaseback) by the Borrower, Inland or any Restricted Subsidiary to any
person other than the Borrower, Inland or any Guarantor (and other than sales,
transfers and dispositions between or among Restricted Subsidiaries that are not
Guarantors) of (a) any capital stock of any Restricted Subsidiary (other than
directors' qualifying shares) or (b) any other assets of the Borrower, Inland or
any Restricted Subsidiary (other than inventory, excess, damaged, obsolete or
worn out assets, scrap, Permitted Investments and accounts receivable, in each
case disposed of in the ordinary course of business (or, in the case of accounts
receivable or inventory, to a Securitization Subsidiary in accordance with this
Agreement); provided that, for purposes of this Agreement, any asset sale or
series of related asset sales described in clause (b) above having a value not
in excess of $2,000,000 and, for purposes of Section 6.04 only, any sale of the
4 AC Power Station, a power generating facility located in Inland's principal
plant in Indiana, shall be deemed not to be an "Asset Sale".
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
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"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C or
such other form as shall be approved by the Administrative Agent.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" of any person shall mean any and all shares, interests,
rights to purchase, warrants, options, participation or other equivalents of or
interests in (however designated) the equity of such person, including any
Preferred Stock, but excluding any debt securities convertible into such equity.
A "Change in Control" shall be deemed to have occurred if (a) the
Permitted Holders shall cease to own directly or indirectly, beneficially or of
record, shares representing at least 35% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of IINV; (b) any person
or group (within the meaning of Rule 13d-3 of the Securities Exchange Act of
1934 as in effect on the date hereof) other than one or more Permitted Holders
shall own directly or indirectly, beneficially or of record, shares of Capital
Stock of IINV representing a greater percentage of the aggregate ordinary voting
power than the shares owned directly or indirectly, beneficially or of record,
by the Permitted Holders; (c) a majority of the seats (other than vacant seats)
on the board of directors of IINV shall at any time be occupied by persons who
were neither (i) nominated by the board of directors of IINV, nor
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(ii) appointed by directors so nominated; or (d) IINV shall cease to own,
directly or indirectly, 100% of the issued and outstanding capital stock of the
Borrower and Inland.
"Closing Date" shall mean July 16, 1998.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the property in which a security interest
has been purported to be granted pursuant to any Security Document, and shall
include the Mortgaged Properties.
"Commitment" shall mean, with respect to any Lender, such Lender's
Tranche B Commitment or Tranche C Commitment.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated June 1998.
"Consolidated Coverage Ratio" as of any date of determination shall
mean the ratio of (a) the aggregate amount of Consolidated EBITDA for the period
of the most recent four consecutive fiscal quarters ending at least 45 days
prior to the date of such determination to (b) Consolidated Interest Expense for
such four fiscal quarters; provided, however, that (i) if the Borrower, Inland
or any Restricted Subsidiary has Incurred any Indebtedness since the beginning
of such period that remains outstanding or if the transaction giving rise to the
need to calculate the Consolidated Coverage Ratio is an Incurrence of
Indebtedness, or both, Consolidated EBITDA and Consolidated Interest Expense for
such period shall be calculated after giving effect on a pro forma basis to such
Indebtedness as if such Indebtedness had been Incurred on the first day of such
period and the discharge of any other Indebtedness repaid, repurchased, defeased
or otherwise discharged with the proceeds of such new Indebtedness as if such
discharge had occurred on the first day of such period, (ii) if the Borrower,
Inland or any Restricted Subsidiary has repaid, repurchased, defeased or
otherwise discharged any Indebtedness since the beginning of such period or if
any Indebtedness is to be repaid, repurchased, defeased or otherwise discharged
(in each case other than Indebtedness Incurred under any revolving credit
facility unless such Indebtedness has been permanently repaid and has not been
replaced) on the date of the transaction giving rise to the need to calculate
the Consolidated Coverage Ratio, Consolidated EBITDA and Consolidated Interest
Expense for such period shall be calculated on a pro forma basis as if such
discharge had occurred on the first day of such period and as if the Borrower,
Inland or such Restricted
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Subsidiary has not earned the interest income actually earned during such period
in respect of cash or Permitted Investments used to repay, repurchase, defease
or otherwise discharge such Indebtedness, (iii) if since the beginning of such
period the Borrower, Inland or any Restricted Subsidiary shall have made any
Asset Sale, the Consolidated EBITDA for such period shall be reduced by an
amount equal to the Consolidated EBITDA (if positive) directly attributable to
the assets which are the subject of such Asset Sale for such period, or
increased by an amount equal to the Consolidated EBITDA (if negative), directly
attributable thereto for such period and Consolidated Interest Expense for such
period shall be reduced by an amount equal to the Consolidated Interest Expense
directly attributable to any Indebtedness of the Borrower, Inland or any
Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to the Borrower, Inland and their respective continuing Restricted
Subsidiaries in connection with such Asset Sale for such period (or, if the
Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest
Expense for such period directly attributable to the Indebtedness of such
Restricted Subsidiary to the extent the Borrower, Inland and their respective
continuing Restricted Subsidiaries are no longer liable for such Indebtedness
after such sale), (iv) if since the beginning of such period the Borrower,
Inland or any Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any person which becomes a
Restricted Subsidiary) or an acquisition of assets, including any acquisition of
assets occurring in connection with a transaction requiring a calculation to be
made hereunder, which constitutes all or substantially all of an operating unit
of a business, Consolidated EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving pro forma effect thereto (including the
Incurrence of any Indebtedness) as if such Investment or acquisition occurred on
the first day of such period and (v) if since the beginning of such period any
person (that subsequently became a Restricted Subsidiary or was merged with or
into the Borrower, Inland or any Restricted Subsidiary since the beginning of
such period) shall have made any Asset Sale, any Investment or acquisition of
assets that would have required an adjustment pursuant to clause (iii) or (iv)
above if made by the Borrower, Inland or a Restricted Subsidiary during such
period, Consolidated EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto as if such Asset Sale,
Investment or acquisition occurred on the first day of such period. For purposes
of this definition, whenever pro forma effect is to be given to an acquisition
of assets, the amount of income or earnings relating thereto and the amount of
Consolidated Interest Expense associated with any Indebtedness Incurred in
connection therewith, the pro forma calculations shall be determined in good
faith by a Financial Officer of the Borrower or Inland. If any
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Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in
effect on the date of determination had been the applicable rate for the entire
period (taking into account any Interest Rate Protection Agreement applicable to
such Indebtedness if such Interest Rate Protection Agreement has a remaining
term in excess of 12 months).
"Consolidated EBITDA" shall mean, for any period, Consolidated Net
Income for such period, plus, without duplication and to the extent deducted
from revenues in determining Consolidated Net Income for such period, the sum of
(a) the aggregate amount of Consolidated Interest Expense for such period, (b)
the aggregate amount of income tax expense for such period, (c) all amounts
attributable to depreciation and amortization for such period and (d) all
non-recurring non-cash charges during such period and minus, without duplication
and to the extent added to revenues in determining Consolidated Net Income for
such period, all non-recurring non-cash gains during such period, all as
determined on a consolidated basis with respect to Inland and the Restricted
Subsidiaries in accordance with GAAP.
"Consolidated Interest Expense" of Inland and the Restricted
Subsidiaries shall mean, for any period, the gross interest expense of Inland
and the Restricted Subsidiaries for such period, net of interest income. For
purposes of the foregoing, interest expense shall be determined after giving
effect to any net payments made or received by Inland and the Restricted
Subsidiaries under Interest Rate Protection Agreements.
"Consolidated Leverage Ratio" shall mean, on any date, the ratio of (a)
Total Debt as of such date to (b) the sum of (i) Consolidated EBITDA and (ii)
interest income of Inland and the Restricted Subsidiaries, in each case for the
period of four consecutive fiscal quarters of Inland and the Restricted
Subsidiaries most recently ended as of such date, all determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, the sum of net
income or loss for such period of Inland and the Restricted Subsidiaries on a
consolidated basis determined in accordance with GAAP, but excluding: (a) the
net income of any person in which any other person (other than Inland or a
Wholly Owned Subsidiary or a director holding qualifying shares in compliance
with applicable law) has an interest, except to the extent of the amount of
dividends or distributions actually paid to Inland or a Wholly Owned Subsidiary
by such person, (b) the net income of any person accrued prior to the date it
became a Restricted Subsidiary or is merged into or consolidated with Inland or
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such person's assets are acquired by Inland or any of the Restricted
Subsidiaries; (c) non-cash unusual, non-cash non-recurring or non-cash
extraordinary gains (or losses), as defined under GAAP during such period; and
(d) the net income of any Restricted Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by the Restricted
Subsidiary of that income is prohibited by operation of the terms of its charter
or any agreement, instrument, judgment, decree, statute, rule or governmental
regulation applicable to the Restricted Subsidiary.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Disqualified Stock" shall mean, with respect to any person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable) or upon the happening of any
event (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness or
Disqualified Stock or (iii) is redeemable at the option of the holder thereof,
in whole or in part, in each case on or prior to the first anniversary of the
Tranche C Maturity Date.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiaries" shall mean all Restricted Subsidiaries
incorporated or organized under the laws of the United States of America, any
State thereof or the District of Columbia.
"Empire" shall mean Empire Iron Mining Partnership, a general
partnership in which Inland has a 40% interest.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action
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by, or on behalf of, any Governmental Authority or any person for damages,
injunctive or equitable relief, personal injury (including sickness, disease or
death), Remedial Action costs, tangible or intangible property damage, natural
resource damages, nuisance, pollution, any adverse effect on the environment
caused by any Hazardous Material, or for fines, penalties or restrictions,
resulting from or based upon (a) the existence, or the continuation of the
existence, of a Release (including sudden or non-sudden, accidental or
non-accidental Releases), (b) exposure to any Hazardous Material, (c) the
presence, use, handling, transportation, storage, treatment or disposal of any
Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable treaties, laws,
rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, Release or threatened Release
of any Hazardous Material or to health and safety matters, including the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended by the Superfund Amendments and Reauthorization Act of 1986, 42
U.S.C. ss 9601 et seq. (collectively "CERCLA"), the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and
Solid Waste Amendments of 1984, 42 U.S.C. ss 6901 et seq., the Federal Water
Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C. ss
1251 et seq., the Clean Air Act of 1970, as amended 42 U.S.C. ss 7401 et seq.,
the Toxic Substances Control Act of 1976, 15 U.S.C. ss 2601 et seq., the
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. ss 651 et
seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
ss 11001 et seq., the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. ss
300(f) et seq., the Hazardous Materials Transportation Act, 49 U.S.C. ss 5101 et
seq., and any similar or implementing state or local law, and all amendments or
regulations promulgated under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Contribution" shall mean (a) the cash equity investment in an
aggregate amount of $90,000,000 made by Ispat Sidbec Inc. and ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Inc. to the Borrower and (b) the cash equity investment in an aggregate amount
of $320,000,000 made by IINV and Ispat Sidbec Inc. to Ispat Inland Holding, Inc.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as
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the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower and Inland, is treated as a
single employer under Section 414(b) or (c) of the Code, or solely for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower, Inland or any of their
respective ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the Borrower, Inland
or any of their respective ERISA Affiliates from the PBGC or a plan
administrator of any notice relating to the intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower, Inland or any of their respective ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower, Inland or any of their
respective ERISA Affiliates of any notice, or the receipt by any Multiemployer
Plan from the Borrower, Inland or any of their respective ERISA Affiliates of
any notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the LIBO Rate in accordance with the provisions of
Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excluded Taxes" shall mean, with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account of
any obligation of the Borrower hereunder, (a) income or franchise taxes imposed
on (or
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measured by) its net income by the United States of America or Canada, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by Canada or any other
jurisdiction in which the Borrower is located and (c) any withholding tax that
is imposed on amounts payable to a Lender (other than an assignee pursuant to a
request by the Borrower under Section 2.21) at the time such Lender becomes a
party to this Agreement (or designates a new lending office) or is attributable
to such Lender's failure to comply with Section 2.20(e), except to the extent
that such Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.20(a).
"Existing Joint Ventures" shall mean I/N Kote, I/N TEK, PCI and Empire.
"Existing Inland Debt" shall have the meaning assigned to such term in
the preamble.
"Fee Letter" shall mean the Fee Letter dated June 3, 1998, between IINV
and the Administrative Agent.
"Fees" shall mean the L/C Participation Fees, the Issuing Bank Fees and
the Administrative Agent Fees.
"Financial Officer" of any person shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such person.
"▇▇▇▇▇" shall mean Ispat Inland Finance, LLC, a Delaware limited
liability company.
"First Mortgage Bonds" shall mean (a) the Series U First Mortgage Bonds
issued pursuant to the Indenture to evidence the Inland Loan, (b) the Series V
First Mortgage Bonds issued pursuant to the Indenture to evidence Inland's
obligations in respect of the Letter of Credit and (c) the Series W First
Mortgage Bonds issued pursuant to the Indenture to evidence Inland's obligations
to the Borrower in respect of each Interest Rate Protection Agreement entered
into by Inland or the Borrower with any counterparty that was a Lender or an
Affiliate of a Lender at the time such Interest Rate Protection Agreement was
entered into, in each case pledged to the Collateral Agent for the benefit of
the Secured Parties.
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"Foreign Lender" shall mean, with respect to any Relevant Jurisdiction,
any Lender that is not organized under the laws of such Relevant Jurisdiction.
For purposes of this definition, (a) the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction and (b) Canada and each Province thereof shall be deemed to
constitute a single jurisdiction.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or legislative
or regulatory body.
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or any other obligation of any other person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment of such Indebtedness or other obligation, (b)
to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of the payment of
such Indebtedness or other obligation or (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation; provided, however, that the term "Guarantee" shall not include (i)
endorsements for collection or deposit in the ordinary course of business and
(ii) contracts made in the ordinary course of business of Inland or its
Restricted Subsidiaries for the purchase of utilities, services or raw materials
that require payment to be made to the provider of utilities, services or raw
materials regardless whether delivery is ever made of such utilities, services
or raw materials so long as the quantities of utilities, services or raw
materials purchased under each such contract do not exceed Inland's or the
contracting Restricted Subsidiary's reasonably anticipated consumption thereof
on the date of the contract.
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"Guarantee Agreements" shall mean the IINV Guarantee, the Inland
Guarantee and any Subsidiary Guarantee.
"Guarantors" shall mean each person listed on Schedule 1.01(a) and each
other person that becomes party to a Guarantee Agreement as a Guarantor, and the
permitted successors and assigns of each such person.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes, hazardous or toxic substances or wastes, pollutants,
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all other substances or wastes regulated pursuant to any Environmental Law.
"IINV" shall mean Ispat International N.V., a company organized under
the laws of The Netherlands.
"IINV Guarantee" shall mean the Guarantee Agreement, substantially in
the form of Exhibit D, made by IINV in favor of the Collateral Agent for the
benefit of the Secured Parties.
"Incur" shall mean issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
person existing at the time such person becomes a subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
subsidiary at the time it becomes a subsidiary. The term "Incurrence" when used
as a noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall not be deemed the
Incurrence of Indebtedness.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (e) all obligations of such person
issued or assumed as the deferred purchase price of property or services
(excluding trade accounts payable and accrued obligations incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured
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by) any Lien on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (g) all Guarantees by such person
of Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange
rate hedging arrangements and (j) all obligations of such person as an account
party in respect of letters of credit and bankers' acceptances, except to the
extent such instruments are issued in respect of trade accounts payable and
accrued obligations incurred in the ordinary course of business. The
Indebtedness of any person shall include the Indebtedness of any partnership in
which such person is a general partner, except to the extent that, by its terms,
such Indebtedness is nonrecourse to such person.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indenture" shall mean the Indenture dated April 1, 1928, made by
Inland to the Trustees, as amended, supplemented or otherwise modified from time
to time in accordance with the provisions hereof and thereof.
"I/N Kote" shall mean I/N Kote, an Indiana general partnership in which
a subsidiary of Inland owns a 50% interest.
"I/N Kote Guarantee" shall mean the guarantee made by Inland of
Indebtedness of I/N Kote, as in effect (and, for purposes of the definition of
the term "Total Debt", in respect of a maximum principal amount not in excess of
the amount outstanding) on the Closing Date.
"I/N TEK" shall mean I/N TEK, an Indiana general partnership in which a
subsidiary of Inland owns a 60% interest.
"Inland" shall mean Inland Steel Company, a Delaware corporation.
"Inland Guarantee" shall mean the Guarantee by Inland of the Borrower's
obligations with respect to the Loans, provided for in Article IX.
"Inland Loan" shall have the meaning set forth in the preamble to this
Agreement.
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"Insolvency Law" shall mean Title 11 of the United States Code and any
similar Federal, local or foreign bankruptcy or insolvency law, in each case as
now constituted or hereafter amended or enacted.
"Interest Payment Date" shall mean, with respect to any Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration, each day that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to such Borrowing, and, in addition, the date of any prepayment of a Eurodollar
Borrowing or conversion of a Eurodollar Borrowing to an ABR Borrowing.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect and (b) as to any ABR Borrowing, the period commencing on the
date of such Borrowing and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31 and (ii) the Tranche B Maturity
Date or Tranche C Maturity Date, as applicable, provided, however, that if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
similar agreement or arrangement designed to protect any Borrower or any
Subsidiary against fluctuations in interest rates, and not entered into for
speculation.
"Inventory Subsidiary" shall mean a subsidiary of Inland formed for the
purpose of purchasing, in a "true sale" transaction, inventory from Inland or
any of its subsidiaries.
"Investment" in any person shall mean any direct or indirect advance,
loan (other than advances to customers or suppliers in the ordinary course of
business that are recorded as accounts receivable or advances against supplies
on the balance sheet of the lender) or other extensions of credit (including by
way of Guarantee or similar arrangement) or capital contribution to (by means of
any transfer of cash or other
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property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition of Capital Stock, Indebtedness or
other similar instruments issued by such person. For purposes of the definition
of "Unrestricted Subsidiary", the definition of "Restricted Payment" and Section
6.03, (i) "Investment" shall include the portion (proportionate to the
Borrower's or Inland's equity interest in such subsidiary) of the fair market
value of the net assets of any subsidiary of the Borrower and Inland at the time
that such subsidiary is designated an Unrestricted Subsidiary; provided,
however, that upon a redesignation of such subsidiary as a Restricted
Subsidiary, the Borrower or Inland, as applicable shall be deemed to continue to
have a permanent "Investment" in an Unrestricted Subsidiary equal to an amount
(if positive) equal to (x) the Borrower's or Inland's "Investment" in such
subsidiary at the time of such redesignation less (y) the portion (proportionate
to the Borrower's or Inland's equity interest in such subsidiary) of the fair
market value of the net assets of such subsidiary at the time of such
redesignation; and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Board of Directors.
"ISI" shall mean Inland Steel Industries, Inc., a Delaware corporation.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(b).
"L/C Disbursement" shall mean a payment or disbursement made by the
Issuing Bank pursuant to the Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate
undrawn amount of the outstanding Letter of Credit at such time plus (b) the
aggregate principal amount of all L/C Disbursements that have not yet been
reimbursed at such time. The L/C Exposure of any L/C Lender at any time shall
mean its Pro Rata Percentage of the aggregate L/C Exposure at such time.
"L/C Lender" shall mean a Lender with an L/C Participation Commitment.
"L/C Maturity Date" shall mean the fifth Business Day prior to the
fifth anniversary of the Closing Date.
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"L/C Participation Commitment" of any Lender shall mean the commitment
of such Lender to acquire a participation in the Letter of Credit and in any L/C
Disbursement as set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender assumed its L/C Participation Commitment, as
applicable, as the same may be reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.03.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(b).
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance.
"Letter of Credit" shall mean the letter of credit issued pursuant to
Section 2.22, substantially in the form of Exhibit E.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing, the
rate per annum determined by the Administrative Agent at approximately 11:00
a.m. (London time) on the date that is two Business Days prior to the beginning
of the relevant Interest Period by reference to the British Bankers' Association
Interest Settlement Rates for deposits in dollars (as set forth by the Bloomberg
Information Service or any successor thereto or any other service selected by
the Administrative Agent which has been nominated by the British Bankers'
Association as an authorized information vendor for the purpose of displaying
such rates) for a period equal to such Interest Period; provided that, to the
extent that an interest rate is not ascertainable pursuant to the foregoing
provisions of this definition, the "LIBO Rate" shall be the interest rate per
annum determined by the Administrative Agent to be the average of the rates per
annum at which deposits in dollars are offered for such relevant Interest Period
to major banks in the London interbank market in London, England by the
Administrative Agent at approximately 11:00 a.m. (London time) on the date that
is two Business Days prior to the beginning of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (but not under any
operating lease) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
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securities.
"Loan Documents" shall mean this Agreement, the Guarantee Agreements
and the Security Documents.
"Loan Parties" shall mean the Borrower, Inland and the Guarantors.
"Loan Repayment Dates" shall mean the Tranche B Loan Repayment Dates
and the Tranche C Loan Repayment Dates.
"Loans" shall mean the Tranche B Loans and the Tranche C Loans.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on
the business, assets, liabilities, results of operations or financial condition
of the Borrower, Inland and the Restricted Subsidiaries, taken as a whole, (b)
material impairment of the ability of the Borrower or any other Loan Party to
perform any of its obligations under any Loan Document to which it is or will be
a party or (c) material impairment of the rights of or benefits available to the
Lenders under any Loan Document.
"Merger" shall have the meaning set forth in the preamble to this
Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger dated as
of May 27, 1998, among IINV, Merger Sub, ISI and Inland.
"Merger Consideration" shall have the meaning set forth in the preamble
to this Agreement.
"Merger Sub" shall mean Inland Merger Sub, Inc., a Delaware corporation
and an indirect wholly owned subsidiary of IINV.
"Mortgaged Property" shall mean the real properties of the Loan Parties
specified on Schedule 1.01(c) granted pursuant to the Indenture.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
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"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean, with respect to any Asset Sale, the
cash proceeds (including cash proceeds subsequently received (as and when
received) in respect of non-cash consideration initially received), net of (a)
transaction expenses (including reasonable broker's fees or commissions, legal
fees, accounting fees, investment banking fees and other professional fees,
transfer and similar taxes and the Borrower's good faith estimate of income
taxes paid or payable in connection with the receipt of such cash proceeds), (b)
amounts provided as a reserve, in accordance with GAAP, including pursuant to
any escrow arrangement, against any liabilities under any indemnification
obligations associated with such Asset Sale (provided that, to the extent and at
the time any such amounts are released from such reserve, such amounts shall
constitute Net Cash Proceeds) and (c) the principal amount, premium or penalty,
if any, interest and other amounts on any Indebtedness for borrowed money which
is secured by the asset sold in such Asset Sale and is required to be repaid
with such proceeds (other than any such Indebtedness assumed by the purchaser of
such asset); provided, however, that, if (i) Inland shall deliver a certificate
of a Financial Officer to the Administrative Agent at the time of receipt
thereof setting forth Inland's intent to reinvest such proceeds in productive
assets of a kind then used or usable in the business of Inland and its
Restricted Subsidiaries within 360 days of receipt of such proceeds and (ii) no
Default or Event of Default shall have occurred and shall be continuing at the
time of such certificate or at the proposed time of the application of such
proceeds, such proceeds shall not constitute Net Cash Proceeds except to the
extent not so used at the end of such 360-day period, at which time such
proceeds shall be deemed to be Net Cash Proceeds.
"Obligations" shall have the meaning assigned to such term in Section
9.01.
"Other Taxes" shall mean 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 under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"PBGC Agreement" shall mean the binding Term Sheet dated July 15, 1998,
by and among PBGC, IINV, ISI, Inland and Ryerson ▇▇▇▇, Inc. regarding certain
potential pension liabilities of Inland.
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"PCI" shall mean PCI Associates, a general partnership in which Inland
has a 50% interest.
"PCI Guarantee" shall mean the guarantee made by Inland of Indebtedness
of PCI, as in effect (and, for purposes of the definition of the term "Total
Debt", in respect of a maximum principal amount not in excess of the amount
outstanding) on the Closing Date.
"Permitted Holders" shall mean (i) ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and his spouse
or lineal descendants, (ii) any trust, corporation or partnership 100% in
interest of the beneficiaries, stockholders or partners of which consists of any
person described in clause (i) above or (iii) any combination of the foregoing.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, a credit rating of at least A1 from S&P or at least P1
from ▇▇▇▇▇'▇;
(c) investments denominated in U.S. dollars in certificates of
deposit, banker's acceptances and time deposits maturing within one
year from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts denominated in U.S.
dollars issued or offered by, any Lender or any United States or
Canadian office of any commercial bank organized under the laws of the
United States of America or any State thereof or Canada that has a
combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c); and
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(e) shares of funds registered under the Investment Company
Act of 1940, as amended, that have assets of at least $500,000,000 and
invest substantially all their assets in obligations described in
subsections (a) through (d) above, to the extent that such shares are
rated by S&P or ▇▇▇▇▇'▇ in one of the two highest rating categories
assigned by such agency for shares of such nature.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in
the form of Exhibit F, between the Borrower, the subsidiaries party thereto and
the Collateral Agent for the benefit of the Secured Parties.
"Preferred Stock", as applied to the Capital Stock of any person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
person, over shares of Capital Stock of any other class of such person.
"Project Finance Indebtedness" of any person shall mean Indebtedness of
such person that is secured by a Lien in or upon one or more assets of such
person that are acquired, constructed, developed or exploited with the proceeds
of such Indebtedness and where the rights and remedies of the holders of such
Indebtedness do not extend to any other assets of such person (whether on a
secured or unsecured basis). Notwithstanding the foregoing, Indebtedness of any
person shall not fail to constitute Project Finance Indebtedness by reason of
the inclusion in any document evidencing, governing, securing or otherwise
relating to such Indebtedness of provisions to the effect that such person shall
be liable, beyond the assets securing such Indebtedness, for (a) misapplied
moneys, (b) indemnification by such person in favor of holders of such
Indebtedness in respect of liabilities to third parties and (c) such other
similar obligations as are customarily excluded from the provisions that
otherwise limit the recourse of commercial lenders
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making so-called "non-recourse" loans to institutional borrowers.
"Pro Rata Percentage" of any L/C Lender at any time shall mean the
percentage of the aggregate L/C Participation Commitments represented by such
L/C Lender's L/C Participation Commitment.
"Receivables Subsidiary" shall mean Inland Steel Administrative Service
Company or any successor thereto or any subsidiary of Inland formed for the
purpose of purchasing, in a "true sale" transaction, accounts receivable from
Inland or any of its subsidiaries.
"Refinance" shall mean, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Register" shall have the meaning given such term in Section 10.04(d).
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Business" shall mean any business related, ancillary or
complementary to the businesses of Inland and the Restricted Subsidiaries on the
Closing Date.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"Relevant Jurisdiction" shall mean (a) with respect to any Tax imposed
by the United States of America, any political subdivision thereof or taxing
authority therein, the United States of America, such political subdivision or
taxing authority, as the case may be, and (b) with respect to Canada, any
political subdivision thereof or taxing authority therein, Canada, such
political subdivision or taxing authority, as the case may be.
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"Remedial Action" shall mean (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any Governmental Authority or voluntarily undertaken to: (i)
cleanup, remove, treat, ▇▇▇▇▇ or in any other way address any Hazardous Material
in the environment; (ii) prevent the Release or threat of Release, or minimize
the further Release of any Hazardous Material so it does not migrate or endanger
or threaten to endanger public health, welfare or the environment; or (iii)
perform studies and investigations in connection with, or as a precondition to,
(i) or (ii) above.
"Required Lenders" shall mean, at any time, Lenders having Loans and
L/C Exposure representing a majority of the sum of all Loans outstanding and L/C
Exposure at such time.
"Responsible Officer" of any person shall mean any executive officer or
Financial Officer of such person and any other officer or similar official
thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement.
"Restricted Payment" with respect to any person shall mean (i) the
declaration or payment of any dividends or any other distributions of any sort
in respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving such person) or similar payment to the direct
or indirect holders of its Capital Stock (other than dividends or distributions
payable solely in its Capital Stock (other than Disqualified Stock) and
dividends or distributions payable solely to the Borrower, Inland or a
Restricted Subsidiary, and other than pro rata dividends or other distributions
made by a subsidiary that is not a Wholly Owned Subsidiary to minority
stockholders (or owners of an equivalent interest in the case of a subsidiary
that is an entity other than a corporation)), (ii) the purchase, redemption or
other acquisition or retirement for value of any Capital Stock of the Borrower
or Inland held by any person or of any Capital Stock of a Restricted Subsidiary
held by any Affiliate of the Borrower or Inland (other than a Restricted
Subsidiary), including the exercise of any option to exchange any Capital Stock
(other than into Capital Stock of the Borrower or Inland that is not
Disqualified Stock), (iii) the purchase, repurchase, redemption, defeasance or
other acquisition or retirement for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment of any Subordinated
Obligations (other than the purchase, repurchase, or other acquisition of
Subordinated Obligations purchased (a) in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in each case due
within one year of the date of acquisition or (b) in order to refinance such
Subordinated Obligations with the proceeds of new Subordinated Obligations
incurred
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under and in accordance with the provisions of Section 6.02(b)(vi) and 6.02(c))
or (iv) the making of any Investment (other than a Permitted Investment) in any
person (other than the Borrower, Inland or any Restricted Subsidiary).
"Restricted Subsidiary" shall mean any subsidiary of the Borrower or
Inland that is not an Unrestricted Subsidiary.
"S&P" shall mean Standard & Poor's Ratings Services.
"Secured Parties" shall have the meaning assigned to such term in the
Pledge Agreement.
"Securitization Subsidiary" shall mean any Inventory Subsidiary or
Receivables Subsidiary.
"Security Documents" shall mean the Pledge Agreement, the Indenture,
the First Mortgage Bonds and each of the security agreements, mortgages and
other instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.11.
"Series T Bonds" shall mean the Series T First Mortgage Bonds issued
pursuant to the Indenture.
"Subordinated Obligation" shall mean any Indebtedness of the Borrower,
Inland or any Restricted Subsidiary (whether outstanding on the Closing Date or
thereafter Incurred) which is subordinate or junior in right of payment to the
Loans and other extensions of credit under the Loan Documents pursuant to a
written agreement to that effect.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or more than 50%
of the general partnership interests are, at the time any determination is being
made, owned, controlled or held, but shall exclude I/N TEK.
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"Subsidiary Guarantee" shall mean a Guarantee by a Subsidiary Guarantor
of the Obligations, whether pursuant to this Agreement or a Guarantee Agreement.
"Supplemental Indenture" shall mean the 36th Supplemental Indenture,
dated as of July 16, 1998, to the Indenture, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
provisions hereof and thereof.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Debt" shall mean, as of any date of determination, without
duplication, the aggregate principal amount of Indebtedness of Inland and the
Restricted Subsidiaries outstanding as of such date, determined on a
consolidated basis (other than (i) Indebtedness of the type referred to in
clause (i) or (j) of the definition of the term "Indebtedness", except to the
extent of any unreimbursed drawings thereunder, (ii) Indebtedness of the general
partners of each Existing Joint Venture in respect of the Indebtedness of such
partnerships, but only to the extent such Indebtedness (or commitments in
respect thereof) is set forth on Schedule 6.02, and (iii) Indebtedness
consisting of the I/N Kote Guarantee and the PCI Guarantee).
"Tranche B Borrowing" shall mean a Borrowing comprised of Tranche B
Loans.
"Tranche B Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche B Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Commitment, as applicable, as the same may be (a) reduced from time
to time pursuant to Section 2.09 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.04.
"Tranche B Loan Repayment Date" shall have the meaning assigned to such
term in Section 2.11(a)(i).
"Tranche B Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to clause (a) of Section 2.01. Each Tranche B Loan shall be
either a Eurodollar Loan or an ABR Loan.
"Tranche B Maturity Date" shall mean July 16, 2005.
"Tranche C Borrowing" shall mean a Borrowing comprised of Tranche C
Loans.
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"Tranche C Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche C Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Commitment, as applicable, as the same may be (a) reduced from time
to time pursuant to Section 2.09 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.04.
"Tranche C Loan Repayment Date" shall have the meaning assigned to such
term in Section 2.11(a)(ii).
"Tranche C Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to clause (b) of Section 2.01. Each Tranche C Loan shall be
either a Eurodollar Loan or an ABR Loan.
"Tranche C Maturity Date" shall mean July 16, 2006.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Trustee" shall mean The First National Bank of Chicago and ▇▇▇▇ ▇.
▇▇▇▇▇▇, as successors to the original trustees under the Indenture and any
successor thereto.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the LIBO Rate and the Alternate Base Rate.
"Unrestricted Subsidiary" shall mean (a) the subsidiaries set forth on
Schedule 1.01(b), (b) any subsidiary of Inland that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors of
Inland in the manner provided below and (c) any subsidiary of an Unrestricted
Subsidiary. The Board of Directors of Inland may designate any subsidiary of
Inland (including any newly acquired or newly formed subsidiary) to be an
Unrestricted Subsidiary unless such subsidiary or any of its subsidiaries (x)
owns any Capital Stock or Indebtedness of, (y) holds any Lien on any property
of, the Borrower or Inland or any other subsidiary of the Borrower or Inland
that is not a subsidiary of the subsidiary to be so designated or (z) owns any
of the Collateral; provided, however, that either (A) the subsidiary to be so
designated has total assets of $10,000 or less or (B) if such Subsidiary has
assets greater than $10,000, such
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designation would be permitted under Section 6.03. The Board of Directors of
Inland may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided, however, that immediately after giving effect of such designation (x)
Inland could Incur $1.00 of additional Indebtedness under Section 6.02(a) and
(y) no Default shall have occurred and be continuing. Any such designation by
the Board of Directors of Inland shall be evidenced to the Administrative Agent
by promptly filing with the Administrative Agent a copy of the resolution of
such Board of Directors giving effect to such designation and a certificate of a
Responsible Officer certifying that such designation complied with the foregoing
provisions.
"Wholly Owned Subsidiary" shall mean a Restricted Subsidiary all the
Capital Stock (or, in the case of a Foreign Subsidiary, at least 95% of the
Capital Stock) of which (other than directors' qualifying shares) is owned by
the Borrower, Inland or one or more Wholly Owned Subsidiaries.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article
VI or any related definition to eliminate the effect of any change in GAAP
occurring after the date of this Agreement on the operation of such covenant (or
if the Administrative Agent notifies the Borrower that the Required Lenders wish
to amend Article VI or any related definition for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
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ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (a) to make a Tranche B Loan to the Borrower
on the Closing Date in a principal amount not to exceed its Tranche B Commitment
and (b) to make a Tranche C Loan to the Borrower on the Closing Date in a
principal amount not to exceed its Tranche C Commitment.
Amounts paid or prepaid in respect of Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their Tranche
B Commitments or Tranche C Commitments, as applicable; provided, however, that
the failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender).
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
pursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement. Borrowings of more than one Type may be outstanding at the same
time; provided, however, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than eight Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to such
account in New York City as the Administrative Agent may designate not later
than 12:00 (noon), New York City time, and the Administrative Agent shall
promptly credit the amounts so received to an account designated by the Borrower
or Inland in the applicable Borrowing Request or, if a Borrowing shall not occur
on such date because any condition precedent herein specified shall not have
been met, return the amounts so received to the respective Lenders.
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(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower agree to
repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent at (i) in the case of the Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, a rate determined by the Administrative Agent to represent
its cost of overnight or short-term funds (which determination shall be
conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing the
Borrower shall hand deliver or telecopy to the Administrative Agent a duly
completed Borrowing Request (a) in the case of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before a proposed
Borrowing, and (b) in the case of an ABR Borrowing, not later than 12:00 noon,
New York City time, one Business Day before a proposed Borrowing. Each Borrowing
Request shall be irrevocable (except for the initial Borrowing intended for the
Closing Date, when the Borrower may revoke without penalty a Borrowing Request
for an ABR Borrowing should the closing of the Transactions not occur on such
date), shall be signed by or on behalf of the Borrower and shall specify the
following information: (i) whether such borrowing is to be a Tranche B Borrowing
or a Tranche C Borrowing, (ii) whether such Borrowing is to be a Eurodollar
Borrowing or an ABR Borrowing; (iii) the date of such Borrowing (which shall be
a Business Day), (iv) the number and location of the account to which funds are
to be disbursed (which shall be an account that complies with the requirements
of Section 2.02(c)); (v) the amount of such Borrowing; and (vi) if such
Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect
thereto; provided, however, that, notwithstanding any contrary specification in
any Borrowing Request, each requested Borrowing shall comply with the
requirements set forth in Section 2.02. If no election as to the Type of
Borrowing is specified in any such notice, then the requested Borrowing shall be
an ABR Borrowing. If no Interest Period with respect to any Eurodollar
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Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise the applicable Lenders of any notice given pursuant
to this Section 2.03 (and the contents thereof), and of each Lender's portion of
the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the principal amount of each Loan of such Lender as
provided in Section 2.11.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) above shall be prima facie evidence of the existence and amounts of
the obligations therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the Borrower to repay
the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event
any Lender shall request and receive a promissory note payable to such Lender
and its registered assigns, the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 10.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to the
Administrative Agent, for its own account, the administrative and other fees set
forth in the Fee Letter at
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the times and in the amounts specified therein (the "Administrative Agent
Fees").
(b) The Borrower agrees to pay (i) to each L/C Lender, through the
Administrative Agent, on the last Business Day of March, June, September and
December of each year and on the date on which the L/C Participation Commitment
of such Lender shall be terminated as provided herein, a fee (an "L/C
Participation Fee") calculated on such Lender's Pro Rata Percentage of the L/C
Exposure (excluding the portion thereof attributable to unreimbursed L/C
Disbursements) during the preceding quarter (or shorter period commencing with
the date hereof or ending with the L/C Maturity Date or the date on which the
Letter of Credit has been canceled or has expired) at a rate per annum equal to
the Applicable Percentage from time to time for L/C Participation Fees, and (ii)
to the Issuing Bank with respect to the Letter of Credit, on the last Business
Day of March, June, September and December of each year and on the L/C Maturity
Date, a fronting fee equal to 0.25% per annum on the aggregate outstanding face
amount of the Letter of Credit (the "Issuing Bank Fees"). All L/C Participation
Fees and Issuing Bank Fees shall be computed on the basis of the actual number
of days elapsed in a year of 360 days.
(c) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be, when the Alternate Base Rate is determined by
reference to the Prime Rate and over a year of 360 days at all other times) at a
rate per annum equal to the Alternate Base Rate plus the Applicable Percentage
in effect from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or LIBO Rate for each Interest Period or day
within an Interest
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Period, as the case may be, shall be determined by the Administrative Agent, and
such determination shall be conclusive absent manifest error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder (including any L/C Disbursement), by acceleration or otherwise, or
under any other Loan Document, the Borrower shall on demand from time to time
pay interest, to the extent permitted by law, on such defaulted amount to but
excluding the date of actual payment (after as well as before judgment) (a) in
the case of overdue principal, at the rate otherwise applicable to such Loan
pursuant to Section 2.06 plus 2.00% per annum and (b) in all other cases, at a
rate per annum (computed on the basis of the actual number of days elapsed over
a year of 365 or 366 days, as the case may be, when determined by reference to
the Prime Rate and over a year of 360 days at all other times) equal to the sum
of the Alternate Base Rate plus 2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to any Lender of making or maintaining
its Eurodollar Loan during such Interest Period, or that reasonable means do not
exist for ascertaining the LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopy notice of such determination to
the Borrower and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any request by the
Borrower to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing for another Interest Period as a Eurodollar Borrowing
pursuant to Section 2.10 shall be deemed to be a request for an ABR Borrowing.
Each determination by the Administrative Agent hereunder shall be conclusive
absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The
Commitments shall automatically terminate at 5:00 p.m., New York City time, on
August 31, 1998, if the initial Borrowing shall not have occurred by such time.
The Commitment of each Lender shall also terminate upon the making by such
Lender of the Loans to be made by it on the Closing Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently
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terminate, or from time to time in part permanently reduce, the Commitments;
provided, however, that each partial reduction of the Commitments shall be in an
integral multiple of $1,000,000 and in a minimum amount of $10,000,000.
(c) Each reduction in the Tranche B Commitments or the Tranche C
Commitments hereunder shall be made ratably among the Lenders in accordance with
their respective Tranche B Commitments or Tranche C Commitments.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), New York City time, one
Business Day prior to conversion, to convert any Eurodollar Borrowing into an
ABR Borrowing, (b) not later than 11:00 a.m., New York City time, three Business
Days prior to conversion or continuation, to convert any ABR Borrowing into a
Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period, and (c) not later than 11:00 a.m.,
New York City time, three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurodollar Borrowing to another permissible
Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and 2.02(b) regarding the principal amount and maximum number of
Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the
new Loan of such Lender resulting from such conversion and reducing the
Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurodollar Loan
(or portion thereof) being converted shall be paid by the Borrower at
the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower
shall pay, upon demand,
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any amounts due to the Lenders pursuant to Section 2.16;
(v) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as
a Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be automatically converted at the
end of the Interest Period in effect for such Borrowing into an ABR
Borrowing;
(vii) no Interest Period may be selected for any Eurodollar
Borrowing that would end later than a Loan Repayment Date occurring on
or after the first day of such Interest Period if, after giving effect
to such selection, the aggregate outstanding amount of (A) the
Eurodollar Borrowings with Interest Periods ending on or prior to such
Loan Repayment Date and (B) the ABR Borrowings would not be at least
equal to the principal amount of Borrowings to be paid on such Loan
Repayment Date;
(viii) until the seventh day following the Closing Date (or
such earlier date on which the Administrative Agent shall have informed
the Borrower that the syndication of the Loans has been completed), no
Borrowing may be converted into a Eurodollar Borrowing; and
(ix) upon notice to the Borrower from the Administrative Agent
given at the request of the Required Lenders, after the occurrence and
during the continuance of a Default or Event of Default, no outstanding
Loan may be converted into, or continued as, a Eurodollar Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If
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the Borrower shall not have given notice in accordance with this Section 2.10 to
continue any Borrowing into a subsequent Interest Period (and shall not
otherwise have given notice in accordance with this Section 2.10 to convert such
Borrowing), such Borrowing shall, at the end of the Interest Period applicable
thereto (unless repaid pursuant to the terms hereof), automatically be continued
into a new Interest Period as an ABR Borrowing.
SECTION 2.11. Repayment of Borrowings. (a) (i) The Borrower shall pay
to the Administrative Agent, for the account of the Lenders, on the dates set
forth below, or if any such date is not a Business Day, on the next preceding
Business Day (each such date being a "Tranche B Loan Repayment Date"), a
principal amount of the Tranche B Loans (as adjusted from time to time pursuant
to Sections 2.11(b), 2.12 and 2.13(c)) equal to the amount set forth below for
such date, together in each case with accrued and unpaid interest on the
principal amount to be paid to but excluding the date of such payment:
Date Amount
---- ------
September 30, 1998 $875,000
December 31, 1998 875,000
March 31, 1999 875,000
June 30, 1999 875,000
September 30, 1999 875,000
December 31, 1999 875,000
March 31, 2000 875,000
June 30, 2000 875,000
September 30, 2000 875,000
December 31, 2000 875,000
March 31, 2001 875,000
June 30, 2001 875,000
September 30, 2001 875,000
December 31, 2001 875,000
March 31, 2002 875,000
June 30, 2002 875,000
September 30, 2002 875,000
December 31, 2002 875,000
March 31, 2003 875,000
June 30, 2003 875,000
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Date Amount
---- ------
September 30, 2003 875,000
December 31, 2003 875,000
March 31, 2004 875,000
June 30, 2004 875,000
September 30, 2004 875,000
December 31, 2004 875,000
March 31, 2005 875,000
Tranche B Maturity Date $326,375,000
(ii) The Borrower shall pay to the Administrative Agent, for the
account of the Lenders, on the dates set forth below or, if any such date is not
a Business Day, on the next preceding Business Day (each such date being a
"Tranche C Loan Repayment Date"), a principal amount of the Tranche C Loans (as
adjusted from time to time pursuant to Sections 2.11(b), 2.12 and 2.13(c)) equal
to the amount set forth below for such date, together in each case with accrued
and unpaid interest on the principal amount to be paid to but excluding the date
of such payment:
Date Amount
---- ------
September 30, 1998 $875,000
December 31, 1998 875,000
March 31, 1999 875,000
June 30, 1999 875,000
September 30, 1999 875,000
December 31, 1999 875,000
March 31, 2000 875,000
June 30, 2000 875,000
September 30, 2000 875,000
December 31, 2000 875,000
March 31, 2001 875,000
June 30, 2001 875,000
September 30, 2001 875,000
December 31, 2001 875,000
March 31, 2002 875,000
June 30, 2002 875,000
September 30, 2002 875,000
December 31, 2002 875,000
March 31, 2003 875,000
June 30, 2003 875,000
September 30, 2003 875,000
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Date Amount
---- ------
December 31, 2003 875,000
March 31, 2004 875,000
June 30, 2004 875,000
September 30, 2004 875,000
December 31, 2004 875,000
March 31, 2005 875,000
June 30, 2005 875,000
September 30, 2005 875,000
December 31, 2005 875,000
March 31, 2006 875,000
Tranche C Maturity Date $322,875,000
(b) In the event and on each occasion that any Commitments shall be
reduced or shall expire or terminate other than as a result of the making of a
Loan, the installments payable on each Loan Repayment Date shall be reduced pro
rata by an aggregate amount equal to the amount of such reduction, expiration or
termination.
(c) To the extent not previously paid, all Tranche B Loans and
Tranche C Loans shall be due and payable on the Tranche B Maturity Date and
Tranche C Maturity Date, respectively, together with accrued and unpaid interest
on the principal amount to be paid to but excluding the date of payment.
SECTION 2.12. Optional Prepayment. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part upon at least three Business Days prior written or telecopy notice (or
telephone notice promptly confirmed by written or telecopy notice) to the
Administrative Agent before 11:00 a.m., New York City time; provided that any
such prepayment shall be in an amount equal to the percentage of the principal
amount of the Loans prepaid set forth below opposite the period in which such
prepayment is made:
Period Percentage
------ ----------
Closing Date to but excluding July 16, 1999 103%
July 16, 1999 to but excluding July 16, 2000 102%
July 16, 2000 to but excluding July 16, 2001 101%
Thereafter 100%
(b) Each partial prepayment of a Borrowing shall be in increments of
$1,000,000
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and a minimum amount of $10,000,000. Prepayments shall be accompanied by accrued
interest to but excluding the date of prepayment. All prepayments shall be
subject to Section 2.16.
(c) Optional prepayments of Loans shall be allocated pro rata between
the then-outstanding Tranche B Loans and Tranche C Loans and applied as
specified by the Borrower against the remaining scheduled installments of
principal due in respect of the Tranche B Loans and Tranche C Loans under
Sections 2.11(a)(i) and (ii), respectively.
SECTION 2.13. Prepayment Offers. (a) In the event of any Asset Sale by
the Borrower, Inland or any Restricted Subsidiary, the Borrower shall offer to
apply 100% of the Net Cash Proceeds received by the Borrower, Inland or such
Restricted Subsidiary with respect thereto to prepay outstanding Loans at a
prepayment amount equal to 101% of the Loans prepaid in accordance with Section
2.13(c). Notwithstanding the foregoing provisions of this paragraph (a), the
Borrower shall not be required to offer to prepay the Loans in accordance with
this paragraph (a) except to the extent that the aggregate Net Cash Proceeds
from all Asset Sales which are not applied in accordance with this paragraph (a)
exceeds $25,000,000. Pending application of Net Cash Proceeds pursuant to this
paragraph (a), such Net Cash Proceeds shall be invested in Permitted Investments
or used to repay revolving credit loans of Inland or the Restricted
Subsidiaries.
(b) Upon the occurrence of a Change in Control, the Borrower shall
offer to prepay all outstanding Loans in accordance with Section 2.13(c) at a
prepayment amount equal to 101% of the principal amount thereof, plus all
accrued and unpaid interest to the date of prepayment.
(c) Promptly, and in any event within 10 days after the occurrence of
an event (an "Offer Event") requiring the Borrower to make an offer to prepay
Loans under this Section 2.13, the Borrower shall mail a notice to each Lender
with a copy to the Administrative Agent stating: (i) that an Offer Event has
occurred and that the Borrower is offering to prepay Loans at the applicable
purchase price in cash; (ii) the circumstances and relevant facts regarding such
Offer Event (including information with respect to pro forma historical income,
cash flow, capitalization and Collateral after giving effect to such Offer
Event); (iii) the prepayment date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and (iv) the
instructions determined by the Borrower, consistent with the other provisions of
this Section 2.13, that a Lender must follow in order to have its Loans prepaid
(which shall include
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providing written notice to the Borrower and the Administrative Agent of a
Lender's request to have its Loans prepaid). Unless otherwise expressly stated,
in the case of an Offer Event as a result of an Asset Sale, if the aggregate
amount of Loans tendered pursuant to the Borrower's offer to prepay Loans
exceeds the amount of Loans offered to be prepaid, Loans shall be prepaid in
proportion to the respective principal amounts of the Loans of each Tranche so
tendered. Prepayments of outstanding Loans under this Section 2.13 shall be
applied as specified by the Borrower against the remaining scheduled
installments of principal due in respect of Tranche B Loans and Tranche C Loans
under Sections 2.11(a)(i) and (ii), respectively, and allocated among the
Lenders pursuant to Section 2.17 hereof. All prepayments of Borrowings under
this Section 2.13 shall be subject to Section 2.16.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of or
credit extended by any Lender or the Issuing Bank or shall impose on such Lender
or the Issuing Bank or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender or the Letter of Credit
or participations therein, and the result of any of the foregoing shall be to
increase the cost to such Lender or the Issuing Bank of making or maintaining
any Eurodollar Loan or increase the cost to any Lender of issuing or maintaining
the Letter of Credit or purchasing or maintaining a participation therein or to
reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise) by an
amount deemed by such Lender or the Issuing Bank to be material, then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, upon
demand such additional amount or amounts as will compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in any
such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or the Issuing Bank or any Lender's or the
Issuing Bank's holding company with any request or directive regarding capital
adequacy
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(whether or not having the force of law) of any Governmental Authority has or
would have the effect of reducing the rate of return on such Lender's or the
Issuing Bank's capital or on the capital of such Lender's or the Issuing Bank's
holding company, if any, as a consequence of this Agreement or the Loans made or
participations in the Letter of Credit purchased by such Lender pursuant hereto
or the Letter of Credit issued by the Issuing Bank pursuant hereto to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such applicability, adoption,
change or compliance (taking into consideration such Lender's or the Issuing
Bank's policies and the policies of such Lender's or the Issuing Bank's holding
company with respect to capital adequacy) by an amount deemed by such Lender or
the Issuing Bank to be material, then from time to time the Borrower shall pay
to such Lender or the Issuing Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or the Issuing Bank or such Lender's
or the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as applicable, as specified in paragraph (a) or (b) above shall
be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender or the Issuing Bank the amount shown as due on
any such certificate delivered by it within 10 days after its receipt of the
same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation with
respect to such period or any other period, except that none of any Lender or
the Issuing Bank shall be entitled to compensation under this Section 2.14 for
any costs incurred or reductions suffered with respect to any date unless such
Lender or the Issuing Bank, as applicable, shall have notified the Borrower that
it will demand compensation for such costs or reductions under subsection (c)
above, not later than 180 days after such date. The protection of this Section
shall be available to each Lender and the Issuing Bank regardless of any
possible contention of the invalidity or inapplicability of the law, rule,
regulation, agreement, guideline or other change or condition that shall have
occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to maintain any Eurodollar
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Loan or to give effect to its obligations as contemplated hereby with respect to
any Eurodollar Loan, then, by written notice to the Borrower and to the
Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods or
have their Interest Periods converted to another Interest Period and
ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon any request for a Eurodollar Borrowing (or
to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing for an additional Interest Period or to convert
the Interest Period with respect to any Eurodollar Borrowing to another
Interest Period) shall, as to such Lender only, be deemed a request to
continue an ABR Loan as such for an additional Interest Period or to
convert a Eurodollar Loan into an ABR Loan, as the case may be, unless
such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar
Loans made by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically converted to ABR Loans as of
the effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender resulting from the conversion of such Eurodollar
Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of (a) any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (i) such Lender
receiving or being deemed to receive any
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amount on account of the principal of any Eurodollar Loan prior to the end of
the Interest Period in effect therefor, (ii) the conversion of any Eurodollar
Loan to an ABR Loan, or the conversion of the Interest Period with respect to
any Eurodollar Loan, in each case other than on the last day of the Interest
Period in effect therefor, or (iii) any Eurodollar Loan to be made by such
Lender (including any Eurodollar Loan to be made pursuant to a conversion or
continuation under Section 2.10) not being made after notice of such Loan shall
have been given by the Borrower hereunder (any of the events referred to in this
clause (a), other than the failure to convert an ABR Loan to, or to continue a
Eurodollar Loan as, a Eurodollar Loan after notice thereof as a result of a
Lender exercising its rights under Section 2.15(a)(i), being called a "Breakage
Event") or (b) any default in the making of any payment or prepayment required
to be made hereunder. In the case of any Breakage Event, such loss shall include
an amount equal to the excess, as reasonably determined by such Lender, of (i)
its cost of obtaining funds for the Eurodollar Loan that is the subject of such
Breakage Event for the period from the date of such Breakage Event to the last
day of the Interest Period in effect (or that would have been in effect) for
such Loan over (ii) the amount of interest likely to be realized by such Lender
in redeploying the funds released or not utilized by reason of such Breakage
Event for such period. A certificate of any Lender setting forth any amount or
amounts which such Lender is entitled to receive pursuant to this Section 2.16
shall be delivered to the Borrower and shall be conclusive absent manifest
error, except that no Lender shall be entitled to indemnity under this Section
2.16 for any losses incurred with respect to any Breakage Event unless such
Lender shall have notified the Borrower that it will demand indemnity for such
losses pursuant to this Section 2.16 not later than 180 days after such Breakage
Event.
SECTION 2.17. Pro Rata Treatment. Except as required under Sections
2.13 and 2.15, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each reduction of the
Commitments and each conversion of any Borrowing to or continuation of any
Borrowing as a Borrowing of any Type shall be allocated pro rata among the
Lenders in accordance with their respective applicable Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans). Each Lender agrees
that in computing such Lender's portion of any Borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round each Lender's percentage
of such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the
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United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any applicable Insolvency Law
or otherwise, or by any other means, obtain payment (voluntary or involuntary)
in respect of any Loan or Loans or L/C Disbursement as a result of which the
unpaid principal portion of its participations in L/C Disbursements and Tranche
B Loans and Tranche C Loans shall be proportionately less than the unpaid
principal portion of the participations in L/C Disbursements and Tranche B Loans
and Tranche C Loans of any other Lender, it shall be deemed simultaneously to
have purchased from such other Lender at face value, and shall promptly pay to
such other Lender the purchase price for, a participation in the Tranche B Loans
and Tranche C Loans and L/C Exposure, as the case may be, of such other Lender,
so that the aggregate unpaid principal amount of the Tranche B Loans and Tranche
C Loans and L/C Exposure and participations in Tranche B Loans and Tranche C
Loans and L/C Exposure held by each Lender shall be in the same proportion to
the aggregate unpaid principal amount of all Tranche B Loans and Tranche C Loans
and L/C Exposure then outstanding as the principal amount of its Tranche B Loans
and Tranche C Loans and L/C Exposure prior to such exercise of banker's lien,
setoff or counterclaim or other event was to the principal amount of all Tranche
B Loans and Tranche C Loans and L/C Exposure outstanding prior to such exercise
of banker's lien, setoff or counterclaim or other event; provided, however, that
if any such purchase or purchases or adjustments shall be made pursuant to this
Section 2.18 and the payment giving rise thereto shall thereafter be recovered,
such purchase or purchases or adjustments shall be rescinded to the extent of
such recovery and the purchase price or prices or adjustment restored without
interest. The Borrower and Inland expressly consent to the foregoing
arrangements and agree that any Lender holding a participation in L/C
Disbursement or Loan deemed to have been so purchased may, to the extent
permitted by law, exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower or Inland
to such Lender by reason thereof as fully as if such Lender had made a Loan
directly to the Borrower in the amount of such participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any L/C Disbursement or any Borrowing or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 12:00 (noon), New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim. Each such payment
(other than Issuing Bank Fees, which shall be paid directly to the Issuing Bank)
shall be made to the Administrative Agent at its offices at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
(b) Whenever any payment (including principal of or interest on any
Borrowing
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or any Fees or other amounts) hereunder or under any other Loan Document shall
become due, or otherwise would occur, on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, unless such next
succeeding Business Day would fall in the following month, in which case such
payment will be made on the immediately preceding Business Day, and any such
extension of time shall in such case be included in the computation of interest
or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if the Borrower shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent or Lender (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder or under any other Loan Document
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the
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Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the laws of the United States of America or
Canada, or any treaty to which either such jurisdiction is a party, with respect
to payments under this Agreement shall deliver to the Borrower (with a copy to
the Administrative Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
or reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate. For any period with respect to which a
Foreign Lender has failed to provide the Borrower with the appropriate form or
forms described in the previous sentence, such Foreign Lender shall not be
entitled to indemnification or payment of additional amounts under this Section
2.20 with respect to Taxes imposed by the Relevant Jurisdiction, but only to the
extent such Taxes would not have been imposed had such form or forms been so
provided; provided, however, that should a Foreign Lender be subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower shall
take such steps as the Foreign Lender shall reasonably request to assist the
Foreign Lender to recover such Taxes.
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.15 or (iii) the
Borrower is required to pay any additional amount to any Lender or the Issuing
Bank or any Governmental Authority on account of any Lender or the Issuing Bank
pursuant to Section 2.20, the Borrower may, at its sole expense and effort
(including with respect to the processing and recordation fee referred to in
Section 10.04(b)), upon notice to such Lender or the Issuing Bank and the
Administrative Agent, require such Lender or the Issuing Bank to transfer and
assign, without recourse (in accordance with and subject to the restrictions
contained in Section 10.04), all of its interests, rights and obligations under
this Agreement to an assignee that shall assume such assigned obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (x) such assignment shall not conflict with any law, rule or regulation or
order of any court or other Governmental Authority having jurisdiction, (y) the
Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, and (z) the Borrower or
such assignee shall have paid to the affected Lender or the Issuing Bank in
immediately available funds an amount equal to the sum of the principal
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of and interest accrued to the date of such payment on the outstanding Loans or
L/C Disbursements of such Lender or the Issuing Bank, respectively, plus all
Fees and other amounts accrued for the account of such Lender or the Issuing
Bank hereunder (including any amounts under Section 2.14, Section 2.16 and
Section 2.20); provided further that, if prior to any such transfer and
assignment the circumstances or event that resulted in such Lender's or the
Issuing Bank's claim for compensation under Section 2.14 or notice under Section
2.15 or the amounts paid pursuant to Section 2.20, as the case may be, cease to
cause such Lender or the Issuing Bank to suffer increased costs or reductions in
amounts received or receivable or reduction in return on capital, or cease to
have the consequences specified in Section 2.15, or cease to result in amounts
being payable under Section 2.20, as the case may be (including as a result of
any action taken by such Lender or the Issuing Bank pursuant to paragraph (b)
below), or if such Lender or the Issuing Bank shall waive its right to claim
further compensation under Section 2.14 in respect of such circumstances or
event or shall withdraw its notice under Section 2.15 or shall waive its right
to further payments under Section 2.20 in respect of such circumstances or
event, as the case may be, then such Lender or the Issuing Bank shall not
thereafter be required to make any such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation
under Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section
2.20, then such Lender or the Issuing Bank shall use reasonable efforts (which
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any
certificate or document reasonably requested in writing by the Borrower or (y)
to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender or the
Issuing Bank in connection with any such filing or assignment, delegation and
transfer.
SECTION 2.22. Letter of Credit. (a) General. Subject to the terms and
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conditions and relying upon the representations and warranties herein set forth,
the Issuing Bank agrees to issue the Letter of Credit on the Closing Date for
the account of the Borrower and Inland (the "Account Parties") for the benefit
of the PBGC and in an aggregate face amount of $160,000,000.
(b) Expiration Date. The Letter of Credit shall expire at the close of
business on the earlier of (i) the date one year after the date of the issuance
of the Letter of Credit (unless renewed for one or more subsequent one-year
periods pursuant to paragraph (c) below) and (ii) the L/C Maturity Date.
(c) Renewal and Extension; Notices thereof. The Issuing Bank shall
notify (the "L/C Renewal Notice") Inland, the Borrower and the Administrative
Agent in writing (delivered by hand or telecopy) no less than 60 days prior to
the then current expiration date of the Letter of Credit as to whether it
intends to renew the Letter of Credit for another year. The Issuing Bank shall
so renew the Letter of Credit unless (i) prior to the delivery of the L/C
Renewal Notice the Borrower or Inland shall have instructed the Issuing Bank not
to renew the Letter of Credit or (ii) at the time of the L/C Renewal Notice, the
conditions to renewal set forth in Section 4.01 shall not have been satisfied.
Not less than 90 nor more than 120 days (or such other notice as may be agreed
to by the Account Parties, the Issuing Bank and the Administrative Agent) prior
to the then current expiration of the Letter of Credit, Inland or the Borrower
shall provide written notice to the Issuing Bank and the Administrative Agent as
to whether it requests that the Letter of Credit be renewed for another year (or
shorter period as may be specified in such request) from such then current
expiration date and, if the Account Parties request such renewal, a certificate
of a Responsible Officer confirming that the conditions precedent to renewal of
the Letter of Credit set forth in Section 4.01 are satisfied.
(d) Participations. By the issuance of the Letter of Credit and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each L/C Lender, and each L/C Lender hereby acquires from
the Issuing Bank, a participation in the Letter of Credit equal to such Lender's
Pro Rata Percentage of the aggregate amount available to be drawn under the
Letter of Credit, effective upon the issuance of the Letter of Credit. In
consideration and in furtherance of the foregoing, each L/C Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lender's Pro Rata Percentage of each L/C
Disbursement made by the Issuing Bank and not reimbursed by the Account Parties
(or, if applicable, another party pursuant to its obligations under any other
Loan Document) forthwith on the date due as provided in paragraph (e) below.
Each L/C Lender acknowledges and agrees that its obligation to acquire
participations
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pursuant to this paragraph in respect of the Letter of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or an Event of Default,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement
in respect of the Letter of Credit, the Account Parties shall, jointly and
severally, pay to the Administrative Agent an amount equal to such L/C
Disbursement not later than two hours after the Account Parties shall have
received notice from the Issuing Bank that payment of such draft will be made,
or, if the Account Parties shall have received such notice later than 10:00
a.m., New York City time, on any Business Day, not later than 10:00 a.m., New
York City time, on the immediately following Business Day. If the Issuing Bank
shall not have received such payment from the Account Parties within the time
specified above, the Issuing Bank will promptly notify the Administrative Agent
of the L/C Disbursement and the Administrative Agent will promptly notify each
L/C Lender of such L/C Disbursement and its Pro Rata Percentage thereof. Each
Lender shall pay by wire transfer of immediately available funds to the
Administrative Agent not later than 2:00 p.m., New York City time, on such date
(or, if such L/C Lender shall have received such notice later than 12:00 (noon),
New York City time, on any day, not later than 10:00 a.m., New York City time,
on the immediately following Business Day), an amount equal to such Lender's Pro
Rata Percentage of such L/C Disbursement, and the Administrative Agent will
promptly pay to the Issuing Bank amounts so received by it from the L/C Lenders.
The Administrative Agent will promptly pay to the Issuing Bank any amounts
received by it from the Account Parties pursuant to this paragraph prior to the
time that any L/C Lender makes any payment pursuant to this paragraph; any such
amounts received by the Administrative Agent thereafter will be promptly
remitted by the Administrative Agent to the L/C Lenders that shall have made
such payments and to the Issuing Bank, as their interests may appear. If any L/C
Lender shall not have made its Pro Rata Percentage of such L/C Disbursement
available to the Administrative Agent as provided above, such Lender agrees to
pay interest on such amount, for each day from and including the date such
amount is required to be paid in accordance with this paragraph to but excluding
the date such amount is paid, to the Administrative Agent for the account of the
Issuing Bank at, for the first such day, the Federal Funds Effective Rate, and
for each day thereafter, the Alternate Base Rate.
(f) Obligations Absolute. The Account Parties' obligations to reimburse
L/C Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this
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Agreement, under any and all circumstances whatsoever, and irrespective of:
(i) any lack of validity or enforceability of the Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of the Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other
right that either Account Party, any other party guaranteeing, or
otherwise obligated with, either Account Party, any of their respective
subsidiaries or other Affiliate thereof or any other person may at any
time have against the beneficiary under the Letter of Credit, the
Issuing Bank, the Administrative Agent or any Lender or any other
person, whether in connection with this Agreement, any other Loan
Document or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under the Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by the Issuing Bank under the Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of the Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
the Issuing Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of an Account
Party's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Account Parties hereunder to reimburse L/C Disbursements will not be excused by
the gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Account Parties to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Account Parties to the extent permitted by applicable law) suffered by the
Account Parties that are caused by the Issuing Bank's gross negligence or wilful
misconduct in determining whether drafts and other documents presented under the
Letter of Credit comply with the terms thereof; it is understood that the
Issuing Bank may accept
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documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary
and, in making any payment under the Letter of Credit (i) the Issuing Bank's
exclusive reliance on the documents presented to it under the Letter of Credit
as to any and all matters set forth therein, including reliance on the amount of
any draft presented under the Letter of Credit, whether or not the amount due to
the beneficiary thereunder equals the amount of such draft and whether or not
any document presented pursuant to the Letter of Credit proves to be
insufficient in any respect, if such document on its face appears to be in
order, and whether or not any other statement or any other document presented
pursuant to the Letter of Credit proves to be forged or invalid or any statement
therein proves to be inaccurate or untrue in any respect whatsoever and (ii) any
noncompliance in any immaterial respect of the documents presented under the
Letter of Credit with the terms thereof shall, in each case, be deemed not to
constitute wilful misconduct or gross negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under the Letter of Credit. The Issuing Bank shall as promptly as
possible give telephonic notification, confirmed by telecopy, to the
Administrative Agent and the Account Parties of such demand for payment and
whether the Issuing Bank has made or will make an L/C Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve the Account Parties of their joint and several obligation to reimburse
the Issuing Bank and the L/C Lenders with respect to any such L/C Disbursement.
The Administrative Agent shall promptly give each L/C Lender notice thereof.
(h) Interest. If the Issuing Bank shall make any L/C Disbursement in
respect of the Letter of Credit, then, unless the Account Parties shall
reimburse such L/C Disbursement in full on such date, the unpaid amount thereof
shall bear interest for the account of the Issuing Bank and the L/C Lenders that
shall have funded their Pro Rata Percentage of the L/C Disbursement as provided
in subsection (e) of this Section 2.22, for each day from and including the date
of such L/C Disbursement, to but excluding the date of reimbursement by the
Account Parties, from time to time on demand, at a rate per annum equal to (i)
for the first such day, the interest rate per annum then applicable to Tranche B
ABR Loans and (ii), thereafter, the default interest rate per annum then
applicable to Tranche B ABR Loans as specified in Section 2.07(a).
(i) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Account Parties shall, on the Business Day they receive notice
from the Administrative Agent or L/C Lenders holding participations in the
outstanding Letter of Credit representing greater than 50% of the aggregate
undrawn amount of the outstanding
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Letter of Credit thereof and of the amount to be deposited, deposit in an
account with the Collateral Agent, for the benefit of the L/C Lenders, an amount
in cash equal to the L/C Exposure as of such date. Such deposit shall be held by
the Collateral Agent as collateral for the payment and performance of the
Obligations. The Collateral Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits in Permitted Investments,
which investments shall be made at the option and sole discretion of the
Collateral Agent, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall (i) automatically be applied by the Administrative Agent to
reimburse the Issuing Bank for L/C Disbursements for which it has not been
reimbursed, (ii) be held for the satisfaction of the reimbursement obligations
of the Borrower for the L/C Exposure at such time and (iii) if the maturity of
the Loans has been accelerated and either (a) Lenders holding a majority of the
L/C Exposure consent or (b) the Letter of Credit has been drawn in full and not
fully reimbursed or has terminated, be applied to satisfy the Obligations. If
the Account Parties are required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Account Parties
within three Business Days after all Events of Default have been cured or
waived.
ARTICLE III
Representations and Warranties
Each of the Borrower, Inland and each other Guarantor represents and
warrants to the Administrative Agent, the Collateral Agent and each of the
Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower, Inland and
their respective subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
all requisite power and authority to own its property and assets and to carry on
its business as now conducted and as proposed to be conducted, (c) is qualified
to do business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
power and authority to execute, deliver and perform its obligations under each
of the Loan Documents and each other agreement or instrument contemplated hereby
to which
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it is or will be a party and, in the case of the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Loan Documents and the borrowings hereunder, the
refinancing of the Existing Inland Debt, the making and borrowing of the Inland
Loan, the consummation of the Merger, the financing therefor and the other
transactions contemplated hereby and by the Merger Agreement (collectively, the
"Transactions") (a) have been duly authorized by all requisite corporate or
partnership and, if required, stockholder or partner action and (b) will not (i)
violate (A) any provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation, partnership agreement or other
constitutive documents or by-laws of the Borrower, Inland or any of their
respective subsidiaries, (B) any order of any Governmental Authority or (C) any
provision of any indenture, material agreement or other material instrument to
which the Borrower, Inland or any of their respective subsidiaries is a party or
by which any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any obligation under
any such indenture, agreement or other instrument or (iii) result in the
creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by the Borrower, Inland or any of their
respective subsidiaries (other than any Lien created hereunder or under the
Security Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by the Borrower, Inland and each other Loan Party hereto, and each
other Loan Document when executed and delivered by each Loan Party thereto will
constitute, a legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to equitable principles.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
(a) the filing with the Secretary of State of the State of Delaware of the
certificate of merger as contemplated under the Merger Agreement, which filing
shall have been made prior to or substantially simultaneously with the Borrowing
to be made on the Closing Date, and (b) such as have been made or obtained and
are in full force and effect.
SECTION 3.05. Financial Statements. (a) Inland has heretofore furnished
to the
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Lenders its consolidated balance sheets and related statements of income,
stockholder's equity and cash flows (i) as of and for the three-year period
ended December 31, 1997, audited by and accompanied by the opinion of Price
Waterhouse LLP, independent public accountants, and (ii) as of the fiscal
quarter ended March 31, 1998, certified by its chief financial officer. Such
financial statements present fairly the financial condition and results of
operations and cash flows of Inland and its consolidated subsidiaries, as of
such dates and for such periods. Such balance sheets and the notes thereto
disclose all material liabilities, direct or contingent, of Inland and its
consolidated subsidiaries as of the dates thereof. Such financial statements
were prepared in accordance with GAAP applied on a consistent basis.
(b) Inland has heretofore delivered to the Lenders its unaudited pro
forma consolidated balance sheet and certain statements of income, stockholder's
equity and cash flows data as of and for the twelve-month period ending on March
31, 1998, prepared giving effect to the Transactions as if they had occurred on
such date (or, in the case of such other data, on the first day of such period).
Such pro forma financial statements and other data have been prepared in good
faith by Inland, based on the assumptions used to prepare the pro forma
financial information contained in the Confidential Information Memorandum
(which assumptions are believed by Inland on the date hereof and on the Closing
Date to be reasonable), are based on the best information available to Inland as
of the date of delivery thereof, accurately reflect all adjustments required to
be made to give effect to the Transactions and present fairly on a pro forma
basis the estimated consolidated financial position of Inland and its
consolidated subsidiaries as of such date, assuming that the Transactions had
actually occurred at such date.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations or financial condition of the
Borrower and its Restricted Subsidiaries, taken as a whole, or Inland and its
Restricted Subsidiaries, taken as a whole, in each case since December 31, 1997.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
the Borrower, Inland and their respective subsidiaries has good and marketable
title to, or valid leasehold interests in, all its material properties and
assets (including all Mortgaged Property), except for minor defects in title
that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties and assets for their intended purposes.
All such material properties and assets are free and clear of Liens,
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other than Liens expressly permitted by Section 6.01.
(b) Each of the Borrower, Inland and their respective subsidiaries has
complied with all obligations under all material leases to which it is a party
and all such leases are in full force and effect. Each of the Borrower, Inland
and their respective subsidiaries enjoys peaceful and undisturbed possession
under all such material leases.
(c) Except as set forth on Schedule 3.07(c), on the Closing Date,
neither Inland nor the Borrower has received any notice of, or has any knowledge
of, any pending or contemplated condemnation proceeding affecting the Mortgaged
Property or any sale or disposition thereof in lieu of condemnation.
(d) Neither the Borrower, Inland nor any of their respective
subsidiaries is obligated under any right of first refusal, option or other
contractual right to sell, assign or otherwise dispose of any Mortgaged Property
or any interest therein.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing
Date a list of all subsidiaries of each of the Borrower and Inland and the
percentage ownership interest of the Borrower or Inland therein. On the Closing
Date, the shares of capital stock or other ownership interests so indicated on
Schedule 3.08 are fully paid and non-assessable and are owned by the Borrower or
Inland, directly or indirectly, free and clear of all Liens.
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth
on Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower or Inland, threatened against or affecting the
Borrower, Inland or any of their respective subsidiaries or any business,
property or rights of any such person (i) that involve any Loan Document or the
Transactions or (ii) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.
(b) None of the Borrower, Inland or any of their respective
subsidiaries or any of their respective material properties or assets is in
violation of, nor will the continued operation of their material properties and
assets as currently conducted violate, any law, rule or regulation (including
any zoning, building, Environmental Law, ordinance, code or approval or any
building permits) or any restrictions of record or agreements affecting the
Mortgaged Property, or is in default with respect to any judgment, writ,
injunction, decree or order of any Governmental Authority, where such violation
or default could reasonably be expected to result in a Material Adverse Effect.
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(c) Certificates of occupancy and permits are in effect for each
Mortgaged Property as currently constructed, except where the failure to have
the same could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.10. Agreements. Neither the Borrower, Inland nor any of their
respective subsidiaries is in default in any manner under any provision of any
indenture or other agreement or instrument evidencing Indebtedness, or any other
material agreement or instrument to which it is a party or by which it or any of
its properties or assets are or may be bound, where such default could
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) Neither the Borrower,
Inland nor any of their respective subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or the Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulations U or
X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. Neither the Borrower, Inland nor any of their respective subsidiaries is
(a) an "investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of
the Loans and will request the issuance of the Letter of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of the Borrower, Inland and their
respective subsidiaries has filed or caused to be filed all Federal, state,
local and foreign Tax returns or materials required to have been filed by it and
has paid or caused to be paid all Taxes due and payable by it and all
assessments received by it, except Taxes that are being contested in good faith
by appropriate proceedings and for which the Borrower, Inland or such
subsidiary, as applicable, shall have set aside on its books adequate reserves.
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SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of the Borrower or
Inland to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading; provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, each of the Borrower and Inland represents
only that it acted in good faith and utilized reasonable assumptions and due
care in the preparation of such information, report, financial statement,
exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. Each of the Borrower, Inland and
their respective ERISA Affiliates is in compliance in all material respects with
the applicable provisions of ERISA and the Code and the regulations and
published interpretations thereunder. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events, could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule
3.17 and as could not reasonably be expected to have a Material Adverse Effect:
(a) Inland and its Subsidiaries are in compliance with, and for the
past three years have been in compliance in all material respects with, all
applicable Environmental Laws and all Environmental Permits. All past
noncompliance with Environmental Laws or Environmental Permits has been resolved
without any pending, on-going or future obligation, cost or liability, and there
is no requirement proposed for adoption or implementation under any
Environmental Law or Environmental Permit that is reasonably expected to have a
Material Adverse Effect;
(b) there are no underground or aboveground storage tanks or any
surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been treated, stored or disposed on any of the real
property by Inland and its Subsidiaries, or to the knowledge of Inland, on any
property formerly owned, leased or occupied by Inland and its Subsidiaries;
(c) Inland and its Subsidiaries have not, and to the knowledge of
Inland no other person has, Released Hazardous Materials on any of the real
property currently or formerly owned, leased or occupied by Inland and its
Subsidiaries;
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(d) Inland and its Subsidiaries are not conducting, and have not
undertaken or completed, any Remedial Action relating to any Release or
threatened Release at the real property or at any other site, location or
operation, either voluntarily or pursuant to the order of any Governmental
Authority or the requirements of any Environmental Law or Environmental Permit;
(e) none of the real property is listed or proposed for listing on the
National Priorities List under CERCLA, or, to the knowledge of Inland, any
analogous federal, state or local list;
(f) there are no Environmental Claims pending or, to the knowledge of
Inland, threatened against Inland and its Subsidiaries or the real property, and
there are no circumstances that can reasonably be expected to form the basis of
any such Environmental Claim, including without limitation with respect to any
off-site disposal location currently or formerly used by Inland and its
Subsidiaries or any of their predecessors or with respect to any currently or
formerly owned or operated facilities; and
(g) Inland and its Subsidiaries can reasonably be expected to maintain
present production levels in compliance with applicable Environmental Laws
without material capital or operating expenditures and without modifying their
Environmental Permits or obtaining any additional Environmental Permits.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by the Borrower or Inland or by
the Borrower or Inland for their respective subsidiaries as of the Closing Date.
As of the Closing Date, such insurance is in full force and effect and all
premiums have been duly paid. The Borrower, Inland and their respective
subsidiaries have insurance in such amounts and covering such risks and
liabilities as are in accordance with normal industry practice.
SECTION 3.19. Security Documents. (a) The Pledge Agreement is effective
to create in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when the Collateral is
delivered to the Collateral Agent, the Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgors thereunder in such Collateral, in each case prior and
superior in right to any other person.
(b) The Indenture is effective to create in favor of the Trustee, for
the ratable benefit of the bondholders from time to time under the Indenture, a
legal, valid and
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enforceable Lien on all Inland's right, title and interest in and to the
Mortgaged Property and the other Collateral in which a Lien is purported to be
granted thereunder and the proceeds thereof, and the Indenture constitutes a
fully perfected Lien on, and security interest in, all right, title and interest
of Inland in such Mortgaged Property and Collateral and the proceeds thereof, in
each case prior and superior in right to any other person, other than with
respect to the rights of persons pursuant to Liens expressly permitted by
Section 6.01.
SECTION 3.20. Location of Real Property and Leased Premises. (a)
Schedule 3.20 lists completely and correctly as of the Closing Date all real
property owned by the Borrower, Inland and their respective subsidiaries and the
addresses thereof. On the Closing Date, the Borrower, Inland and their
respective subsidiaries own in fee all the real property set forth on Schedule
3.20.
(b) Schedule 3.20(b) lists completely and correctly as of the Closing
Date all real property leased by the Borrower, Inland and their respective
subsidiaries and the addresses thereof. On the Closing Date, the Borrower,
Inland and their respective subsidiaries have valid leasehold interests in all
the real property set forth on Schedule 3.20(b).
SECTION 3.21. Labor Matters. As of the Closing Date, there are no
strikes, lockouts or slowdowns against the Borrower, Inland or any of their
respective subsidiaries pending or, to the knowledge of the Borrower or Inland,
threatened. The hours worked by and payments made to employees of the Borrower,
Inland and their respective subsidiaries have not been in violation of the Fair
Labor Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters. All payments due from the Borrower, Inland or any of
their respective subsidiaries, or for which any claim may be made against the
Borrower, Inland or any of their respective subsidiaries, on account of wages
and employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of the Borrower, Inland or such subsidiary.
The consummation of the Transactions will not give rise to any right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which the Borrower, Inland or any of their
respective subsidiaries is bound.
SECTION 3.22. Solvency. Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each
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Loan made on the Closing Date and after giving effect to the application of the
proceeds of such Loans, (i) the fair value of the assets of each Loan Party, at
a fair valuation, will exceed its debts and liabilities, subordinated,
contingent or otherwise; (ii) the present fair saleable value of the property of
each Loan Party will be greater than the amount that will be required to pay the
probable liability of its debts and other liabilities, subordinated, contingent
or otherwise, as such debts and other liabilities become absolute and matured;
(iii) each Loan Party will be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) each Loan Party will not have unreasonably small
capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted following the Closing
Date.
SECTION 3.23. Year 2000. Each of the Borrower and Inland has (i)
initiated a review and assessment of all areas within its and each of its
subsidiaries' business and operations (including those affected by suppliers,
vendors and customers) that could be adversely affected by the "Year 2000
Problem" (that is, the risk that computer applications used by either or any of
their subsidiaries (or suppliers, vendors and customers) may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999), (ii) developed a plan and
timeline for addressing the Year 2000 Problem on a timely basis, and (iii) to
date, implemented that plan in accordance with that timetable. Based on the
foregoing, each of the Borrower and Inland believes that all of its computer
applications that are material to its or any of its subsidiaries' business and
operations are reasonably expected on a timely basis to be able to perform
properly date-sensitive functions for all dates before and after January 1, 2000
(that is, be "Year 2000 compliant"), except to the extent that a failure to do
so could not reasonably be expected to have Material Adverse Effect.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue and renew the Letter of Credit hereunder are subject to the satisfaction
of the following conditions:
SECTION 4.01. All Credit Events. On the date of the making of the
Loans, the date of the issuance of the Letter of Credit and the date of each
renewal or extension of the Letter of Credit (each such event being called a
"Credit Event"):
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(a) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the date of such
Credit Event with the same effect as though made on and as of such date, except
to the extent such representations and warranties expressly relate to an earlier
date.
(b) At the time of and immediately after such Credit Event, no Event of
Default or Default shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower on the date of such Credit Event as to the matters
specified in paragraphs (a) and (b) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received a Borrowing Request,
as required by Section 2.03.
(b) The Administrative Agent shall have received, on behalf of itself,
the Lenders and the Issuing Bank, a favorable written opinion of (i) Shearman &
Sterling, counsel for the Borrower, Inland and their respective subsidiaries,
substantially to the effect set forth in Exhibit G-1, and (ii) ▇▇▇▇▇▇ ▇. Rauney,
Jr., Vice-President, General Counsel of ISI, substantially to the effect set
forth in Exhibit G-2, in each case (A) dated the Closing Date, (B) addressed to
the Issuing Bank, the Administrative Agent and the Lenders, and (C) covering
such other matters relating to the Loan Documents and the Transactions as the
Administrative Agent shall reasonably request, and the Borrower and Inland
hereby request such counsel to deliver such opinions.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation or certificate of limited partnership,
as the case may be, including all amendments thereto, of each Loan Party,
certified as of a recent date by the Secretary of State of the state of its
organization, and a certificate as to the good standing of each Loan Party as of
a recent date, from such Secretary of State; (ii) a certificate of the Secretary
or Assistant Secretary of each Loan Party dated the Closing Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws or limited
partnership agreement, as the case may be, of such Loan Party as in effect on
the Closing Date and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached thereto is a true
and complete copy of resolutions duly adopted by the Board of Directors of such
Loan Party authorizing the execution, delivery and performance of the Loan
Documents to which such person is a party and, in the case
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of the Borrower, the borrowings hereunder, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect, (C) that
the certificate or articles of incorporation of such Loan Party have not been
amended since the date of the last amendment thereto shown on the certificate of
good standing furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each officer executing any Loan Document or
any other document delivered in connection herewith on behalf of such Loan
Party; (iii) a certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate
pursuant to (ii) above; and (iv) such other documents as the Lenders, the
Issuing Bank or the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated
the Closing Date and signed by a Financial Officer of the Borrower, (i)
confirming compliance with the conditions precedent set forth in paragraphs (a)
and (b) of Section 4.01 and (ii) as to the solvency of the Borrower and Inland
after giving effect to the Transactions.
(f) The Administrative Agent shall have received all Fees and other
amounts due and payable on or prior to the Closing Date, including, to the
extent previously invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the Borrower hereunder or under
any other Loan Document.
(g) The Pledge Agreement and the Supplemental Indenture shall have been
duly executed by the parties thereto and delivered to the Collateral Agent and
shall be in full force and effect, and (i) all the outstanding Capital Stock of
each Guarantor (other than Inland) and (ii) the First Mortgage Bonds shall have
been duly and validly pledged thereunder to the Collateral Agent for the ratable
benefit of the Secured Parties. Certificates representing such pledged shares or
First Mortgage Bonds, accompanied by instruments of transfer and stock powers
endorsed in blank (or, in the case of the First Mortgage Bonds, duly executed on
behalf of Inland, authenticated by the Trustee and registered in the name of the
Collateral Agent) shall be in the actual possession of the Collateral Agent;
provided that to the extent to do so would cause adverse tax consequences to the
Borrower or Inland, (i) neither the Borrower nor any Domestic Subsidiary shall
be required to pledge more than 65% of the voting stock of any Foreign
Subsidiary and (ii) no Foreign Subsidiary shall be required to pledge the
capital stock of any of its Foreign Subsidiaries.
(h) The IINV Guarantee shall have been duly executed by the parties
thereto, shall have been delivered to the Collateral Agent and shall be in full
force and effect.
(i) The Administrative Agent shall have received a copy of, or a
certificate as to
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coverage under, the insurance policies required by Section 5.02 and the
applicable provisions of the Security Documents, each of which shall be endorsed
or otherwise amended to include a lender's loss payable endorsement and to name
the Trustees as additional insured, in form and substance satisfactory to the
Administrative Agent.
(j) All requisite Governmental Authorities and third parties shall have
approved or consented to the Transactions to the extent required, and there
shall be no governmental or judicial action, actual or threatened, that could
reasonably be expected to have a Material Adverse Effect or restrain, prevent or
impose materially burdensome conditions on the Transactions.
(k) The Merger shall have been consummated, or shall be consummated
simultaneously with the initial Credit Event, in accordance with applicable law
and the Merger Agreement, without giving effect to any material waiver or
amendment of the Merger Agreement not approved in writing by the Lenders.
(l) The Equity Contribution shall have been made simultaneously with
the initial Credit Event.
(m) After giving effect to the Transactions, the Borrower, Inland and
their respective Restricted Subsidiaries shall have outstanding no Indebtedness
other than (A) the extensions of credit under this Agreement and (B) the
Indebtedness listed on Schedule 6.02.
(n) The Lenders shall be reasonably satisfied in all respects with the
amount and nature of any actual or asserted unfunded benefit or other pension
liabilities of the Borrower, Inland and their respective subsidiaries and any of
their ERISA Affiliates and the plans of each such person with respect thereto,
after giving effect to the Transactions and the consummation of the other
transactions contemplated hereby.
(o) The Lenders shall be satisfied that all Existing Inland Debt shall
have been repaid in full, the commitments (if any) thereunder canceled and all
security and guarantees (if any) therefor released and discharged.
ARTICLE V
Affirmative Covenants
Each of the Borrower and Inland covenants and agrees with each Lender
that, so
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long as this Agreement shall remain in effect and until the Commitments have
been terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document shall have been paid
in full and the Letter of Credit shall have been canceled or shall have expired
and all amounts drawn thereunder shall have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing, each of the Borrower and
Inland will, and will cause each of their respective Restricted Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated; comply
in all material respects with all applicable laws, rules, regulations (including
any zoning, building, Environmental Law, ordinance, code or approval or any
building permits or any restrictions of record or agreements affecting the
Mortgaged Property) and decrees and orders of any Governmental Authority,
whether now in effect or hereafter enacted; and at all times maintain and
preserve all property material to the conduct of such business and keep such
property in good repair, working order and condition and from time to time make,
or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times.
SECTION 5.02. Insurance. (a) Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses operating in the same or similar locations,
including public liability insurance against claims for personal injury or death
or property damage occurring upon, in, about or in connection with the use of
any properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
(b) With respect to any Mortgaged Property, carry and maintain
comprehensive
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general liability insurance including the "broad form CGL endorsement" and
coverage on an occurrence basis against claims made for personal injury
(including bodily injury, death and property damage) and umbrella liability
insurance against any and all claims, in no event for a combined single limit of
less than $150,000,000, naming the Trustee as an additional insured, on forms
satisfactory to the Collateral Agent.
(c) Cause all such policies to be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement, in form
and substance satisfactory to the Administrative Agent and the Collateral Agent,
which endorsement shall provide that, from and after the Closing Date, if the
insurance carrier shall have received written notice from the Administrative
Agent or the Trustee of the occurrence of an Event of Default, the insurance
carrier shall, during the continuance of such Event of Default pay all proceeds
otherwise payable to the Borrower or the Loan Parties under such policies
directly to the Trustee; cause each such policy to provide that it shall not be
canceled, modified or not renewed (i) by reason of nonpayment of premium upon
not less than 10 days' prior written notice thereof by the insurer to the
Administrative Agent and the Trustee (giving the Administrative Agent and the
Trustee the right to cure defaults in the payment of premiums) or (ii) for any
other reason upon not less than 30 days' prior written notice thereof by the
insurer to the Administrative Agent and the Trustee; deliver to the
Administrative Agent and the Trustee, prior to the cancelation, modification or
nonrenewal of any such policy of insurance, a copy of a renewal or replacement
policy (or other evidence of renewal of a policy previously delivered to the
Administrative Agent and the Trustee) together with evidence satisfactory to the
Administrative Agent and the Trustee of payment of the premium therefor.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all Taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any such
Tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower or
Inland, as applicable, shall have set aside on its books adequate reserves with
respect thereto in accordance with GAAP and such contest operates to suspend
collection of the contested obligation, Tax, assessment or charge and
enforcement of a Lien and, in the case of a Mortgaged Property, there is no risk
of forfeiture of such property.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower
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and Inland, furnish to the Administrative Agent and each Lender:
(a) within 100 days after the end of each fiscal year, its
consolidated balance sheet and related statements of income,
stockholder's equity and cash flows showing the financial condition of
the Borrower and its consolidated subsidiaries or Inland and its
consolidated subsidiaries, as applicable, as of the close of such
fiscal year and the results of its operations and the operations of
such subsidiaries during such year, all audited by Deloitte & Touche
LLP or other independent public accountants of recognized national
standing and accompanied by an opinion of such accountants (which shall
not be qualified in any material respect) to the effect that such
consolidated financial statements fairly present the financial
condition and results of operations of the Borrower and its
consolidated subsidiaries or Inland and its consolidated subsidiaries,
as applicable, on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 55 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheet and
related statements of income, stockholder's equity and cash flows
showing the financial condition of the Borrower and its consolidated
subsidiaries or Inland and its consolidated subsidiaries as of the
close of such fiscal quarter and the results of its operations and the
operations of such Restricted Subsidiaries during such fiscal quarter
and the then elapsed portion of the fiscal year, all certified by one
of its Financial Officers as fairly presenting the financial condition
and results of operations of the Borrower and its consolidated
subsidiaries or Inland and its consolidated subsidiaries, as
applicable, on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements
under subsection (a) or (b) above, a letter of the accounting firm (in
the case of clause (a) above) and certificate of the Financial Officer
reporting on or certifying such statements (which letter, when
furnished by an accounting firm, may be limited to accounting matters
and disclaim responsibility for legal interpretations) (i) reporting
that they are unaware that any Event of Default has occurred, in the
case of the accounting firm, or certifying that no Event of Default or,
to the best of his knowledge after due inquiry, Default has occurred,
in the case of the Financial Officer or, if such an Event of Default or
Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto
and (ii) setting forth computations in reasonable detail satisfactory
to the Administrative Agent demonstrating compliance with the covenant
contained in Section 6.09;
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(d) promptly after the same become publicly available, copies
of each registration statement, proxy statement, annual report, Form
10-K, Form 10-Q and Form 8-K filed by the Borrower, Inland or any of
their respective Restricted Subsidiaries with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed to its shareholders, as the case
may be; and
(e) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
the Borrower, Inland or any of their respective Restricted
Subsidiaries, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Lender (through the Administrative Agent)
may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent, the Issuing Bank and each Lender prompt written notice of
the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to
be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower, Inland or any subsidiary
thereof that could reasonably be expected to result in a Material
Adverse Effect; and
(c) any development that has resulted in, or could reasonably
be expected to result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent (i) as soon as possible after, and in any event within 10
days after any Responsible Officer of the Borrower, Inland or any ERISA
Affiliate knows or has reason to know that, any ERISA Event has occurred that,
alone or together with any other ERISA Event could reasonably be expected to
result in liability of the Borrower or Inland in an aggregate
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amount exceeding $1,000,000 a statement of a Financial Officer of the Borrower
or Inland setting forth details as to such ERISA Event and the action, if any,
that the Borrower or Inland proposes to take with respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with all requirements of law are made of all
dealings and transactions in relation to its business and activities. Each Loan
Party will, and will cause each of its Restricted Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender (through
the Administrative Agent) to visit and inspect the financial records and the
properties of the Borrower, Inland or any of their respective Restricted
Subsidiaries at reasonable times and as often as reasonably requested and to
make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender (through
the Administrative Agent) to discuss the affairs, finances and condition of the
Borrower, Inland or any of their respective Restricted Subsidiaries with the
officers thereof and independent accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and
request the issuance, extension or renewal of the Letter of Credit only for the
purposes set forth in the preamble to this Agreement.
SECTION 5.09. Compliance with Environmental Laws. Comply, and cause all
lessees and other persons occupying its Properties to comply, in all material
respects with all Environmental Laws and Environmental Permits applicable to its
operations and Properties; obtain and renew all material Environmental Permits
necessary for its operations and Properties; and conduct any Remedial Action in
material compliance with Environmental Laws; provided, however, that neither the
Borrower, Inland nor any of their Restricted Subsidiaries shall be required to
undertake any Remedial Action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate reserves
are being maintained with respect to such circumstances.
SECTION 5.10. Preparation of Environmental Reports. If a Default or an
Event of Default caused by reason of a breach of Section 3.17 or 5.09 shall have
occurred and be continuing, at the request of the Required Lenders through the
Administrative Agent, provide to the Lenders within 45 days after such request,
at the expense of the Borrower or Inland, as applicable, an environmental site
assessment report for the Properties which are the subject of such default
prepared by an environmental consulting firm acceptable to the Administrative
Agent and indicating the presence or absence of Hazardous Materials and the
estimated cost of any compliance or Remedial Action in connection with such
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Properties.
SECTION 5.11. Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority of the security interests created or
intended to be created by the Security Documents. The Borrower and Inland will
cause any subsequently acquired or organized Restricted Domestic Subsidiary
(other than a Securitization Subsidiary) to execute a Guarantee Agreement and
each applicable Security Document in favor of the Collateral Agent.
SECTION 5.12. Interest Rate Protection Agreements. In the case of the
Borrower, within 90 days following the Closing Date, enter into Interest Rate
Protection Agreements, with counterparties and on terms and conditions
reasonably satisfactory to the Administrative Agent, pursuant to which the
interest rate with respect to a notional amount equal to at least 50% of its
Indebtedness under this Agreement, is fixed for a period of at least three
years.
ARTICLE VI
Negative Covenants
Each of the Borrower and Inland covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document have been paid
in full and the Letter of Credit shall have been canceled or shall have expired
and all amounts drawn thereunder shall have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing, the Borrower and Inland
will not, and will not cause or permit any of the Restricted Subsidiaries to:
SECTION 6.01. Liens. Create, incur, assume or permit to exist any Lien
on any
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property or assets (including stock or other securities of any person, including
any Restricted Subsidiary) now owned or hereafter acquired by them or on any
income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of Inland, the Borrower and
the Restricted Subsidiaries existing on the date hereof and set forth
in Schedule 6.01; provided that such Liens shall secure only those
obligations which they secure on the date hereof;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by Inland or any of its Restricted Subsidiaries;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition, (ii) such Lien does not apply to any
other property or assets of Inland or any of its Restricted
Subsidiaries and (iii) such Lien does not (A) materially interfere with
the use, occupancy and operation of any other property of Inland or its
Restricted Subsidiaries, (B) materially reduce the fair market value of
such property but for such Lien or (C) result in any material increase
in the cost of operating, occupying or owning or leasing such property;
(d) Liens for taxes not yet due or which are being contested
in compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business of Inland or any of its Restricted Subsidiaries and securing
obligations that are not due and payable or which are being contested
in compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of
business of Inland or any of its Restricted Subsidiaries in compliance
with workmen's compensation, unemployment insurance and other social
security laws or regulations or to support obligations to insurance
companies in respect of deductibles, co-insurance claims or
self-insured retentions (and letter of credit reimbursement obligations
in respect thereof);
(g) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital
Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business of Inland or any of its
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Restricted Subsidiaries;
(h) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar encumbrances
incurred in the ordinary course of business of Inland or any of its
Restricted Subsidiaries which, in the aggregate, are not substantial in
amount and do not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business
of the Borrower, Inland or any of their respective subsidiaries;
(i) Liens on inventory and accounts receivable (and the
proceeds thereof and the related books and records) of Securitization
Subsidiaries securing Indebtedness permitted by Section 6.02(b)(viii)
or 6.02(b)(ix)(A);
(j) Liens on inventory (and the proceeds thereof and the
related books and records) of Inland and the Restricted Subsidiaries,
but only to the extent such Liens secure Indebtedness Incurred under
Section 6.02(b)(ix)(B) and there is no outstanding Indebtedness under
Section 6.02(b)(ix)(A);
(k) additional Liens on property or assets securing
obligations of Inland or any of its Restricted Subsidiaries (other than
Indebtedness for borrowed money) not exceeding $500,000 at any time,
provided that, to the extent any such Lien applies to any Collateral
(as defined in any such Security Documents), such Lien does not have
priority over the Liens created under the Security Documents;
(l) purchase money security interests (including in respect of
industrial revenue or development bonds and Capital Lease Obligations)
in real property, improvements thereto or equipment hereafter acquired
(or, in the case of improvements, constructed) by Inland or any of its
Restricted Subsidiaries; provided that (i) such security interests
secure Indebtedness permitted by Section 6.02, (ii) such security
interests are incurred, and the Indebtedness secured thereby is
created, within 180 days after such acquisition (or construction),
(iii) the Indebtedness secured thereby does not exceed the lesser of
the cost or the fair market value of such real property, improvements
or equipment at the time of such acquisition (or construction) and (iv)
such security interests do not apply to any other property or assets of
Inland or any of its Restricted Subsidiaries;
(m) Liens securing Project Finance Indebtedness; provided that
such Liens
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apply only to the assets acquired, constructed, developed or exploited
with the proceeds of such Project Finance Indebtedness;
(n) additional Liens on property or assets (other than
Collateral) of Inland and the Restricted Subsidiaries securing
obligations of Inland or any of its Restricted Subsidiaries not
exceeding $10,000,000 at any time; and
(o) Liens to secure any extension, renewal or refinancing of
any Indebtedness secured by Liens permitted under subsections (a)
through (n) above and permitted under Section 6.02(b)(vi); provided
that such Liens do not apply to any additional property or assets of
Inland or the Restricted Subsidiaries (other than additional property
or assets covered by the Indenture).
SECTION 6.02. Limitation on Indebtedness. (a) Incur, directly or
indirectly, any Indebtedness; provided, however, that Inland and its Restricted
Subsidiaries may Incur Indebtedness if, on the date of such Incurrence and after
giving effect thereto, the Consolidated Coverage Ratio exceeds 2.0 to 1.0.
(b) Notwithstanding the foregoing paragraph (a), the Borrower and
Inland and the Restricted Subsidiaries may Incur any or all of the following
Indebtedness:
(i) Indebtedness of the Borrower, Inland and the Restricted
Subsidiaries Incurred pursuant to this Agreement and the other Loan
Documents;
(ii) Indebtedness of, or commitments to lend to, the Borrower,
Inland and the Restricted Subsidiaries existing on the date hereof and
set forth in Schedule 6.02;
(iii) Indebtedness of Inland or any of its Restricted
Subsidiaries consisting of purchase money Indebtedness or Capital Lease
Obligations incurred in the ordinary course of business after the
Closing Date to finance capital expenditures; provided that the
aggregate principal amount of any Indebtedness or Capital Lease
Obligations incurred pursuant to this paragraph (b)(iii) outstanding at
any time shall not exceed $50,000,000;
(iv) loans or advances made by any Loan Party or Restricted
Subsidiary to any other Loan Party or Restricted Subsidiary, provided
that any such loans or advances (other than loans or advances to a
Securitization Subsidiary or a Guarantor) are evidenced by an
intercompany note pledged to the Collateral Agent pursuant to the
Pledge Agreement for the benefit of the Secured Parties;
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(v) ordinary course Interest Rate Protection Agreements and
ordinary course, non-speculative foreign exchange and commodity
protection agreements;
(vi) in the case of Inland, Indebtedness the net proceeds of
which are used substantially concurrently with the incurrence thereof
to refinance, extend or renew the Letter of Credit or Indebtedness
described in paragraph (b)(ii) above so long as (A) such refinancing,
extension or renewal of Indebtedness is in an aggregate principal
amount, or, if issued at a discount, the issue price is, not greater
than the aggregate principal amount of the Indebtedness being
refinanced, extended or renewed plus the amount of any premiums
required to be paid thereon, the amount of accrued and unpaid interest
thereon and the fees and expenses incurred in connection with such
refinancing, extension or renewal, (B) such Indebtedness has a final
maturity no earlier than and a weighted average life no shorter than
the Indebtedness being refinanced, extended or renewed and (C) each of
the covenants, events of default and other provisions thereof
(including any Guarantees thereof and any restriction contemplated by
Section 6.08) shall be no less favorable to the Lenders than those
contained in the Indebtedness being refinanced, extended or renewed;
(vii) Indebtedness of a subsidiary of Inland Incurred and
outstanding on or prior to the date on which such subsidiary was
acquired by Inland (other than Indebtedness Incurred in connection
with, or to provide all or any portion of the funds or credit support
utilized to consummate, the transaction or series of related
transactions pursuant to which such subsidiary became a subsidiary or
was acquired by Inland); provided, however, that on the date of such
acquisition and after giving effect thereto, Inland would have been
able to Incur at least $1.00 of Indebtedness pursuant to paragraph (a)
of this Section 6.02;
(viii) Indebtedness of a Receivables Subsidiary, the proceeds
of which are used solely to purchase inventory or accounts receivable
of Inland or any of its subsidiaries and to pay related fees and
expenses; provided that such Indebtedness shall be nonrecourse to the
Borrower, Inland and their respective Restricted Subsidiaries (other
than such Receivables Subsidiary);
(ix) either (A) Indebtedness of an Inventory Subsidiary, the
proceeds of which are used solely to purchase inventory of Inland or
any of its subsidiaries
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and to pay related fees and expenses; provided that such Indebtedness
shall be nonrecourse to the Borrower, Inland and their respective
Restricted Subsidiaries (other than such Inventory Subsidiary) or (B)
Indebtedness of Inland and its Restricted Subsidiaries incurred for
working capital purposes and in an aggregate principal amount
outstanding at any time not to exceed $100,000,000; provided that such
Indebtedness is secured solely by Liens permitted by Section 6.01(j).
(x) In the case of Restricted Subsidiaries of Inland, Project
Finance Indebtedness; and
(xi) additional Indebtedness of Inland or any of its
Restricted Subsidiaries in an aggregate principal amount outstanding at
any time not to exceed $50,000,000.
(c) Notwithstanding the foregoing, Inland, the Borrower and the
Restricted Subsidiaries shall not Incur any Indebtedness pursuant to Section
6.02(b) if the proceeds thereof are used, directly or indirectly, to Refinance
any Subordinated Obligations unless such Indebtedness shall be subordinated to
the Loans to at least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with this Section 6.02, (i)
in the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness described herein, the Borrower and Inland, in their
sole discretion, will classify such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of the above clauses and
(ii) an item of Indebtedness may be divided and classified in more than one of
the types of Indebtedness described herein.
(e) Notwithstanding the foregoing, Inland, the Borrower and the
Restricted Subsidiaries shall not Incur any Indebtedness pursuant to this
Section 6.02 (other than Section 6.02(b)(i)) under the Indenture, except that
existing Indebtedness under the Indenture (other than Loans) may be refinanced
thereunder with Indebtedness complying with the provisions of Section
6.02(b)(vi).
SECTION 6.03. Limitation on Restricted Payments. (a) Make, directly or
indirectly, a Restricted Payment if at the time the Borrower, Inland or such
Restricted Subsidiary makes such Restricted Payment:
(i) a Default shall have occurred and be continuing (or would
result therefrom);
(ii) Inland is not able to Incur an additional $1.00 of
Indebtedness under
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Section 6.02(a); or
(iii) the aggregate amount of such Restricted Payment and all
other Restricted Payments since the Closing Date (less the amount of
all such Restricted Payments in the form of loans or advances that have
been repaid in cash during such period) would exceed the sum of (a) 50%
of the Consolidated Net Income accrued during the period (treated as
one accounting period) from the beginning of the fiscal quarter
immediately following the fiscal quarter during which the Closing Date
occurred to the end of the most recent fiscal quarter ending at least
45 days prior to the date of such Restricted Payment (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of such
deficit), (b) the aggregate net cash proceeds received from capital
contributions made to Inland since the Closing Date, (c) the amount by
which Indebtedness is reduced on Inland's balance sheet upon the
conversion or exchange since the Closing Date of any Indebtedness
convertible or exchangeable for Capital Stock (other than Disqualified
Stock) and (d) the amount of dividends received from Unrestricted
Subsidiaries and not otherwise included in Consolidated Net Income.
(b) The provisions of Section 6.03(a) shall not prohibit:
(i) any acquisition of any Capital Stock of the Borrower or
Inland made out of the proceeds of the substantially concurrent sale
of, or made by exchange for Capital Stock of the Borrower or Inland
(other than Disqualified Stock and other than Capital Stock issued or
sold to a subsidiary of Inland, the Borrower or an employee stock
ownership plan or to a trust established by Inland, the Borrower or any
of their respective subsidiaries for the benefit of their employees);
provided, however, that such acquisition of Capital Stock shall be
excluded in the calculation of the amount of Restricted Payments;
(ii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations made by
exchange for, or out of the proceeds of the substantially concurrent
sale of, Indebtedness of the Borrower or Inland which is permitted to
be Incurred pursuant to Section 6.02; provided, however, that such
purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value shall be excluded in the calculation of the amount
of Restricted Payments;
(iii) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with this Section 6.03; provided, however, that at the
time of payment of such dividend, no other Default
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shall have occurred and be continuing (or result therefrom); provided
further, however, that such dividend shall be included in the
calculation of the amount of Restricted Payments;
(iv) the repurchase or other acquisition of shares of, or
options to purchase shares of, common stock of the Borrower, Inland or
any of their respective subsidiaries from employees, former employees,
directors or former directors of the Borrower, Inland or any of their
respective subsidiaries (or permitted transferees of such employees,
former employees, directors or former directors), pursuant to the terms
of the agreements (including employment agreements) or plans (or
amendments thereto) approved by the Board of Directors under which such
individuals purchase or sell or are granted the option to purchase or
sell, shares of such common stock; provided, however, that the
aggregate amount of such repurchases and other acquisitions shall not
exceed $1,000,000 in any calendar year; provided further, however, that
such repurchases and other acquisitions shall be excluded in the
calculation of the amount of Restricted Payments;
(v) additional Restricted Payments by Inland, the Borrower or
the Restricted Subsidiaries in an aggregate cumulative amount since the
Closing Date not to exceed $10,000,000; provided, however, that such
Restricted Payments shall be excluded in the calculation of the amount
of Restricted Payments;
(vi) Investments in the Existing Joint Ventures in an
aggregate amount not exceeding $15,000,000 per calendar year on a
cumulating basis since the Closing Date; provided, however, that such
Investments shall be excluded in the calculation of the amount of
Restricted Payments;
(vii) advances to the Existing Joint Ventures to fund working
capital requirements in the ordinary course of business in an aggregate
principal amount outstanding at any time not to exceed $10,000,000;
provided, however, that such advances shall be excluded in the
calculation of the amount of Restricted Payments; or
(viii) advances to employees of Inland, the Borrower or the
Restricted Subsidiaries in the ordinary course of business in an
aggregate principal amount outstanding at any time not to exceed
$1,000,000; provided, however, that such advances shall be excluded in
the calculation of the amount of Restricted Payments.
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SECTION 6.04. Limitation on Sales of Assets and Subsidiary Stock.
Directly or indirectly, consummate any Asset Sale, except Inland and its
Restricted Subsidiaries may consummate any Asset Sale if (a) Inland or such
Restricted Subsidiary receives consideration at the time of such Asset Sale at
least equal to the fair market value (including as to the value of all non-cash
consideration), as determined in good faith by the Board of Directors, of the
shares and assets subject to such Asset Sale and at least 75% of the
consideration thereof received by Inland or such Restricted Subsidiary is in the
form of cash or cash equivalents and (ii) an amount equal to 100% of the Net
Cash Proceeds from such Asset Sale is applied by Inland or such Restricted
Subsidiary, as the case may be to offer to prepay the Loans pursuant to Section
2.13(a), to the extent required thereby.
SECTION 6.05. Mergers, Consolidations, and Sales of Assets. Merge into
or consolidate with any other person, or permit any other person to merge into
or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or substantially all its assets
(whether now owned or hereafter acquired), except that, if at the time thereof
and immediately after giving effect thereto no Event of Default or Default shall
have occurred and be continuing (a) any Wholly Owned Subsidiary of the Borrower
or Inland may merge into the Borrower or Inland, respectively, in a transaction
in which the Borrower or Inland, respectively, is the surviving person and (b)
any Wholly Owned Subsidiary of the Borrower or Inland may merge into or
consolidate with any other Wholly Owned Subsidiary of the Borrower or Inland, as
applicable, in a transaction in which the surviving entity is a Wholly Owned
Subsidiary, and no person other than the Borrower or Inland, respectively, or a
Wholly Owned Subsidiary of the Borrower or Inland, respectively, receives any
consideration (provided that if one of the Wholly Owned Subsidiaries party to
such merger or consolidation was a Guarantor, the surviving person shall be a
Guarantor).
SECTION 6.06. Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
that (a) the Borrower, Inland or any Restricted Subsidiary may engage in any of
the foregoing transactions in the ordinary course of business at prices and on
terms and conditions not less favorable to the Borrower, Inland or such
Restricted Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties; provided that, except in the case of purchases and
sales of raw materials, steel and steel-related products and services, (i) if
any such transaction involves an amount in excess of $5,000,000 (A) the terms
thereof are set forth in writing and (B) such terms have been approved by a
majority of the members of the Board of Directors of the Borrower, Inland or
such Restricted Subsidiary, as applicable, having no personal stake in such
transaction and (ii) if any such transaction involves as amount in
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excess of $25,000,000, the terms thereof have been determined by a nationally
recognized U.S. investment banking firm to be fair, from a financial standpoint,
to the Borrower, Inland or such Restricted Subsidiary, (b) Inland and its
Restricted Subsidiaries may enter into commercial transactions for goods and
services with the Existing Joint Ventures in the ordinary course of business
consistent with past practice and (c) Inland may pay management fees to IINV or
its subsidiaries in an aggregate amount not exceeding $5,000,000 in any fiscal
year.
SECTION 6.07. Business of Borrower and Subsidiaries. (a) In the case of
Inland and its Restricted Subsidiaries, engage at any time in any business or
business activity other than the business currently conducted by it and business
activities reasonably incidental thereto.
(b) In the case of the Borrower and its Restricted Subsidiaries (i)
incur any Indebtedness other than pursuant to Sections 6.02(b)(i) or (b)(ii) or
(ii) engage in any business or business activity other than (w) acting as the
holding company for its subsidiaries, if any, (x) making or receiving the
proceeds of the Inland Loan and repayments thereof, (y) entering into and
performing their respective obligations under the Loan Documents and (z)
activities reasonably incidental thereto.
SECTION 6.08. Restrictions on Ability of Restricted Subsidiaries to Pay
Dividends. Permit the Restricted Subsidiaries to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such subsidiary to (i) pay any dividends or
make any other distributions on its Capital Stock or any other interest or (ii)
make or repay any loans or advances to the Borrower or the parent of such
Restricted Subsidiary, except for any such encumbrance or restriction that (x)
is in existence on the Closing Date under Indebtedness permitted under Section
6.02(b)(ii) or (y) is contained in Indebtedness permitted pursuant to Section
6.02(b)(vi) or (b)(vii).
SECTION 6.09. Consolidated EBITDA. Permit Consolidated EBITDA for any
period of four consecutive fiscal quarters to be less than $140,000,000;
provided that in calculating Consolidated EBITDA for any period for purposes of
this Section 6.09, there shall also be excluded, without duplication and to the
extent otherwise included therein, all unusual, non-recurring, or extraordinary
charges or credits during such period, all as determined in accordance with
GAAP.
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SECTION 6.10. Amendment of Indenture. Enter into any amendment of,
supplement to or modification of the Indenture without the prior written consent
of the Required Lenders (or such greater percentage as may be required by the
Indenture or the Loan Documents).
ARTICLE VII
Events of Default
In case of the happening of any of the following events
("Events of Default"):
(a) any representation or warranty made or deemed made in or
in connection with any Loan Document or the borrowings or the issuance,
amendment, renewal or extension of the Letter of Credit hereunder, or
any representation, warranty, statement or information contained in any
report, certificate, financial statement or other instrument furnished
in connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made,
deemed made or furnished;
(b) default shall be made in the payment of any principal of
any Loan or the reimbursement with respect to any L/C Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on
any Loan or any Fee or L/C Disbursement or any other amount (other than
an amount referred to in (b) above) due under any Loan Document, when
and as the same shall become due and payable, and such default shall
continue unremedied for a period of five Business Days;
(d) default shall be made in the due observance or performance
by the Borrower, Inland or any of the Restricted Subsidiaries of any
covenant, condition or agreement contained in Section 5.01(a), 5.05 or
5.08 or in Article VI;
(e) default shall be made in the due observance or performance
by the Borrower, Inland or any of the Restricted Subsidiaries of any
covenant, condition or agreement contained in any Loan Document (other
than those specified in (b), (c) or (d) above) and such default shall
continue unremedied for a period of 20 days after notice thereof from
the Administrative Agent or any Lender to the
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Borrower;
(f) the Borrower, Inland, IINV or any of their respective
subsidiaries shall (i) fail to pay any principal or interest,
regardless of amount, due in respect of any Indebtedness issued under
the Indenture or any other Indebtedness in a principal amount in excess
of $10,000,000, when and as the same shall become due and payable after
any applicable grace period, or (ii) fail to observe or perform any
other term, covenant, condition or agreement contained in any agreement
or instrument evidencing or governing any such Indebtedness if the
effect of any failure referred to in this clause (ii) is to cause, or
to permit the holder or holders of such Indebtedness or a trustee on
its or their behalf (but only after any required giving of notice,
lapse of time or both) to cause, such Indebtedness to become due prior
to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Borrower, Inland,
IINV or any of their respective Restricted Subsidiaries, or of a
substantial part of the property or assets of the Borrower, Inland,
IINV or any of their respective Restricted Subsidiaries, under any
Insolvency Law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower, Inland,
IINV or any of their respective subsidiaries or for a substantial part
of the property or assets of the Borrower, Inland, IINV or any of their
respective Restricted Subsidiaries or (iii) the winding-up or
liquidation of the Borrower, Inland, IINV or any of their respective
Restricted Subsidiaries; and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any
of the foregoing shall be entered;
(h) the Borrower, Inland, IINV or any of their respective
Restricted Subsidiaries shall (i) voluntarily commence any proceeding
or file any petition seeking relief under any Insolvency Law, (ii)
consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition
described in (g) above, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower, Inland or any of their respective Restricted
Subsidiaries or for a substantial part of the property or assets of the
Borrower, Inland, IINV or any of their respective Restricted
Subsidiaries, (iv) file an answer admitting the material
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allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become
unable, admit in writing its inability or fail generally to pay its
debts as they become due or (vii) take any action for the purpose of
effecting any of the foregoing;
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $10,000,000 shall be rendered against the
Borrower, Inland, IINV or any of their respective Restricted
Subsidiaries or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to levy upon assets or properties of the
Borrower, Inland, IINV or any of their respective Restricted
Subsidiaries to enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the reasonable
opinion of the Required Lenders, when taken together with all other
such ERISA Events, could reasonably be expected to result in a Material
Adverse Effect; or
(k) any security interest purported to be created by any
Security Document shall cease to be, or shall be asserted by the
Borrower or any other Loan Party not to be, a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or
such Security Document) security interest in the securities, assets or
properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent
to maintain possession of certificates representing securities pledged
under the Pledge Agreement and except to the extent that such loss is
covered by a lender's title insurance policy and the related insurer
promptly after such loss shall have acknowledged in writing that such
loss is covered by such title insurance policy; or
(l) with respect to the Letter of Credit and the rights and
remedies of the Issuing Bank and the L/C Lenders hereunder and
thereunder, a Change in Control shall occur;
then, and in every such event (other than an event described in paragraph (l)
above or an event with respect to the Borrower or Inland described in paragraph
(g) or (h) above), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i) terminate forthwith the Commitments and (ii)
declare the Loans then outstanding to be forthwith
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due and payable in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder
and under any other Loan Document, shall become forthwith due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein or
in any other Loan Document to the contrary notwithstanding; and in any event
with respect to the Borrower or Inland described in paragraph (g) or (h) above,
the Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and any unpaid accrued
Fees and all other liabilities of the Borrower and Inland accrued hereunder and
under any other Loan Document, shall automatically become due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein or
in any other Loan Document to the contrary notwithstanding.
ARTICLE VIII
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement,
Credit Suisse First Boston is hereby appointed to act as Administrative Agent
and Collateral Agent on behalf of the Lenders and the Issuing Bank (for purposes
of this Article VIII, the Administrative Agent and the Collateral Agent are
referred to collectively as the "Agents"). Each of the Lenders and each assignee
of any such Lender, hereby irrevocably authorizes the Agents to take such
actions on behalf of such Lender or assignee or the Issuing Bank and to exercise
such powers as are specifically delegated to the Agents by the terms and
provisions hereof and of the other Loan Documents, together with such actions
and powers as are reasonably incidental thereto. The Administrative Agent is
hereby expressly authorized by the Lenders and the Issuing Bank, without hereby
limiting any implied authority, (a) to receive on behalf of the Lenders and the
Issuing Bank all payments of principal of and interest on the Loans, all
payments in respect of L/C Disbursements and all other amounts due to the
Lenders hereunder, and promptly to distribute to each Lender or the Issuing Bank
its proper share of each payment so received; (b) to give notice on behalf of
each of the Lenders to the Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Borrower or any other Loan Party pursuant to this Agreement or the other Loan
Documents as received by the Administrative Agent. In no event shall Inland or
the
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Borrower be liable for any failure of the Administrative Agent to remit payments
or notices to the Lenders and, with respect to any payment required to be made
by Inland or the Borrower hereunder, such payment shall be deemed made when
received by the Administrative Agent. Without limiting the generality of the
foregoing, the Agents are hereby expressly authorized to execute any and all
documents (including releases) with respect to the Collateral and the rights of
the Secured Parties with respect thereto, as contemplated by and in accordance
with the provisions of this Agreement and the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to the Borrower or any other
Loan Party on account of the failure of or delay in performance or breach by any
Lender or the Issuing Bank of any of its obligations hereunder or to any Lender
or the Issuing Bank on account of the failure of or delay in performance or
breach by any other Lender or the Issuing Bank or the Borrower or any other Loan
Party of any of their respective obligations hereunder or under any other Loan
Document or in connection herewith or therewith. Each of the Agents may execute
any and all duties hereunder by or through agents or employees and shall be
entitled to rely upon the advice of legal counsel selected by it with respect to
all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any
duty to
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take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so by
the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a
bank with an office in New York, New York, having a combined capital and surplus
of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance
of any appointment as Agent hereunder by a successor bank, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent and the retiring Agent shall be discharged from its duties
and obligations hereunder. After the Agent's resignation hereunder, the
provisions of this Article and Section 9.05 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on its outstanding Loans and L/C Exposure
hereunder) of any expenses incurred for the benefit of the Lenders by the
Agents, including counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders, that shall not have been reimbursed
by the Borrower and (b) to indemnify and hold harmless each Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, Taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by or asserted against it in its capacity as Agent or any of them in any way
relating to or arising out of this Agreement or any other Loan Document or any
action taken or omitted by it or any of them under this Agreement or any other
Loan Document, to the extent the same shall not have been reimbursed by the
Borrower or any other Loan Party, provided that no Lender shall be liable to an
Agent or any such other indemnified person for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements are determined by a court of competent
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jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Agent or any of its directors, officers,
employees or agents. Each Lender agrees to reimburse each the Issuing Bank and
its directors, employees and agents, in each case, to the same extent and
subject to the same limitations as provided above for the Agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Guarantee
SECTION 9.01. Guarantee. The Guarantors hereby unconditionally and
irrevocably guarantee, jointly and severally, to each Secured Party (a) the full
and punctual (x) payment of principal of and interest on the Loans when due,
whether at maturity, by acceleration, by prepayment, or otherwise, (y)
reimbursement to the Issuing Bank of all L/C Disbursements and (z) all other
monetary obligations of the Borrower and the other Guarantors under the Loan
Documents, (b) the full and punctual performance of all other obligations of the
Borrower and the other Guarantors under the Loan Documents and (c) all
obligations of the Borrower, monetary or otherwise, under each Interest Rate
Protection Agreement entered into with a counterparty that was a Lender or an
Affiliate of a Lender at the time such Interest Rate Protection Agreement was
entered into (all the foregoing being hereinafter collectively called the
"Obligations"). The Guarantors further agree that the Obligations may be
extended or renewed, in whole or in part, without notice or further assent from
any Guarantor and that the Guarantors will remain bound under this Article IX
notwithstanding any extension or renewal of any Obligation.
Each Guarantor waives presentation to, demand of, payment from and
protest to the Borrower of any of the Obligations and also waives notice of
protest for nonpayment. Each Guarantor waives notice of any default under the
Obligations. The Obligations of
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the Guarantors hereunder shall not be affected by (a) the failure of any Secured
Party to assert any claim or demand or to enforce any right or remedy against
the Borrower or any other person under any Loan Document, any Interest Rate
Protection Agreement, other agreement or otherwise; (b) any extension or renewal
of any thereof; (c) any rescission, waiver, amendment or modification of any of
the terms or provisions of any Loan Document, any Interest Rate Protection
Agreement or any other agreement; (d) the release of any security held by any
Secured Party for the Obligations or any of them; or (e) the failure of any
Secured Party to exercise any right or remedy against any other guarantor of the
Obligations.
Each Guarantor further agrees that its Guarantee herein constitutes a
guarantee of payment, performance and compliance when due (and not a guarantee
of collection) and waives any right to require that any resort had by any
Secured Party to any security held for payment of the Obligations, including any
of the Collateral.
Except as expressly set forth in Section 9.02, the Obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense of set off, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the Obligations of
a Guarantor herein shall not be discharged or impaired or otherwise affected by
the failure of any Secured Party to assert any claim or demand or to enforce any
remedy under any Loan Document, any Interest Rate Protection Agreement or any
other agreement, by any waiver or modification of any thereof, by any default,
failure or delay, willful or otherwise, in the performance of any such
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
a Guarantor or would otherwise operate as a discharge of a Guarantor as a matter
of law or equity.
Each Guarantor further agrees that its Guarantee herein shall continue
to be effective or be reinstated as the case may be, if at any time payment, or
any part thereof, of principal of or interest on any Obligation is rescinded or
must otherwise be restored by any Secured Party upon the insolvency, bankruptcy
or reorganization of the Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any
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Secured Party has at law or in equity against any Guarantor by virtue hereof,
upon the failure of the Borrower to pay any Obligation when and as the same
shall become due, whether at maturity, by acceleration, by redemption or
otherwise, or to perform or comply with any other Obligation, each Guarantor,
jointly and severally, hereby promises to and will, upon receipt of written
demand by the Administrative Agent, forthwith pay, or cause to be paid, in cash,
to the Secured Parties an amount equal to the sum of (i) the unpaid amount of
such Obligations, (ii) accrued and unpaid interest on such Obligations (but only
to the extent not prohibited by law) and (iii) all other monetary Obligations of
the Borrower or the Guarantors to the Secured Parties.
Each Guarantor agrees that, as between it, on the one hand, and the
Secured Parties, on the other hand, (x) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article VII for the purposes
of such Guarantor's Guarantee herein, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby (y) in the event of any declaration of acceleration of such
obligations as provided in Article VII, such obligations (whether or not due and
payable) shall forthwith become due and payable by such Guarantor for the
purposes of this Article IX, and (z) upon payment by such Guarantor under this
Article IX, all rights of such Guarantor against the Borrower or any other
Guarantor as a result of subrogation or otherwise shall be subordinate in right
of payment to the prior payment in full in cash of the obligations owing by the
Borrower or the other Guarantors to the Lenders.
Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by any Secured Party in
enforcing any rights under this Article IX.
SECTION 9.02. Limitation on Liability. Any term or provision of this
Agreement to the contrary notwithstanding, the maximum aggregate amount of the
Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum
amount that can be hereby guaranteed without rendering this Article IX, as it
relates to such Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar law affecting the rights of
creditors generally.
SECTION 9.03. Successors and Assigns. This Article IX shall be binding
upon each Guarantor (other than IINV, which is separately executing the IINV
Guarantee) and its successors and assigns and shall inure to the benefit of the
successors and assigns of the Secured Parties.
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ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it c/o Inland Steel Industries,
Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇ ▇▇▇▇▇ (Telecopy No. 312-899-3562);
(b) if to Inland or its subsidiaries, including those that are
Guarantors, to them at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention of Treasurer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to the Administrative Agent, to Credit Suisse First
Boston, Loan and Agency Services Group, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ Fatto (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
and
(d) if to a Lender, to it at its address (or telecopy number)
set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 10.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 10.01.
SECTION 10.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive the
making by the Lenders of the Loans and the issuance of the Letter of Credit by
the Issuing Bank, regardless of any investigation made by the Lenders or the
Issuing Bank or on their behalf, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any Fee or any
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other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or the Letter of Credit is outstanding and so long as the
Commitments have not been terminated. The provisions of Sections 2.14, 2.16,
2.20 and 10.05 shall remain operative and in full force and effect regardless of
the expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of the Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent or any Lender or the Issuing Bank.
SECTION 10.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
SECTION 10.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, the Administrative
Agent , the Issuing Bank or the Lenders that are contained in this Agreement
shall bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment or the Loans at the time owing to it or L/C Exposure);
provided, however, that (i) except in the case of an assignment to a Lender or
an Affiliate of such Lender or to an Approved Fund of any Lender, (x) (A) the
Administrative Agent must give its prior written consent to such assignment
(which consent shall not be unreasonably withheld or delayed) and (B) in the
case of the assignment of a Commitment, the Borrower must also give its prior
written consent to such assignment (which consent shall not be unreasonably
withheld) and (y) the amount of the Commitment or Loan or L/C Exposure of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 (or, if less, the entire
remaining amount of such Lender's Commitment or Loans or L/C Exposure) unless
otherwise
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agreed by the Administrative Agent, (ii) the parties to each such assignment
shall, unless otherwise agreed by the Administrative Agent, execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500 and (iii) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (e) of this
Section 10.04, from and after the effective date specified in each Assignment
and Acceptance, (A) the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement and (B) the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue to be entitled
to the benefits of Sections 2.14, 2.16, 2.20 and 10.05, as well as to any Fees
accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment, or the outstanding balances of its Loans, or L/C Exposure, in
each case without giving effect to assignments thereof which have not become
effective, are as set forth in such Assignment and Acceptance, (ii) except as
set forth in (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto, or the financial condition of the Borrower
or any Subsidiary or the performance or observance by the Borrower or any
Subsidiary of any of its obligations under this Agreement, any other Loan
Document or any other instrument or document furnished pursuant hereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements referred to in Section 3.05(a) or delivered pursuant to
Section 5.04 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, the Collateral Agent, such assigning
Lender 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 decisions in
taking or not
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taking action under this Agreement; (vi) such assignee appoints and authorizes
the Administrative Agent and the Collateral Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement as are delegated
to the Administrative Agent and the Collateral Agent, respectively, by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, or principal amount of the
Loans owing to, or L/C Exposure of, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive absent manifest error and the Borrower, the Administrative Agent, the
Issuing Bank, the Collateral Agent and the Lenders may treat each person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, the
Issuing Bank, the Collateral Agent and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower and the
Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Lenders and
the Issuing Bank. No assignment shall be effective unless and until it has been
recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Issuing
Bank or the Administrative Agent sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment or the Loans owing to it
or L/C Exposure); provided, however, that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
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obligations, (iii) the participating banks or other entities shall be entitled
to the benefit of the cost protection provisions contained in Sections 2.14,
2.16 and 2.20 to the same extent as if they were Lenders and (iv) the Borrower,
the Administrative Agent, the Issuing Bank and the Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, and such Lender shall retain the
sole right to enforce the obligations of the Borrower relating to the Loans or
L/C Disbursements and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or the amount of principal of or the rate
at which interest is payable on the Loans, extending any scheduled principal
payment date or date fixed for the payment of interest on the Loans, increasing
or extending the Commitments or releasing any Guarantor or all or any
substantial part of the Collateral).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 10.17.
(h) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure extensions of
credit to such Lender, including any pledge or assignment to secure obligations
to a Federal Reserve Bank; provided that no such assignment shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto. In order to facilitate such an
assignment, the Borrower shall, at the request of the assigning Lender, duly
execute and deliver to the assigning Lender a promissory note or notes
evidencing the Loans made to the Borrower by the assigning Lender hereunder.
(i) The Borrower shall not assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative Agent,
the Issuing Bank and each Lender, and any attempted assignment without such
consent shall be null and void.
SECTION 10.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by the Administrative Agent and the
Collateral Agent and the Issuing Bank in connection with the syndication of the
credit facilities provided for herein and the preparation and administration of
this Agreement
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and the other Loan Documents or in connection with any amendments, modifications
or waivers of the provisions hereof or thereof (whether or not the transactions
hereby or thereby contemplated shall be consummated) or incurred by the
Administrative Agent, the Collateral Agent or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement and
the other Loan Documents or in connection with the Loans made or the Letter of
Credit issued hereunder, including the reasonable fees, charges and
disbursements of Cravath, Swaine & ▇▇▇▇▇, counsel for the Administrative Agent
and the Collateral Agent, and, in connection with any such enforcement or
protection, the reasonable fees, charges and disbursements of any other counsel
for the Administrative Agent, the Collateral Agent or any Lender.
(b) The Borrower agrees to indemnify the Administrative Agent, the
Collateral Agent, each Lender, and the Issuing Bank, each Affiliate of any of
the foregoing persons and each of their respective directors, trustees,
officers, employees and agents (each such person being called an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution
or delivery of this Agreement or any other Loan Document or any agreement or
instrument contemplated thereby, the performance by the parties thereto of their
respective obligations thereunder or the consummation of the Transactions and
the other transactions contemplated thereby, (ii) the use of the proceeds of the
Loans or issuance of the Letter of Credit, (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto, or (iv) any actual or alleged presence or Release
of Hazardous Materials on any property owned or operated by the Borrower or any
of the Subsidiaries, or any Environmental Claim related in any way to the
Borrower or the Subsidiaries; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 10.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of the Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Collateral Agent; any
Lender or the Issuing Bank. All amounts due under this Section 10.05 shall be
payable on written demand therefor.
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SECTION 10.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, except to the extent prohibited by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement and
other Loan Documents held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. The rights of each
Lender under this Section 10.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 10.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN THE LETTER OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER
LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK.
SECTION 10.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower or any other Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the
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Borrower and the Required Lenders; provided, however, that no such agreement
shall (i) decrease the principal amount of, or extend the maturity of or any
scheduled principal payment date or date for the payment of any interest on any
Loan, or any date for reimbursement of an L/C Disbursement or waive or excuse
any such payment or any part thereof or any Fee, or decrease the rate of
interest or prepayment premium on any Loan or L/C Disbursement, without the
prior written consent of each Lender affected thereby, (ii) change or extend the
Commitment of any Lender without the prior written consent of such Lender, (iii)
amend or modify the pro rata requirements of Section 2.17, the provisions of
Section 10.04(i), the provisions of this Section, the definition of the term
"Required Lenders" or release any Guarantor or all or any substantial part of
the Collateral, without the prior written consent of each Lender or (iv) change
the allocation between Tranche B Loans and Tranche C Loans of any prepayment
pursuant to Section 2.12 or 2.13 without the prior written consent of (A)
Lenders holding a majority of the aggregate outstanding principal amount of the
Tranche B Loans and (B) Lenders holding a majority of the aggregate outstanding
principal amount of the Tranche C Loans; provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Collateral Agent or the Issuing Bank hereunder or
under any other Loan Document without the prior written consent of the
Administrative Agent, the Collateral Agent or the Issuing Bank.
SECTION 10.09. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan
or participation in any L/C Disbursement, together with all fees, charges and
other amounts which are treated as interest on such Loan or participation in
such L/C Disbursement under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan or
participation in accordance with applicable law, the rate of interest payable in
respect of such Loan or participation hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in respect
of such Loan or participation but were not payable as a result of the operation
of this Section 10.09 shall be cumulated and the interest and Charges payable to
such Lender in respect of other Loans or participations or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 10.10. Entire Agreement. This Agreement, the Fee Letter and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the parties
with respect to the
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subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
SECTION 10.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 10.11.
SECTION 10.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 10.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
10.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 10.14. Headings. Article and Section headings and the Table of
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Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 10.15. Jurisdiction; Consent to Service of Process. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Collateral Agent or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or the other Loan
Documents against the Borrower or its properties in the courts of any
jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 10.16. Judgment Currency. (a) The obligations of the Borrower
and the other Loan Parties hereunder and under the other Loan Documents to make
payments in dollars (the "Obligation Currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other
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than the Obligation Currency, except to the extent that such tender or recovery
results in the effective receipt by the Administrative Agent or a Lender or the
Issuing Bank of the full amount of the Obligation Currency expressed to be
payable to the Administrative Agent or such Lender or the Issuing Bank under
this Agreement or the other Loan Documents. If, for the purpose of obtaining or
enforcing judgment against the Borrower or any other Loan Party or in any court
or in any jurisdiction, it becomes necessary to convert into or from any
currency other than the Obligation Currency (such other currency being
hereinafter referred to as the "Judgment Currency") an amount due in the
Obligation Currency, the conversion shall be made at the rate of exchange (as
quoted by the Administrative Agent or if the Administrative Agent does not quote
a rate of exchange on such currency, by a known dealer in such currency
designated by the Administrative Agent) determined, in each case, as of the date
immediately preceding the day on which the judgment is given (such Business Day
being hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Borrower covenants and agrees to pay, or cause to be paid, as a
separate obligation and notwithstanding any judgment, such additional amounts,
if any (but in any event not a lesser amount), as may be necessary to ensure
that the amount paid in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of Judgment
Currency stipulated in the judgment or judicial award at the rate of exchange
prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining the rate of exchange for this Section,
such amounts shall include any premium and costs payable in connection with the
purchase of the Obligation Currency.
SECTION 10.17. Confidentiality. The Administrative Agent, the
Collateral Agent, the Issuing Bank and each of the Lenders agrees to keep
confidential (and to use its best efforts to cause its respective agents and
representatives to keep confidential) the Information (as defined below) and all
copies thereof, extracts therefrom and analyses or other materials based
thereon, except that the Administrative Agent, the Collateral Agent, the Issuing
Bank or any Lender shall be permitted to disclose Information (a) to such of its
respective officers, directors, employees, agents, affiliates and
representatives as need to know such Information, (b) to the extent requested by
any regulatory authority, (c) to the extent otherwise required by applicable
laws and regulations or by any subpoena or similar legal process, (d) in
connection with any suit, action or proceeding relating to the enforcement of
its rights hereunder or under the other Loan Documents, (e) subject to an
agreement containing provisions substantially the same as the provisions of this
Section
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10.17 entered into by such party, to any assignee or participant in any of its
rights or obligations under this Agreement or (f) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this
Section 10.17 or (ii) becomes available to the Administrative Agent, the Issuing
Bank, any Lender or the Collateral Agent on a nonconfidential basis from a
source other than the Borrower, Inland or any of the Restricted Subsidiaries.
For the purposes of this Section, "Information" shall mean all financial
statements, certificates, reports, agreements and information (including all
analyses, compilations and studies prepared by the Administrative Agent, the
Collateral Agent, the Issuing Bank or any Lender based on any of the foregoing)
that are received from the Borrower, Inland or any of the Restricted
Subsidiaries and related to the Borrower, Inland or any of the Subsidiaries, any
of their shareholders or any of their employees, customers or suppliers, other
than any of the foregoing that were available to the Administrative Agent, the
Collateral Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to its disclosure thereto by the Borrower, Inland or any of the Restricted
Subsidiaries, and which are in the case of Information provided after the date
hereof, clearly identified at the time of delivery as confidential. The
provisions of this Section 10.17 shall remain operative and in full force and
effect regardless of the expiration and term of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
ISPAT INLAND, L.P.,
by ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, Inc., its general
partner,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
INLAND STEEL COMPANY,
by /s/ ▇▇▇▇▇ ▇. Avril
--------------------------------------------
Name: ▇▇▇▇▇ ▇. Avril
Title: Treasurer
▇▇▇▇▇▇▇ TRUCKING COMPANY, INC.,
by /s/ ▇▇▇▇▇ ▇. Avril
--------------------------------------------
Name: ▇▇▇▇▇ ▇. Avril
Title: Treasurer
INCOAL COMPANY,
by /s/ ▇▇▇▇▇ ▇. Avril
--------------------------------------------
Name: ▇▇▇▇▇ ▇. Avril
Title: Treasurer
CREDIT SUISSE FIRST BOSTON, individually
and as Administrative Agent, Collateral
Agent and Issuing Bank,
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by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
/s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
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Bank Polska Kasa Opieki SA, Pekao SA
Group, New York Branch
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Bank of America National Trust &
Savings Association,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BankBoston NA,
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
Paribas Corporation as Agent for
Paribas,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President - Loan Trading
Boeing Capital Corporation,
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by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Documentation Officer
GCB Investment Portfolio,
by Citibank, N.A.,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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Osprey Investments Portfolio,
by Citibank, N.A., as Manager,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Comerica Bank,
by /s/ Aurora Battiglia
-----------------------------------------
Name: Aurora Battiglia
Title: International Banking Officer
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: First Vice President
CypressTree Institutional Fund, LLC,
by CypressTree Investment
Management Company, Inc., its
Managing Member,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
KZH - CypressTree-1 Corporation,
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
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CypressTree Investment Fund, LLC,
by CypressTree Investment
Management Company, Inc., its
Managing Member,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
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CypressTree Investment Management
Company, Inc., as Attorney-in-Fact
and on behalf of First Allmerica
Financial Life Insurance
Company as Portfolio Manager,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
DLJ Capital Funding, Inc.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Fremont Financial Corporation,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
KZH Holding Corporation III,
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
Mercantile Bank,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Group Manager & Vice President
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Prime
Income Trust,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
NationsBank, N.A.,
by /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
The Prudential Insurance Company of America,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Royal Bank of Canada,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Manager
SKANDINAVISKA ENSKILDA BANKEN
NEW YORK BRANCH,
by /s/ Sverker Johansson
-----------------------------------------
Name: Sverker Johansson
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Title: Vice President
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇ American Capital Senior
Income Trust,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President & Director
ML CLO XIX Sterling (Cayman) Ltd.,
by Sterling Asset Manager, L.L.C.,
as its Investment Advisor,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: E. Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ Senior Floating Rate Fund, Inc.,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CFA
Title: Authorized Signatory
Senior High Income Portfolio, Inc.,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CFA
Title: Authorized Signatory
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Debt Strategies Fund, Inc.,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CFA
Title: Authorized Signatory
Pacific Select High Yield,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Senior Vice President