Exhibit (b)(3)
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364-DAY BRIDGE COMPETITIVE ADVANCE
AND REVOLVING CREDIT FACILITY AGREEMENT
dated as of
August 8, 2001
among
▇▇▇▇ ▇▇▇ CORPORATION
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
---------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Lead Arranger and Bookrunner
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[6701-211]
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms............................................. 1
SECTION 1.02. Classification of Loans and Borrowings.................... 9
SECTION 1.03. Terms Generally .......................................... 9
SECTION 1.04. Accounting Terms; GAAP.................................... 9
ARTICLE II
The Credits
SECTION 2.01. Commitments............................................... 10
SECTION 2.02. Loans and Borrowings...................................... 10
SECTION 2.03. Requests for Revolving Borrowings......................... 10
SECTION 2.04. Competitive Bid Procedure................................. 11
SECTION 2.05. Funding of Borrowings..................................... 13
SECTION 2.06. Interest Elections........................................ 14
SECTION 2.07. Termination and Reduction of Commitments.................. 15
SECTION 2.08. Repayment of Loans; Evidence of Debt...................... 15
SECTION 2.09. Prepayment of Loans....................................... 16
SECTION 2.10. Fees...................................................... 17
SECTION 2.11. Interest.................................................. 17
SECTION 2.12. Payments Generally; Pro Rata Treatment; Sharing of Set-
offs.................................................... 18
SECTION 2.13. Increased Costs........................................... 19
SECTION 2.14. Basis for Determining Interest Rate for Eurodollar Loans
Is Inadequate or Unfair................................. 21
SECTION 2.15. Changes in Law Rendering Certain Loans Unlawful........... 21
SECTION 2.16. Substitution of Lenders................................... 21
SECTION 2.17. Funding Indemnification................................... 22
SECTION 2.18. Regulation D Compensation................................. 22
SECTION 2.19. Taxes..................................................... 22
ARTICLE III
Warranties
SECTION 3.01. Organization, etc......................................... 25
SECTION 3.02. Authorization; No Conflict................................ 25
SECTION 3.03. Validity and Binding Nature............................... 25
SECTION 3.04. Financial Statements...................................... 25
SECTION 3.05. Litigation and Contingent Liabilities..................... 25
SECTION 3.06. Liens..................................................... 26
SECTION 3.07. Subsidiaries.............................................. 26
SECTION 3.08. ERISA..................................................... 26
SECTION 3.09. Investment Company Act.................................... 26
SECTION 3.10. Public Utility Holding Company Act........................ 26
SECTION 3.11. Regulation U.............................................. 26
SECTION 3.12. Copyrights, Patents and Trademarks........................ 26
SECTION 3.13 Pari Passu................................................ 27
SECTION 3.14. Disclosure................................................ 27
ARTICLE IV
Conditions of Lending
SECTION 4.01. Effective Date............................................ 27
SECTION 4.02. All Loans................................................. 29
SECTION 4.03. Documents................................................. 29
ARTICLE V
Covenants
SECTION 5.01. Reports, Certificates and Other Information............... 30
SECTION 5.02. Books, Records and Inspections............................ 31
SECTION 5.03. Insurance................................................. 31
SECTION 5.04 Taxes and Liabilities..................................... 31
SECTION 5.05. Liens..................................................... 31
SECTION 5.06. Guarantees................................................ 32
SECTION 5.07. Mergers, Consolidations, Sales............................ 32
SECTION 5.08. Employee Benefit Plans.................................... 33
SECTION 5.09. Use of Proceeds........................................... 33
SECTION 5.10. Other Agreements.......................................... 33
SECTION 5.11. Interest Coverage Ratio................................... 33
ARTICLE VI
Events of Default and Their Effect
SECTION 6.01 Events of Default......................................... 33
SECTION 6.02 Effect of Event of Default................................ 35
ARTICLE VII
The Agent................................................. 35
ARTICLE VIII
Miscellaneous
SECTION 8.01. Notices................................................. 37
SECTION 8.02. Waivers; Amendments..................................... 37
SECTION 8.03. Expenses; Indemnity; Damage Waiver...................... 38
SECTION 8.04. Successors and Assigns.................................. 39
SECTION 8.05. Survival................................................ 42
SECTION 8.06. Counterparts; Integration;
Effectiveness......................................... 42
SECTION 8.07. Severability............................................ 42
SECTION 8.08. Right of Setoff......................................... 43
SECTION 8.09. Governing Law; Jurisdiction; Consent
to Service of Process................................. 43
SECTION 8.10. WAIVER OF JURY TRIAL.................................... 43
SECTION 8.11. Headings................................................ 43
SECTION 8.12. Interest Rate Limitation................................ 43
SECTION 8.13. Confirmations........................................... 44
SECTION 8.14. Action of Required Lenders.............................. 44
SCHEDULES
SCHEDULE 2.01. Commitments
SCHEDULE 3.05. Litigation
SCHEDULE 3.06. Liens
SCHEDULE 3.07. Subsidiaries
EXHIBITS
EXHIBIT A Form of Assignment and Acceptance
EXHIBIT B-1 Form of Opinion of [ ], internal counsel for the
Borrower
EXHIBIT B-2 Form of Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
(Illinois), counsel for the Borrower
EXHIBIT C Form of Interest Election Request
EXHIBIT D Form of Note
364-DAY BRIDGE COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT dated as of
August 8, 2001, among ▇▇▇▇ ▇▇▇ CORPORATION, a
Maryland corporation (the "Borrower"); the
LENDERS from time to time party hereto; and THE
CHASE MANHATTAN BANK, as administrative agent.
The Borrower has requested the Lenders (such term, and
each other capitalized term used and not otherwise defined herein having
the meaning assigned to it in Article I) to extend credit to enable it to
borrow on a revolving credit basis on and after the date hereof and at any
time and from time to time prior to the Maturity Date a principal amount
not in excess of $1,500,000,000 at any time outstanding. The Borrower has
also requested the Lenders to establish procedures pursuant to which the
Borrower may invite the Lenders to bid on an uncommitted basis on
short-term borrowings by the Borrower maturing on or prior to the Maturity
Date. The proceeds of borrowings hereunder are to be used, together with
the proceeds of borrowings under the 364-Day Credit Agreement, to finance
the Acquisition, to refinance certain indebtedness of the Borrower and
Earthgrains, to pay related fees and expenses and for general corporate
purposes.
The Lenders are willing to extend such credit to the
Borrower on the terms and subject to the conditions herein set forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Alternate Base
Rate.
"Acquisition" means the acquisition by the Borrower of
all the outstanding common stock of Earthgrains pursuant to the Offer and
the Merger, for an aggregate purchase price of approximately $2,800,000,000
(which amount includes the assumption of certain indebtedness of
Earthgrains), pursuant to the Acquisition Agreement.
"Acquisition Agreement" means the Agreement and Plan of
Merger dated June 29, 2001, by and among the Borrower, the Purchaser and
Earthgrains, as amended, supplemented, restated or otherwise modified from
time to time.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Agent.
"Affiliate" means, with respect to a specified Person,
another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control
with the Person specified.
"Agent" means The Chase Manhattan Bank, in its capacity
as administrative agent for the Lenders hereunder, and any successor
administrative agent appointed pursuant to Article VII.
"Alternate Base Rate" means, for any day, a rate per
annum equal to the greater of (a) the Prime Rate in effect on such day and
(b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
Any change in the Alternate Base Rate due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be effective from and including the
effective date of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"Applicable Percentage" means, with respect to any
Lender, the percentage of the total Commitments represented by such
Lender's Commitment. If the Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Commitments most
recently in effect, giving effect to any assignments.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee (with the consent of
any party whose consent is required by Section 8.04), and accepted by the
Agent, in the form of Exhibit A or any other form approved by the Agent.
"Availability Period" means the period from and including
the Effective Date to but excluding the earlier of the Maturity Date and
the date of termination of the Commitments.
"Board" means the Board of Governors of the Federal
Reserve System of the United States of America.
"Borrowing" means (a) Revolving Loans of the same Type,
made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect or (b)
a Competitive Loan or group of Competitive Loans of the same Type made on
the same date and as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a
Revolving Borrowing in accordance with Section 2.03.
"364-Day Credit Agreement" means the 364-Day Competitive
Advance and Revolving Credit Facility Agreement dated as of the date hereof
among the Borrower, certain lenders and Chase, as administrative agent.
"Business Day" means any day that is not a Saturday,
Sunday or other day on which commercial banks in New York City are
authorized or required by law to remain closed; provided that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in dollar deposits
in the London interbank market.
"Chase" means The Chase Manhattan Bank, a New York banking
corporation.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans hereunder, expressed as
an amount representing the maximum permitted amount of such Lender's
Revolving Credit Exposure hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.07 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 8.04. The initial amount of each Lender's Commitment is set forth
on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Lenders' Commitments is $1,500,000,000.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any
Competitive Bid, the Margin or the Fixed Rate, as applicable, offered by
the Lender making such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower
for Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section
2.04.
"Continuing Director" means at any date a member of the
Borrower's board of directors who (a) was a member of such board 24 months
prior to such date or (b) was nominated or elected by at least two-thirds
of the directors who were Continuing Directors at the time of such
nomination or election.
"Control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies
of a Person, whether through the ability to exercise voting power, by
contract or otherwise. "Controlling" and "Controlled" have meanings
correlative thereto.
"dollars" or "$" refers to lawful money of the United
States of America.
"Earthgrains" means The Earthgrains Company, a Delaware
corporation.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with
Section 8.02).
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended.
"ERISA Controlled Group" means the Borrower, the
Subsidiaries and all other members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common
control which, together with the Borrower or any Subsidiary, as the case
may be, are treated as a single employer under Section 414(b) or Section
414(c) of the Code.
"ERISA Multiemployer Plan" means an ERISA Plan maintained
pursuant to a collective bargaining agreement or any other arrangement to
which the Borrower, any Subsidiary or any other member of the ERISA
Controlled Group is a party and to which more than one employer is
obligated to make contributions.
"ERISA Plan" means an employee pension benefit plan which
is covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code as to which the Borrower, any Subsidiary or
any other member of the ERISA Controlled Group may have any liability.
"ERISA Reportable Event" means a reportable event as
defined in Section 4043 of ERISA and the regulations issued under such
Section, with respect to an ERISA Plan, excluding, however, such events as
to which the PBGC has by regulation waived the requirement of Section
4043(a) of ERISA that it be notified within 30 days of the occurrence of
such event, provided that a failure to meet the minimum funding standard of
Section 412 of the Code and of Section 302 of ERISA shall be a reportable
event regardless of the issuance of any such waivers in accordance with
Section 412(d) of the Code.
"ERISA Single Employer Plan" means an ERISA Plan
maintained by the Borrower, any Subsidiary or any other member of the ERISA
Controlled Group for employees of the Borrower, any Subsidiary or any other
member of the ERISA Controlled Group, as the case may be.
"ERISA Termination Event" means: (a) the withdrawal of
the Borrower, any Subsidiary or any other member of the ERISA Controlled
Group from an ERISA Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA; or (b) the filing of a
notice of intent to terminate an ERISA Plan or the treatment of an ERISA
Plan amendment as a termination under Section 4041 of ERISA; or (c) the
institution of proceedings to terminate an ERISA Plan by the PBGC; or (d)
any other event or condition which might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any ERISA Plan.
"ERISA Unfunded Liabilities" means the sum of (a) in the
case of an ERISA Single Employer Plan, the amount (if any) by which the
present value of all vested nonforfeitable benefits under such Plan exceeds
the fair market value of all of such Plan's assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plan plus (b) in the case of any ERISA Multiemployer Plan, the withdrawal
liability of the Borrower, the Subsidiaries and any other member of the
ERISA Controlled Group, as the case may be, under such Plan.
"Eurodollar", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by reference to the
LIBO Rate.
"Eurodollar Office" means with respect to any Lender the
office or offices of such Lender or its affiliates or subsidiaries which
shall be making or maintaining the Eurodollar Loans of such Lender
hereunder. A Eurodollar Office of any Lender may be, at the option of such
Lender, either a domestic or foreign office.
"Eurodollar Reserve Percentage means, with respect to the
Interest Period for any Eurodollar Loan, the applicable percentage (rounded
upwards, if necessary, to the nearest 1/100 of 1%) in effect as of the
first day of such Interest Period (expressed as a decimal) relating to the
class of banks of which the relevant Lender is a member prescribed by the
Board (or any successor) for determining the maximum aggregate reserve
requirements (including all basic, supplemental, marginal and other
reserves) applicable to "Eurocurrency liabilities" pursuant to Regulation D
or any other then applicable regulation of the Board which prescribes
reserve requirements applicable to "Eurocurrency liabilities" as presently
defined in Regulation D.
"Event of Default" means the occurrence of any one or
more of the events described in Section 6.01 which is not remedied in the
period, if any, and after any notice, if required, in each case as provided
therein.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%)
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day,
the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by it.
"Fiscal Quarter" means a 13 week or 14 week, as the case
may be, fiscal reporting period of the Borrower ending on the Saturday
occurring on the last day of each March, June, September and December of
each year or if the last day of any such month is not a Saturday, the
Saturday occurring closest to each such relevant date of such year, as the
case may be.
"Fiscal Year" means a 52 or 53 week, as the case may be,
fiscal reporting period of the Borrower ending on the Saturday closest in
time to July 1 of the relevant year.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Eurodollar Competitive Loan), the fixed rate of interest per
annum specified by the Lender making such Competitive Loan in its related
Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing
interest at a Fixed Rate.
"GAAP" means generally accepted accounting principles in
the United States of America.
"Interest Election Request" means a request by the
Borrower to convert or continue a Revolving Borrowing in accordance with
Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR
Loan, the last day of each March, June, September and December, (b) with
respect to any Eurodollar Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period
that occurs at intervals of three months' duration after the first day of
such Interest Period and (c) with respect to any Fixed Rate Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan
is a part and, in the case of a Fixed Rate Borrowing with an Interest
Period of more than 90 days' duration (unless otherwise specified in the
applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days' duration after the
first day of such Interest Period, and any other dates that are specified
in the applicable Competitive Bid Request as Interest Payment Dates with
respect to such Borrowing.
"Interest Period" means (a) with respect to any
Eurodollar Borrowing, the period commencing on the date of such Borrowing
and ending on the numerically corresponding day in the calendar month that
is one, two, three or six months thereafter (or, in the case of a
Eurodollar Competitive Borrowing, such other period thereafter as the
Borrower may specify in the applicable Competitive Bid Request), as the
Borrower may elect, and (b) with respect to any Fixed Rate Borrowing, the
period (which shall not be less than 7 days or more than 360 days)
commencing on the date of such Borrowing and ending on the date specified
in the applicable Competitive Bid Request; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the
case of a Eurodollar Borrowing only, such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (ii) any Interest Period
pertaining to a Eurodollar Borrowing that commences on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall
end on the last Business Day of the last calendar month of such Interest
Period. For purposes hereof, the date of a Borrowing initially shall be the
date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 and
any other Person that shall have become a party hereto pursuant to an
Assignment and Acceptance, other than any such Person that shall have
ceased to be a party hereto pursuant to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, the rate appearing on Page 3750 of the
Telerate Service (or on any successor or substitute page of such Service,
or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such
Service, as determined by the Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the
rate for dollar deposits with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for any
reason, then the "LIBO Rate" with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Agent in immediately
available funds in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period.
"Lien" means, with respect to any asset, any mortgage,
pledge, title retention lien or other lien, encumbrance or security
interest of any kind in respect of such asset.
"Loans" means the loans made by the Lenders to the
Borrower pursuant to this Agreement.
"Margin" means, with respect to any Competitive Loan
bearing interest at a rate based on the LIBO Rate, the marginal rate of
interest, if any, to be added to or subtracted from the LIBO Rate to
determine the rate of interest applicable to such Loan, as specified by the
Lender making such Loan in its related Competitive Bid.
"Maturity Date" means August 7, 2002.
"Merger" has the meaning set forth in Section 1.4 of the
Acquisition Agreement.
"Net Proceeds" means, with respect to any sale of debt or
equity securities, (a) the aggregate amount of cash proceeds received by
the Borrower or any of its Subsidiaries from such sale minus (b) all fees
and expenses, including customary brokerage commissions, legal and
investment banking fees and other similar commissions, charges or fees
incurred in connection with such sale.
"Note" means any of the promissory notes prepared,
exectued and delivered pursuant to Section 2.08(e).
"Offer" means a cash tender offer by the Purchaser,
pursuant to the Acquisition Agreement, to acquire all shares of the issued
and outstanding common stock, par value $0.01 per share, of Earthgrains,
together with the associated rights to purchase shares of Series A Junior
Participating Preferred Stock, par value $0.01 per share, issued pursuant
to the Rights Agreement (as defined in the Acquisition Agreement) for
$40.25 per share, net to the seller in cash.
"Other Taxes" has the meaning set forth in Section 2.19.
"PBGC" means the Pension Benefit Guaranty Corporation and
its successors and assigns.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
governmental authority or other entity.
"Prime Rate" means the rate of interest per annum
publicly announced from time to time by Chase as its prime rate in effect
at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly
announced as being effective.
"Principal Property" means any single manufacturing or
processing plant or warehouse located within the United States, excluding
its territories and possessions, owned or leased by the Borrower or any
Restricted Subsidiary, the gross book value (without deduction of
depreciation reserves) of which exceeds 1% of Tangible Assets, except any
such plant or warehouse or portion thereof which the Board of Directors of
the Borrower by resolution declares is not of material importance to the
total business conducted by the Borrower and the Restricted Subsidiaries
taken as a whole.
"Purchaser" means SLC Acquisition Corp., a Delaware
corporation and wholly-owned subsidiary of the Borrower.
"Register" has the meaning set forth in Section 8.04.
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing more than
50% of the sum of the total Revolving Credit Exposures and unused
Commitments at such time; provided that, for purposes of declaring the
Loans to be due and payable pursuant to Article VI, and for all purposes
after the Loans become due and payable pursuant to Article VI or the
Commitments expire or terminate, the outstanding Competitive Loans of the
Lenders shall be included in their respective Revolving Credit Exposures in
determining the Required Lenders.
"Restricted Subsidiary" means any Subsidiary (a)
substantially all the property of which is located, or substantially all
the business of which is carried on, within the United States, excluding
its territories and possessions, or (b) which owns or leases a Principal
Property; provided, however, that this shall not include any Subsidiary (x)
engaged primarily in financing receivables, making loans, extending credit
or other activities of a character conducted by a finance company, (y) the
principal business of which consists of owning, dealing in, leasing or
developing of real property or (z) the principal assets of which are stock
or indebtedness of corporations which are not Restricted Subsidiaries.
"Revolving Credit Exposure" means, with respect to any
Lender at any time, the sum of the outstanding principal amount of such
Lender's Revolving Loans at such time.
"Revolving Loan" means a Loan made pursuant to Sections
2.01 and 2.03.
"Subsidiary" means any Person of which the Borrower
and/or any of the Subsidiaries (as defined in this definition) owns or
controls, directly or indirectly, such number of outstanding equity
interests as have 50% or more of the ordinary voting power represented by
the equity interests in such Person.
"Tangible Assets" means the Borrower's Total Assets
excluding intangible assets as reflected on the Borrower's most recent
balance sheet delivered pursuant to Section 5.01 or referred to in Section
3.04 as of the date of determination.
"Tax" has the meaning set forth in Section 2.19.
"Total Assets" mean the total consolidated assets of the
Borrower and the Subsidiaries according to the relevant consolidated
balance sheet of the Borrower.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
comprising such Borrowing, is determined by reference to the LIBO Rate or
the Alternate Base Rate, in the case of a Revolving Loan or Borrowing, or,
in the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed
Rate.
"Unmatured Event of Default" means an event which, but
for the lapse of time or the giving of notice, or both, would constitute an
Event of Default.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by
Class (e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or
by Class and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also
may be classified and referred to by Class (e.g., a "Revolving Borrowing")
or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a
"Eurodollar Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires
otherwise (a) any definition of or reference to any agreement, instrument
or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any reference herein to
any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of
similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, this
Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time;
provided that, if the Borrower notifies the Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of
any change occurring after the date hereof in GAAP or in the application
thereof on the operation of such provision (or if the Agent notifies the
Borrower that the Required 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 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 herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and
conditions set forth herein, each Lender agrees to make Revolving Loans to
the Borrower from time to time during the Availability Period in an
aggregate principal amount that will not result in (a) such Lender's
Revolving Credit Exposure exceeding such Lender's Commitment or (b) the sum
of the total Revolving Credit Exposures plus the aggregate principal amount
of outstanding Competitive Loans exceeding the total Commitments. Within
the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving
Loan shall be made as part of a Borrowing consisting of Revolving Loans
made by the Lenders ratably in accordance with their respective
Commitments. Each Competitive Loan shall be made in accordance with the
procedures set forth in Section 2.04. The failure of any Lender to make any
Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments and Competitive Bids
of the Lenders are several and no Lender shall be responsible for any other
Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing
shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith, and (ii) each Competitive
Borrowing shall be comprised entirely of Eurodollar Loans or Fixed Rate
Loans as the Borrower may request in accordance herewith. Each Lender at
its option may make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to
repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Revolving Borrowing, and at the time that each ABR Revolving
Borrowing is made, such Borrowing shall be in an aggregate amount that is
an integral multiple of $1,000,000 and not less than $10,000,000; provided
that an ABR Revolving Borrowing may be in an aggregate amount that is equal
to the entire unused balance of the Commitments. Each Competitive Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000
and not less than $10,000,000. Borrowings of more than one Type and Class
may be outstanding at the same time; provided that there shall not at any
time be more than a total of five Eurodollar Revolving Borrowings
outstanding.
(d) Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request, or to elect to
convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To
request a Revolving Borrowing, the Borrower shall notify the Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before the date of
the proposed Borrowing or (b) in the case of an ABR Borrowing, not later
than 12:00 noon, New York City time, on the date of the proposed Borrowing.
Each such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Agent of a written
Borrowing Request in a form approved by the Agent and signed by the
Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or
a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest
Period is specified with respect to any requested Eurodollar Revolving
Borrowing, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. Promptly following receipt of a Borrowing
Request in accordance with this Section, the Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made
as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to
the terms and conditions set forth herein, from time to time during the
Availability Period the Borrower may request Competitive Bids and may (but
shall not have any obligation to) accept Competitive Bids and borrow
Competitive Loans; provided that the sum of the total Revolving Credit
Exposures plus the aggregate principal amount of outstanding Competitive
Loans at any time shall not exceed the total Commitments. To request
Competitive Bids, the Borrower shall notify the Agent of such request by
telephone, in the case of a Eurodollar Borrowing, not later than 11:00
a.m., New York City time, four Business Days before the date of the
proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, one Business Day before the date of
the proposed Borrowing; provided that the Borrower may submit up to (but
not more than) three Competitive Bid Requests on the same day, but a
Competitive Bid Request shall not be made within five Business Days after
the date of any previous Competitive Bid Request, unless any and all such
previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such
telephonic Competitive Bid Request shall be confirmed promptly by hand
delivery or telecopy to the Agent of a written Competitive Bid Request in a
form approved by the Agent and signed by the Borrower. Each such telephonic
and written Competitive Bid Request shall specify the following information
in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether such Borrowing is to be a Eurodollar
Borrowing or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such
Borrowing, which shall be a period contemplated by the definition
of the term "Interest Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
Promptly following receipt of a Competitive Bid Request in accordance with
this Section, the Agent shall notify the Lenders of the details thereof by
telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation
to) make one or more Competitive Bids to the Borrower in response to a
Competitive Bid Request. Each Competitive Bid by a Lender must be in a form
approved by the Agent and must be re ceived by the Agent by telecopy, in
the case of a Eurodollar Competitive Borrowing, not later than 9:30 a.m.,
New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later
than 9:30 a.m., New York City time, on the proposed date of such
Competitive Borrowing. Competitive Bids that do not conform substantially
to the form approved by the Agent may be rejected by the Agent, and the
Agent shall notify the applicable Lender as promptly as practicable. Each
Competitive Bid shall specify (i) the principal amount (which shall be a
minimum of $5,000,000 and an integral multiple of $1,000,000 and which may
equal the entire principal amount of the Competitive Borrowing requested by
the Borrower) of the Competitive Loan or Loans that the Lender is willing
to make, (ii) the Competitive Bid Rate or Rates at which the Lender is
prepared to make such Loan or Loans (expressed as a percentage rate per
annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day
thereof.
(c) The Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount specified in
each Competitive Bid and the identity of the Lender that shall have made
such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
Borrower may accept or reject any Competitive Bid. The Borrower shall
notify the Agent by telephone, confirmed by telecopy in a form approved by
the Agent, whether and to what extent it has decided to accept or reject
each Competitive Bid, in the case of a Eurodollar Competitive Borrowing,
not later than 10:30 a.m., New York City time, three Business Days before
the date of the proposed Competitive Borrowing, and in the case of a Fixed
Rate Borrowing, not later than 10:30 a.m., New York City time, on the
proposed date of the Competitive Borrowing; provided that (i) the failure
of the Borrower to give such notice shall be deemed to be a rejection of
each Competitive Bid, (ii) the Borrower shall not accept a Competitive Bid
made at a particular Competitive Bid Rate if the Borrower rejects a
Competitive Bid made at a lower Competitive Bid Rate, (iii) the aggregate
amount of the Competitive Bids accepted by the Borrower shall not exceed
the aggregate amount of the requested Competitive Borrowing specified in
the related Competitive Bid Request, (iv) to the extent necessary to comply
with clause (iii) above, the Borrower may accept Competitive Bids at the
same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro
rata in accordance with the amount of each such Competitive Bid, and (v)
except pursuant to clause (iv) above, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum
principal amount of $5,000,000 and an integral multiple of $1,000,000;
provided further that if a Competitive Loan must be in an amount less than
$5,000,000 because of the provisions of clause (iv) above, such Competitive
Loan may be for a minimum of $1,000,000 or any integral multiple thereof,
and in calculating the pro rata allocation of acceptances of portions of
multiple Competitive Bids at a particular Competitive Bid Rate pursuant to
clause (iv) the amounts shall be rounded to integral multiples of
$1,000,000 in a manner determined by the Borrower. A notice given by the
Borrower pursuant to this paragraph shall be irrevocable.
(e) The Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful
bidder will thereupon become bound, subject to the terms and conditions
hereof, to make the Competitive Loan in respect of which its Competitive
Bid has been accepted.
(f) If the Agent shall elect to submit a Competitive Bid
in its capacity as a Lender, it shall submit such Competitive Bid directly
to the Borrower at least one quarter of an hour earlier than the time by
which the other Lenders are required to submit their Competitive Bids to
the Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Funding of Borrowings. (a) Each Lender
shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00 noon, New
York City time (or, in the case of an ABR Borrowing Request made after 9:00
a.m., New York City time, on the date of a proposed Borrowing, three hours
after receipt by the Agent of the Borrowing Request), to the account of the
Agent most recently designated by it for such purpose by notice to the
Lenders. The Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account of
the Borrower maintained with the Agent in New York City and designated by
the Borrower in the applicable Borrowing Request or Competitive Bid
Request.
(b) Unless the Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Agent such Lender's share of such Borrowing, the
Agent may assume that such Lender has made such share available on such
date in accordance with paragraph (a) of this Section and may, in reliance
upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Agent, then the applicable Lender and
the Borrower severally agree to pay to the Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the
date of payment to the Agent, at (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the
Agent in accordance with banking industry rules on interbank compensation
or (ii) in the case of the Borrower, the interest rate applicable to ABR
Loans. If such Lender pays such amount to the Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Revolving
Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Revolving Borrowing,
shall have an initial Interest Period as specified in such Borrowing
Request. 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 Revolving 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 portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall
be considered a separate Borrowing. This Section shall not apply to
Competitive Borrowings, which may not be converted or continued.
(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 Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Revolving 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 in the form of Exhibit C hereto or any other form
approved by the Agent and 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) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar
Borrowing, the Interest Period to be applicable thereto after
giving effect to such election, which shall be a period
contemplated by the definition of the term "Interest Period."
If any such Interest Election Request requests a Eurodollar Borrowing but
does not specify an Interest Period, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Revolving 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 converted to an ABR Borrowing. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is
continuing and the Agent, at the request of the Required Lenders, so
notifies the Borrower, then, so long as an Event of Default is continuing
(i) no outstanding Revolving Borrowing may be converted to or continued as
a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Revolving
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments.
(a) Unless previously terminated, the Commitments shall terminate on the
Maturity Date.
(b) The Borrower may at any time terminate, or from time
to time reduce, the Commitments; provided that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of
$5,000,000 and not less than $10,000,000, (ii) any outstanding Loans that
would exceed the reduced Commitments must be prepaid together with any
payments required under Section 2.17 and (iii) no such termination or
reduction shall be made that would reduce the aggregate available
Commitments of all Lenders to an amount less than the aggregate Competitive
Loans then outstanding.
(c) The Commitments will be automatically reduced by an
amount equal to the Net Proceeds of any sale by the Borrower or any of its
Subsidiaries of any debt or equity securities in any public offering or
Rule 144A or other private placement transaction (other than (i) any sale
by the Borrower of commercial paper, (ii) any sale of equity securities to
employees, officers and directors of the Borrower and its Subsidiaries upon
the exercise of employee stock options or pursuant to any employee
compensation or incentive arrangement and (iii) any sale in a public
offering or private placement transaction outside the United States of debt
securities in respect of which neither the Borrower nor any Subsidiary
organized in the United States is an obligor).
(d) The Borrower shall notify the Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section,
and of any termination or reduction of the Commitments under paragraph (c)
of this Section, at least one Business Day prior to the effective date of
such termination or reduction, specifying such election or event resulting
in the reduction of the Commitments and the effective date thereof.
Promptly following receipt of any such notice, the Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower
pursuant to this Section in connection with a termination or reduction of
the Commitments under paragraph (b) of this Section shall be irrevocable;
provided that such a notice of termination of the Commitments delivered by
the Borrower 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 on or prior to the
specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments shall be permanent. Each
reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a)
The Borrower hereby unconditionally promises to pay (i) to the Agent for
the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Maturity Date and (ii) to the Agent for the account
of each Lender the then unpaid principal amount of each Competitive Loan on
the last day of the Interest Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
(c) The Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received
by the Agent hereunder for the account of the Lenders and each Lender's
share thereof.
(d) The entries made in the accounts maintained pursuant
to paragraph (b) or (c) of this Section shall be prima facie evidence of
the existence and amounts of the obligations recorded therein; provided
that the failure of any Lender or the Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order
of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in the form of Exhibit D hereto or any other form
approved by the Agent. Thereafter, the Loans evidenced by such promissory
note and interest thereon shall at all times (including after assignment
pursuant to Section 8.04) be represented by one or more promissory notes in
such form payable to the order of the payee named therein.
SECTION 2.09. Prepayment of Loans. (a) The Borrower shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part, subject to prior notice in accordance with paragraph (b)
of this Section and to Section 2.17; provided that the Borrower shall not
have the right to prepay any Competitive Loan without the prior consent of
the Lender thereof.
(b) Upon any reduction of the Commitments pursuant to
Section 2.07(c), the Borrower shall promptly prepay Revolving Borrowings in
an amount equal to the lesser of (i) the amount of such reduction and (ii)
the aggregate principal amount of the Revolving Borrowings outstanding.
(c) The Borrower shall notify the Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of prepayment or
(ii) in the case of prepayment of an ABR Revolving Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion
thereof to be prepaid; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.07, then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.07.
Promptly following receipt of any such notice relating to a Revolving
Borrowing, the Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount that
would be permitted in the case of an advance of a Revolving Borrowing of
the same Type as provided in Section 2.02. Each prepayment of a Revolving
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.11.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
Agent for the account of each Lender a facility fee, which shall accrue at
the rate of .06% per annum on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the
Effective Date to but excluding the date on which such Commitment
terminates; provided that, if such Lender continues to have any Revolving
Credit Exposure after its Commitment terminates, then such facility fee
shall continue to accrue on the daily amount of such Lender's Revolving
Credit Exposure from and including the date on which its Commitment
terminates to but excluding the date on which such Lender ceases to have
any Revolving Credit Exposure. Accrued facility fees shall be payable in
arrears on the last day of March, June, September and December of each
year, on each date on which the Commitments terminate or are reduced (in
such case payable only with respect to the portion so reduced) and on the
Maturity Date, commencing on the first such date to occur after the date
hereof; provided that any facility fees accruing after the Maturity Date
shall be payable on demand. All facility fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay to each Lender, through
the Agent, for each day on which the aggregate outstanding principal amount
of the Loans is greater than 50% of the aggregate Commitments (including
each day on which any Loan is outstanding after the termination of the
Commitments), a utilization fee of 0.10% per annum on the aggregate
principal amount of the outstanding Loans of such Lender on such day.
Accrued utilization fees will be payable on the last day of March, June,
September and December of each year, on each date on which the Commitments
terminate or are reduced (in such case payable only with respect to the
portion so reduced) and on the Maturity Date, commencing on the first such
date to occur after the date hereof.
(c) The Borrower agrees to pay to the Agent, for its own
account, fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Agent in the fee letter dated June 29,
2001 (the "Fee Letter").
(d) All fees payable hereunder shall be paid on the dates
due, in immediately available funds, to the Agent for distribution, in the
case of facility fees and utilization fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.
SECTION 2.11. Interest. (a) The Loans comprising each ABR
Revolving Borrowing shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall
bear interest at the LIBO Rate for the Interest Period in effect for such
Borrowing plus (i) in the case of a Eurodollar Revolving Loan, 0.19% per
annum, or (ii) in the case of a Eurodollar Competitive Loan, the Margin
obtained from bids selected by the Borrower in accordance with Section
2.04.
(c) Each Fixed Rate Competitive Loan shall bear interest
at the rate obtained from bids selected by the Borrower in accordance with
Section 2.04.
(d) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest at a
rate per annum equal to (i) in the case of overdue principal of any Loan,
2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other
amount, the rate applicable to ABR Loans as provided in paragraph (a) of
this Section.
(e) Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan and, in the case of
Revolving Loans, upon termination of the Commitments; provided that (i)
interest accrued pursuant to paragraph (d) of this Section shall be payable
on demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Revolving Loan prior to the end of the
Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and
(iii) in the event of any conversion of any Eurodollar Revolving Loan prior
to the end of the current Interest Period therefor, accrued interest on the
principal balance of the Loan so converted shall be payable on the
effective date of such conversion.
(f) All interest hereunder shall be computed on the basis
of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days, and in
each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base
Rate or LIBO Rate shall be determined by the Agent, and such determination
shall be conclusive absent manifest error.
SECTION 2.12. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs. (a) The Borrower shall make each payment required to
be made by it hereunder (whether of principal, interest or fees, or of
amounts payable under Section 2.13, 2.17, 2.18 or 2.19, or otherwise) prior
to 12:00 noon, New York City time, on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received
after such time on any date may, in the discretion of the Agent, be deemed
to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the Agent
at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except that payments
pursuant to Section 2.13, 2.17, 2.18, 2.19 and 8.03 shall be made directly
to the Persons entitled thereto. The Agent shall distribute any such
payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. All payments hereunder shall be made in
dollars.
(b) If any Lender shall, by exercising any right of
set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Revolving Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of
its Revolving Loans and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest
on their respective Revolving Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees,
to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with
respect to such participation as fully as if such Lender were a direct
creditor of the Borrower in the amount of such participation.
(c) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Agent for the
account of the Lenders hereunder that the Borrower will not make such
payment, the Agent may assume that the Borrower has made such payment on
such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Agent forthwith on demand the amount so distributed
to such Lender with interest thereon, for each day from and including the
date such amount is distributed to it to but excluding the date of payment
to the Agent, at the greater of the Federal Funds Effective Rate and a rate
determined by the Agent in accordance with banking industry rules on
interbank compensation.
(d) If any Lender shall fail to make any payment required
to be made by it hereunder, then the Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Agent for the account of such Lender to satisfy
such Lender's obligations until all such unsatisfied obligations are fully
paid.
SECTION 2.13. Increased Costs. (a) If after the date
hereof, any change in any applicable law, rule or regulation, or any change
in the interpretation or administration thereof by any governmental
authority, any central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or
any Eurodollar Office of such Lender) with any request or directive
(whether or not having the force of law) or any such authority, central
bank or comparable agency, shall subject any Lender (or any Eurodollar
Office of such Lender) to any tax, duty or other charge with respect to its
Eurodollar Loans or its obligation to make Eurodollar Loans, or shall
change the basis of taxation of payments to any Lender of the principal of
or interest on its Eurodollar Loans or any other amounts due under this
Agreement in respect of its Eurodollar Loans or its obligation to make
Eurodollar Loans (except for changes in the rate of tax on the overall net
income of such Lender or its Eurodollar Office imposed by the jurisdiction
in which such Lender's principal executive office or Eurodollar Office is
located); or shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Board, but
excluding any portion of any such reserve previously included in the
determination of interest rates of Eurodollar Loans), special deposit,
special assessment or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender (or any Eurodollar
Office of such Lender); or shall impose on any Lender (or any Eurodollar
Office of such Lender) any other condition affecting its Eurodollar Loans
or its obligation to make Eurodollar Loans; and the result of any of the
foregoing is to increase the cost to such Lender (or any Eurodollar Office
of such Lender) of making or maintaining any Eurodollar Loan, or to reduce
the amount of any sum received or receivable by such Lender (or any
Eurodollar Office of such Lender) under this Agreement with respect
thereto, then within 30 days after demand by such Lender (which demand
shall be accompanied by a written statement setting forth the basis of such
demand), with a copy to the Agent, the Borrower shall pay directly to such
Lender such additional amount as will compensate such Lender for such
increased cost or reduction; provided, however, that the Borrower shall not
be required to pay any additional amounts pursuant to this paragraph (a)
for any such increased cost or reduction incurred more than 90 days prior
to such Lender's demand for payment.
(b) If any Lender shall reasonably determine that the
capital adequacy guidelines or any change after the date of this Agreement
in the capital adequacy guidelines, or the introduction of, or any change
in any applicable law, rule or regulation, applicable to commercial banks
generally, regarding capital adequacy, or any change in the interpretation
or administration of any of the foregoing by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Eurodollar
Office or any holding company controlling such Lender) with any request or
directive issued, but not effective as of the date of this Agreement, or
hereafter applicable to commercial banks generally regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing
the rate of return on such Lender's or its Eurodollar Office's or its
holding company's capital as a consequence of its obligations hereunder to
a level below that which such Lender could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time, within 30 days after demand
by such Lender to the Borrower (with a copy to the Agent) of a written
request therefor, and within 90 days after the incurrence of such costs,
the Borrower shall pay to such Lender such additional amount or amounts as
will compensate such Lender for such reduction. A certificate as to any
additional amounts payable pursuant to this paragraph (b) shall be
submitted by such Lender to the Borrower. As used in this paragraph (b),
"capital adequacy guidelines" means (i) the risk-based capital guidelines
in effect in the United States on the date of this Agreement, including
transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking
Regulation and Supervisory Practices entitled "International Convergence of
Capital Measurements and Capital Standards," including transition rules,
and any amendments to such regulations adopted prior to the date of this
Agreement.
(c) Each Lender shall promptly notify the Borrower and
the Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation pursuant to this
Section, and will designate a different Eurodollar Office if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION 2.14. Basis for Determining Interest Rate for
Eurodollar Loans Is Inadequate or Unfair. If with respect to any Interest
Period for any Eurodollar Loan:
(a) the Agent determines (which determination shall be
binding and conclusive on all parties) that by reason of circumstances
affecting the interbank market arising after the date of this Agreement
adequate and reasonable means do not exist for ascertaining the applicable
LIBO Rate, or
(b) Lenders whose aggregate Applicable Percentages total
30% or more give notice to the Agent prior to the first day of such
Interest Period that the LIBO Rate as determined by the Agent will not
adequately and fairly reflect the cost to such Lenders of maintaining or
funding such Loans for such Interest Period,
then, (i) the Agent shall promptly notify the Borrower and the Lenders
thereof and (ii) so long as such circumstances shall continue, no Lender
shall be under any obligation to make any Eurodollar Loan so affected and
any such Loan shall be made as an ABR Loan (unless the Borrower shall have
previously rescinded in writing its request for such Eurodollar Loan). If
circumstances subsequently change so that the conditions specified in
paragraph (a) or (b) above no longer exist, the Agent (in the case of
paragraph (a)) or the specified Lenders (in the case of paragraph (b))
shall notify the Borrower of the reinstated availability of Eurodollar
Loans.
SECTION 2.15. Changes in Law Rendering Certain Loans
Unlawful. In the event that any change in (including the adoption of any
new) applicable laws or regulations, or in the interpretation thereof by
any judicial, governmental or other regulatory authority charged with the
interpretation, implementation or administration thereof, makes it unlawful
for any Lender to make, maintain or fund Eurodollar Loans, then (a) such
Lender shall promptly notify the Agent and the Agent shall promptly notify
each of the other parties hereto, (b) the obligation of Lenders to make the
Eurodollar Loans made unlawful for such Lender shall, upon the
effectiveness of such event, be suspended for the duration of such
unlawfulness and (c) if such Lender so requests, the Borrower shall on the
last day of the respective Interest Periods then in effect with respect
thereto or, if earlier, on the latest date as may be required by the
relevant law, regulation or interpretation, repay all then outstanding
Eurodollar Loans of each Lender made unlawful for such Lender or convert
such Eurodollar Loans to ABR Loans. If circumstances subsequently change so
that such affected Lender shall determine that it is no longer so affected,
such Lender will promptly notify the Borrower and the Agent, and upon
receipt of such notice, the obligations of all Lenders to make or continue
Eurodollar Loans shall be reinstated.
SECTION 2.16 Substitution of Lenders. If the obligation
of any Lender to make Eurodollar Loans has been suspended pursuant to
Section 2.15 for more than three consecutive months or any Lender has
demanded compensation under Section 2.13, the Borrower, provided no Event
of Default exists under paragraph (a) or (c) of Section 6.01, shall have
the right to substitute a bank or banks (which may be one or more of the
Lenders) reasonably satisfactory to the Agent to purchase such Lender's
Loans, subject to the indemnity provisions of Section 2.17, and to assume
the Commitment of such Lender. Upon such purchase and assumption of such
substituted bank or banks, the obligations of such Lender hereunder shall
be discharged and such Lender shall cease to be obligated to make further
Loans and such Lender's Commitment shall be reduced to zero.
SECTION 2.17. Funding Indemnification. If: (a) any
payment of a Eurodollar Loan or Fixed Rate Loan occurs on a date which is
not the last day of the applicable Interest Period, whether because of
acceleration, prepayment or otherwise, including, without limitation,
pursuant to any reduction of the Commitments; or (b) any prepayment of any
Eurodollar Loan or Fixed Rate Loan required to be made pursuant to this
Agreement, including, without limitation, pursuant to Section 2.15, is not
made on the date specified by the Borrower for any reason; or (c) any
Eurodollar Loan or Fixed Rate Loan is not made or converted on the date
specified by the Borrower for any reason, other than default by one or more
of the Lenders; the Borrower will indemnify each Lender, upon demand (which
demand shall be accompanied by a statement setting forth the basis for the
calculations of the amount being claimed) for all losses incurred by each
such Lender resulting therefrom, including, without limitation, any costs
in liquidating or employing deposits acquired to fund or maintain such
Eurodollar Loan or Fixed Rate Loan. For this purpose, all notices to the
Agent pursuant to this Agreement with respect to borrowings, repayments and
commitment reductions shall be deemed to be irrevocable.
SECTION 2.18. Regulation D Compensation. Each Lender may
require the Borrower to pay, contemporaneously with each payment of
interest on each Eurodollar Loan, additional interest on such Eurodollar
Loan at a rate per annum determined by such Lender up to but not greater
than the excess of (a) (i) the LIBO Rate applicable to such Eurodollar Loan
during the relevant Interest Period which is incurred by such Lender during
such Interest Period divided by (ii) one minus the Eurodollar Reserve
Percentage which is incurred by such Lender from time to time during such
Interest Period over (b) the LIBO Rate applicable to such Eurodollar Loan.
Any Lender wishing to require payment of such additional interest shall
notify the Borrower at least five Business Days prior to each date on which
interest is payable on such Eurodollar Loan of the amount then due it under
this Section.
SECTION 2.19. Taxes. (a) Any and all payments by the
Borrower hereunder shall be made free and clear of and without deduction
for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings or any liabilities with respect thereto including
those arising after the date hereof as a result of the adoption of or any
change, after the date hereof, in any law, treaty, rule, regulation,
guideline or determination of a governmental authority or any change in the
interpretation or application thereof by a governmental authority but
excluding, in the case of each Lender and the Agent, such taxes (including
net income taxes, franchise taxes and branch profit taxes) as are imposed
on or measured by such Lender's or Agent's, as the case may be, net income
by the United States of America or any governmental authority of the
jurisdiction under the laws of which such Lender or Agent, as the case may
be, is organized or maintains an office, branch, subsidiary or affiliate
(all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings, and liabilities which the Agent or a Lender determines to be
applicable to this Agreement, the Commitments, or the Loans 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 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) 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. If a withholding tax of the United
States of America or any other governmental authority shall be or become
applicable (y) after the date of this Agreement, to such payments by the
Borrower made to the office, branch, subsidiary or affiliate or any other
office that a Lender may claim as an office, branch, subsidiary or
affiliate, or (z) after such Lender's selection and designation of any
other office, branch, subsidiary or affiliate, to such payments made to
such other office, branch, subsidiary or affiliate, such Lender shall use
reasonable efforts to make, fund and maintain its Loans through another
office, branch, subsidiary or affiliate of such Lender in another
jurisdiction so as to reduce the Borrower's liability hereunder, if the
making, funding or maintenance of such Loans through such other office,
branch, subsidiary or affiliate of such Lender does not, in the reasonable
judgment of such Lender, otherwise adversely affect such Loans, or
obligations under the Commitments, or such Lender.
(b) In addition, the Borrower agrees to pay any present
or future stamp or documentary taxes or any other excise or other similar
taxes, charges, or similar levies which arise from any payment made
hereunder or from the execution, delivery or registration of, this
Agreement, the Commitments, or the Loans (hereinafter referred to as "Other
Taxes").
(c) The Borrower indemnifies each Lender and the Agent
for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any governmental authority
on amounts payable under this Section) 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 after the date such Lender or
the Agent (as the case may be) makes written demand therefor. A certificate
as to any additional amount payable to any Lender or the Agent under this
Section submitted to the Borrower and the Agent (if a Lender is so
submitting) by such Lender or the Agent shall show in reasonable detail the
amount payable and the calculations used to determine such amount and
shall, absent manifest error, be final, conclusive and binding upon all
parties hereto. With respect to such deduction or withholding for or on
account of any Taxes and to confirm that all such Taxes have been paid to
the appropriate governmental authorities, the Borrower shall promptly (and
in any event not later than 30 days after receipt) furnish to each Lender
and the Agent such certificates, receipts and other documents as may be
required (in the judgment of such Lender or the Agent) to establish any tax
credit to which such Lender or the Agent may be entitled. If any Taxes are
paid by a Lender and the Lender is reimbursed by the Borrower, but the
Lender subsequently receives a refund of such Taxes, it will promptly remit
such refund to the Borrower.
(d) Within 30 days after the date of any payment of Taxes
or Other Taxes by the Borrower, the Borrower shall furnish to the Agent the
original or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section shall survive the payment in full of
principal and interest hereunder and the termination of this Agreement.
(f) Without limiting the obligations of the Borrower
under this Section, each Lender that is not created or organized under the
laws of the United States of America or a political subdivision thereof
shall deliver to the Borrower and the Agent on or before the date hereof,
or, if later, the date on which such Lender becomes a Lender pursuant to
Section 8.04, two duly executed copies of IRS Form W-8BEN or W-8ECI,
certifying in either case that such Lender is capable of receiving payments
of interest hereunder without deduction or withholding of United States
federal income tax. Each such Lender further agrees to deliver to the
Borrower and the Agent from time to time a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender
substantially in a form satisfactory to the Borrower and the Agent, before
or promptly upon the occurrence of any event requiring a change in the most
recent certificate previously delivered by it to the Borrower and the Agent
pursuant to this Section.
(g) Any Lender requesting compensation under this Section
2.19 shall use its reasonable efforts to notify the Borrower and the Agent
in writing of any change in law, policy, rule, guideline or directive
giving rise to such demand for compensation not more than 60 days following
the date upon which the responsible account officer for such Lender knows
or should have known of such change. Such written demand shall be
rebuttably presumed correct for all purposes. If any Lender demands
compensation under this Section 2.19 more than 60 days following the date
upon which a responsible account officer for such Lender knows or should
have known that Taxes or Other Taxes have begun to accrue with respect to
which such Lender is entitled to compensation under this Section 2.19, then
any Taxes or Other Taxes attributable to the period prior to the 60 day
period prior to the date on which such Lender provided such notice and
demand for compensation shall be excluded from the indemnity obligations of
the Borrower under this Section 2.19.
(h) If any Lender or the Agent, as the case may be, is,
in its reasonable opinion, able to apply for or otherwise take advantage of
any tax credit, tax deduction or other reduction (which reduction is
permanent in nature) in tax or similar benefit or tax refund by reason of
any withholding or deduction made by the Borrower in respect of a payment
made by it hereunder which payment shall have been increased pursuant to
this Section 2.19, then such Lender or Agent, as the case may be, will use
reasonable efforts to obtain such credit, deduction, benefit or refund and
upon receipt thereof will pay to the Borrower such amount (if any) not
exceeding the increased amount paid by the Borrower to, or on behalf of,
such Lender or Agent, as the case may be, of such part of such credit,
deduction, benefit, or refund as it considers is allocable to such
withholding or deduction having regard to all its dealings giving rise to
similar credits, deductions, benefits, or refunds in relation to the same
tax period and to the cost of obtaining the same; provided that nothing
herein contained shall interfere with the right of any such Lender or
Agent, as the case may be, to arrange its tax affairs in whatever manner it
deems fit and in particular no such Lender or Agent, as the case may be,
shall be under any obligation to claim relief from its corporate profits or
similar tax liability in respect of any such deduction or withholding in
priority to any other reliefs, claims, credits, deductions or refunds
available to it. Nothing in this Section 2.19 shall require any Lender or
the Agent to make available its tax returns or any other information
relating to its taxes which it deems to be confidential.
(i) Each Lender hereby confirms to the Borrower that, to
the best of its knowledge, such Lender is not aware as of the date hereof
of any Tax or Other Tax (or condition that would give rise to any Tax or
Other Tax) which would form the basis of a claim by such Lender against the
Borrower under this Section 2.19.
ARTICLE III
Warranties
To induce the Lenders to enter into this Agreement and to
make Loans hereunder, the Borrower warrants to the Agent and the Lenders
that:
SECTION 3.01. Organization, etc. The Borrower is a
corporation duly existing in good standing under the laws of the State of
Maryland; each Subsidiary is duly existing and in good standing under the
laws of the jurisdiction of its organization except where the failure to be
in good standing would not have a material adverse impact on the Borrower
and its Subsidiaries taken as a whole; and each of the Borrower and each
Subsidiary is duly qualified and in good standing as a foreign corporation
authorized to do business in each jurisdiction where, because of the nature
of its activities or properties, such qualification is required, except
where the failure to so qualify would not have a material adverse impact on
the business of the Borrower and the Subsidiaries taken as a whole.
SECTION 3.02. Authorization; No Conflict. The execution
and delivery by the Borrower of this Agreement, the Borrowings hereunder,
and the performance by the Borrower of its obligations under this Agreement
are within the Borrower's corporate powers, have been duly authorized by
all necessary corporate action, have received all necessary governmental
approvals (if any shall be required), and do not and will not contravene or
conflict with any provision of law, regulation or court order or of the
articles of incorporation or by-laws of the Borrower or of any agreement
binding upon the Borrower.
SECTION 3.03. Validity and Binding Nature. This Agreement
and any promissory note delivered under Section 2.08(e) is the legal, valid
and binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, except as enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and by the
availability of the remedy of specific performance.
SECTION 3.04. Financial Statements. (a) The Borrower's
consolidated financial statements dated July 1, 2000, and March 31, 2001,
copies of which have been furnished to each Lender, have been prepared in
conformity with GAAP applied on a basis consistent with that of the
immediately preceding Fiscal Year or the corresponding period during the
immediately preceding Fiscal Year, as the case may be, and accurately
present the financial condition of the Borrower and the Subsidiaries at
such date and the results of their operations through the fiscal period
then ended; and (b) since July 1, 2000, there has been no material adverse
change in the financial condition or operations of the Borrower, on a
consolidated basis.
SECTION 3.05. Litigation and Contingent Liabilities. No
litigation (including, without limitation, derivative actions), arbitration
proceedings or governmental proceedings are pending or threatened against
the Borrower or any Subsidiary which, in the Borrower's good faith judgment
would, if adversely determined, materially and adversely affect the
validity or enforceability of this Agreement or any promissory note
delivered under Section 2.08(e) or the financial condition or continued
operations of the Borrower and the Subsidiaries on a consolidated basis,
except as set forth (including estimates of the dollar amounts involved) in
Schedule 3.05. Other than any liability incident to such litigation or
proceedings, neither the Borrower nor the Subsidiaries, on a consolidated
basis, have any material contingent liabilities not provided for or
disclosed in the financial statements referred to in Section 3.04.
SECTION 3.06. Liens. None of the assets of the Borrower
or any Restricted Subsidiary is subject to any Lien, except (a) for current
taxes not delinquent or taxes being contested in good faith and by
appropriate proceedings, (b) Liens arising in the ordinary course of
business for sums not due or sums being contested in good faith and by
appropriate proceedings, but not involving any deposits or advances or
borrowed money or the deferred purchase price of property or services, (c)
Liens on assets of any corporation which existed at the time of sale, lease
or other disposition of the assets of such corporation to the Borrower or a
Restricted Subsidiary or at the time such corporation became a Restricted
Subsidiary, which in the aggregate are not material to the Borrower and the
Subsidiaries on a consolidated basis, and (d) to the extent shown in the
financial statements dated July 1, 2000, or in Schedule 3.06.
SECTION 3.07. Subsidiaries. The Borrower has no active
Subsidiaries, except those set forth in Schedule 3.07 hereto.
SECTION 3.08. ERISA. As of July 1, 2000, ERISA Unfunded
Liabilities did not exceed $100,000,000. Each ERISA Single Employer Plan
complies in all material respects with all applicable requirements of law
and regulations. No ERISA Reportable Event or ERISA Termination Event has
occurred which would result in a liability to the Borrower or such
Subsidiary in excess of $100,000,000. Neither the Borrower nor any
Subsidiary has withdrawn, or initiated action to withdraw, from any ERISA
Plan which would result in a liability to the Borrower or such Subsidiary
in excess of $100,000,000. No action has been taken to terminate any ERISA
Plan which would result in a liability to the ERISA Controlled Group in
excess of $100,000,000.
SECTION 3.09. Investment Company Act. 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, as amended.
SECTION 3.10. Public Utility Holding Company Act. Neither
the Borrower nor any Subsidiary is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company"
or a "subsidiary company" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
SECTION 3.11. Regulation U. Neither the Borrower nor any
Subsidiary is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U of the Board).
Margin Stock (as defined in Regulation U of the Board) constitutes less
than 25% of those assets of the Borrower and its Subsidiaries which are
subject to any limitation on sale, pledge or other restriction hereunder.
SECTION 3.12. Copyrights, Patents and Trademarks. Each of
the Borrower and the Subsidiaries owns or is licensed or otherwise has the
right to use all of the patents, trademarks, trade names, copyrights,
franchises, licenses and rights, as the case may be, necessary for the
conduct of its business, except where the failure to have any such right
would not have a material adverse effect on the business, operations,
property or financial or other condition of the Borrower and the
Subsidiaries, taken as a whole, or would not materially adversely affect
the ability of the Borrower to perform its obligations under this
Agreement.
SECTION 3.13. Pari Passu. All the payment obligations of
the Borrower to the Agent and the Lenders arising under or pursuant to this
Agreement will at all times rank at least pari passu with other unsecured
and unsubordinated payment obligations and liabilities, including, without
limitation, contingent obligations and liabilities, of the Borrower, other
than those which are mandatorily preferred by laws or regulations of
general application.
SECTION 3.14. Disclosure. The information delivered by or
on behalf of the Borrower to the Agent or any Lender in connection with the
arrangement of the credit facility established hereby or delivered pursuant
hereto (including the information set forth in the Confidential Information
Memorandum), when taken as a whole, did not, at the time of delivery,
contain any material misstatement of fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not materially misleading.
ARTICLE IV
Conditions of Lending
The obligation of each Lender to make its Loans is
subject to the satisfaction of the following conditions precedent (which in
the case of the conditions specified in Section 4.01 must be satisfied on
or before December 31, 2001):
SECTION 4.01. Effective Date. (a) The Agent shall have
received all of the following, each duly executed, in form and substance
satisfactory to the Agent and with sufficient number of copies to provide
for each Lender. All documents referred to in this Section 4.01 which are
to be certified, shall be certified by the Secretary or an Assistant
Secretary of the Borrower, unless another person is specified herein.
(i) Executed Copies. Executed copies of this Agreement
(which may include telecopies of executed counterparts) from each
party hereto.
(ii) Resolutions. A certificate, signed by the Secretary
or Assistant Secretary of the Borrower, certifying copies of
resolutions of the Board of Directors of the Borrower authorizing
the execution and delivery of, and the performance by the Borrower
of its obligations under, this Agreement and the other documents
to be executed by the Borrower pursuant to this Agreement.
(iii) Consents, etc. A certificate, signed by the
Secretary or Assistant Secretary of the Borrower, certifying
copies of documents evidencing any necessary corporate action,
consents and governmental approvals (if any) necessary or required
with respect to this Agreement and the other documents provided
for in this Agreement or a certificate that no such governmental
consents or approvals are necessary or required.
(iv) Incumbency and Signatures. A certificate signed by
the Secretary or Assistant Secretary of the Borrower listing the
names of the officer or officers who have signed this Agreement
and the other documents provided for in this Agreement, together
with a sample of the true signature of each such officer. (The
Agent and each Lender may conclusively rely on each such
certificate until formally advised by a like certificate of any
changes therein.)
(v) Opinion of Counsel for the Borrower. The opinion of
internal counsel for the Borrower, addressed to the Agent and the
Lenders, in the form of Exhibit B-1; and the opinion of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois), counsel for the Borrower,
addressed to the Agent and the Lenders, in the form of Exhibit
B-2.
(vi) Articles and By-Laws. A certificate signed by the
Secretary or Assistant Secretary of the Borrower certifying copies
of the articles of incorporation and by-laws of the Borrower.
(vii) Financial Statements. The latest available audited
financial statements for each of the Borrower and Earthgrains (in
each case as filed with its most recent report on Form 10-K or
equivalent report) and such pro forma financial information as
shall have been reasonably requested by the Agent.
(viii) Other Documents. Such other documents as the Agent
or any Lender may reasonably request.
(b) The Offer shall have been completed in accordance
with applicable law and the terms of the Acquisition Agreement
(substantially in the form heretofore delivered to the Lenders), without
any modification or waiver of the terms thereof that could materially and
adversely affect the rights or interests of the Lenders, and the Borrower
shall have acquired a sufficient percentage of the outstanding common
shares of Earthgrains to permit the Borrower to acquire the remaining
shares through a subsequent merger.
(c) After giving effect to the completion of the Offer
and the other transactions contemplated in connection with the Acquisition,
the assets and liabilities of the Borrower and Earthgrains shall be
consistent in all material respects with the pro forma financial
information heretofore delivered to the Lenders. The credit facility
established under the Fourth Amended and Restated ▇▇▇▇ ▇▇▇ Corporation 364
Day Credit Agreement, dated as of October 13, 2000, among the Borrower, the
banks party thereto and Bank One, NA, as Agent, shall have been terminated
and all amounts outstanding thereunder repaid.
(d) All requisite governmental authorities and third
parties shall have approved or consented to the Acquisition to the extent
such approvals or consents are required under applicable laws or agreements
or otherwise, all applicable appeal periods shall have expired and there
shall be no governmental or judicial action, actual or threatened, that
could reasonably be expected to restrain, prevent or impose materially
burdensome conditions on the Acquisition or the other transactions
contemplated hereby.
(e) Any amendment, waiver or other modification required
in connection with the Acquisition, this Agreement or the transactions
contemplated hereby of any agreement governing indebtedness of the Borrower
or Earthgrains that will remain outstanding after the Acquisition shall
have become effective and shall be reasonably satisfactory in all material
respects to the Agent.
(f) The 364-Day Credit Agreement shall have been executed
and delivered and shall have become effective.
(g) The warranties in Article III shall be true and
correct in all material respects on and as of the Effective Date.
(h) No Event of Default or Unmatured Event of Default
shall have occurred and be continuing as of the Effective Date.
(i) All fees and, to the extent invoiced and subject to
the terms of the Fee Letter, all reasonable expenses payable by the
Borrower to the Agent and the Lenders in connection with the transactions
contemplated hereby shall have been paid.
SECTION 4.02. All Loans. The obligation of each Lender to
make any Loan is subject to the conditions precedent that (a) no Event of
Default has occurred and is continuing at the time of, and after giving
effect to, such Loan; (b) the warranties contained in Article III (other
than the warranties contained in Section 3.04(b) and 3.07) are true and
correct as of the date of, and after giving effect to, such Loan with the
same effect as though made on the date of such Loan (after, in the case of
Section 3.05 and 3.06, taking account of any schedule or report theretofore
delivered to the Lenders supplementing the information set forth in Section
3.05 and 3.06, or in the Exhibits and other documents referred to in
Section 3.05 or 3.06); and (c) with respect to any Loan which would
increase the aggregate outstanding principal balance of Loans, no Unmatured
Event of Default has occurred and is continuing at the time of, and after
giving effect to, such Loan, it being understood that each request for such
a Loan by the Borrower shall be deemed to constitute a warranty by the
Borrower that the conditions precedent set forth in this Section 4.02 are
and will be satisfied as of the date of such request and as of the date of,
and after giving effect to, such Loan.
SECTION 4.03. Documents. The Borrower shall have provided
such other documents as the Agent may reasonably request, including,
without limitation, (a) in the case of each Loan other than the initial
Loan, duly executed and updated copies or other confirmations of the
continuing effectiveness of any or all of the documents provided for in
Section 4.01 and 4.02 and (b) in the case of the initial Loan, a
certificate (in sufficient number of counterparts to provide one for each
Lender) dated the date of the initial Loan and signed by the President,
Executive Vice President, Vice Chairman, Chief Financial Officer, Treasurer
or Assistant Treasurer of the Borrower as to the matters set out in Section
4.02.
ARTICLE V
Borrower's Covenants
Until the expiration or termination of the Commitments
and thereafter until all obligations of the Borrower hereunder are paid in
full, the Borrower agrees that, unless at any time the Required Lenders
shall otherwise expressly consent in writing, the Borrower will:
SECTION 5.01. Reports, Certificates and Other
Information. Furnish to each Lender:
(a) Audit Report. Within 100 days after each Fiscal Year,
a copy of an unqualified audit report of the Borrower and the Subsidiaries
prepared on a consolidated basis and in conformity with GAAP applied on a
basis consistent with the audited consolidated financial statements of the
Borrower and the Subsidiaries as of July 1, 2000, duly certified by
independent certified public accountants of recognized standing selected by
the Borrower, together with a certificate from such accountants to the
effect that, in making the examination necessary for the signing of such
annual audit report by such accountants, they have not become aware of any
Event of Default or Unmatured Event of Default that has occurred and is
continuing, or if they have become aware of any such event, describing it
and the steps, if any being taken to cure it.
(b) Interim Reports. Within 75 days after each of the
first three Fiscal Quarters of each Fiscal Year, a copy of unaudited
financial statements of the Borrower and the Subsidiaries prepared in the
same manner as the audit report referred to in paragraph (a) above, signed
by the President, the Chief Financial Officer or the Treasurer of the
Borrower and consisting of at least a balance sheet as at the close of such
quarter and statements of earnings and source and application of funds for
such quarter and for the period from the beginning of such Fiscal Year to
the end of such Fiscal Quarter.
(c) Certificates. Contemporaneously with the furnishing
of a copy of each annual audit report provided for in paragraph (a) above
and of each set of quarterly statements provided for in paragraph (b)
above, a certificate dated the date of such annual report or quarterly
statements and signed by the President, the Chief Financial Officer or the
Treasurer of the Borrower, to the effect that no Event of Default or
Unmatured Event of Default has occurred and is continuing, or if there is
any such event, describing it and the steps, if any being taken to cure it.
(d) Reports to SEC and to Shareholders. Copies of each
material filing and report made by the Borrower or any Subsidiary with or
to any securities exchange or the Securities and Exchange Commission, and
of each communication from the Borrower or any Subsidiary to shareholders
generally, promptly upon the filing or making thereof.
(e) Notice of Default, Litigation and ERISA Matters.
Forthwith upon learning of the occurrence of any of the following, written
notice thereof, describing the same and the steps being taken by the
Borrower or the Subsidiary affected with respect thereto: (a) the
occurrence of an Event of Default; (b) the institution of, or any adverse
determination in, any litigation, arbitration proceeding or governmental
proceeding which is material to the Borrower and the Subsidiaries on a
consolidated basis; (c) the occurrence of any material ERISA Reportable
Event or material ERISA Termination Event; or (d) the institution of steps
by any member of the ERISA Controlled Group to withdraw from, or the
institution of any steps to terminate, a material ERISA Plan under which
any member of the ERISA Controlled Group may have any liability.
(f) Other Information. From time to time such other
information concerning the Borrower and the Subsidiaries as any Lender or
the Agent may reasonably request.
SECTION 5.02. Books, Records and Inspections. Maintain,
and cause each Subsidiary to maintain, complete and accurate books and
records. Access by any Lender or the Agent to the books and records of the
Borrower and of any Subsidiary and inspection of the properties and
operations of the Borrower and of any Subsidiary by any Lender or the Agent
may be made upon one Business Day's prior notice by such Lender or Agent to
the Borrower or such Subsidiary, as the case may be.
SECTION 5.03. Insurance. Maintain, and cause each
Subsidiary to maintain, such insurance as may be required by law and such
other insurance, to such extent and against such hazards and liabilities as
is customarily maintained by companies similarly situated.
SECTION 5.04. Taxes and Liabilities. Pay, and cause each
Subsidiary to pay, when due all taxes, assessments and other liabilities,
except as contested in good faith and by appropriate proceedings.
SECTION 5.05. Liens. Not, and not permit any Restricted
Subsidiary to, create or permit to exist any Lien upon any Principal
Property, except:
(a) Liens in favor of the Borrower or a Subsidiary;
(b) a Lien consisting of a purchase money mortgage not
exceeding 100% of the fair market value of the asset acquired as a
result of the purchase money mortgage by which such Lien was
created or assumed, provided such Lien attaches only to such
asset;
(c) Liens existing on acquired property;
(d) tax, materialmen's, mechanic's and judgment Liens,
Liens arising by operating of law and other similar liens;
(e) Liens in favor of any state or local government or
governmental agency in connection with tax-exempt financings;
(f) utility easements, building restrictions and such
other encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a similar
character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the
business of the Borrower or the Subsidiaries;
(g) Liens for current taxes not delinquent or for taxes
being contested in good faith and by appropriate proceedings;
(h) other Liens arising in the ordinary course of
business and not in connection with the borrowing of money or the
obtaining of advances or credit and which do not in the aggregate
materially detract from the value of its property or materially
impair the use thereof in the operation of its business;
(i) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits, or
similar legislation; or
(j) Liens not otherwise permitted by this Section 5.05
upon any Principal Property in an aggregate principal amount at
any one time outstanding not to exceed 10% of Tangible Assets.
Anything in this Section 5.05 to the contrary notwithstanding, neither the
Borrower nor any Restricted Subsidiary shall create any Lien on its assets
in favor of any Subsidiary which is not a Restricted Subsidiary if, after
giving effect to any such Lien, the aggregate of all such Liens for the
Borrower and such Restricted Subsidiaries shall exceed at any one time an
amount equal to 20% of Total Assets; and no Subsidiary which is not a
Restricted Subsidiary shall create any Lien on its assets in favor of any
person or entity (other than the Borrower or a Subsidiary) if, after giving
effect to any such Lien, the aggregate of all such Liens for all
Subsidiaries which are not Restricted Subsidiaries at such time shall
exceed at any one time an amount equal to 20% of Total Assets.
SECTION 5.06. Guarantees. Not, and not permit any
Subsidiary to, become or be a guarantor of any indebtedness for borrowed
money of any other person or entity, except for (a) the endorsement, in the
ordinary course of collection, of instruments payable to it or to its
order, (b) guarantees by the Borrower of the obligations of Subsidiaries or
partnerships whose financial statements are consolidated with those of the
Borrower, (c) guarantees by Subsidiaries of the obligations of the Borrower
or other Subsidiaries, (d) guarantees of the obligations of employee stock
ownership plans sponsored by the Borrower which, in the aggregate for all
such guarantees at any one time outstanding, do not exceed $400,000,000,
(e) guarantees issued in connection with industrial revenue bonds or
similar tax exempt or taxable municipal obligations issued for the benefit
of the Borrower or a Subsidiary, and (f) other guarantees (other than those
referred to in the foregoing clauses (a) through (e) and guarantees with
respect to indebtedness which is included on a consolidated balance sheet
of the Borrower), which, in the aggregate for all such guarantees at any
one time outstanding, do not exceed 10% of the Borrower's Tangible Assets.
SECTION 5.07. Mergers, Consolidations, Sales. Not, and
not permit any Subsidiary to, merge or consolidate with or into any Person
or lease, sell or otherwise dispose of all or substantially all of its
assets to any other Person, except that:
(a) any Subsidiary may merge or consolidate with or into,
or lease or sell or otherwise dispose of any or all of its
property, assets or business to, the Borrower or another
Subsidiary, provided that, at the time of, and after giving effect
to, any such merger, consolidation, lease, sale or other
disposition, Total Assets located in the United States are not
less than 150% of the sum of the total Commitments (or, after the
Commitments shall have terminated, the total Revolving Credit
Exposures) at such time;
(b) the Borrower or a Subsidiary may acquire another
corporation by merger, provided that the Borrower or a Subsidiary
is the survivor of such merger and the consummation thereof does
not create or result in an Event of Default; and
(c) the Borrower or any Subsidiary may lease, sell or
otherwise dispose of assets in each Fiscal Year if the cumulative
book value of such assets in any Fiscal Year is less than 20% of
the Borrower's Total Assets at the beginning of such Fiscal Year.
The book value of each asset leased, sold or disposed of is
calculated as of the date of the relevant lease, sale or
disposition.
SECTION 5.08. Employee Benefit Plans. Maintain, and cause
each Subsidiary to maintain, each ERISA Plan as to which it may have any
liability in compliance with all applicable requirements of law and
regulations.
SECTION 5.09. Use of Proceeds. Not use or permit any
proceeds of the Loans to be used in any manner which would violate or cause
any Lender to be in violation of Regulations T, U or X of the Board.
SECTION 5.10. Other Agreements. Not enter into any
agreement containing any provision which would be violated or breached by
the performance of its obligations hereunder or under any instrument or
document delivered or to be delivered by it hereunder or in connection
herewith.
SECTION 5.11. Interest Coverage Ratio. Maintain as at the
end of each Fiscal Quarter (calculated on a rolling four quarter basis), a
ratio of (a) consolidated pre-tax income (exclusive of non-cash
extraordinary gains and losses and non-cash restructuring charges, with
cash gains, losses, and/or restructuring charges included as and when they
occur) plus net interest due or paid on indebtedness for borrowed money to
(b) net interest due or paid on indebtedness for borrowed money, in each
case calculated for the Borrower and the Subsidiaries, on a consolidated
basis, of not less than 2.00 to 1.00.
ARTICLE VI
Events of Default and Their Effect
SECTION 6.01. Events of Default. Each of the following
shall constitute an Event of Default under this Agreement:
(a) Non-Payment of Loans, etc. A default in the payment
when due of any principal of any Loan and continuance for five
Business Days; or default in the payment when due of any interest
on any Loan, fee or other amount payable hereunder and continuance
thereof for five Business Days.
(b) Cross-Default. A default in the payment when due,
after giving effect to any applicable grace period and whether by
acceleration or otherwise, of any other indebtedness for borrowed
money (except the failure to make payment when due if such failure
results solely from nonpayment by reason of mistake, oversight or
transfer difficulties and does not continue beyond five Business
Days after receipt of written notice from the holders of such
indebtedness) of the Borrower or any Restricted Subsidiary (except
any such indebtedness of the Borrower or any Subsidiary to the
Borrower or a Subsidiary) or default in the performance or
observance of any other obligation or condition with respect to
any such other indebtedness, if the effect of such default is to
accelerate the maturity of any such indebtedness prior to its
expressed maturity, provided, however, that the aggregate amount
of indebtedness affected as aforesaid at any one time shall equal
at least 3% of Tangible Assets.
(c) Bankruptcy, Insolvency, etc. The Borrower or any
Restricted Subsidiary becomes insolvent or is generally unable to
pay, or admits in writing its inability or refusal to pay, debts
as they become due; or the Borrower or any Restricted Subsidiary
applies for, or consents in writing to, the appointment of, a
trustee, receiver or other custodian for the Borrower or any
Restricted Subsidiary or any property thereof, or makes a general
assignment for the benefit of creditors; or a trustee, receiver or
other custodian is appointed for the Borrower or any Restricted
Subsidiary or for a substantial part of the property of any
thereof and is not discharged within 30 days; or any bankruptcy,
reorganization, debt arrangement, or other case or proceeding
under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding is commenced in respect of the Borrower or
any Restricted Subsidiary and if such case or proceeding is not
commenced by the Borrower or such Restricted Subsidiary, it is
consented to or acquiesced in by the Borrower or any Restricted
Subsidiary, or remains for 30 days undismissed; or the Borrower or
any Restricted Subsidiary takes any corporate action to authorize,
or in furtherance of, any of the foregoing.
(d) Non-Compliance with this Agreement. Failure by the
Borrower to comply with or to perform any provision of this
Agreement applicable to the Borrower (and not constituting an
Event of Default under any other provision of this Article VI) and
continuance of such failure for 30 days after notice thereof to
the Borrower from the Agent, any Lender or the holder of any Loan.
(e) Warranties. Any representation or warranty made by
the Borrower herein is breached or is false or misleading in any
material respect, or any schedule, certificate, financial
statement, report, notice, or other writing furnished by the
Borrower to any Agent or any Lender is false or misleading in any
material respect on the date as of which the facts therein set
forth are stated or certified or deemed to be made.
(f) ERISA. ERISA Unfunded Liabilities shall exceed
$100,000,000 in the aggregate at any one time for the Borrower,
the Subsidiaries and the other members of the ERISA Controlled
Group, as the case may be, or there shall exist an ERISA
Termination Event which imposes any material liability on the
Borrower, any Subsidiary or any other member of the ERISA
Controlled Group, as the case may be, or there shall exist a
material ERISA Reportable Event.
(g) Judgments. Final judgment for the payment of money
shall be rendered by a court against the Borrower or any
Restricted Subsidiary and such judgment shall not be discharged
(or provision shall not be made for such discharge), a stay of
execution thereof shall not be procured, or such judgment shall
not be paid or bonded to the reasonable satisfaction of the
Required Lenders within 30 days from the date of entry thereof and
the Borrower or any Restricted Subsidiary, as the case may be,
shall not, within said period of 30 days or such longer period
during which the execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed
during such appeal, provided, however, that the amount of all such
outstanding judgments shall in the aggregate at any one time equal
at least 3% of Tangible Assets (exclusive of judgment amounts
fully covered by insurance where the insurer has admitted
liability in respect of such judgment).
(h) Change of Control. Any person or group of persons
(within the meaning of Section 13 or 14 of the Securities Exchange
Act of 1934, as amended) shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the Securities
and Exchange Commission under said Act) of 50% or more of the
outstanding shares of common stock of the Borrower and Continuing
Directors no longer constitute a majority of the board of
directors of the Borrower.
SECTION 6.02. Effect of Event of Default. If any Event of
Default described in Section 6.01(c) shall occur, the Commitments (if they
have not theretofore terminated) shall immediately terminate and all Loans
and all other amounts payable hereunder shall become immediately due and
payable, all without notice of any kind; and in the case of any other Event
of Default, the Agent may (and upon written request of the Required Lenders
shall) declare the Commitments (if they have not theretofore terminated) to
be terminated and all Loans and all other amounts payable hereunder to be
immediately due and payable, whereupon the Commitments (if they have not
theretofore terminated) shall immediately terminate and all Loans and all
other amounts payable hereunder shall become immediately due and payable,
all without notice of any kind. The Agent shall promptly advise the
Borrower and each Lender of any such declaration. Notwithstanding the
foregoing, the effect as an Event of Default of any event described in
Section 6.01(a) or Section 6.01(c) may be waived by the written consent of
all the Lenders and the effect as an Event of Default of any other event
described in this Article VI may be waived by the written consent of the
Required Lenders.
ARTICLE VII
The Agent
Each of the Lenders hereby irrevocably appoints the Agent
as its agent and authorizes the Agent to take such actions on its behalf
and to exercise such powers as are delegated to the Agent by the terms
hereof, together with such actions and powers as are reasonably incidental
thereto.
The bank serving as the Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Agent, and such bank and
its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Agent hereunder.
The Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether an Event of Default has occurred and
is continuing, (b) the Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Agent is required to exercise in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 8.02), and (c) except as expressly set
forth herein, the Agent shall not have any duty to disclose, and shall not
be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by
the bank serving as Agent or any of its Affiliates in any capacity. The
Agent shall not be liable for any action taken or not taken by it (i) with
the consent of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances as provided in
Section 8.02); (ii) at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 8.02); or (iii) in the absence of its
own gross negligence or wilful misconduct. The Agent shall be deemed not to
have knowledge of any Event of Default unless and until written notice
thereof is given to the Agent by the Borrower or a Lender, and the Agent
shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with
this Agreement, (ii) the contents of any certificate, report or other
document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other
terms or conditions set forth herein, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth
in Article IV or elsewhere herein (except insofar as a determination by the
Agent is required for such satisfaction), other than to confirm receipt of
items expressly required to be delivered to the Agent.
The Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to
be genuine and to have been signed or sent by the proper Person. The Agent
also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Agent may consult with legal counsel
(who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants
or experts.
The Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by
the Agent. The Agent and any such sub-agent may perform any and all its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions of the preceding paragraphs shall apply
to any such sub-agent and to the Related Parties of the Agent and any such
sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well
as activities as Agent.
Subject to the appointment and acceptance of a successor
Agent as provided in this paragraph, the Agent may resign at any time by
notifying the Lenders and the Borrower in writing. Upon any such
resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders, appoint
a successor Agent which shall be a bank with an office in New York, New
York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of
the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Borrower to a
successor Agent shall replace and be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor. After the Agent's resignation hereunder, the provisions of this
Article and Section 8.03 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it
was acting as Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and informa tion as
it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all
notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at ▇▇▇▇ ▇▇▇ Corporation,
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of
Assistant Treasurer - Capital Markets (Telecopy No. (312)
558-8567);
(b) if to the Agent, to The Chase Manhattan Bank, Loan
and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇), with a copy to The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(c) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on
the date of receipt.
SECTION 8.02. Waivers; Amendments. (a) No delay by the
Agent or any Lender in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and
remedies of the Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by
the Borrower therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing,
the making of a Loan shall not be construed as a waiver of any Event of
Default, regardless of whether the Agent or any Lender may have had notice
or knowledge of such Event of Default at the time.
(b) Neither this Agreement nor any provision hereof may
be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required Lenders
or by the Borrower and the Agent with the consent of the Required Lenders;
provided that the consent of all affected Lenders will be required with
respect to (i) reductions in the unpaid principal amount or extensions of
the scheduled date for the payment of principal of any Loan, (ii)
reductions in interest rates or fees or extensions of the dates for payment
thereof, (iii) increases in the amounts or extensions of the expiry date of
the Lenders' commitments, and the consent of 100% of the Lenders will be
required with respect to (x) changes to Section 2.12(b) or (c) that would
alter the pro rata sharing of payments required thereby or to the last
sentence of Section 2.07(d) which would alter the pro rata reduction of
Commitments thereby, (y) changes to any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder or (z) the amendment or waiver of the last sentence of Section
4.01(c); provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Agent hereunder without the
prior written consent of the Agent. Notwithstanding the foregoing, any
provision of this Agreement may be amended by an agreement in writing
entered into by the Borrower, the Required Lenders and the Agent if (i) by
the terms of such agreement the Commitment of each Lender not consenting to
the amendment provided for therein shall terminate upon the effectiveness
of such amendment and (ii) at the time such amendment becomes effective,
each Lender not consenting thereto receives payment in full of the
principal of and interest accrued on each Loan made by it and all other
amounts owing to it or accrued for its account under this Agreement.
SECTION 8.03. Expenses; Indemnity; Damage Waiver. Subject
to the terms of the Fee Letter (a) the Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Agent and its Affiliates
(and the Lenders for documentary taxes) associated with the arrangement,
syndication and administration of the credit facilities provided for herein
and the preparation, execution, delivery and administration of the credit
documentation and any amendment, modification or waiver with respect
thereto, including the reasonable fees, charges and disbursements of
counsel for the Agent (whether or not the transactions contemplated hereby
or thereby shall be consummated) and (ii) all reasonable out-of-pocket
expenses incurred by the Agent or any Lender, including the fees, charges
and disbursements of any counsel for the Agent or any Lender, in connection
with the enforcement or protection of its rights in connection with this
Agreement or in connection with the Loans made hereunder, including all
such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities, costs and
expenses incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the
performance by the parties hereto of their respective obligations hereunder
or the consummation of the transactions contemplated hereby, (ii) any Loan
or the use of the proceeds therefrom, or (iii) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities, costs or related expenses
resulted from the gross negligence or wilful misconduct of such Indemnitee
or from the Indemnitee's breach of its obligations under this Agreement.
(c) To the extent that the Borrower fails to pay any
amount required to be paid by it to the Agent under paragraph (a) or (b) of
this Section, each Lender severally agrees to pay to the Agent such
Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Agent in its capacity as such.
(d) All amounts due under this Section shall be payable
on demand.
SECTION 8.04. Successors and Assigns. (a) The provisions
of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted
hereby, except that the Borrower may not assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other
than the parties hereto, their respective successors and assigns permitted
hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Agent and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign and sell to one or more
assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it), and all assignments will be by novation; provided
that (i) except in the case of an assignment to a Lender or an Affiliate of
a Lender, each of the Borrower and the Agent must give their prior written
consent to such assignment (which consent shall not be unreasonably
withheld), (ii) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of
the assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered
to the Agent) shall not be less than $10,000,000 unless each of the
Borrower and the Agent otherwise consent, (iii) each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement, except that this
clause (iii) shall not apply to rights in respect of outstanding
Competitive Loans, (iv) the parties to each assignment shall execute and
deliver to the Agent an Assignment and Acceptance, together with a
processing and recordation fee of $4,000, and (v) the assignee, if it shall
not be a Lender, shall deliver to the Agent an Administrative
Questionnaire; and provided further that any consent of the Borrower
otherwise required under this paragraph shall not be required if an Event
of Default under clause (c) of Section 6.01 has occurred and is continuing.
Subject to acceptance and recording thereof pursuant to paragraph (d) of
this Section, from and after the effective date specified in each
Assignment and Acceptance the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Accep
tance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but
shall continue to be entitled to the benefits of Section 2.13, 2.17, 2.18,
2.19 and 8.03 incurred during the time period for which such party was
Lender hereunder). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph
shall be treated for purposes of this Agreement as a sale by such Lender of
a participation in such rights and obligations in accordance with paragraph
(e) of this Section.
(c) The Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already
be a Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Agent shall accept such
Assignment and Acceptance and record the information contained therein in
the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(e) Any Lender may, without the consent of the Borrower
or the Agent, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) with respect to a participation in any Lender's
Commitment, the Borrower must give its prior written consent to such sale
(which consent shall not be unreasonably withheld) and (iv) the Borrower,
the Agent 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. 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 Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 8.02(b)
that affects such Participant. Subject to paragraph (f) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits
of Section 2.13, 2.17, 2.18 and 2.19 during the time period for which such
party is a Participant to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this
Section.
(f) A Participant shall not be entitled to receive any
greater payment under Section 2.13, 2.17, 2.18 or 2.19 than the applicable
Lender would have been entitled to receive with respect to the
participation sold to such Participant. No Participant shall have the right
of setoff provided in Section 8.08 in respect of its participation.
(g) The Borrower authorizes each Lender to disclose to
any Participant, any prospective Participant or any prospective assignee
referred to in paragraph (b) above (i) which is a commercial bank or an
insurance company, or a savings and loan association or company, any and
all financial and other information in such Lender's possession from time
to time; and (ii) which is not a commercial bank or an insurance company or
a savings and loan association or company, (A) any and all public financial
information and other public information in such Lender's possession from
time to time; and (B) after receipt of the written consent of the Borrower
and receipt of a confidentiality agreement in form and substance
satisfactory to the Borrower and the Agent, executed by the person to
receive such information, all other financial and other information in such
Lender's possession from time to time which does not constitute public
financial information and other public information, as the case may be,
concerning the Borrower and the Subsidiaries which has been delivered to
such Lender by the Borrower or the Agent, or otherwise obtained by such
Lender or the Agent, pursuant to this Agreement or which has been delivered
to such Lender by the Borrower or the Agent in connection with such
Lender's credit evaluation of the Borrower prior to entering into this
Agreement. As used in this paragraph, "public financial information and
other public information" means all financial or other information
regarding the Borrower and the Subsidiaries, other than that which the
Borrower designates in writing as being confidential at the time such
information is delivered to any Lender or the Agent and is not generally
available to the public at such time; provided, however, such information
shall: (i) cease to be confidential when it becomes generally available to
the public other than as a result of a disclosure by such Lender's or the
Agent's representatives; or (ii) cease to be confidential when it becomes
available to such Lender or the Agent on a non-confidential basis from a
source other than the Borrower or one of the Borrower's agents; or (iii) be
deemed not to be confidential if such information was known to such Lender
or the Agent on a non-confidential basis prior to the disclosure of such
information to such Lender or the Agent by the Borrower or an agent of the
Borrower; or (iv) cease to be confidential when required to be disclosed by
law (including statute, rule, regulation or judicial process), including,
without limitation, to bank examiners and auditors and appropriate
government examining authorities.
(h) If, pursuant to this Section 8.04, any interest in
this Agreement, any Note or any Loan is transferred to any Participant
pursuant to Section 8.04(e) which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Participant, concurrently with the
effectiveness of such transfer: (a) to represent to the transferor Lender
(for the benefit of the transferor Lender, the Agent and the Borrower) that
under applicable law and treaties no taxes will be required to be withheld
by the Agent, the Borrower or the transferor Lender with respect to any
payments to be made to such Participant in respect of this Agreement or the
Loans; (b) to furnish to the transferor Lender, the Agent and the Borrower
either United States Internal Revenue Service Form W-8ECI or United States
Internal Revue Service Form W-8BEN (where in such Participant claims
entitlement to complete exemption from United States federal withholding
tax on all interest payments hereunder); and (c) to agree (for the benefit
of the transferor Lender, the Agent and the Borrower) to provide the
transferor Lender, the Agent and the Borrower a new Form W-8ECI or Form
W-8BEN upon the obsolescence of any previously delivered form and
comparable statements, in accordance with applicable United States laws and
regulations and amendments, duly executed and completed by such
Participant, and to comply from time to time with all applicable United
States laws and regulations with regards to such withholding tax exemption.
(i) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender to a Federal Reserve Bank, and this
Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute
any such pledgee or assignee for such Lender as a party hereto.
SECTION 8.05. Survival. All representations and
warranties made by the Borrower herein shall survive the execution and
delivery of this Agreement and the making of any Loans, regardless of any
investigation made by any party hereto or on its behalf and notwithstanding
that the Agent or any Lender may have had notice or knowledge of any
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other
amount payable under this Agreement is outstanding and unpaid and so long
as the Commitments have not expired or terminated. The provisions of
Sections 2.13, 2.17, 2.18, 2.19 and 8.03 and Article VII shall survive and
remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 8.06. Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. This Agreement and any separate letter agreements with respect to
fees payable to the Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Agent and when the
Agent shall have received counterparts hereof which, when taken together,
bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 8.07. Severability. Whenever possible, each
provision of this Agreement and each Note shall be interpreted in such
manner as to be effective and valid under such applicable law, however, any
provision of this Agreement held to be invalid, illegal or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions
hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 8.08. Right of Setoff. If an Event of Default
shall have occurred and be continuing, each Lender and each of its
Affiliates 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 obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement
held by such Lender. The rights of each Lender under this Section are in
addition to other rights and remedies which such Lender may have.
SECTION 8.09. Governing Law; Jurisdiction; Consent to
Service of Process. (a) This Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of
the Supreme Court of the State of New York sitting in New York County and
of the United States District Court of the Southern District of New York,
and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Nothing in
this Agreement shall affect any right that the Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
against the Borrower or its properties in the courts of any jurisdiction.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 8.01.
Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 8.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
SECTION 8.11. Headings. Article and Section headings and
the Table of Contents used herein are for convenience of reference only,
are not part of this Agreement and shall not affect the construction of, or
be taken into consideration in interpreting, this Agreement.
SECTION 8.12. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate
applicable to any Loan, together with all fees, charges and other amounts
which are treated as interest on such Loan under applicable law
(collectively the "Charges"), shall exceed the maximum lawful rate (the
"Maximum Rate") which may be contracted for, charged, taken, received or
reserved by the Lender holding such Loan in accordance with applicable law,
the rate of interest payable in respect of such Loan hereunder, together
with all Charges payable in respect thereof, shall be limited to the
Maximum Rate.
SECTION 8.13. Confirmations. The Borrower and each Lender
agree from time to time, upon written request received by it from the
other, to confirm to the other in writing (with a copy of each such
confirmation to the Agent) the aggregate unpaid principal amount of the
Loans of such Lender.
SECTION 8.14. Action of Required Lenders. As to any
provision of this Agreement under which action may be taken or approval,
consent or waiver may be given by the Required Lenders, the action taken or
approval, consent or waiver given by the Required Lenders shall be binding
upon all of the Lenders to the same extent and with the same effect as if
each Lender had joined therein.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
▇▇▇▇ ▇▇▇ CORPORATION
by
-------------------------
Name:
Title:
by
-------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as Agent,
by
-------------------------
Name:
Title:
SIGNATURE PAGE TO
364-DAY BRIDGE COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
DATED ON OR ABOUT AUGUST 3, 2001,
AMONG ▇▇▇▇ ▇▇▇ CORPORATION,
THE LENDERS PARTY HERETO
AND THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
Name of Institution:__________________________________
By_______________________________________
Name:
Title:
By_______________________________________
Name:
Title:
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Bridge Competitive
Advance and Revolving Credit Facility Agreement dated as of August 8, 2001
(as amended and in effect on the date hereof, the "Credit Agreement"),
among ▇▇▇▇ ▇▇▇ Corporation, the Lenders named therein and The Chase
Manhattan Bank, as administrative agent for the Lenders. Terms defined in
the Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and
assigns, without recourse, to the Assignee named on the reverse hereof, and
the Assignee hereby purchases and assumes, without recourse, from the
Assignor, effective as of the Assignment Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned
Interest") in the Assignor's rights and obligations under the Credit
Agreement, including, without limitation, the interests set forth on the
reverse hereof in the Commitment of the Assignor on the Assignment Date and
Competitive Loans and Revolving Loans owing to the Assignor which are
outstanding on the Assignment Date, but excluding accrued interest and fees
to and excluding the Assignment Date. The Assignee hereby acknowledges
receipt of a copy of the Credit Agreement. From and after the Assignment
Date (i) the Assignee shall be a party to and be bound by the provisions of
the Credit Agreement and, to the extent of the Assigned Interest, have the
rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent of the Assigned Interest, relinquish its rights and be
released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the
Agent together with (i) if the Assignee is a Lender that is not created or
organized under the laws of the United States of America or a political
subdivision thereof, any documentation required to be delivered by the
Assignee pursuant to Section 2.19(f) of the Credit Agreement, duly
completed and executed by the Assignee, and (ii) if the Assignee is not
already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Agent, duly completed by the
Assignee. The Assignee and Assignor shall pay the fee payable to the Agent
pursuant to Section 8.04(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
====================================================================================================
Percentage Assigned of
Facility/Commitment (set
Principal Amount forth, to at least 8
Assigned (and decimals, as a percentage
identifying information of the Facility and the
as to individual aggregate Commitments of
Facility Competitive Loans) all Lenders thereunder)
-------- ------------------ -----------------------
Commitment Assigned: $ %
Revolving Loans:
Competitive Loans:
====================================================================================================
The terms set forth above and on the reverse side hereof are hereby agreed
to:
[Name of Assignor] , as Assignor
By: ________________________________
Name:
Title:
[Name of Assignee] , as Assignee
By: ________________________________
Name:
Title:
The undersigned hereby consent to the within assignment: 1/
[Name of Borrower] The Chase Manhattan Bank, as
administrative agent,
By: ________________________ By: ___________________________
Name: Name:
Title: Title:
------------
1/ Consents to be included to the extent required by Section 8.04(b)
of the Credit Agreement.
EXHIBIT C
[FORM OF]
INTEREST ELECTION REQUEST
The Chase Manhattan Bank,
as administrative agent
for the Lenders referred to below
[ ]
[ ]
New York, New York [ ]
Attention: [ ]
[Date]
Reference is made to the 364-Day Bridge Competitive
Advance and Revolving Credit Facility Agreement, dated as of August 8, 2001
(as amended and in effect on the date hereof, the "Credit Agreement"),
among the undersigned, as Borrower, the Lenders named therein and The Chase
Manhattan Bank, as Agent. Terms defined in the Credit Agreement are used
herein with the same meanings. This notice constitutes an Interest Election
Request and the Borrower hereby requests the conversion or continuation of
a Revolving Borrowing under the Credit Agreement, and in that connection
the Borrower specifies the following information with respect to the
Revolving Borrowing to be converted or continued as requested hereby:
(A) Revolving Borrowing to which this request applies: 2/
-----------------------
(B) Principal amount of Revolving Borrowing to be converted
or continued: 3/
-----------------------
(C) Effective date of election: 4/
-----------------------
(D) Type of resulting Borrowing: 4/
-----------------------
(E) Interest Period of resulting Borrowing : 5/
-----------------------
Very truly yours,
▇▇▇▇ ▇▇▇ CORPORATION,
By:
----------------------
Name:
Title:
--------
2/ Specify the existing Type and the last day of current Interest
Period.
3/ The principal amount should not be less than $10,000,000 and should
be an integral multiple of $1,000,000, except as otherwise provided
in the Credit Agreement.
4/ The effective date must be a Business Day.
4/ Specify whether the Borrowing will be a Eurodollar Borrowing or an
ABR Borrowing.
5/ The Interest Period must comply with the definition of "Interest
Period" and end not later than the Maturity Date.
EXHIBIT D
[FORM OF]
NOTE
$[ ] New York, New York
[Date]
FOR VALUE RECEIVED, ▇▇▇▇ ▇▇▇ Corporation, a Maryland
corporation (the "Borrower"), promises to pay to the order of [ ] (the
"Lender") the unpaid principal amount of each Loan made by the Lender to
the Borrower pursuant to the 364-Day Bridge Competitive Advance and
Revolving Credit Facility Agreement, dated as of August 8, 2001, as amended
or modified, among the undersigned, the Lender, the other lenders who are
parties thereto and The Chase Manhattan Bank, as administrative agent (the
"Credit Agreement"). Such principal payments shall be made in the amounts
and on the dates provided for in the Credit Agreement. The Borrower also
promises to pay interest on the unpaid principal amount of each such Loan
on the dates and at the rate or rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in lawful money
of the United States in federal or other immediately available funds at the
office of The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇.
This Note is one of the promissory notes referred to in
Section 2.08(e) of the Credit Agreement. Terms defined in the Credit
Agreement are used herein with the same meanings.
Every Loan made by the Lender, the respective Type, Class
and date on which the principal is due and all repayments of the principal
thereof shall be recorded by the Lender and, prior to any transfer hereof,
endorsed by the Lender on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof; provided
that the failure of the Lender to make any such recordation or endorsement
shall not affect the obligations of the Borrower under the first paragraph
of this Note or under the Credit Agreement.
Reference is made to the Credit Agreement for provisions
for the prepayment hereof and the acceleration of the maturity hereof.
▇▇▇▇ ▇▇▇ Corporation
by:
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Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
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Date on Amount of
Class and Which Date by Which Principal Name of Person
Type Loan Was Principal Must Initial Amount Already Principal Interest Making the
Date of Loan 6/ Made Be Repaid of Loan Repaid Payment Rate Notation
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6/ Specify whether the Loan is a Revolving Loan or a Competitive Loan
and whether the Loan is a Eurodollar, ABR or Fixed Rate Loan.