U.S. $100,000,000 CREDIT AGREEMENT Dated as of June 26, 2007 Among OLIN CORPORATION as Borrower and THE BANKS NAMED HEREIN as Banks and CITIBANK, N.A. as Administrative Agent and and CITIGROUP GLOBAL MARKETS INC. as Lead Arranger
EXHIBIT
10.1
EXECUTION
COPY
U.S.
$100,000,000
Dated
as
of June 26, 2007
Among
▇▇▇▇
CORPORATION
as
Borrower
and
THE
BANKS
NAMED HEREIN
as
Banks
and
CITIBANK,
N.A.
as
Administrative Agent
and
and
CITIGROUP
GLOBAL MARKETS INC.
as
Lead Arranger
Dated
as
of June 26, 2007
▇▇▇▇
CORPORATION, a Virginia
corporation (the “Borrower”), the banks (the “Banks”) listed on
the signature pages hereof and CITIBANK, N.A., as administrative agent (the
“Agent”) for the Banks, hereby agree as follows:
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
SECTION
1.01. Certain Defined
Terms. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both
the
singular and plural forms of the terms defined):
“Acquisition”
means
any
acquisition by the Borrower or any of its Subsidiaries of all or substantially
all of the capital stock of, or all or a substantial part of the assets of,
or
of a business unit or division of, any Person.
“Advance”
means
an advance by a
Lender to the Borrower pursuant to Section 2.02, and refers to a Base Rate
Advance or a Eurodollar Rate Advance (each of which shall be a “Type” of
Advance).
“Affiliate”
means,
when used
with respect to any Person, any other Person directly or indirectly controlling,
controlled by or under common control with such Person. The term
“control” (including the terms “controlled by” or “under common control with”)
means the possession directly or indirectly of the power, whether or not
exercised, to direct or cause the direction of the management and policies
of
any Person, whether through ownership of voting securities or by contract
or
otherwise.
“Agent’s
Account” means the
account of the Agent maintained by the Agent at Citibank at its office at
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇,
Attention: Bank Loan Syndications.
“Applicable
Lending Office”
means, with respect to each Lender, such Lender’s Domestic Lending Office in the
case of a Base Rate Advance, and such Lender’s Eurodollar Lending Office in the
case of a Eurodollar Rate Advance.
“Applicable
Margin” means, as of
any date of determination, a rate per annum determined by reference to the
Performance Level applicable on such date as set forth below:
|
Performance
Level
|
Applicable
Margin for
Base
Rate Advances
|
Applicable
Margin for
Eurodollar
Rate Advances
|
|
I
|
0.000%
|
0.470%
|
|
II
|
0.000%
|
0.625%
|
|
III
|
0.000%
|
0.725%
|
|
IV
|
0.000%
|
0.825%
|
|
V
|
0.000%
|
1.0250%
|
“Assignment
and Acceptance”
means an assignment and acceptance entered into by a Lender and an assignee,
and
accepted by the Agent, in substantially the form of Exhibit C hereto and
otherwise in accordance with Article VIII.
“Assumption
Agreement” has the
meaning specified in Section 2.04(d).
“Base
Rate” means, for any
Interest Period or any other period, a fluctuating interest rate per annum
as
shall be in effect from time to time which rate per annum shall at all times
be
equal to the higher of:
(a) The
rate of interest announced publicly by Citibank, N.A. in New York, New York,
from time to time, as Citibank, N.A.’s base rate, or
(b) The
sum (adjusted to the nearest 1/100 of one percent or, if there is no nearest
1/100 of one percent, to the next higher 1/100 of one percent) of (i) 1/2
of one
percent per annum, plus (ii) the Federal Funds Rate.
“Base
Rate Advance” means an
Advance which bears interest as provided in Section 2.06(a).
“Borrowing”
means
a borrowing
consisting of Advances of the same Type made on the same day by the
Lenders.
“Business
Day” means a day of
the year on which banks are not required or authorized to close in New York
City
and, if the applicable Business Day relates to any Eurodollar Rate Advances,
on
which dealings are carried on in the London interbank market.
“Capital
Lease Obligations” of
any Person means the obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real
or
personal property, or a combination thereof, which obligations are required
to
be classified and accounted for as capital leases on a balance sheet of such
Person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.
“Change
in Law” has the meaning
specified in Section 2.10(c).
“Commitment”
means,
with respect
to any Bank at any time, the amount set forth opposite such Bank’s name on the
signature pages hereto under the caption “Commitment” or, if such Bank has
entered into one or more Assignment and Acceptances, set forth for such Bank
in
the Register maintained by the Agent pursuant to Section 8.02(d) as such
Bank’s “Commitment”, as such amount may be reduced at or prior to such time
pursuant to Section 2.04.
“Confidential
Information” has
the meaning specified in Section 9.11.
“Consolidated
EBITDA” means, for
any period, Consolidated Net Income for such period (adjusted to exclude
all
extraordinary or unusual items and any gains or losses on sales of assets
outside the ordinary course of business) plus, without duplication and to
the extent deducted in calculating such Consolidated Net Income for such
period,
the sum of (a) income tax expense, (b) interest expense, amortization or
writeoff of debt discount with respect to Indebtedness (including the Advances),
plus, without duplication, interest-equivalent costs associated with any
receivables securitization program (whether accounted for as interest expense
or
loss on the sale of receivables), (c) depreciation and amortization expense,
(d)
amortization of intangibles (including, but not limited to, goodwill) and
organization costs, and (e) any other non-cash charges. For the
purposes of calculating Consolidated EBITDA for any Reference Period pursuant
to
any determination of the Consolidated Leverage Ratio, (x) Consolidated EBITDA
of
the Borrower shall include, without duplication, the Borrower’s pro rata share
of the “Consolidated EBITDA” of Sunbelt Chlor Alkali Partnership (determined by
reference to the Borrower’s actual ownership therein) and (y) if during such
Reference Period the Borrower or any Subsidiary shall have made an Acquisition,
Consolidated EBITDA for such Reference Period shall be calculated after giving
pro forma effect thereto and any Indebtedness incurred or assumed in connection
therewith as if such Acquisition occurred and such Indebtedness had been
incurred or assumed on the first day of such Reference Period.
“Consolidated
Interest Coverage
Ratio” means, for any Reference Period, the ratio of (a) Consolidated EBITDA
for such Reference Period to (b) Consolidated Interest Expense for such
Reference Period.
“Consolidated
Interest Expense”
means, for any period, the sum of total interest expense (including that
attributable to capitalized lease obligations) plus, without duplication,
interest-equivalent costs associated with any receivables securitization
program
(whether accounted for as interest expense or loss on the sale of receivables),
in each case of the Borrower and its Subsidiaries for such period with respect
to all outstanding Indebtedness of the Borrower and its Subsidiaries (including
all commission, discounts and other fees and charges accrued with respect
to
letters of credit, bankers’ acceptance financing and, without duplication, in
respect to any receivables securitization program allocable to such period
in
accordance with GAAP), minus (in the case of net benefits) or plus (in the
case
of net costs) the net benefits or net costs under all Hedging Agreements
in
respect of Indebtedness of the Borrower and its Subsidiaries to the extent
such
net benefits or net costs are allocable to such period in accordance with
GAAP.
“Consolidated
Leverage Ratio”
means, as at the last day of any Reference Period, the ratio of (a) Consolidated
Total Debt on such date to (b) Consolidated EBITDA, for such Reference
Period. The Consolidated Leverage Ratio shall be calculated on the
date on which the Borrower delivers to the Agent the financial statements
required to be delivered pursuant to Section 5.01(i)(i) or (ii), as the case
may
be, and the certificate required to be delivered pursuant to Section 5.01(i)(iv)
demonstrating such ratio.
“Consolidated
Net Income” means,
for any period, the consolidated net income (or loss) of the Borrower and
its
Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income (or deficit) of any
Person accrued prior to the date it becomes a Subsidiary of the Borrower
or is
merged into or consolidated with the Borrower or any of its Subsidiaries,
(b)
the income (or deficit) of any Person (other than a Subsidiary of the Borrower)
in which the Borrower or any of its Subsidiaries has an ownership interest,
except to the extent that any such income is actually received by the Borrower
or such Subsidiary in the form of dividends or similar distributions and
(c) the
undistributed earnings of any Subsidiary of the Borrower to the extent that
the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or any law applicable to such
Subsidiary.
“Consolidated
Net Tangible
Assets” means, at any date, the total assets of the Borrower and its
Subsidiaries at such date, determined on a consolidated basis, minus (a)
the
consolidated current liabilities (excluding interest-bearing liabilities)
of the
Borrower and its Subsidiaries as of such date, (b) unamortized debt discount
and
expense, goodwill, trademarks, brand names, patents and other intangible
assets,
and (c) any write-up of the value of any assets (other than an allocation
of
purchase price in an acquisition) after December 31, 2006; all as determined
in
accordance with GAAP.
“Consolidated
Total Debt” means,
at any date, the aggregate principal amount of all Indebtedness of the Borrower
and its Subsidiaries at such date (including the Borrower’s Indebtedness in
respect of its Guarantee of the Guaranteed Secured Senior Notes due 2017,
Series
O, of Sunbelt Chlor Alkali Partnership), determined on a consolidated basis
in
accordance with GAAP.
“Contractual
Obligation” means,
as to any Person, any provision of any security issued by such Person or
of any
agreement, instrument or other undertaking to which such Person is a party
or by
which it or any of its property is bound.
“Domestic
Lending Office” means,
with respect to any Lender, the office of such Lender specified as its “Domestic
Lending office” opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of
such
Lender as such Lender may from time to time specify to the Borrower and the
Agent.
“Domestic
Subsidiary” shall mean
any Subsidiary organized under the laws of any State of the United States
of
America, substantially all of the assets of which are located, and substantially
all of the business of which is conducted, in the United States of
America.
“Eligible
Assignee” means (i) a
Lender; (ii) an Affiliate of a Lender; and (iii) any other Person approved
by
the Agent and, unless an Event of Default has occurred and is continuing
at the
time any assignment is effected in accordance with Section 8.02, the Borrower;
provided, however, that neither the Borrower nor any Affiliate of
the Borrower shall qualify as an Eligible Assignee.
“Environmental
Laws” means any
and all applicable federal, state, local and foreign statutes, laws, judicial
decisions, regulations, ordinances, rules, judgments, orders, decrees,
injunctions, permits, grants, franchises, licenses or governmental restrictions
relating to (i) the effect of the environment on human health, (ii) the
environment or (iii) emissions, discharges or releases of Hazardous Substances
into the environment including, without limitation, ambient air, surface
water,
groundwater, or land, or otherwise relating to the effect on the environment
of
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Substances or the remediation
thereof.
“ERISA”
means
the Employee
Retirement Income Security Act of 1974, as amended from time to time, and
the
regulations promulgated and rulings issued thereunder.
“ERISA
Affiliate” means any
Person who for purposes of Title IV of ERISA is a member of the Borrower’s
controlled group, or under common control with the Borrower, within the meaning
of Section 414 of the Internal Revenue Code of 1986, as amended from time
to
time, and the regulations promulgated and rulings issued
thereunder.
“ERISA
Event” means (i) the
occurrence of a reportable event, within the meaning of Section 4043 of ERISA,
unless the 30-day notice requirement with respect thereto has been waived
by the
PBGC; (ii) the provision by the administrator of any Plan of a notice of
intent
to terminate such Plan, pursuant to Section 4041(a) (2) of ERISA (including
any
such notice with respect to a plan amendment referred to in Section 4041(e)
of
ERISA); (iii) the cessation of operations at a facility in the circumstances
described in Section 4068(f) of ERISA; (iv) the withdrawal by the Borrower
or an
ERISA Affiliate from a Multiple Employer Plan during a plan year for which
it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (v)
the
failure by the Borrower or any ERISA Affiliate to make a payment to a Plan
required under Section 302(f)(1) of ERISA, which Section imposes a lien for
failure to make required payments; (vi) the adoption of an amendment to a
Plan
requiring the provision of security to such Plan, pursuant to Section 307
of
ERISA; or (vii) the institution by the PBGC of proceedings to terminate a
Plan,
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
which would constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, a Plan.
“Eurocurrency
Liabilities” has
the meaning assigned to that term in Regulation D of the Board of Governors
of
the Federal Reserve System, as in effect from time to time.
“Eurodollar
Lending Office”
means, with respect to any Lender, the office of such Lender specified
as its
“Eurodollar Lending Office” opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender (or, if no
such
office is specified, its Domestic Lending office), or such other office of
such
Lender as such Lender may from time to time specify to the Borrower and the
Agent.
“Eurodollar
Rate” means, for the
Interest Period for each Eurodollar Rate Advance comprising part of the same
Borrowing, an interest rate per annum equal to the rate per annum (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum) appearing on
Reuters Screen LIBOR01 Page (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such period for a term
comparable to such period or, if for any reason such rate is not available,
the
rate per annum at which deposits in U.S. dollars are offered by the principal
office of the Agent in London, England to prime banks in the London interbank
market at 10:00 A.M. (New York time) two Business Days before the first day
of
such Interest Period in an amount substantially equal to the Agent’s (or its
Affiliate’s) Eurodollar Rate Advance comprising part of such Borrowing and for a
period equal to such Interest Period, subject, however, to the
provisions of Section 2.08.
“Eurodollar
Rate Advance” means
an Advance which bears interest as provided in Section 2.06(b).
“Eurodollar
Rate Reserve
Percentage” of any Lender for the Interest Period for any Eurodollar Rate
Advance means the reserve percentage applicable during such Interest Period
(or
if more than one such percentage shall be so applicable, the daily average
of
such percentages for those days in such Interest Period during which any
such
percentage shall be so applicable) under regulations issued from time to
time by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any
emergency, supplemental or other marginal reserve requirement) for such Lender
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
“Events
of Default” has the
meaning specified in Section 6.01.
“Existing
Credit Agreement”
means the Credit Agreement dated as of July 30, 2004, as amended, amended
and
restated, supplemented or otherwise modified from time to time, among the
Borrower, the banks named therein and Citibank, N.A., as agent for said
banks.
“Facility
Fee Rate” means, as of
any date of determination, a rate per annum determined by reference to the
Performance Level applicable on such date as set forth below:
|
Performance
Level
|
Facility
Fee Rate
|
|
I
|
0.080%
|
|
II
|
0.125%
|
|
III
|
0.150%
|
|
IV
|
0.175%
|
|
V
|
0.225%
|
“Federal
Funds Rate” means, for
any period, a fluctuating interest rate per annum equal for each day during
such
period to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published in Federal Reserve Statistical Release H.15(519),
for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by the Agent from three Federal
funds
brokers of recognized standing selected by it.
“Foreign
Subsidiary” shall mean
any Subsidiary other than a Domestic Subsidiary.
“GAAP”
is
defined in Section
1.03.
“Guarantee”
of
or by any Person
(the “guarantor”) means any obligation, contingent or otherwise, of the
guarantor guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness
or
other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain
working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of
any
letter of credit or letter of guaranty issued to support such Indebtedness
or
obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of
business.
“Hazardous
Substances” means any
toxic, radioactive, caustic or otherwise hazardous substance, material or
waste,
including petroleum, its derivatives, by-products and other hydrocarbons,
in
each case regulated by Environmental Law.
“Hedging
Agreement” means any
interest rate protection agreement, foreign currency exchange agreement,
commodity price protection agreement or other interest or currency exchange
rate
or commodity price hedging arrangement.
“Indebtedness”
of
any Person
means, 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, excluding deferred compensation of officers and directors,
(d)
all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all obligations
of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable 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
by) any Lien on property owned or acquired by such Person, whether or not
the
Indebtedness secured thereby has been assumed, (g) all Guarantees by such
Person
of Indebtedness of others, (h) all Capital Lease Obligations of such Person
and
all obligations of such Person under synthetic leases, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty, other than letters of credit and
letters of guaranty issued to support obligations (other than Indebtedness)
incurred in the ordinary course of business, (j) all obligations, contingent
or
otherwise, of such Person in respect of bankers’ acceptances and (k) all
Invested Amounts. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such
Person
is a general partner) to the extent such Person is liable therefore as a
result
of such Person’s ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person
is
not liable therefor.
“Indemnified
Costs” has the
meaning specified in Section 7.05(a).
“Insufficiency”
means,
with
respect to any Plan, the amount, if any, of its unfunded benefit liabilities,
as
defined in Section 4001(a)(18) of ERISA.
“Interest
Election Request”
means a request by the Borrower to convert or continue a Borrowing in
accordance
with Section 2.15.
“Interest
Period” means, for
each Eurodollar Rate Advance comprising part of the same Borrowing, the period
commencing on the date of such Advance (or on the effective date of any election
applicable to such Borrowing pursuant to Section 2.15) and ending the last
day
of the period selected by the Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be 1, 2, 3 or
6 months or, with the consent of all the Lenders, nine or twelve months,
in each
case as the Borrower may select, upon notice received by the Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period; provided, however, that:
(A) the
Borrower may not select any Interest Period which ends after the Termination
Date;
(B) Interest
Periods commencing on the same date for Advances comprising part of the same
Borrowing shall be of the same duration; and
(C) whenever
the last day of any Interest Period would otherwise occur on a day other
than a
Business Day, the last day on such Interest Period shall be extended to occur
on
the next succeeding Business Day, provided that if such extension would cause
the last day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next preceding
Business Day.
“Invested
Amounts” means the
amounts invested by investors that are not Affiliates of the Borrower in
connection with a receivables securitization program and paid to the Borrower
or
any of its Subsidiaries, as reduced by the aggregate amounts received by
such
investors from the payment of receivables and applied to reduce such invested
amounts.
“Lenders”
means
the Banks listed
on the signature pages hereof (until such Bank shall have assigned or had
assumed all interests hereunder as provided in Sections 8.02 or 2.04(d))
and each assignee or Assuming Bank that shall become a party hereto pursuant
to
Sections 8.02 or 2.04(d).
“Lien”
means
any mortgage,
pledge, security interest, encumbrance, lien or charge of any kind (including
any conditional sale or other title retention agreement).
“Loan
Documents” means this
Agreement and the Notes.
“Margin
Stock” shall have the
meaning given such term under Regulation U issued by the Board of Governors
of
the Federal Reserve System.
“Majority
Lenders” means at any
time Lenders at least a majority in interest of the then aggregate unpaid
principal amount of the Advances owing to Lenders, or, if no such principal
amount is then outstanding, Lenders having at least a majority in interest
of
the Commitments.
“Multiemployer
Plan” means a
multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the
Borrower or any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions, such plan being maintained pursuant
to one or more collective bargaining agreements.
“Multiple
Employer Plan” means a
single employer plan, as defined in Section 4001(a)(15) of ERISA, which (i)
is
maintained for employees of the Borrower or an ERISA Affiliate and at least
one
Person other than the Borrower and its ERISA Affiliates or (ii) was so
maintained and in respect of which the Borrower or an ERISA Affiliate could
have
liability under Section 4064 or 4069 of ERISA in the event such plan has
been or
were to be terminated.
9
“Note”
means
a promissory note
of the Borrower payable to the order of any Lender, in substantially the
form of
Exhibit A hereto, evidencing the aggregate Indebtedness of the Borrower to
such
Lender resulting from the Advances made by such Lender.
“Notice
of Borrowing” has the
meaning specified in Section 2.02(a).
“Officer’s
Certificate” means a
certificate signed in the name of the Borrower by its President, one of its
Vice
Presidents, its Treasurer or its Controller.
“PBGC”
means
the Pension Benefit
Guaranty Corporation.
“Performance
Level” means, as of
any date of determination, the level set forth below as then
applicable:
|
|
I
|
Consolidated
Leverage Ratio is less than or equal to
1.00:1.00.
|
|
II
|
Consolidated Leverage Ratio is greater than 1.00:1.00 but less than or equal to 1.50:1.00. |
|
|
III
|
Consolidated
Leverage Ratio is greater than 1.50:1.00 but less than or equal
to
2.50:1.00.
|
|
|
IV
|
Consolidated
Leverage Ratio is greater than 2.50:1.00 but less than or equal
to
3.00:1.00.
|
|
|
V
|
Consolidated
Leverage Ratio is greater than
3.00:1.00.
|
For
purposes of this definition, the Performance Level shall be determined (i)
from
the date hereof, until adjusted pursuant to clause (ii) below, by reference
to
the Consolidated Leverage Ratio calculated for the Reference Period that
would
have ended March 31, 2007 had this Agreement then been in effect and (ii)
as at
the end of each Reference Period ended after the date hereof based upon the
calculation of the Consolidated Leverage Ratio for such Reference
Period. The Applicable Margin, Facility Fee Rate and Utilization Fee
Rate shall be adjusted (if necessary) upward or downward on the first day
following delivery of the certificate referred to in Section
5.01(i)(iv).
“Permitted
Encumbrances”
means:
(a) Liens
imposed by law for taxes that are not yet due or are being contested in good
faith by appropriate proceedings;
(b) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being contested
in
good faith by appropriate proceedings;
(c) pledges
and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or
regulations;
(d) deposits
to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations
of
a like nature, in each case in the ordinary course of business;
(e) judgment
liens in respect of judgments that do not constitute an Event of Default
under
Section 6.01(f); and
(f) easements,
zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not
secure
any monetary obligations and do not materially detract from the value of
the
affected property or interfere with the ordinary conduct of business of the
Borrower or any Subsidiary;
provided
that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.
“Person”
means
an individual,
partnership, corporation (including a business trust), limited liability
company, joint stock company, trust, unincorporated association, joint venture
or other entity, or a government or any political subdivision or agency
thereof.
“Plan”
means
a Single Employer
Plan or a Multiple Employer Plan.
“Pro
Rata Share” of any amount
means, with respect to any Lender at any time, the product of such amount
times a fraction the numerator of which is the amount of such Lender’s
Commitment at such time (or, if the Commitments shall have been terminated
pursuant to Section 2.04 or 6.01, such Lender’s Commitment as in effect
immediately prior to such termination) and the denominator of which is the
aggregate amount of all Commitments at such time (or, if the Commitments
shall
have been terminated pursuant to Section 2.04 or 6.01, the aggregate amount
of all Commitments as in effect immediately prior to such
termination).
“Reference
Period” means any
period of four consecutive fiscal quarters of the Borrower.
“Register”
has
the meaning
specified in Section 8.02(d).
“Regulation
FD” has the meaning
specified in Section 9.11.
“Significant
Subsidiary” means
each Subsidiary, but excludes any Subsidiary the United States dollar value
(or
equivalent thereof) of whose assets is less than 5% of the total assets of
the
Borrower and the Subsidiaries, on a consolidated basis.
“Single-Employer
Plan” means a
single employer plan, as defined in Section 4001(a)(15) of ERISA, which (i)
is
maintained for employees of the Borrower or an ERISA Affiliate and no Person
other than the Borrower and its ERISA Affiliates or (ii) was so maintained
and
in respect of which the Borrower or an ERISA Affiliate could have liability
under Section 4069 of ERISA in the event such plan has been or were to be
terminated.
“Subsidiary”
means,
as at any
particular time, any Person controlled by the Borrower the accounts of which
would be consolidated with those of the Borrower in the Borrower’s consolidated
financial statements if such financial statements were to be prepared at
such
time in accordance with GAAP.
“Tax-Exempt
Financing” means a
transaction with a governmental unit or instrumentality which involves (i)
the
issuance by such governmental unit or instrumentality to Persons other than
the
Borrower or a Subsidiary of bonds or other obligations on which the interest
is
exempt from Federal income taxes under Section 103 of the Internal Revenue
Code
and the proceeds of which are applied to finance or refinance the cost of
acquisition of equipment or facilities of the Borrower or any of its
subsidiaries, and (ii) participation in the transaction by the Borrower or
a
Subsidiary in any manner permitted by this Agreement.
“Termination
Date” means (i)
June 24, 2008 or (ii) the earlier date on which the termination in whole
of the
Commitments occurs pursuant to Section 2.04 or 6.01.
“Type”
shall
have the meaning
given such term in the definition of Advance.
“Unused
Commitment” means, with
respect to each Lender at any time, (a) such Lender’s Commitment at such time
minus (b) the aggregate principal amount of all Advances made by such
Lender (in its capacity as a Lender) and outstanding at such time.
“Usage”
means,
at any time, the
sum of the aggregate principal amount of the Advances then
outstanding.
“Utilization
Fee Rate” means,
for any date on which the aggregate Usage exceeds 50% of the aggregate
Commitments, a rate per annum determined by reference to the Performance
Level
applicable on such date as set forth below:
|
Performance
Level
|
Utilization
Fee Rate
|
|
I
|
0.075%
|
|
II
|
0.125%
|
|
III
|
0.125%
|
|
IV
|
0.125%
|
|
V
|
0.250%
|
“Voting
Rights” means, as to any
corporation or any other entity, ordinary voting power (whether associated
with
outstanding common stock or outstanding preferred stock, or both, or other
outstanding equity interests, as applicable) to elect members of the Board
of
Directors of such corporation or other entity (irrespective of whether or
not at
the time capital stock of any class or classes of such corporation or entity
shall or might have voting power or additional voting power upon the occurrence
of any contingency).
“Wholly
Owned” means, with
respect to any corporation or other entity, a corporation or other entity
of
which 100% of the Voting Rights are at the time directly or indirectly owned
by
the Borrower, by the Borrower and one or more other Wholly Owned Subsidiaries,
or by one or more other Wholly Owned Subsidiaries.
“Withdrawal
Liability” shall
have the meaning given such term under Part I of Subtitle E of Title IV of
ERISA.
SECTION
1.02. Computation of
Time Periods. (a) In this Agreement and the other
Loan Documents in the computation of periods of time from a specified date
to a
later specified date, the word “from” means “from and including” and the words
“to” and “until” each means “to but excluding”.
(b) In
this Agreement and the other Loan Documents each reference to a year shall
be a
reference to the twelve consecutive months beginning January 1 in such year
and
ending December 31 in such year and each reference to a quarter shall be
a
reference to one of the three consecutive month periods beginning January
1,
April 1, July 1 or October 1, in each year.
SECTION
1.03. Accounting
Terms. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP. “GAAP” shall mean
generally accepted accounting principles as in effect from time to time,
applied
on a basis consistent with the most recent certified consolidated financial
statements of the Borrower and its Subsidiaries delivered to the Lenders,
except
that if the Borrower notifies the Agent that the Borrower requests an amendment
to any provision hereof to eliminate the effect of a change occurring after
the
date of this Agreement in GAAP or the application thereof on the operation
of
such provision (or if the Agent notifies the Borrower that the Majority Lenders
request an amendment to any provision hereof for such purpose), regardless
of
whether any such notice is given before or after such change in GAAP or in
the
application thereof, then such provision shall be construed and interpreted
on
the basis of GAAP as in effect and applied immediately before such change
shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance with Section 9.01.
ARTICLE
II
AMOUNTS
AND TERMS OF THE ADVANCES
SECTION
2.01. The
Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make Advances to the Borrower from time
to
time on any Business Day during the period from the date hereof until the
Termination Date in an aggregate amount not to exceed at any time such Lender’s
Unused Commitment. Each Borrowing shall be in an aggregate amount not
less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and shall consist of Advances of the same Type made on the same day by the
Lenders ratably according to their respective Commitments. Within the
limits of each Lender’s Commitment, the Borrower may borrow, repay pursuant to
Section 2.05 or prepay pursuant to Section 2.09(b), and reborrow, prior to
the
Termination Date, under this Section 2.01.
SECTION
2.02. Making the
Advances. (i)(A) Each Borrowing shall be made on
notice, given not later than 11:00 A.M. (New York City time), (x) in the
case of
Eurodollar Rate Advances, on the third Business Day prior to the date of
the
proposed Borrowing and (y) in the case of Base Rate Advances, on the day
of the
proposed Borrowing, by the Borrower to the Agent, which shall give to each
Lender prompt notice thereof by telecopier. Each such notice of a
Borrowing (a “Notice of Borrowing”) shall be by telephone, confirmed
immediately in writing, in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (I) date of such Borrowing, (II) Type of
Advances comprising such Borrowing, (III) aggregate amount of such Borrowing,
and (IV) in the case of Eurodollar Rate Advances, Interest Period for each
such
Advance. Each Lender shall, before 1:00 P.M. (New York City time) on
the date of such Borrowing make available for the account of its Applicable
Lending Office to the Agent at the Agent’s Account, in same day funds, such
Lender’s ratable portion of such Borrowing. After the Agent’s receipt
of such funds and upon fulfillment of the applicable conditions set forth
in
Article III, the Agent will make such funds available to the Borrower at
the
Agent’s address referred to in Section 8.02.
(B) The
failure of any Lender to make the Advance to be made by it as part of any
Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender
shall
be responsible for the failure of any other Lender to make the Advance to
be
made by such other Lender on the date of any Borrowing.
(ii) Anything
in subsection (i) above to the contrary notwithstanding,
(A) if
any Lender shall, at least one Business Day before the date of any requested
Borrowing, notify the Agent (with a copy to the Borrower) that the introduction
of or any change in or in the interpretation of any law or regulation by
any
court, authority or agency, or any other governmental, judicial or regulatory
body, makes it unlawful, or that any central bank or other governmental
authority asserts that it is unlawful, for such Lender or its Eurodollar
Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances
or
to fund or maintain Eurodollar Rate Advances hereunder, the right of the
Borrower to select Eurodollar Rate Advances for such Borrowing or any subsequent
Borrowing, with respect to such Lender (only), shall be suspended until such
Lender shall notify the Agent (with a copy to the Borrower) that the
circumstances causing such suspension no longer exist or such Lender shall
cease
to be a party hereto, and each Advance comprising such Borrowing shall, with
respect to such Lender (only), be a Base Rate Advance of an equivalent amount
and for an approximately equivalent term, provided that if all the
Lenders so notify the Agent, the Agent shall so notify the Borrower and the
Notice of Borrowing in respect of such requested Borrowing shall be
automatically revoked. Each Lender giving a notice under this
subclause (A) shall, promptly after giving such notice, provide the Borrower
(with a copy to the Agent) with an explanation, in reasonable detail, as
to the
circumstances causing such suspension;
(B) in
the event that it is necessary to determine the Eurodollar Rate with reference
to the Agent, and if the Agent is unable to timely determine the Eurodollar
Rate
for Eurodollar Rate Advances comprising any requested Borrowing, the right
of
the Borrower to select Eurodollar Rate Advances for such Borrowing or any
subsequent Borrowing shall be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist, and each Advance comprising such Borrowing shall be a Eurodollar
Rate Advance, if available (or, if not available or the Borrower so notifies
the
Lenders, a Base Rate Advance); and
(C) if
the Majority Lenders shall, at least one Business Day before the date of
any
requested Borrowing, notify the Agent (with a copy to the Borrower) that
the
Eurodollar Rate for Eurodollar Rate Advances comprising such Borrowing will
not
adequately reflect the cost to the Lenders of making or funding their respective
Eurodollar Rate Advances for such Borrowing, the Notice of Borrowing given
in
respect of such requested Borrowing shall be automatically revoked and the
right
of the Borrower to select Eurodollar Rate Advances for such Borrowing or
any
subsequent Borrowing shall be suspended until the Majority Lenders shall
notify
the Agent (with a copy to the Borrower) and the other Lenders that the
circumstances causing such suspension no longer exist. The Majority
Lenders giving a notice under this subclause (C) shall, promptly after giving
such notice, provide the Borrower (with a copy to the Agent) with an
explanation, in reasonable detail, as to the circumstances causing such
suspension.
(D) Anything
in subsection (i) above to the contrary notwithstanding, (1) the Borrower
may
not select Eurodollar Rate Advances for any Borrowing if the aggregate amount
of
such Borrowing is less than $10,000,000 and (2) the Eurodollar Rate Advances
may
not be outstanding as part of more than ten separate Borrowings.
(iii) Each
Notice of Borrowing (subject to (ii)(A) and (ii)(C) above) shall be irrevocable
and binding on the Borrower. In the case of any Borrowing which the
related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower shall indemnify each Lender against any loss, cost
or
expense incurred by such Lender as a result of any failure to fulfill on
or
before the date specified in such Notice of Borrowing for such Borrowing
the
applicable conditions set forth in Article III, including, without limitation,
any loss (excluding loss of anticipated profits), cost or expense incurred
by
reason of the liquidation or reemployment of deposits or other funds acquired
by
such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on
such
date. Each Lender claiming indemnity for any such loss, cost or
expense under this clause (iii) shall provide, at the time of making such
claim,
the Borrower (with a copy to the Agent) with reasonable details, including
the
basis for the calculation thereof, of such loss, cost or expense,
provided that, in the absence of manifest error, the amount of such
claims so notified shall be conclusive and binding upon the
Borrower.
(iv) Unless
the Agent shall have received notice from a Lender prior to the date of any
Borrowing that such Lender will not make available to the Agent such Lender’s
ratable portion of such Borrowing, the Agent may assume that such Lender
has
made such portion available to the Agent on the date of such Borrowing in
accordance with subsection (i) of this Section 2.02(a) and the Agent may,
in
reliance upon such assumption, make available to the Borrower on such date
a
corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Agent, such Lender and
the
Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each date from the
date
such amount is made available to the Borrower until the date such amount
is
repaid to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Advances comprising such Borrowing and (ii) in
the
case of such Lender, the Federal Funds Rate. If such Lender shall
repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Lender’s Advance as part of such Borrowing for purposes of this
Agreement.
SECTION
2.03. Fees. (a)
Facility Fee. The Borrower agrees to pay to the Agent for the
account of each Lender a facility fee on the average daily aggregate amount
of
the Lenders’ Commitments from the date hereof in the case of each Bank and from
the effective date specified in the Assignment and Acceptance or Assumption
Agreement pursuant to which it became a Lender in the case of each other
Lender
until the Termination Date at the Facility Fee Rate, payable quarterly in
arrears and on the Termination Date.
(b) Agent’s
Fees. The Borrower shall pay to the Agent for its own account
such fees as may from time to time be agreed between the Borrower and the
Agent.
SECTION
2.04. Reduction of the
Commitments/Substitution of Banks. (a) The
Borrower shall have the right, upon at least two Business Days’ notice to the
Agent, to terminate in whole or reduce ratably in part the Commitments of
the
Lenders, provided that (i) each partial reduction shall be in the
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in
excess
thereof and (ii) any notice of termination may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Agent) if such
condition is not satisfied.
(b) On
the date of receipt (i) by the Borrower of any cash proceeds from the issuance
of any equity interests of, the Borrower or any of its Subsidiaries (other
than
pursuant to any employee stock or stock option compensation plan or any issuance
of any equity interests to the Borrower or any of its Subsidiaries) and (ii)
by
the Borrower or any of its Subsidiaries of any cash proceeds from the incurrence
of any Indebtedness of the Borrower or any of its Subsidiaries (other than
(A)
Indebtedness incurred under the Existing Credit Agreement or any replacement
thereof, (B) any refinancing of Indebtedness, (C) Indebtedness owing to the
Borrower or any of its Subsidiaries or (D) Indebtedness incurred to finance
the
acquisition, construction or improvement of any fixed or capital assets that
is
incurred prior to or within 90 days after such acquisition, or completion
of
such construction or improvement, provided each such incurrence under this
clause (D) is in an amount not greater than $250,000), the Commitments shall
be
automatically and permanently reduced by an amount equal to the amount by
which
(x) 100% of such proceeds, net of underwriting discounts and commissions
and
other reasonable costs and expenses associated therewith, including reasonable
legal fees and expenses exceeds (y) $150,000,000.
(c) The
Commitments shall be automatically and permanently terminated in full on
the
first date of the consummation of both (x) an increase of the commitments
under
the Existing Credit Agreement and (y) an accounts receivable securitization
program.
(d) Optional
Termination and Substitution of Lenders. The Borrower may, upon
not less than two Business Days prior notice to a Lender or Lenders, terminate
in whole the Commitment of such Lender or Lenders and arrange in respect
of each
terminated Lender for one or more bank or banks (“Assuming Lender or
Lenders”), which may include one or more of the Lenders, but no Lender shall
have any obligation, to assume a Commitment equal to or Commitments in aggregate
amount equal to the amount of the Commitment of the terminated Lender,
provided that no such termination shall be made unless, at such time, no
event has occurred and is continuing which constitutes an Event of
Default. Such termination shall be effective (x) with respect to each
such terminated Lender’s Unused Commitment, on the date set forth in such
notice, provided, however, that such date shall be no earlier than
two Business Days after receipt of such notice or (y) in the event that an
Advance is outstanding from such terminated Lender which is to be paid in
connection with such termination, on the last day of the then current interest
period relating to such Advance. Such assumption shall be effective
on the date specified in (x) or (y) above, as the case may be, provided,
however, that each Assuming Lender shall have delivered to the other
Lenders, on or prior to such date, an agreement in form and substance
satisfactory to the Borrower and the Agent (an “Assumption Agreement”) in
substantially the form of Exhibit E hereto. (The term “Lender” as
used in this Agreement immediately following such assumption shall include
an
Assuming Lender.) Notwithstanding the provisions of this Section
2.04(d), termination or substitution shall not be effective unless the Assuming
Lender meets, at the time of substitution, the criteria set forth in this
Agreement for an “Eligible Assignee.”
Upon
the termination of a Lender’s
Commitment under this subsection 2.04(d), the Borrower will pay or cause
to be
paid all principal of, and interest accrued to the date of such payment on,
Advances owing to such Lender and pay any fees payable to such Lender pursuant
to the provisions of Section 2.03 with respect to the Commitment which is
terminated, any amounts payable pursuant to the provisions of Section 9.04
and
any other amounts payable to such Lender hereunder with respect to the
Commitment which is terminated or Advances which are paid; and upon such
payments, the obligations of such Lender hereunder shall, by the provisions
hereof, be released and discharged, and it shall be deemed to have relinquished
its rights under this Agreement (other than any rights under Section
9.06).
SECTION
2.05. Repayment. The Borrower shall repay to
the Agent for the ratable account of the Lenders the principal amount of
each
Advance owing to each Lender on the Termination Date.
SECTION
2.06. Interest. The Borrower shall pay interest
on the unpaid principal amount of each Advance owing to each Lender from
the
date of such Advance until such principal amount shall be paid in full, at
the
following rates per annum:
(a) Base
Rate Advances. If such Advance is a Base Rate Advance, a rate per
annum equal at all times to the sum of the Base Rate in effect from time
to
time, plus the Applicable Margin, plus the Utilization Fee Rate,
if applicable, payable in arrears on (i) the last day of each quarter and
(ii)
the date such Base Rate Advance shall be paid in full; provided that any
amount of principal which is not paid when due (whether at stated maturity,
by
acceleration or otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable on demand, at a
rate
per annum equal at all times to 1-1/2% per annum above the Base
Rate.
(b) Eurodollar
Rate Advances. If such Advance is a Eurodollar Rate Advance, a
rate per annum equal at all times during the Interest Period for such Advance
to
the sum of the Eurodollar Rate for such Interest Period, plus the
Applicable Margin plus the Utilization Fee Rate, if applicable, payable
in arrears on (A) if the Interest Period in respect of such Advance is less
than
or equal to three months, the last day of such Interest Period, or (B) if
the
Interest Period in respect of such Advance is greater than three months,
the
last day of each three-month period (beginning the first day of such Interest
Period) occurring during that Interest Period, and also on the last day of
such
Interest Period; provided that any amount of principal which is not paid
when due (whether at stated maturity, by acceleration or otherwise) shall
bear
interest, from the date on which such amount is due until such amount is
paid in
full, payable on demand, at a rate per annum equal at all times to 1 1/2%
per
annum above the Base Rate in effect from time to time.
SECTION
2.07. Additional
Interest on Eurodollar Rate Advances. The Borrower shall pay
to the Agent for the account of each Lender additional interest on the unpaid
principal amount of each Eurodollar Rate Advance of such Lender, from the
date
of such Advance until such principal amount is paid in full, at an interest
rate
per annum equal at all times to the remainder obtained by subtracting (i)
the
Eurodollar Rate for the Interest Period for such Advance from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such
Advance. Such additional interest shall be determined by such Lender
and notified to the Borrower and the Agent. Each Lender notifying the
Borrower and the Agent of such additional interest shall provide the Borrower
(with a copy to the Agent), at the time of such notification, with reasonable
details, including the basis for the calculation thereof, of such additional
interest, provided that, in the absence of manifest error, the amount of
such additional interest so notified shall be conclusive and binding upon
the
Borrower.
SECTION
2.08. Interest Rate
Determination. The Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by the
Agent
for purposes of Section 2.06(a) or (b).
SECTION
2.09. Prepayments. (a) The Borrower
shall have no right to prepay any principal amount of any Advances other
than as
provided in subsection (b) or (c) below.
(b) The
Borrower may, (i) upon same-day notice in the case of Base Rate Advances
or (ii)
upon at least three Business Days’ notice in the case of Eurodollar Rate
Advances, to the Agent stating the proposed date and aggregate principal
amount
of the prepayment, and if such notice is given the Borrower shall, prepay
the
outstanding principal amounts of the Advances comprising part of the same
Borrowing in whole or ratably in part, together with accrued interest to
the
date of such prepayment on the principal amount prepaid; provided,
however, that (i) each partial prepayment shall be in an aggregate
principal amount not less than $10,000,000 or an integral multiple of $1,000,000
in excess thereof, (ii) any notice of prepayment may state that such notice
is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Agent) if such
condition is not satisfied and (iii) in the event of any such prepayment
of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the
Banks
in respect thereof pursuant to Section 9.04(b).
(c) On
the date of any termination or reduction of Commitments pursuant to this
Agreement, the Borrower shall pay or prepay so much of the Advances as shall
be
necessary in order that the aggregate Usage will not exceed the aggregate
Commitments of the Lenders after giving effect to such termination or
reduction.
SECTION
2.10. Increased
Costs. (a) If, due to either (i) the introduction
of or any change (other than any change by way of imposition or increase
of
reserve requirements, in the case of Eurodollar Rate Advances, included in
the
Eurodollar Rate Reserve Percentage) in or in the interpretation of any law
or
regulation by any court, authority or agency, or any other governmental,
judicial or regulatory body, or (ii) the compliance with any guideline or
request from any central bank or other governmental authority (whether or
not
having the force of law), there shall be any increase in the cost to any
Lender
of agreeing to make or making, funding or maintaining Eurodollar Rate Advances,
then the Borrower shall from time to time, upon demand by such Lender (with
a
copy of such demand to the Agent), pay to the Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
increased cost. Each Lender demanding payment of such amount shall
provide, at the time of making such demand, the Borrower and the Agent with
reasonable details, including the basis for the calculation thereof, of such
increase, provided that, in the absence of manifest error, the amount so
notified shall be conclusive and binding upon the Borrower.
(b) If
any Lender determines (in good faith) that compliance with any law or regulation
or any guideline or request from any central bank or other governmental
authority (whether or not having the force of law) affects or would affect
the
amount of capital required or expected to be maintained by such Lender or
any
corporation controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender’s commitment to lend
hereunder and other commitments of this type, then, upon demand by such Lender
(with a copy of such demand to the Agent), the Borrower shall immediately
pay to
the Agent for the account of such Lender, from time to time as specified
by such
Lender, additional amounts sufficient to compensate such Lender in the light
of
such circumstances, to the extent that such Lender reasonably determines
such
increase in capital to be allocable to the existence of such Lender’s commitment
to lend hereunder. Each Lender demanding payment of such amount shall
provide, at the time of making such demand, the Borrower and the Agent with
reasonable details, including the basis for the calculation thereof, of such
increase, provided that, in the absence of manifest error, the amount so
notified shall be conclusive and binding upon the Borrower.
(c) Failure
or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such
compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs incurred
more than 270 days prior to the date that such Lender notifies the Borrower
and
the Agent of any event described in paragraph (a) or (b) of this Section
(a
“Change in Law”) which gives rise to such increased costs and of such
Lender’s intention to claim compensation therefor; provided
further that, if the Change in Law giving rise to such increased
costs is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof.
(d) If
any Lender requests compensation under this Section, then such Lender shall
use
reasonable efforts to designate a different lending office for funding or
booking its Advances hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of
such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to this Section and (ii) would not subject such Lender to
any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such
Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(e) If
any Lender requests compensation under this Section, then the Borrower may,
at
its sole expense and effort, upon notice to such Lender require such Lender
to
assign and delegate, without recourse (in accordance with and subject to
the
restrictions contained in Section 8.02), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) at the time the Borrower requires such an
assignment, no event has occurred and is continuing which constitutes an
Event
of Default, (ii) such Lender shall have received payment of an amount equal
to
the outstanding principal of its Advances, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the assignee (to
the
extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts) and (iii) in the case of any
such
assignment resulting from a claim for compensation under this Section, such
assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment
and delegation if, prior thereto, as a result of a waiver by such Lender
or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
SECTION
2.11. Payments and
Computations. (a) The Borrower shall make each
payment hereunder and under the Notes, irrespective of any right of counterclaim
or set-off, not later than 1:00 P.M. (New York City time) on the day when
due in
U.S. dollars to the Agent for the account of the applicable Lender at the
Agent’s Account in same day funds. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or facility fees ratably (other than amounts payable pursuant to
Section 2.07, 2.10, 2.14 or 9.04(b)) to the Lenders entitled thereto for
the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender to such Lender for
the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 8.02(d), from and after the effective
date
specified in each Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby
to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior
to
such effective date directly between themselves.
(b) All
computations of interest with respect to the Advances based on clause (a)
of the
definition of Base Rate and of fees (other than the facility fee) shall be
made
by the Agent on the basis of a year of 365 or 366 days, as the case may be,
and
all computations of interest (i) with respect to the Advances based on clause
(b) of the definition of Base Rate, the Eurodollar Rate or the Federal Funds
Rate, (ii) the facility fee and (iii) pursuant to Section 2.07 shall be made
by
the Agent on the basis of a year of 360 days, in each case for the actual
number
of days (including the first day but excluding the last day) occurring in
the
period for which such interest, fee or commission is payable. Each
determination by the Agent (or, in the case of Section 2.07, by a Lender)
of an
interest rate hereunder shall be conclusive and binding for all purposes,
absent
manifest error.
(c) Whenever
any payment hereunder or under the Notes shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in
the
computation of payment of interest and fees, as the case may be;
provided, however, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment, shall be made on the next preceding
Business Day.
(d) Unless
the Agent shall have received notice from the Borrower prior to the date
on
which any payment is due to the Lenders hereunder that the Borrower will
not
make such payment in full, the Agent may assume that the Borrower has made
such
payment in full to the Agent on such date and the Agent may, in reliance
upon
such assumption, cause to be distributed to each Lender on such due date
an
amount equal to the amount then due such Lender. If and to the extent
the Borrower shall not have so made such payment in full to the Agent, each
Lender shall repay to the Agent forthwith on demand such amount distributed
to
such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION
2.12. Evidence of
Indebtedness. (a) 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 Advance owing
to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder in respect of
Advances. The Borrower agrees that upon notice by any Lender to the
Borrower (with a copy of such notice to the Agent) to the effect that a Note
is
required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the Advances owing to, or to
be
made by, such Lender, the Borrower shall promptly execute and deliver to
such
Lender a Note payable to the order of such Lender in a principal amount up
to
the Commitment of such Lender.
(b) The
Register maintained by the Agent pursuant to Section 8.02(d) shall include
a
control account, and a subsidiary account for each Lender, in which accounts
(taken together) shall be recorded (i) the date and amount of each Borrowing
made hereunder, the Type of Advances comprising such Borrowing and, if
appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount
of
any principal or interest due and payable or to become due and payable from
the
Borrower to each Lender hereunder and (iv) the amount of any sum received
by the
Agent from the Borrower hereunder and each Lender’s share thereof.
(c) Entries
made in good faith by the Agent in the Register pursuant to subsection (b)
above, and by each Lender in its account or accounts pursuant to subsection
(a)
above, shall be prima facie evidence of the amount of principal
and interest due and payable or to become due and payable from the Borrower
to,
in the case of the Register, each Lender and, in the case of such account
or
accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to
make an entry, or any finding that an entry is incorrect, in the Register
or
such account or accounts shall not limit or otherwise affect the obligations
of
the Borrower under this Agreement.
SECTION
2.13. Sharing of
Payments, Etc. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Advances owing to it (other than pursuant
to
Section 2.04(d), 2.07, 2.10 or 2.14) in excess of its ratable share of payments
on account of the Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in the Advances
owing to them as shall be necessary to cause such purchasing Lender to share
the
excess payment ratably with each of them, provided, however, that
if all or any portion of such excess payment is thereafter recovered from
such
purchasing Lender, such purchase from each Lender shall be rescinded and
such
Lender shall repay to the purchasing Lender the purchase price to the extent
of
such recovery together with an amount equal to such Lender’s ratable share
(according to the proportion of (i) the amount of such Lender’s required
repayment to (ii) the total amount so recovered from the purchasing Lender)
of
any interest or other amount paid or payable by the purchasing Lender in
respect
of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section
2.13
may, to the fullest extent permitted by law, exercise all its rights of payment
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION
2.14. Taxes. (a) Any and all
payments by the Borrower to or for the account of any Lender or the Agent
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future
taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities
with
respect thereto, excluding, in the case of each Lender and the Agent, (x)
taxes imposed on its income, and franchise taxes imposed on it, and any
liability arising therefrom or with respect thereto, by the United States
or any
State or other political subdivision thereof or by the jurisdiction under
the
laws of which such Lender or the Agent (as the case may be) is organized
or any
political subdivision thereof and (y) taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction of such Lender’s Applicable Lending
Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as “Taxes”). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender or the Agent, (i) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.14) such Lender or the Agent (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 taxation authority or other authority
in accordance with applicable law.
(b) In
addition, the Borrower agrees to pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
or the
Notes (hereinafter referred to as “Other Taxes”).
(c) The
Borrower will indemnify each Lender and the Agent for the full amount of
Taxes
or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 2.14) paid by such
Lender or the Agent (as the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether
or not
such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date such Lender or
the
Agent (as the case may be) makes written demand therefor. If a Lender
or the Agent receives an indemnification payment from the Borrower in accordance
with this subsection (c) and such Lender subsequently receives from the
applicable jurisdiction a payment of all or a portion of the amount of Taxes
or
Other Taxes or liability with respect to which such indemnity payment was
made,
such Lender shall promptly turn over (without interest) to the Borrower the
amount of such repayment.
(d) Within
30 days after the date of any payment of Taxes, the Borrower will furnish
to the
Agent, at its address referred to in Section 9.02, the original or a certified
copy of a receipt evidencing payment thereof. If no Taxes are payable
in respect of any payment hereunder or under the Notes, the Borrower will,
if
reasonably requested by a Lender or the Agent furnish to the Agent, at such
address, a certificate from each appropriate taxing authority, or an opinion
of
counsel acceptable to the Agent, in either case stating that such payment
is
exempt from or not subject to Taxes.
(e) Each
Lender shall initially designate an Applicable Lending Office that will avoid
the need for payment of additional amounts by the Borrower pursuant to this
Section 2.14 and, furthermore, any Lender claiming any additional amounts
payable pursuant to this Section 2.14 shall use its best efforts (consistent
with its internal policy and legal and regulatory restrictions) to change
the
jurisdiction of its Applicable Lending office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
which may thereafter accrue and would not, in the reasonable judgment of
such
Lender, be otherwise disadvantageous to such Lender.
(f) Any
Lender that is entitled to an exemption from or reduction of withholding
tax
under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower, 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.
(g) Without
prejudice to the survival of any other agreement of the Borrower hereunder,
the
agreements and obligations of the Borrower contained in this Section 2.14
shall
survive the payment in full of principal and interest hereunder and under
the
Notes.
SECTION
2.15. Interest
Elections. (a) Each Borrowing initially shall be
of the Type specified in the applicable Notice of Borrowing and, in the case
of
a Eurodollar Rate Borrowing, shall have an initial Interest Period as specified
in such Notice of Borrowing. Thereafter, the Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing
and, in
the case of a Eurodollar Rate Borrowing, may elect Interest Periods therefor,
all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in
which
case each such Borrowing shall be allocated ratably among the Lenders having
made the Advances comprising such Borrowing, and the Advances comprising
each
such portion shall be considered a separate Borrowing.
(b) To
make an election pursuant to this Section, the Borrower shall notify the
Agent
of such election by telephone by the time that a Notice of Borrowing would
be
required under Section 2.02 if the Borrower were requesting a Borrowing of
the
Type resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy
to the
Agent of a written Interest Election Request signed by the
Borrower.
(c) Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case
the
information to be specified pursuant to clauses (iii) and (iv) below shall
be
specified for each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;
(iii) the
Type of Advances comprising such Borrowing; and
(iv) the
Interest Period for each such Advance.
If
any
such Interest Election Request requests a Eurodollar Rate Borrowing but does
not
specify an Interest Period, the Borrower shall be deemed to have selected
an
Interest Period of one month’s duration.
(d) If
the Borrower fails to deliver a timely Interest Election Request with respect
to
a Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be continued as or converted to a Base Rate
Borrowing.
ARTICLE
III
CONDITIONS
OF LENDING
SECTION
3.01. Condition
Precedent to Effectiveness of Sections 2.01 and 2.02. The
effectiveness of Sections 2.01 and 2.02 is subject to the execution and delivery
of counterparts of this Agreement by the Borrower, the Agent and the Lenders
and
the satisfaction of the following additional conditions precedent:
(i) The
Agent shall have received the following, each dated the date hereof, in form
and
substance satisfactory to the Agent and (except for the Notes) in sufficient
copies for each Lender:
(a) A
Note to the order of any Lender requesting such note pursuant to Section
2.12.
(b) An
Officer’s Certificate attaching copies of the resolutions of the Board of
Directors of the Borrower (or an authorized committee thereof) approving
the
Loan Documents, and of all documents evidencing other necessary corporate
action
and governmental approvals, if any, with respect to the Loan
Documents.
(c) An
Officer’s Certificate certifying the names and true signatures of the officers
of the Borrower authorized to sign the Loan Documents and the other documents
to
be delivered hereunder.
(d) A
favorable opinion of a Senior Counsel of the Borrower, substantially in the
form
of Exhibit D hereto and as to such other matters as any Lender through the
Agent
may reasonably request.
(e) A
favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form
and substance satisfactory to the Agent.
(ii) The
Borrower shall have paid all accrued fees and expenses of the Agent and the
Lenders (including the accrued fees and expenses of counsel to the
Agent).
SECTION
3.02. Conditions
Precedent to Initial Borrowing. The obligation of each Lender
to make an Advance on the occasion of the initial Borrowing shall be subject
to
the further conditions precedent that on or prior to the date of such Borrowing
all of the conditions precedent to the consummation of the Borrower’s
acquisition of Pioneer Companies Inc. (other than the payment of the proceeds
of
Advances) shall have been satisfied substantially in accordance with the
terms
of the Purchase Agreement related thereto delivered to the Lenders prior
to May
24, 2007, with no amendment, modification or waiver adverse to the interests
of
the Lenders in any material respect except as agreed to in writing by the
Lenders.
SECTION
3.03. Conditions Precedent
to Each Borrowing Increasing the Aggregate Amount of
Advances. The obligation of each Lender to make an Advance on
the occasion of each Borrowing (including the initial Borrowing) which would
increase the aggregate outstanding amount of Advances owing to such Lender
over
the aggregate outstanding amount of Advances owing to such Lender immediately
prior to the making of such Advance shall be subject to the further conditions
precedent that on the date of such Borrowing the following statements shall
be
true (and each of the giving of the applicable Notice of Borrowing and the
acceptance by the Borrower of the proceeds of such Borrowing shall constitute
a
representation and warranty by the Borrower that on the date of such Borrowing
such statements are true):
(a) The
representations and warranties contained in this Agreement (other than the
last
sentence of Section 4.01(e)) are correct in all material respects on and
as of
the date of such Borrowing, before and after giving effect to such Borrowing
and
to the application of the proceeds therefrom, as though made on and as of
such
date, and
(b) No
event has occurred and is continuing, or would result from such Borrowing
or
from the application of the proceeds therefrom, which constitutes an Event
of
Default or which would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
SECTION
3.04. Determinations
Under Section 3.01. For purposes of determining compliance
with the conditions specified in Section 3.01, each Lender shall be deemed
to
have consented to, approved or accepted or to be satisfied with each document
or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to the Lenders unless an officer of the Agent responsible
for
the transactions contemplated by this Agreement shall have received notice
from
such Lender prior to the date that the Borrower, by notice to the Lenders,
designates as the proposed effective date of Sections 2.01 and 2.02, specifying
its objection thereto. The Agent shall promptly notify the Lenders of
the occurrence of the effective date of Sections 2.01 and 2.02.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations
and Warranties of the Borrower. The Borrower represents and
warrants as follows:
(a) The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation indicated at the
beginning of this Agreement, has all requisite corporate power and authority
to
conduct its business, to own its properties and assets as it is now conducted
and as proposed to be conducted and is qualified or licensed to do business
as a
foreign corporation in good standing in all jurisdictions in which the conduct
of its business requires it to so qualify or be licensed except where the
failure to do so, individually or in the aggregate, could not reasonably
be
expected to materially and adversely affect the ability of the Borrower to
perform its obligations under any Loan Document.
(b) The
execution, delivery and performance by the Borrower of the Loan Documents,
including the Borrower’s use of the proceeds thereof, are within the Borrower’s
corporate powers, have been duly authorized by all necessary corporate action,
and do not (i) contravene the Borrower’s charter or by-laws or (ii) contravene
law (including, without limitation, Regulations T, U and X issued by the
Board
of Governors of the Federal Reserve Board) or any material contractual
restriction binding on or affecting the Borrower or (iii) result in or require
the creation or imposition of any Lien upon or with respect to any of the
properties of the Borrower or any of its Subsidiaries.
(c) No
authorization or approval or other action by, and no notice to or filing
with,
any governmental authority or regulatory body is required for the due execution,
delivery and performance by the Borrower of any Loan Documents.
(d) This
Agreement is, and each of other Loan Documents when delivered hereunder will
be,
the legal, valid and binding obligation of the Borrower enforceable against
the
Borrower in accordance with their respective terms.
(e) The
consolidated balance sheet of the Borrower and its Subsidiaries as at December
31, 2006, and the related consolidated statements of income and cash flows
of
the Borrower and its Subsidiaries for the fiscal year then ended, accompanied
by
an opinion of KPMG LLP, independent public accountants, and the consolidated
balance sheet of the Borrower and its Subsidiaries as at March 31, 2007,
and the
related consolidated statements of income and cash flows of the Borrower
and its
Subsidiaries for the three months then ended, duly certified by the chief
financial officer of the Borrower, copies of which have been furnished to
each
Lender, fairly present, subject, in the case of said balance sheet as at
March
31, 2007 and said statements of income and cash flows for the three months
then
ended, to year-end audit adjustments, the consolidated financial condition
of
the Borrower and its Subsidiaries as at such dates and the consolidated results
of the operations of the Borrower and its Subsidiaries for the periods ended
on
such dates, all in accordance with GAAP. Except as publicly disclosed
prior to the date hereof, on and as of the date of this Agreement, since
December 31, 2006, there has been no material adverse change in the business,
financial condition or results of operations of the Borrower and its
Subsidiaries, taken as a whole.
(f) There
are no actions, suits or proceedings pending or, to the knowledge of the
Borrower, threatened, against the Borrower or any Subsidiary the reasonably
anticipated outcome of which (i) would materially and adversely affect the
ability of the Borrower to perform its obligations under the Loan Documents
or
(ii) purport to affect the legality, validity or enforceability of any Loan
Document.
(g) The
Borrower is not engaged in the business of extending credit for the purpose
of
purchasing or carrying Margin Stock, and no proceeds of any Advance will
be used
to purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock, except in compliance
with
Regulations T, U and X issued by the Board of Governors of the Federal Reserve
Board.
(h) Neither
the Borrower nor any Subsidiary is an “investment company” or a company
“controlled” by an “investment company” within the meaning of the Investment
Company Act of 1940.
(i) The
Borrower and each Subsidiary have filed all material tax returns (Federal,
state
and local) required to be filed and paid all taxes shown thereon to be due,
including interest and penalties, or provided adequate reserves for payment
thereof.
(j) In
the ordinary course of its business, the Borrower conducts an ongoing review
of
the effect of Environmental Laws on the operations and properties of the
Borrower, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any liabilities in connection with off-site disposal of
Hazardous Substances and any capital or operating expenditures) required
to
achieve or maintain compliance with Environmental Laws. On the basis
of this review, the Borrower has reasonably concluded that, except with respect
to any matter disclosed in Items 1 or 3 in the Borrower’s 2006 Form 10-K or in
the Commitments and Contingencies Note to the consolidated financial statements
incorporated therein, such associated liabilities and costs, are unlikely
to
cause a material adverse change in the business, financial condition or results
of operations of the Borrower and its Subsidiaries, taken as a whole, from
that
shown on the consolidated financial statements as at, and for the three-month
period ended March 31, 2007, provided that the inclusion of such
exception does not indicate that any such matter will cause such a material
adverse change.
ARTICLE
V
COVENANTS
OF THE BORROWER
SECTION
5.01. Affirmative
Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will, unless the
Majority Lenders shall otherwise consent in writing:
(a) Compliance
with Laws, Etc. Comply, and cause each Subsidiary to comply, with
all applicable laws, rules, regulations and orders (such compliance to include,
without limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or upon its property
except
to the extent contested in good faith) the failure to comply with which would
have a material adverse effect on the business, financial condition or results
of operations of the Borrower and its Subsidiaries taken as a
whole.
(b) Consolidated
Leverage Ratio. Maintain a Consolidated Leverage Ratio as of the
last day of each Reference Period of not more than 4.00 : 1.0.
(c) Consolidated
Interest Coverage Ratio. Maintain a Consolidated Interest
Coverage Ratio for each Reference Period of not less than 4.00 :
1.0.
(d) Preservation
of Corporate Existence, Etc. Preserve and maintain, and cause
each of its Subsidiaries to preserve and maintain, its corporate existence,
and
the rights (charter and statutory) and franchises material to the business
of
the Borrower and its Subsidiaries, taken as a whole; provided,
however, that (i) the Borrower and its Subsidiaries may consummate
any
merger or consolidation permitted under Section 5.02(c), (ii) neither the
Borrower nor any of its Subsidiaries shall be required to preserve any such
right or franchise if the Borrower or such Subsidiary shall determine that
the
preservation thereof is no longer desirable in the conduct of the business
of
the Borrower or such Subsidiary, as the case may be, and that the loss thereof
is not disadvantageous in any material respect to the Borrower, such Subsidiary
or the Lenders and (iii) no Subsidiary shall be required to preserve its
corporate existence if the Borrower has determined to liquidate or dissolve
such
Subsidiary and such liquidation or dissolution will not violate any other
provision of this Agreement.
(e) Keeping
of Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall
be
made of all financial transactions and the assets and business of the Borrower
and each such Subsidiary in a manner which will permit the preparation of
consolidated financial statements in accordance with GAAP.
(f) Maintenance
of Properties, Etc. Maintain and preserve, and cause each of its
Subsidiaries to maintain and preserve, all of its properties that are material
to the conduct of the business of the Borrower and its Subsidiaries, taken
as a
whole, in good working order and condition, ordinary wear and tear
excepted.
(g) Insurance. Maintain,
and cause each Subsidiary to maintain, insurance with reputable insurance
companies or associations in such amount and covering such risks as the
Borrower, in its good faith business judgment, believes necessary.
(h) ERISA. Ensure
that each ERISA Affiliate will meet its minimum funding requirements and
all of
its other obligations under ERISA with respect to all of its Plans and satisfy
all of its obligations to Multiemployer Plans, including any Withdrawal
Liability, if the failure to do so would have a material adverse effect on
the
business, financial condition or results of operations of the Borrower and
its
Subsidiaries, taken as a whole.
(i) Reporting
Requirements. Furnish to each Lender:
(i) as
soon as available and in any event within 60 days after the end of each of
the
first three quarters of each year, balance sheets of the Borrower and the
Subsidiaries, on a consolidated basis, as of the end of such quarter and
statements of income and retained earnings and cash flow of the Borrower
and the
Subsidiaries, on a consolidated basis, for the period commencing at the end
of
the previous year and ending with the end of such quarter, certified by the
chief financial officer of the Borrower, subject to audit and year end
adjustments;
(ii) as
soon as available and in any event within 120 days after the end of each
year, a
copy of the balance sheets of the Borrower and the Subsidiaries, on a
consolidated basis, as of the end of such year and the statements of income
and
retained earnings and cash flow of the Borrower and the Subsidiaries, on
a
consolidated basis, for such year, certified by KPMG LLP or another independent
nationally recognized firm of public accountants;
(iii) as
soon as possible and in any event within ten days after an officer of the
Borrower becomes aware of the occurrence of each Event of Default (and each
event which, with the giving of notice or lapse of time, or both, would
constitute an Event of Default), an Officer’s Certificate setting forth details
of such Event of Default or event and the action which the Borrower has taken
and proposes to take with respect thereto;
(iv) contemporaneously
with each delivery of the statements referred to in clauses (i) and (ii)
above,
(A) either an Officer’s Certificate stating that no Event of Default (other than
by reason of non-compliance with the covenants referred to in Sections 5.01(b)
and (c)) and no event which, with the giving of notice or lapse of time,
or
both, would constitute an Event of Default (other than by reason of
non-compliance with the covenants referred to in Sections 5.01(b) and (c))
occurred during such quarter or, if applicable, an Officer’s Certificate
pursuant to clause (iii) above, (B) an Officer’s Certificate stating that, as of
the last day of the preceding quarter, and to the best of his or her knowledge,
at all times during the preceding quarter, the Borrower was in compliance
with
the covenants referred to in Sections 5.01(b) and (c) and providing reasonable
details of the calculations evidencing the Borrower’s compliance with such
covenants and (C) reasonable details of each material change in GAAP from
those
applied in preparing the statements referred to in Section 4.01(e) insofar
as
such changes are applicable to the statements referred to in clauses (i)
and
(ii) above;
(v) promptly
after the sending or filing thereof, copies of all reports which the Borrower
sends to any of its shareholders, and copies of all reports and registration
statements which the Borrower or any Subsidiary files with the Securities
and
Exchange Commission or any national securities exchange (other than those
pertaining to employee benefit plans); and
(vi) such
other information respecting the condition or operations, financial or
otherwise, of the Borrower or any Subsidiary as any Lender through the Agent
may
from time to time reasonably request.
Reports
and financial statements
required to be delivered by the Borrower pursuant to paragraphs (i), (ii)
and (v) of this Section 5.01(i) shall be deemed to have been delivered on
the date on which it posts such reports containing such financial statements
are
posted on the SEC’s website at ▇▇▇.▇▇▇.▇▇▇; provided that it shall
deliver paper copies of the reports and financial statements referred to
in
paragraphs (i), (ii) and (v) of this Section 5.01(i) to the Agent or
any Lender who requests it to deliver such paper copies until written notice
to
cease delivering paper copies is given by the Agent or such Lender.
SECTION
5.02. Negative
Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will not, without
the
written consent of the Majority Lenders:
(a) Liens. Create,
assume or suffer to exist or permit any Subsidiary of the Borrower to create,
assume or suffer to exist any Lien upon any of its property or assets, whether
now owned or hereafter acquired, except
(i) Permitted
Encumbrances,
(ii) other
Liens incidental to the conduct of its business or the ownership of its property
and assets which were not incurred to secure Indebtedness, and which do not
in
the aggregate materially detract from the value of its property or assets
or
materially impair the use thereof in the operation of its business,
(iii) Liens
on property or assets of a Domestic Subsidiary to secure obligations of such
Subsidiary to the Borrower or another Domestic Subsidiary, and Liens on property
or assets of a Foreign Subsidiary to secure obligations of such Subsidiary
to
the Borrower or any other Subsidiary,
(iv) any
Lien on property of any Foreign Subsidiary to secure Indebtedness of such
Subsidiary, provided that, immediately after giving effect thereto and to
the
concurrent repayment of any other Indebtedness, the aggregate principal amount
of outstanding Indebtedness secured by Liens permitted by this clause (iv)
or by
clause (vi) or (ix) of this Section does not exceed 10% of Consolidated Net
Tangible Assets,
(v) Liens
incurred in connection with any Tax-Exempt Financing which do not in the
aggregate materially detract from the value of the property or assets affected
thereby or materially impair the use of such property or assets in the operation
of its business,
(vi) Liens
on property or assets granted in connection with applications for or
reimbursement obligations with respect to letters of credit issued at the
request of the Borrower or a Subsidiary by a banking institution to secure
the
performance of obligations of the Borrower or a Subsidiary relating to such
letters of credit, to the extent such banking institution requested the granting
to it of such Lien as a condition for its issuance of the letter of credit;
provided that, immediately after giving effect thereto and to the concurrent
repayment of any other Indebtedness, the aggregate principal amount of
outstanding Indebtedness secured by Liens permitted by this clause (vi) or
by
clause (iv) or (ix) of this Section does not exceed 10% of Consolidated Net
Tangible Assets,
(vii) any
Lien existing on any property or asset prior to the acquisition thereof by
the
Borrower or any Subsidiary or existing on any property or asset of any Person
that becomes a Subsidiary after the date hereof prior to the time such Person
becomes a Subsidiary; provided that (A) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary, as the case may be, (B) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (C) such Lien shall
secure only those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary, as the case may be, and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof,
(viii) Liens
on fixed or capital assets acquired, constructed or improved by the Borrower
or
any Subsidiary; provided that (A) with respect to Liens securing
Indebtedness of any Domestic Subsidiary, such Liens secure Indebtedness
permitted by clause (ii) of Section 5.02(b), (B) such Liens and the Indebtedness
secured thereby are incurred prior to or within 90 days after acquisition
or the
completion of such construction or improvement, (C) the Indebtedness secured
thereby does not exceed 100% of the cost of acquiring, constructing or improving
such fixed or capital assets and (D) such Liens shall not apply to any other
property or assets of the Borrower or any Subsidiary,
(ix) Liens
on assets securing other obligations of the Borrower and its Subsidiaries
not
expressly permitted by clauses (i) through (viii) above; provided that,
immediately after giving effect thereto and to the concurrent repayment of
any
other secured obligations, the aggregate principal amount of outstanding
obligations secured by Liens permitted by this clause (ix) or by clause (iv)
or
(vi) of this Section does not exceed 10% of Consolidated Net Tangible
Assets,
(x) Liens
on Margin Stock, if and to the extent the value of all Margin Stock of the
Borrower and its Subsidiaries exceeds 25% of the value of the total assets
subject to this Section 5.02(a) (it being understood that Margin Stock not
in
excess of 25% of the value of such assets will be subject to the restrictions
of
this Section 5.02(a)), and
(xi) liens
arising in connection with a receivables securitization program.
(b) Domestic
Subsidiary Indebtedness. Permit any Domestic Subsidiary to
create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness
of any Domestic Subsidiary to the Borrower or any other Domestic
Subsidiary;
(ii) Indebtedness
incurred to finance the acquisition, construction or improvement of any fixed
or
capital assets, including Capital Lease Obligations and any Indebtedness
assumed
in connection with the acquisition of any such assets or secured by a Lien
on
any such assets prior to the acquisition thereof, and extensions, renewals
and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; provided that such Indebtedness is incurred
prior to or within 90 days after such acquisition or the completion of such
construction or improvement;
(iii) Indebtedness
of any Person that becomes a Domestic Subsidiary after the date hereof;
provided that such Indebtedness exists at the time such Person becomes a
Domestic Subsidiary and is not created in contemplation of or in connection
with
such Person becoming a Domestic Subsidiary;
(iv) other
Indebtedness in an aggregate principal amount not exceeding $20,000,000 at
any
time outstanding; and
(v) Indebtedness
consisting of Invested Amounts.
(c) Mergers,
Etc. (i) Merge or consolidate with or into any other
Person (other than a Subsidiary) or (ii) convey, transfer, lease or otherwise
dispose of, or permit a Subsidiary to convey, transfer, lease, or otherwise
dispose of, (whether in one transaction or in a series of related transactions)
all or substantially all of the property or assets of the Borrower and its
Subsidiaries taken as a whole (whether now owned or hereafter acquired),
directly or indirectly, to any Person, including through a merger or
consolidation of a Subsidiary with an unaffiliated party, unless (A) in each
case of (i) or (ii), after giving effect to such proposed transaction, no
Event
of Default or event which with the giving of notice or lapse of time, or
both,
would constitute an Event of Default would exist and (B) in the case of clause
(i),the surviving corporation is the Borrower, provided that to the
extent that the value of all Margin Stock owned by the Borrower and its
Subsidiaries taken as a whole exceeds 25% of the value of the total assets
of
the Borrower and its Subsidiaries subject to this Section 5.02(c), nothing
in
this Section 5.02(c) shall prohibit the sale of such Margin Stock (it being
understood that Margin Stock not in excess of 25% of the value of such assets
will be subject to the restrictions of this Section 5.02(c)) .
(d) Change
in Nature of Business. Engage, or permit any of its Subsidiaries
to engage, to any material extent, in any business other than the businesses
of
the type conducted by the Borrower and its Subsidiaries on the date of this
Agreement and businesses reasonably related thereto.
(e) ERISA. Create,
assume or suffer to exist or permit any ERISA Affiliate to create, assume
or
suffer to exist (i) any Insufficiency of any Plan (or, in the case of a Plan
with respect to which an ERISA Event described in clauses (iii) through (vi)
of
the definition of ERISA Event shall have occurred and then exist, the liability
related thereto), in respect of which Plan an ERISA Event has occurred, or
(ii)
any Withdrawal Liability under any Multiemployer Plan, if the sum of (A)
any
such Insufficiency or Withdrawal Liability, as applicable, (B) the Insufficiency
of any and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or, in the case of a Plan with respect to which
an
ERISA Event described in clauses (iii) through (vi) of the definition of
ERISA
Event shall have occurred and then exist, the liability related thereto),
(C)
amounts then required to be paid to any and all other Multiemployer Plans
by the
Borrower or its ERISA Affiliates as Withdrawal Liability and (D) the aggregate
principal amount of all Indebtedness of the Borrower and all the Subsidiaries
secured by Liens permitted by clauses (iv), (vi), (vii), (viii) and (ix)
of
Section 5.02(a), shall exceed 10% of Consolidated Net Tangible
Assets.
ARTICLE
VI
EVENTS
OF
DEFAULT
SECTION
6.01. Events of
Default. If any of the following events (“Events of
Default”) shall occur and be continuing:
(a) The
Borrower shall fail to pay (i) any principal of any Advance when the same
becomes due and payable or (ii) any interest on any Advance or any fees or
other
amounts payable under this Agreement within five days of the same becoming
due
and payable; or
(b) Any
representation or warranty made by the Borrower herein or by the Borrower
(or
any of its officers) in connection with this Agreement shall prove to have
been
incorrect in any material respect when made; or
(c) The
Borrower shall fail to perform or observe (i) any term, covenant or agreement
contained in Section 5.01(b), (c) or (i)(iii) or Section 5.02, or (ii) any
term,
covenant or agreement contained in any Loan Document (other than as referred
to
in subsection (a) or clause (i) above) on its part to be performed or observed
if, in the case of this clause (ii), such failure shall remain unremedied
for 30
days after written notice thereof shall have been given to the Borrower by
the
Agent or any Lender; or
(d) The
Borrower or any Subsidiary shall fail to pay any installment of principal
of or
any premium or interest on any Indebtedness, which is outstanding in a principal
amount of at least $25,000,000 in the aggregate (but excluding Indebtedness
outstanding hereunder) of the Borrower or such Subsidiary (as the case may
be),
when the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Indebtedness, or any other event shall occur
or
condition shall exist under any agreement or instrument relating to any such
Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity
of
such Indebtedness, or any Indebtedness of the Borrower or any Subsidiary
which
is outstanding in an aggregate principal amount of at least $25,000,000 shall,
for any reason, be accelerated (it being understood that a mandatory prepayment
on the sale of any asset shall be deemed not to be an acceleration of the
Indebtedness secured by such asset); or
(e) Either
the Borrower or any Significant Subsidiary or any two or more Subsidiaries
which
(when taken together) would have aggregate total assets constituting those
of a
Significant Subsidiary shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally,
or
shall make a general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any such Subsidiary seeking
to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief
or the appointment of a receiver, trustee, or other similar official for
it or
for any substantial part of its property, and, in the case of any such
proceeding instituted against the Borrower or such Subsidiary (but not
instituted by it), either such proceeding shall not be dismissed or stayed
for
60 days or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against it or the appointment
of a
trustee, custodian or other similar official for it or any substantial part
of
its property) shall occur; or the Borrower or any such Subsidiary shall take
any
corporate action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any
judgment or order for the payment of money in excess of $25,000,000 shall
be
rendered against the Borrower or any Subsidiary and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment
or
order and, within 60 days of the commencement of such proceedings, such judgment
shall not have been satisfied or (subject to clause (ii) below) shall have
been
stayed or (ii) there shall be any period of 60 consecutive days during which
a
stay of enforcement of such judgment or order, by reason of a pending appeal
or
otherwise, shall not be in effect; or
(g) The
Borrower or any of its ERISA Affiliates shall incur, or shall be reasonably
likely to incur liability in excess of $25,000,000 in the aggregate as a
result
of one or more of the following: (i) the occurrence of any ERISA
Event; (ii) the partial or complete withdrawal of the Borrower or any of
its ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization
or termination of a Multiemployer Plan;
then,
and
in any such event, the Agent (i) shall at the request, or may with the consent
of the Majority Lenders, by notice to the Borrower declare the obligation
of
each Lender to make Advances to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the consent
of
the Majority Lenders, by notice to the Borrower, declare the Notes, all interest
thereon and all other amounts payable under this Agreement to be forthwith
due
and payable, whereupon the Notes, all such interest and all such amounts
shall
become and be forthwith due and payable, without presentment, demand, protest
or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an Event of Default resulting
from the actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender
to
make Advances shall automatically be terminated and (B) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which
are
hereby expressly waived by the Borrower.
ARTICLE
VII
THE
AGENT
SECTION
7.01. Authorization and
Action. Each Lender hereby appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take
any
action, but shall be required to act or to refrain from acting (and shall
be
fully protected in so acting or refraining from acting ) upon the instructions
of the Majority Lenders, and such instructions shall be binding upon all
Lenders
and all holders of Notes; provided, however, that the Agent shall
not be required to take any action that exposes the Agent to personal liability
or that is contrary to this Agreement or applicable law. The Agent
agrees to give to each Lender prompt notice of each notice given to it by
the
Borrower pursuant to the terms of this Agreement.
SECTION
7.02. Agent’s Reliance,
Etc. Neither the Agent nor any of its directors, officers,
agents or employees shall be liable for any action taken or omitted to be
taken
by it or them under or in connection with this Agreement, except for its
or
their own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, the Agent: (i) may treat the
payee of any Note as the holder thereof until the Agent receives and accepts
an
Assignment and Acceptance entered into by the Lender that is the payee of
such
Note as assignor, and an Eligible Assignee, as assignee, as provided in Section
8.02; (ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall
not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii)
makes
no warranty or representation to any Lender and shall not be responsible
to any
Lender for any statements, warranties or representations (whether written
or
oral) made in or in connection with this Agreement; (iv) shall not have any
duty
to ascertain or to inquire as to the performance, observance or satisfaction
of
any of the terms, covenants or conditions of this Agreement on the part of
the
Borrower or the existence at any time of any event which constitutes, or
with
the passage of time would constitute, an Event of Default or to inspect the
property (including the books and records) of the Borrower; (v) shall not
be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
in
under or in connection with, this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in
respect
of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier) believed by it to be genuine
and signed or sent by the proper party or parties.
SECTION
7.03. Citibank and
Affiliates. With respect to its Commitment, the Advances made
by it and the Notes issued to it, Citibank shall have the same rights and
powers
under this Agreement as any other Lender and may exercise the same as though
it
were not the Agent; and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated, include Citibank in its individual
capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with
or own
securities of the Borrower or any such Subsidiary, all as if Citibank were
not
the Agent and without any duty to account therefore to the
Lenders. The Agent shall have no duty to disclose information
obtained or received by it or any of its Affiliates relating to the Borrower
or
its Subsidiaries to the extent such information was obtained or received
in any
capacity other than as Agent.
SECTION
7.04. Lender Credit
Decision. Each Lender acknowledges that it has, independently
and without reliance upon the Agent or any other Lender and based on the
financial statements referred to in Section 4.01 and such other 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 Agent or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement.
SECTION
7.05. Indemnification. (a) Each
Lender severally agrees to indemnify the Agent (to the extent not reimbursed
by
the Borrower), from and against such Lender’s ratable share of any and all
liabilities, 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 the Agent in any way relating
to or
arising out of this Agreement or any action taken or omitted by the Agent
under
this Agreement (collectively, the “Indemnified Costs”), provided
that no Lender shall be liable for any portion of the Indemnified Costs
resulting from the Agent’s gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees
to reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including reasonable counsel fees) incurred by the
Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
(b) For
purposes of this
Section 7.05, the Lenders’ respective ratable shares of any amount shall be
determined, at any time, according to the sum of (i) the aggregate
principal amount of the Advances outstanding at such time and owing to the
respective Lenders and (ii) their respective Unused Commitments at such
time. The failure of any Lender Party to reimburse the Agent promptly
upon demand for its ratable share of any amount required to be paid by the
Lender Parties to such Agent as provided herein shall not relieve any other
Lender Party of its obligation hereunder to reimburse such Agent for its
ratable
share of such amount, but no Lender shall be responsible for the failure
of any
other Lender to reimburse the Agent for such other Lender’s ratable share of
such amount. Without prejudice to the survival of any other agreement
of any Lender hereunder, the agreement and obligations of each Lender contained
in this Section 7.05 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the
Notes.
SECTION
7.06. Successor
Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower and may be removed at any
time
with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint
a
successor Agent, subject, so long as no Event of Default has occurred and
is
continuing, to the Borrower’s approval. If no successor Agent shall
have been so appointed by the Majority Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent’s giving of notice of
resignation or the Majority Lenders’ removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent,
which
shall be a commercial bank organized under the laws of the United States
of
America or of any State thereof and having a combined capital and surplus
of at
least $500,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed
to
and become vested with all the rights, powers, discretion, privileges and
duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under this Agreement other than the obligations provided
in Section 9.11. After any retiring Agent’s resignation or removal
hereunder as Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent
under this Agreement.
SECTION
7.07. Other
Agents. Each Lender hereby acknowledges that neither the
documentation agent nor any other Lender designated as any other type of
agent
(other than administrative agent) on the signature pages hereof has any
liability hereunder other than in its capacity as a Lender.
ARTICLE
VIII
ASSIGNMENTS
AND PARTICIPATIONS
SECTION
8.01. Binding
Effect. This Agreement shall become effective when it shall
have been executed by the Borrower, the Agent and by each Bank and thereafter
shall be binding upon and inure to the benefit of the Borrower, the Agent
and
each Lender and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
SECTION
8.02. Assignments. (a) Each Lender
may, upon at least 10 Business Days’ notice to the Borrower and the Agent,
assign to one or more banks or other entities (other than an assignment which
would result in increased costs to the Borrower pursuant to Sections 2.07,
2.10
or 2.14 hereof) all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes held by it); provided,
however, that (i) if such bank or other entity is not already a
Lender or
an Affiliate of a Lender and prior to the expiring of the 10 Business Days’
notice referred to above, the Borrower (unless an Event of Default has occurred
and is continuing at such time) or the Agent notifies the assignor Lender
that
such assignee is, in its sole discretion, not acceptable to it, such assignor
Lender shall not make such assignment, (ii) the parties to each such assignment
shall execute and deliver to the Agent, for its acceptance and recording
in the
Register an Assignment and Acceptance, together with any Note or Notes subject
to such assignment and a processing and recordation fee of $3,500 payable
by the
parties to each such assignment, (iii) each such assignment shall be only
to an
Eligible Assignee, (iv) each such assignment shall be of a constant, and
not a
varying, percentage of all of the assigning Lender’s rights and obligations
under this Agreement
and
(v)
the amount of the Commitment of the assigning Lender being assigned pursuant
to
each such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than $5,000,000,
in
the case of an assignment to a Lender and $10,000,000, in the case of an
Assignment to an Eligible Assignee not already a Lender and, in each case,
shall
be an integral multiple of $5,000,000. Upon such execution, delivery,
acceptance and recording, 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 that rights and obligations hereunder have been assigned
to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (B) the Lender assignor thereunder shall, to
the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights (other than its
rights
under Sections 2.07, 2.10, 2.14, 9.04 and 9.06 to the extent any claim
thereunder relates to an event arising prior to such assignment) and be
released
from its obligations (other than those provided in Section 9.11) 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).
(b) By
executing and delivering an Assignment and Acceptance, the Lender assignor
thereunder and the assignee thereunder confirm to and agree with each other
and
the other parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, 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 or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of
the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy
of
this Agreement, together with copies of the financial statements referred
to in
Section 4.01(e) 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; (iv) such assignee will, independently and without
reliance upon the 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 taking action
under
this Agreement; (v) such assignee agrees that it will perform in accordance
with
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender; (vi) such assignee confirms that
it
is an Eligible Assignee; and (vii) such assignee appoints and authorizes
the
Agent to take such action as agent on its behalf and to exercise such powers
and
discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto.
(c) Upon
its receipt of an Assignment and Acceptance executed by an assigning Lender
and
an assignee representing that it is an Eligible Assignee, together with any
Note
or Notes subject to such assignment and the fee referred to in clause (a)(ii)
above, the Agent shall (subject to any consents to such assignment required
pursuant to the terms of this Agreement), if such Assignment and Acceptance
has
been completed and is in substantially the form of Exhibit C hereto,
(i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to
the Borrower.
(d) The
Agent shall maintain at its address referred to in Section 9.02 a copy of
each Assignment and Acceptance delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Advances owing to, each Lender from time
to time
(the “Register”). The entries in the Register shall be
conclusive and binding for all purposes, absent demonstrable error, provided,
that the failure of the Agent to make an entry, or any finding that an entry
is
incorrect, in the Register shall not limit or otherwise affect the obligations
of the Borrower under this Agreement and the Borrower, the Agent and the
Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable
time
and from time to time upon reasonable prior notice.
(e) Any
Lender may pledge all or a portion of its Advances to any Federal Reserve
Bank
as collateral security pursuant to Regulation A of the Board of Governors
of the
Federal Reserve System and any Operating Circular issued by such Federal
Revenue
Bank. No such assignment shall release the assigning Lender from its
obligations under the Agreement.
SECTION
8.03. Participations. Each Lender may sell
participations to one or more banks or other entities in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, and the Advances owing to
it and
the Note or Notes held by it); provided, however, that (a) such Lender’s
obligations under this Agreement (including, without limitation, its Commitment
to the Borrower hereunder) shall remain unchanged, (b) such Lender shall
remain
solely responsible to the other parties hereto for the performance of such
obligations, (c) such Lender shall remain the holder of any such Note for
all
purposes of this Agreement, (d) the Borrower and the other Lenders shall
continue to deal solely and directly with such Lender in connection with
such
Lender’s rights and obligations under this Agreement, (e) such participation is
not prohibited by applicable law and (f) no participant shall have any claim
against the Borrower or the Agent for any amounts due to it under its
participation agreement and no Lender shall have any additional claim under
Sections 2.07, 2.10 or 2.14 as a result of any participation. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Person acquiring such
participation, agree to any amendment, modification or waiver described in
clause (a), (b) or (c) of the proviso to Section 9.01 that directly affects
such
Person.
SECTION
8.04. Information. Any Lender may, in
connection with any assignment or participation or proposed assignment or
participation pursuant to this Article VIII, 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.
ARTICLE
IX
MISCELLANEOUS
SECTION
9.01. Amendments,
Etc. No amendment or waiver of any provision of this
Agreement or the Notes, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Majority Lenders, and then such waiver or consent shall be effective
only
in the specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent shall: (a)
increase the Commitment of any Lender or subject any Lender to any additional
obligations without the written consent of such Lender, (b) reduce the principal
of, or interest on, any Note, Advance, or any fee or other amount payable
hereunder without the written consent of each Lender affected thereby, (c)
postpone any date fixed for any payment of principal of, or interest on,
the
Notes, Advances, or any fees or other amounts payable hereunder without the
written consent of each Lender affected thereby, (d) change the percentage
of
the Commitments or of the aggregate unpaid principal amount of the Notes,
Advances, or the number of Lenders, which shall be required for the Lenders
or
any of them to take any action hereunder without the written consent of all
the
Lenders or (e) amend this Section 9.01 without the written consent of all
the
Lenders and providedfurther that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the Agent
under this Agreement or any Note.
SECTION
9.02. Notices,
Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopy
communication) and mailed, telecopied or delivered or (y) as and to the extent
set forth in Section 9.02(b) and in the proviso to this Section 9.02(a),
if to
the Borrower, at its address at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇
▇▇▇▇▇, telecopy no. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Treasury Department;
if to any Bank, at its Domestic Lending Office specified opposite its name
on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a
Lender;
and if to the Agent, at its address at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Bank Loan Syndications Department; or, as to the Borrower
or
the Agent, at such other address as shall be designated by such party in
a
written notice to the other parties and, as to each other party, at such
other
address as shall be designated by such party in a written notice to the Borrower
and the Agent, provided that materials required to be delivered pursuant
to Section 5.01(i)(i), (ii), (iv) and (v) may be delivered to the Agent as
specified in Section 9.02(b) or as otherwise specified to the Borrower by
the
Agent. All such notices and communications shall, when mailed or
telecopied, be effective only when received by the relevant
party. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of
any
Exhibit hereto to be executed and delivered hereunder shall be effective
as
delivery of a manually executed counterpart thereof.
(b) So
long as Citibank or any of its Affiliates is the Agent, materials required
to be
delivered pursuant to Section 5.01(i)(i), (ii), (iv) and (v) may be delivered
to
the Agent in an electronic medium in a format acceptable to the Agent and
the
Lenders by e-mail at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇. The Borrower
agrees that the Agent may make such materials, as well as any other written
information, documents, instruments and other material relating to the Borrower,
any of its Subsidiaries or any other materials or matters relating to this
Agreement, the Notes or any of the transactions contemplated hereby
(collectively, the “Communications”) available to the Lenders by posting
such notices on Intralinks or a substantially similar electronic system (the
“Platform”). The Borrower acknowledges that (i) the
distribution of material through an electronic medium is not necessarily
secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided “as is” and “as available” and (iii)
neither the Agent nor any of its Affiliates warrants the accuracy, adequacy
or
completeness of the Communications or the Platform and each expressly disclaims
liability for errors or omissions in the Communications or the
Platform. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for
a
particular purpose, non-infringement of third party rights or freedom from
viruses or other code defects, is made by the Agent or any of its Affiliates
in
connection with the Platform.
(c) Each
Lender agrees that notice to it (as provided in the next sentence) (a
“Notice”) specifying that any Communications have been posted to the
Platform shall constitute effective delivery of such information, documents
or
other materials to such Lender for purposes of this Agreement; provided
that if requested by any Lender the Agent shall deliver a copy of the
Communications to such Lender by email or telecopier. Each Lender
agrees (i) to notify the Agent in writing of such Lender’s e-mail address to
which a Notice may be sent by electronic transmission (including by electronic
communication) on or before the date such Lender becomes a party to this
Agreement (and from time to time thereafter to ensure that the Agent has
on
record an effective e-mail address for such Lender) and (ii) that any Notice
may
be sent to such e-mail address.
SECTION
9.03. No Waiver;
Remedies. No failure on the part of any Lender or the Agent
to exercise, and no delay in exercising, any right hereunder or under any
Note
shall operate as a waiver thereof; nor shall any single or partial exercise
of
any such right preclude any other or further exercise thereof or the exercise
of
any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION
9.04. Costs, Expenses and
Taxes. (a) The Borrower agrees to pay on demand
all reasonable out-of-pocket costs and expenses of the Agent in connection
with
the preparation, execution, delivery, administration, modification and amendment
of this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses
of
outside counsel for the Agent with respect thereto and with respect to advising
the Agent as to its rights and responsibilities under this Agreement, and
all
out-of-pocket costs and expenses of the Agent and the Lenders, if any
(including, without limitation, reasonable fees and expenses of outside counsel
for each Lender), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes
and
the other documents to be delivered hereunder including, without limitation,
reasonable fees and expenses of outside counsel for the Agent and each Lender
in
connection with the enforcement of rights under this Section
9.04(a).
(b) If
any payment of principal of any Eurodollar Rate Advance is made by the Borrower
to or for the account of a Lender other than on the last day of the Interest
Period for such Advance, as a result of a payment pursuant to Section 2.09(b),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any
other reason, the Borrower shall, upon demand by such Lender (with a copy
of
such demand to the Agent), pay to the Agent for the account of such Lender
any
amounts required to compensate such Lender for any additional losses, costs
or
expenses which it may reasonably incur as a result of such payment, including,
without limitation, any loss (excluding loss of anticipated profits), cost
or
expense incurred by reason of the liquidation or reemployment of deposits
or
other funds acquired by any Lender to fund or maintain such
Advance. Each Lender demanding payment of such amount shall provide,
at the time of making such demand, the Borrower and the Agent with reasonable
details, including the basis for the calculation thereof, of such increase,
provided that, in the absence of manifest error, the amount so notified
shall be conclusive and binding upon the Borrower.
SECTION
9.05. Right of
Set-off. Upon (i) the occurrence and during the continuance
of any Event of Default and (ii) the making of the request or the granting
of
the consent specified by Section 6.01 to authorize the Agent to declare the
Notes due and payable pursuant to the provisions of Section 6.01, each Lender
is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness
at
any time owing by such Lender to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the other Loan Documents, whether or not
such
Lender shall have made any demand under this Agreement or the Note held by
such
Lender and although such obligations may be unmatured. Each Lender
agrees promptly to notify the Borrower after any such set-off and application,
provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender may
have.
SECTION
9.06. Indemnification
by Borrower. The Borrower agrees to indemnify and hold
harmless the Agent and each Lender (and each of their respective officers,
agents, employees and directors) (each, an “Indemnified Party”) from and
against any and all claims, damages, liabilities, obligations, losses,
penalties, actions, judgments, suits, costs, expenses and disbursements
(including, without limitation, reasonable fees and disbursements of outside
counsel) of any kind or nature whatsoever (“Claims”) which may be imposed
on, incurred by or asserted against such Lender or any of its officers, agents,
employees or directors (but excluding Claims of any Person resulting from
such
Person’s gross negligence or willful misconduct) in connection with or arising
out of any investigation, litigation or proceeding (including, without
limitation, any threatened investigation, litigation or proceeding or
preparation of a defense in connection therewith) related to the Notes, this
Agreement, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances, except to the extent such claim, damage,
loss, liability or expense resulted from such Indemnified Party’s gross
negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 9.06
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors,
equityholders or creditors or an Indemnified Party or any other Person, whether
or not any Indemnified Party is otherwise a party thereto and whether or
not the
transactions contemplated hereby are consummated. The Borrower also
agrees not to assert any claim for special, indirect, consequential or punitive
damages against the Agent, any Lender, any of their Affiliates, or any of
their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, arising out of or otherwise relating to the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use
of the
proceeds of the Advances.
SECTION
9.07. Governing
Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION
9.08. Execution in
Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of
which when so executed shall be deemed to be an original and all of which
taken
together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier
shall
be effective as delivery of a manually executed counterpart of this
Agreement.
SECTION
9.09. Special
Prepayment Right. (a) In the event that a Change
of Control Date shall occur, the Borrower will, within 10 days after such
Change
of Control Date, give the Agent written notice thereof and describe in
reasonable detail the facts and circumstances giving rise thereto, and the
Borrower will prepay, if any Lender shall so request, all of the Advances
from
such Lender plus interest accrued to the date of prepayment and any other
fees
and amounts as may then be payable by Borrower under this
Agreement. Said request (the “Prepayment Notice”) shall be
made by a Lender in writing not later than 45 days after the Change of Control
Date and shall specify (i) the date (the “Special Prepayment Date”) upon
which the Borrower shall prepay the Advances, which date shall be not less
than
15 days nor more than 45 days from the date of the Prepayment Notice and
(ii)
the amount of the Advances to be prepaid. In the event of such
request, the Commitment of such Lender to make Advances shall forthwith
terminate.
(b) On
the Special Prepayment Date, the Borrower shall prepay all of the Advances
of
such Lender plus interest accrued thereon to the Special Prepayment Date
and
such other fees and amounts as may then be payable by Borrower under this
Agreement. Payment shall be made as provided in this
Agreement.
(c) For
the purposes of this Section 9.09:
(i) the
term “Change of Control Date” shall mean (A) the first day on which any
person, or group of related persons, has beneficial ownership of more than
33
1/3% of the outstanding voting stock of the Borrower or (B) the date immediately
following the first date on which the members of the Board of Directors of
the
Borrower (the “Board”) at the commencement of any period of 730
consecutive days (together with any other Directors whose appointment or
election by the Board or whose nomination for election by the stockholders
of
the Borrower was approved by a vote of at least a majority of the Directors
then
in office who either were Directors at the beginning of such period or whose
appointment or election or nomination for election was previously so approved)
shall cease to constitute a majority of the Board at the end of such period;
provided, however, that a Change of Control Date shall not be
deemed to have occurred under clause (A) hereof if (x) the Borrower shall
have
merged or disposed of a portion of its assets in compliance with the
requirements of subsection 5.02(c) hereof within 10 days after the acquisition
of such beneficial ownership shall have occurred and (y) no person or group
of
related persons shall have beneficial ownership of more than 33 1/3% of the
outstanding voting stock of the Borrower after such merger or
disposition.
(ii) the
term “voting stock” shall mean stock of any class or classes (however
designated) having ordinary voting power for the election of a majority of
the
directors of the Borrower other than stock having such power only by reason
of a
contingency.
SECTION
9.10. Jurisdiction,
Etc. (a) Each of the parties hereto 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 any of 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 any such New York State court or,
to
the extent permitted by law, in such federal court. The Borrower
hereby further irrevocably consents to the service of process in any action
or
proceeding in such courts by the mailing thereof by any parties hereto by
registered or certified mail, postage prepaid, to the Borrower at its address
specified pursuant to Section 9.02. 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 any party may otherwise have to bring any action or proceeding
relating to this Agreement or any of the other Loan Documents in the courts
of
any jurisdiction.
(b) Each
of the parties hereto irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that 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 any of the other Loan Documents in
any
New York State or federal court sitting in New York City. 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.
SECTION
9.11. Confidentiality. Each of the Agent and
the Lenders expressly agrees, for the benefit of the Borrower and its
Subsidiaries, to maintain the confidentiality of the Confidential Information,
except that Confidential Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to
whom
such disclosure is made will be informed of the confidential nature of such
Confidential Information and instructed to keep such Confidential Information
confidential), (b) to the extent requested by any regulatory authority, (c)
to
the extent required by applicable laws or regulations or by any subpoena
or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action
or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an express agreement for the benefit of the Borrower and its
Subsidiaries containing provisions substantially the same as those of this
Section, to any Eligible Assignee of or participant in, or any prospective
assignee of or participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Borrower or (h) to the extent such
Confidential Information (i) becomes publicly available other than as a result
of a breach of this Section or (ii) becomes available to the Agent or any
Lender
on a nonconfidential basis from a source other than the Borrower or any of
its
Subsidiaries. For the purposes of this Section, “Confidential
Information” means
45
all
information, including material nonpublic information with the meaning of
Regulation FD promulgated by the SEC (“Regulation FD”), received from the
Borrower or its Subsidiaries relating to such entities or their respective
businesses, other than any such information that is available to the Agent
or
any Lender on a nonconfidential basis prior to disclosure by such entities;
provided, that such information is clearly identified at the time of delivery
as
confidential. Any Person required to maintain the confidentiality of
Confidential Information as provided in this Section shall be considered
to have
compiled with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such information as such
Person customarily accords to its own confidential information; provided,
however, that with respect to disclosures pursuant to clauses (b) and (c)
of
this Section, unless prohibited by law or applicable court order, each Lender
and the Agent shall attempt to notify the Borrower of any request by any
governmental agency or representative thereof or other Person for disclosure
of
Confidential Information after receipt of such request, and if reasonable,
practicable and permissible, before disclosure of such Confidential
Information. It is understood and agreed that the Borrower, its
Subsidiaries and their respective Affiliates may rely upon this Section for
any
purpose, including without limitation to comply with Regulation FD.
SECTION
9.12. Patriot
Act. Each Lender hereby notifies the Borrower that, pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies each borrower, guarantor or grantor (the
“Loan Parties”), which information includes the name and address of each Loan
Party and other information that will allow such Lender to identify such
Loan
Party in accordance with the Act.
SECTION
9.13. Waiver of Jury
Trial. Each of the Borrower, the Agent and the Lenders hereby
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of
or
relating to this Agreement or any of the other Loan Documents or the actions
of
the Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.
IN
WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
| Borrower | |||
| ▇▇▇▇ CORPORATION | |||
|
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: Vice President and Treasurer | |||
| Agent | |||
| CITIBANK, N.A., as Agent | |||
|
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: Vice President | |||
| Lenders | |||
| Commitment | |||
| $100,000,000 | CITIBANK, N.A. | ||
|
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: Vice President | |||
| $100,000,000 Total of Commitments | |||
|
Page
|
||
|
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
|
||
|
1
|
||
|
12
|
||
|
12
|
||
|
ARTICLE
II
AMOUNTS
AND TERMS OF THE ADVANCES
|
||
|
13
|
||
|
13
|
||
|
15
|
||
|
15
|
||
|
17
|
||
|
17
|
||
|
17
|
||
|
18
|
||
|
18
|
||
|
18
|
||
|
19
|
||
|
20
|
||
|
21
|
||
|
21
|
||
|
23
|
||
|
ARTICLE
III
CONDITIONS
OF LENDING
|
||
|
24
|
||
|
24
|
||
|
25
|
||
|
25
|
||
|
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
|
||
|
25
|
||
|
ARTICLE
V
COVENANTS
OF THE BORROWER
|
||
|
27
|
||
|
30
|
||
|
ARTICLE
VI
EVENTS
OF DEFAULT
|
||
|
33
|
|
ARTICLE
VII
THE
AGENT
|
||
|
35
|
||
|
35
|
||
|
35
|
||
|
36
|
||
|
36
|
||
|
37
|
||
|
37
|
||
|
ARTICLE
VIII
ASSIGNMENTS
AND PARTICIPATIONS
|
||
|
37
|
||
|
37
|
||
|
39
|
||
|
39
|
||
|
ARTICLE
IX
MISCELLANEOUS
|
||
|
40
|
||
|
40
|
||
|
41
|
||
|
41
|
||
|
42
|
||
|
42
|
||
|
43
|
||
|
43
|
||
|
43
|
||
|
44
|
||
|
44
|
||
|
44
|
||
|
45
|
||
ii
|
Schedule
I
|
–
|
List
of Applicable Lending Offices
|
|
Exhibit
A
|
–
|
Promissory
Note
|
|
|
Exhibit
B
|
–
|
Notice
of Borrowing
|
|
|
Exhibit
C
|
–
|
Assignment
and Acceptance
|
|
|
Exhibit
D
|
–
|
Opinion
of Counsel to the Borrower
|
|
|
Exhibit
E
|
–
|
Assumption
Agreement
|
iii