Exhibit 10.25
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FIVE-YEAR CREDIT AGREEMENT
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▇▇▇▇▇▇ INDUSTRIES, LTD.,
▇▇▇▇▇▇ US, INC.,
and
THE BANKS AS DEFINED HEREIN
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TABLE OF CONTENTS
Page
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Section 1. Certain Defined Terms.......................................................................... 1
Section 2. Representations................................................................................ 7
2.01 Corporate Existence and Power.................................................................. 7
2.02 Corporate Authority............................................................................ 7
2.03 Financial Condition............................................................................ 8
2.04 Litigation..................................................................................... 9
2.05 Liens.......................................................................................... 9
2.06 Use of Loans................................................................................... 9
2.07 Taxes.......................................................................................... 9
2.08 Titles, etc.................................................................................... 9
2.09 ERISA.......................................................................................... 9
2.10 Validity, Etc.................................................................................. 9
Section 3. Commitment..................................................................................... 9
3.01 Changes of Commitment.......................................................................... 9
3.02 Facility Fee................................................................................... 10
Section 4. Conditions of Lending.......................................................................... 10
4.01 Initial Loans.................................................................................. 10
4.02 Each Loan...................................................................................... 12
Section 5. Drawings....................................................................................... 13
5.01 Loans.......................................................................................... 13
5.02 Borrowings and Interest Elections.............................................................. 13
5.03 Lending Offices................................................................................ 14
5.04 Prepayments.................................................................................... 14
Section 6. Payments of Principal and Interest............................................................. 14
6.01 Repayment of Loans............................................................................. 14
6.02 Interest....................................................................................... 15
Section 7. Payments; Computations; Etc.................................................................... 15
7.01 Payments......................................................................................... 15
7.02 Non-Business Days................................................................................ 15
7.03 Computations..................................................................................... 15
7.04 Setoff........................................................................................... 15
7.05 Sharing of Payments and Setoffs.................................................................. 16
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Section 8. Illegality and Yield Protection................................................................ 16
8.01 Basis for Determining Interest Rate Inadequate................................................. 16
8.02 Illegality..................................................................................... 16
8.03 Increased Cost and Reduced Return.............................................................. 17
8.04 Base Rate Loans Substituted for Affected Eurodollar Loans...................................... 18
8.05 Taxes.......................................................................................... 18
8.06 Break Funding Payments......................................................................... 19
Section 9. Covenants...................................................................................... 20
9.01 Financial Statements........................................................................... 20
9.02 Indebtedness................................................................................... 21
9.03 Liens.......................................................................................... 22
9.04 Merger and Sale of Assets...................................................................... 23
9.05 Taxes.......................................................................................... 24
9.06 Sale-and-Leaseback............................................................................. 24
9.07 Maintenance of Property; Insurance............................................................. 24
9.08 ▇▇▇▇▇▇ US...................................................................................... 24
9.09 Interest Coverage.............................................................................. 24
9.10 Principal Domestic Operating Subsidiaries...................................................... 24
Section 10. Events of Default............................................................................. 25
Section 11. Miscellaneous.................................................................................. 27
11.01 Waiver......................................................................................... 27
11.02 Notices........................................................................................ 27
11.03 Amendments and Waivers......................................................................... 27
11.04 Successors and Assigns......................................................................... 28
11.05 Participations................................................................................. 28
11.06 Expenses....................................................................................... 29
11.07 Counterparts................................................................................... 29
11.08 Indemnity...................................................................................... 29
11.09 Survival....................................................................................... 29
11.10 Usury.......................................................................................... 29
11.11 Governing Law.................................................................................. 30
11.12 Jurisdiction................................................................................... 30
11.13 Waiver of Jury Trial........................................................................... 30
11.14 Patriot Act ................................................................................... 30
Section 12. Guarantee...................................................................................... 30
12.01 Guarantee...................................................................................... 30
12.02 Guarantee Unconditional........................................................................ 31
12.03 Discharge Upon Payment in Full; Reinstatement in Certain Circumstances......................... 31
12.04 Waiver by the Guarantor........................................................................ 32
12.05 Subrogation.................................................................................... 32
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12.06 Stay of Acceleration........................................................................... 32
EXHIBIT A Form of Notes
EXHIBIT B Amendment Form
EXHIBIT C Guarantee Form for ▇▇▇▇▇▇ Industries, Inc.
EXHIBIT D Guarantee Form for ▇▇▇▇▇▇ Industries, LLC
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This FIVE YEAR CREDIT AGREEMENT (the "Agreement") is dated this 3rd day of
November, 2004 by and between ▇▇▇▇▇▇ INDUSTRIES, LTD., a Bermuda company "▇▇▇▇▇▇
Bermuda"), ▇▇▇▇▇▇ US, INC., a Delaware corporation ("▇▇▇▇▇▇ US") and the Banks.
This Agreement shall not become effective until November 17, 2004 (the
"Effective Date").
The parties hereto agree as follows:
Section 1. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (all terms defined in this
Agreement in the singular to have the same meanings when used in the plural and
vice versa):
"Applicable Lending Office" means each Bank's principal office or
such other office of such Bank as such Bank may from time to time specify
to ▇▇▇▇▇▇ US.
"Applicable Margin" means whichever of the following is applicable
from time to time and produces the lowest Applicable Margin: (a) .18
percent at any date if, at such date, any Debt Rating is A1 or better by
▇▇▇▇▇'▇ or A+ or better by Standard & Poor's; (b) .22 percent at any date
if, at such date, any Debt Rating is A2 by ▇▇▇▇▇'▇ or A by Standard &
Poor's; (c) .31 percent at any date if, at such date, any Debt Rating is
A3 by ▇▇▇▇▇'▇ or A- by Standard & Poor's; (d) .45 percent at any date if,
at such date, any Debt Rating is Baa1 by ▇▇▇▇▇'▇ or BBB+ by Standard &
Poor's; (e) .63 percent at any date if, at such date, any Debt Rating is
Baa2 by ▇▇▇▇▇'▇ or BBB by Standard & Poor's; (f) .80 percent at any date
if, at such date, any Debt Rating is Baa3 by ▇▇▇▇▇'▇ or BBB- by Standard &
Poor's; and (g) 1.00 percent at all times when none of subsections (a),
(b), (c), (d), (e) or (f) are applicable. Any change in the Applicable
Margin caused by a change in the Debt Rating shall be effective on the
date of any relevant change in the Debt Rating. Promptly after ▇▇▇▇▇'▇ or
Standard & Poor's shall have announced a change in the Debt Rating, ▇▇▇▇▇▇
US shall notify each Bank of such change. During any time that the
aggregate principal amount of all outstanding Loans exceeds 50% of the
aggregate amount of the Commitments, the Applicable Margin for all such
outstanding Loans shall be increased by .10 percent during any time that
any Debt Rating is A3 or better by ▇▇▇▇▇'▇ or A- or better by Standard &
Poor's and .125 percent at all other times. Notwithstanding the first
sentence of this definition, if there is a difference of more than one
rating level between the best Debt Rating assigned by ▇▇▇▇▇'▇ and the best
Debt Rating assigned by Standard & Poor's, then the rating level
immediately below the better of the two rating levels shall determine the
Applicable Margin.
"Bank" means each bank or other financial institution listed on the
signature pages hereof, each bank or other financial institution which
agrees in writing to become a lender under this Agreement by signing an
agreement in the form of Exhibit B, and their respective successors.
"Base Rate" means, for any day, the higher of (a) the Prime Rate or
(b) the Federal Funds Rate plus 1/2 of one percent.
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"Base Rate Loans" means Loans which bear interest at a rate based
upon the Base Rate.
"Borrower" means ▇▇▇▇▇▇ Bermuda or ▇▇▇▇▇▇ US, as the case may be,
with respect to each Loan hereunder.
"Business Day" means any day on which commercial banks are not
authorized or required to close in New York City and, if such day relates
to a borrowing of, a payment of principal of or interest on, or the
Interest Period for, a Eurodollar Loan or a notice by Borrower with
respect to any such borrowing, payment or Interest Period, which is also a
day on which dealings in Dollar deposits are carried out in the London
interbank market.
"Capitalized Lease Obligations" means any and all lease obligations
which, in accordance with GAAP, have been or should be capitalized on the
books of the lessee.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means the obligation of each Bank to make Loans
pursuant to Section 5 of this Agreement in an aggregate amount at any one
time outstanding up to but not exceeding the amount set forth under such
Bank's name on the signature pages hereof or on an agreement in the form
of Exhibit B (as such amount may be reduced from time to time in
accordance with the Agreement).
"Commitment Termination Date" means November 17, 2009.
"Consolidated Subsidiary" means any Subsidiary (whether now existing
or hereafter organized or acquired) which was at December 31, 2003, or
which at any time thereafter is, consolidated with ▇▇▇▇▇▇ Bermuda in any
consolidated financial statement furnished to any Bank.
"Debt" means at any time Capitalized Lease Obligations and debt
created, issued, guaranteed (whether directly, or indirectly by way of
agreement, contingent or otherwise, to purchase, to provide funds for
payment, to supply funds to or otherwise invest in the debtor, or
otherwise to assure the creditor against loss), incurred or assumed for
money borrowed or for the deferred (for 91 days or more) purchase price of
property or services purchased, excluding, however, accounts payable
(other than for borrowed money or for such deferred purchase price) and
accrued expenses incurred in the ordinary course of business, provided
that the same are not overdue in a material amount or, if overdue, are
being contested in good faith and by appropriate proceedings.
"Debt Rating" means the highest rating of (i) any senior unsecured
long-term debt for borrowed money of any Consolidated Subsidiary which is
fully guaranteed by ▇▇▇▇▇▇ Bermuda or (ii) the long-term corporate credit
of ▇▇▇▇▇▇ Bermuda.
"Defaulting Bank" means any Bank that (a) has failed to fund any
portion of a Loan required to be funded by it hereunder within one
Business Day of the date required to be
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funded by it hereunder or (b) has been deemed insolvent or become the
subject of a bankruptcy or insolvency proceeding.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, including (unless the context otherwise
requires) any rules or regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
"Eurodollar Loan Interest Payment Date" means, for any Eurodollar
Loan, the last day of the Interest Period therefor and, if such Interest
Period is longer than three months, at three-month intervals following the
first day of such Interest Period.
"Eurodollar Loans" means Loans the interest on which is determined
on the basis of rates referred to in the definition of "Eurodollar Rate".
"Eurodollar Rate" means, for any Eurodollar Loan, the rate per annum
equal to the sum of (i) the product of (a) the average British Bankers
Association interest settlement rate at 11:00 a.m. London time two
Business Days prior to the first day of the Interest Period for such Loan
for Dollar deposits having a term comparable to such Interest Period
multiplied by (b) the Statutory Reserve Rate; and (ii) the Applicable
Margin, such sum to be rounded upwards, if necessary, to the nearest 1/100
of 1%.
"Event of Default" shall have the meaning assigned to that term in
Section 10.
"Facility Fee Rate" means whichever of the following is applicable
from time to time and produces the lowest Facility Fee Rate: (a) .07
percent at any date if, at such date, any Debt Rating is A1 or better by
▇▇▇▇▇'▇ or A+ or better by Standard & Poor's; (b) .08 percent at any date
if, at such date, any Debt Rating is A2 by ▇▇▇▇▇'▇ or A by Standard &
Poor's; (c) .09 percent at any date if, at such date, any Debt Rating is
A3 by ▇▇▇▇▇'▇ or A- by Standard & Poor's; (d) .10 percent at any date if,
at such date, any Debt Rating is Baa1 by ▇▇▇▇▇'▇ or BBB+ by Standard &
Poor's; (e) .12 percent at any date if, at such date, any Debt Rating is
Baa2 by ▇▇▇▇▇'▇ or BBB by Standard & Poor's; (f) .20 percent at any date
if, at such date, any Debt Rating is Baa3 by ▇▇▇▇▇'▇ or BBB- by Standard &
Poor's; and (g) .25 percent at all times when none of Subsections (a),
(b), (c), (d), (e) or (f) are applicable. Any change in the Facility Fee
Rate caused by a change in the Debt Rating shall be effective on the date
of any relevant change in the Debt Rating. Promptly after ▇▇▇▇▇'▇ or
Standard & Poor's shall have announced a change in the Debt Rating, ▇▇▇▇▇▇
US shall notify each Bank of such change. Notwithstanding the first
sentence of this definition, if there is a difference of more than one
rating level between the best Debt Rating assigned by ▇▇▇▇▇'▇ and the best
Debt Rating assigned by Standard & Poor's, then the rating level
immediately below the better of the two rating levels shall determine the
Facility Fee Rate.
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"FAS 142 Impairment Loss" means any goodwill and other intangible
asset impairment loss recognized in accordance with Statement of Financial
Accounting Standards No. 142 "Goodwill and Other Intangible Assets."
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so published
on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average for all of the Banks of the average of the rates
quoted to each Bank on such day for such transactions at approximately
2:00 p.m. New York City time as determined in good faith by such Bank.
"GAAP" means generally accepted accounting principles in the United
States of America, consistently applied.
"Guarantor" means (i) ▇▇▇▇▇▇ Bermuda with respect to all amounts
owed by ▇▇▇▇▇▇ US to any Bank under this Agreement; and (ii) ▇▇▇▇▇▇ US
with respect to all amounts owed by ▇▇▇▇▇▇ Bermuda to any Bank under this
Agreement.
"Interest Coverage Ratio" means for any fiscal four-quarter period,
the ratio on a consolidated basis for ▇▇▇▇▇▇ Bermuda of: (i) the sum of
(a) net income excluding any FAS 142 Impairment Loss plus (b) income taxes
plus (c) interest expense plus (d) goodwill amortization plus (e)
depreciation; divided by (ii) interest expense.
"Interest Period" means, with respect to any Eurodollar Loan, the
period commencing on the date such Loan is made and ending on the
numerically corresponding day in the first, second, third or sixth
calendar month thereafter, as a Borrower may select as provided in Section
5.02 of the Agreement, except that each such Interest Period which
commences on the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. Notwithstanding the foregoing, (i)
if any Interest Period would otherwise commence before and end after the
Commitment Termination Date, such Interest Period shall end on the
Commitment Termination Date, and (ii) notwithstanding Section 7.02 of the
Agreement, each Interest Period which would otherwise end on a day which
is not a Business Day shall end on the next succeeding Business Day (or,
if such next succeeding Business Day falls in the next succeeding calendar
month, then such Interest Period shall end on the next preceding Business
Day).
"Loan" means any loan made by a Bank pursuant to this Agreement.
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"Loan Notification Time" means 10:00 a.m. New York time on the day
which is not less than the number of Business Days prior to the date of
such borrowing specified below opposite the type of such Loan:
Type Number of Business Days
----------------- -----------------------
Base Rate Loan 0
Eurodollar Loan 3
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or financial condition of ▇▇▇▇▇▇ Bermuda and
the Consolidated Subsidiaries taken as a whole, (b) the ability of the
Borrowers to perform their obligations under the Agreement or (c) the
rights of or benefits available to the Banks under the Agreement.
"Net Worth" means at any time shareholders' equity of ▇▇▇▇▇▇ Bermuda
on a consolidated basis determined in accordance with GAAP.
"Note(s)" means promissory notes in substantially the form set forth
in Exhibit A hereto, dated the date of the initial Loan (or such earlier
date), duly executed and delivered to each Bank by each of ▇▇▇▇▇▇ Bermuda
and ▇▇▇▇▇▇ US and payable to each Bank in the amount of its Commitment,
including any amendment, modification, renewal or replacement of such
promissory notes.
"Operating Earnings" means consolidated earnings of ▇▇▇▇▇▇ Bermuda
and the Consolidated Subsidiaries before income taxes, interest expense
and general corporate expenses, determined in accordance with GAAP, except
that unrealized appreciation in the value of investment in, and
undistributed earnings of, Subsidiaries not consolidated will not be
included.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership or other
entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan as defined or used in ERISA) subject to the provisions
of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which a Borrower or any ERISA Affiliate is (or, if such
plan were terminated, would under Section 4069 of ERISA be deemed to be)
an "employer" as defined in Section 3(5) of ERISA.
"Post-Default Rate" means, in respect of any principal of any Loan
or any other amount payable by a Borrower under the Agreement which is not
paid when due (whether at stated maturity, by acceleration or otherwise),
a rate per annum during the period commencing on the due date until such
amount is paid in full equal to 1% above the Base Rate as in effect from
time to time (provided that, if such amount in default is principal of
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a Eurodollar Loan and the due date is a day other than the last day of the
Interest Period therefor, the "Post-Default Rate" for such principal shall
be, for the period commencing on the due date and ending on the last day
of such Interest Period therefor, 1% above the interest rate for such Loan
as provided in Section 6.02 of the Agreement and, thereafter, the rate
provided for above in this definition).
"Prime Rate" means, for any day, the mode of the rates of interest
per annum in effect as established or publicly announced by each Bank at
its respective principal office in the United States as its prime or base
rate (each change in such rate to be effective from and including the date
such change is established or publicly announced as being effective). If
on any day there is more than one such prime or base rate that appears
with the highest frequency, then the Prime Rate means the highest of such
high-frequency rates.
"Principal Domestic Operating Subsidiaries" means ▇▇▇▇▇▇ B-Line,
Inc., ▇▇▇▇▇▇ Bussmann, Inc., Cooper ▇▇▇▇▇▇-▇▇▇▇▇, LLC, ▇▇▇▇▇▇ Lighting,
Inc., ▇▇▇▇▇▇ Power Systems, Inc. and ▇▇▇▇▇▇ Wiring Devices, Inc.
"Quarterly Dates" means the last day of each March, June, September
and December, the first of which shall be the first such day following the
Effective Date.
"Regulatory Change" means any change after the date of this
Agreement in laws or regulations or the adoption or making after such date
of any laws or regulations, interpretations, directives or requests, in
each case applying to a Bank or its Applicable Lending Office.
"Required Banks" means at any time Banks having at least 51% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated pursuant to Section 10, holding Loans evidencing at least 51%
of the aggregate unpaid principal amount of the Loans (with the aggregate
amount of each Bank's participations acquired pursuant to Section 7.05
being deemed held by such Bank for purposes of this definition); provided
that the Commitment of, and the portion of the total amount of the Loans
outstanding held by, any Defaulting Bank shall be disregarded in any
determination of Required Banks.
"Significant Subsidiary" means each Consolidated Subsidiary which
has contributed five percent or more of the consolidated revenues of
▇▇▇▇▇▇ Bermuda and the Consolidated Subsidiaries for ▇▇▇▇▇▇ Bermuda's
fiscal year most recently ended.
"Statutory Reserve Rate" means, as to each Bank, a fraction
(expressed as a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Federal
Reserve System Board of Governors to which such Bank is subject, with
respect to the Eurodollar Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of such Board).
Such reserve
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percentages shall include those imposed pursuant to such Regulation D. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsidiary" means at any time any corporation, limited liability
company, partnership or joint venture at least a majority of the voting
securities of which (other than securities having voting power only by
reason of the happening of a contingency) are at such time owned by ▇▇▇▇▇▇
Bermuda and/or one or more Subsidiaries.
"Termination Event" means any event or condition which would
constitute grounds under Section 4042 of ERISA for the termination of, or
for the appointment of a trustee to administer, any Plan.
"Total Capitalization" means at any time the sum of Debt and Net
Worth of ▇▇▇▇▇▇ Bermuda and the Consolidated Subsidiaries.
All accounting terms not specifically defined herein shall be
construed in accordance with GAAP.
Section 2. Representations. ▇▇▇▇▇▇ US and ▇▇▇▇▇▇ Bermuda, as
applicable, represent, covenant and warrant that:
2.01 Corporate Existence and Power. ▇▇▇▇▇▇ US is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, is duly qualified to transact business in all places where, in the
opinion of ▇▇▇▇▇▇ US, such qualification is necessary, except where the failure
to do so could not reasonably be expected to have a Material Adverse Effect, and
has the requisite corporate power to make this Agreement and to borrow and
perform its obligations hereunder. ▇▇▇▇▇▇ Bermuda is a company duly
incorporated, validly existing and in good standing under the laws of the
Country of Bermuda, is duly qualified to transact business in all places where,
in the opinion of ▇▇▇▇▇▇ Bermuda, such qualification is necessary, except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect, and has the requisite corporate power to execute and deliver this
Agreement and perform its obligations hereunder. Each Significant Subsidiary is
in good standing in its respective jurisdiction of incorporation and is duly
qualified to transact business in all places where, in the opinion of ▇▇▇▇▇▇
Bermuda, such qualification is necessary except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
2.02 Corporate Authority.
(1) The execution, delivery and performance by ▇▇▇▇▇▇ US of this
Agreement (i) have been duly authorized by all necessary corporate action; (ii)
will not violate any provision of law or of its Articles of Incorporation or
Bylaws; and (iii) as of the date of this Agreement, do not result in the breach
of, or constitute a default under, or require any consent under, any agreement
presently in effect providing for or relating to extensions of credit (including
credit agreements, indentures, guarantees and other instruments), other than for
goods and services purchased in the ordinary course of business (which are not
material in amount), to which ▇▇▇▇▇▇ US or any
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Subsidiary or any of their property may be bound or affected, except as
previously disclosed to the Banks in writing.
(2) The execution, delivery and performance by ▇▇▇▇▇▇ Bermuda of
this Agreement (i) have been duly authorized by all necessary corporate action;
(ii) will not violate any provision of law or of its Memorandum of Association
or Bye-laws; and (iii) as of the date of this Agreement, do not result in the
breach of, or constitute a default under, or require any consent under, any
agreement presently in effect providing for or relating to extensions of credit
(including credit agreements, indentures, guarantees and other instruments),
other than for goods and services purchased in the ordinary course of business
(which are not material in amount), to which ▇▇▇▇▇▇ Bermuda or any Subsidiary or
any of their property may be bound or affected, except as previously disclosed
to the Banks in writing.
2.03 Financial Condition.
(1) The consolidated balance sheet of ▇▇▇▇▇▇ Bermuda and its
Consolidated Subsidiaries as of December 31, 2003, and the consolidated
statements of income and reconciliation of capital accounts of ▇▇▇▇▇▇ Bermuda
and its Consolidated Subsidiaries for the 12 months ending on that date, with
the opinion thereon of Ernst & Young, heretofore furnished to the Bank, fairly
present in all material respects and in accordance with GAAP the consolidated
financial condition of ▇▇▇▇▇▇ Bermuda and its Consolidated Subsidiaries at the
date of such balance sheet and the results of their operations for the period
ending on said date, respectively. To the best of ▇▇▇▇▇▇ Bermuda's knowledge and
belief, neither ▇▇▇▇▇▇ Bermuda nor any Consolidated Subsidiary had on December
31, 2003, any contingent liabilities, liabilities for taxes or unusual forward
or long-term commitments which are material in amount in relation to the
consolidated financial condition of ▇▇▇▇▇▇ Bermuda and the Consolidated
Subsidiaries, except as referred to or reflected or provided for in said
consolidated balance sheet or the related notes to consolidated financial
statements as at that date. From December 31, 2003 to the date of this
Agreement, there has been no change or event that could reasonably be expected
to have had a Material Adverse Effect except for any changes or events that are
disclosed in Quarterly Reports on Form 10-Q and Current Reports on Form 8-K that
have been filed by ▇▇▇▇▇▇ Bermuda with the Securities and Exchange Commission.
(2) The consolidated balance sheet of ▇▇▇▇▇▇ Bermuda and its
Consolidated Subsidiaries as of June 30, 2004, and the consolidated statements
of income of ▇▇▇▇▇▇ Bermuda and its Consolidated Subsidiaries for the 3 months
ending on that date, hereretofore furnished to the Bank, fairly present in all
material respects and in accordance with GAAP (subject to the absence of
year-end notes and to normal year-end audit adjustments) consolidated financial
condition of ▇▇▇▇▇▇ Bermuda and its Consolidated Subsidiaries at the date of
such balance sheet and the results of their operations for the period ending on
said date, respectively. To the best of ▇▇▇▇▇▇ Bermuda's knowledge and belief,
neither ▇▇▇▇▇▇ Bermuda nor any Consolidated Subsidiary had on December 31, 2003,
any contingent liabilities, liabilities for taxes or unusual forward or
long-term commitments which are material in amount in relation to the
consolidated financial condition of ▇▇▇▇▇▇ Bermuda and the Consolidated
Subsidiaries, except as referred to or reflected or provided for in said
consolidated balance sheet or the related notes to consolidated financial
statements as at that date.
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2.04 Litigation.There are no suits or proceedings pending, or to
the knowledge of ▇▇▇▇▇▇ Bermuda threatened, against or affecting ▇▇▇▇▇▇ Bermuda
or any Subsidiary which would, in the opinion of ▇▇▇▇▇▇ Bermuda, if determined
adversely to ▇▇▇▇▇▇ Bermuda or such Subsidiary, result in the occurrence of an
Event of Default.
2.05 Liens. The properties and assets of ▇▇▇▇▇▇ Bermuda and its
Consolidated Subsidiaries are not subject to any lien or encumbrance, other than
those permitted by Section 9.03.
2.06 Use of Loans. Neither ▇▇▇▇▇▇ Bermuda 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 or X of the Board of Governors of the Federal
Reserve System) and no part of the proceeds of any Loan hereunder will be used
to purchase or carry any margin stock.
2.07 Taxes. ▇▇▇▇▇▇ Bermuda and each Consolidated Subsidiary have
filed all tax returns which were required to be filed except where failure to do
so could not reasonably be expected to have a Material Adverse Effect, and paid
all taxes shown thereon to be due, including interest and penalties, or are
contesting same in good faith and by proper proceedings and have provided
adequate reserves for payment thereof.
2.08 Titles, etc. ▇▇▇▇▇▇ Bermuda and all Consolidated Subsidiaries
have good title to their respective properties and assets, free and clear of all
mortgages, liens and encumbrances, except such as are permitted by Section 9.03
and except covenants, restrictions, rights, easements and minor irregularities
in title which do not interfere with the occupation, use and enjoyment by ▇▇▇▇▇▇
Bermuda or such Consolidated Subsidiaries of such properties and assets in the
normal course of business as presently conducted or do not materially impair the
value thereof for such business.
2.09 ERISA. ▇▇▇▇▇▇ Bermuda and ▇▇▇▇▇▇ US have each met their
minimum funding requirements under ERISA with respect to all of their Plans and
have not incurred any material liabilities to PBGC under ERISA in connection
with any such Plan.
2.10 Validity, Etc. This Agreement is a valid and binding agreement
of each Borrower enforceable in accordance with its terms; and the Loans, when
made hereunder, will constitute valid and binding obligations of each Borrower,
enforceable in accordance with their terms, in each case subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
Section 3. Commitment.
3.01 Changes of Commitment. The Borrowers may terminate or reduce
the amount of the unused Commitments at any time or from time to time upon not
less than five Business Days' prior written notice to each Bank of each such
termination or reduction, which notice shall specify the effective date thereof
and the amount of such reduction (which shall not
9
be less than $1,000,000 per Bank). The Commitments once terminated or reduced
may not be reinstated unless mutually agreed to in writing by ▇▇▇▇▇▇ Bermuda,
▇▇▇▇▇▇ US and the Banks. The Commitments shall be reduced to zero on the
Commitment Termination Date. Any termination or reduction of the unused
Commitments (other than because of replacement of a Bank pursuant to Section
11.04) shall be made on a pro rata basis. The Borrowers may, at any time, add a
Person as a "Bank" under this Agreement, thereby increasing the aggregate
Commitments, by executing an amendment to this Agreement in the form of Exhibit
B attached hereto and having the new bank execute such amendment. A photocopy of
each executed amendment to add a Bank shall be delivered to each of the Banks by
▇▇▇▇▇▇ US. After the execution of any such amendment, the new bank referenced
therein shall be a "Bank" with all of the rights and obligations of a Bank under
this Agreement.
3.02 Facility Fee. ▇▇▇▇▇▇ US shall pay to each Bank a fee on the
daily average amount of each Bank's Commitment (whether used or unused), for the
period from the date such Bank's Commitment becomes effective under this
Agreement to but excluding the earlier of the date such Commitment is terminated
or the Commitment Termination Date, at a rate per annum equal to the Facility
Fee Rate. The fee accrued through and including any Quarterly Date or through
and excluding the date the Commitment is terminated, if earlier, shall be
payable within 10 days following each such Quarterly Date or within 10 days
following the date the Commitment is terminated, whichever is earlier.
Section 4. Conditions of Lending.
4.01 Initial Loans. The obligations of the Banks to make the
initial Loan to be made by them hereunder is subject to the following conditions
precedent:
(1) Signatures. ▇▇▇▇▇▇ US shall have certified to each Bank the name
and signature of each officer of ▇▇▇▇▇▇ US authorized to sign this Agreement and
each person authorized to request a borrowing hereunder. ▇▇▇▇▇▇ Bermuda shall
have certified to each Bank the name and signature of each officer of ▇▇▇▇▇▇
Bermuda authorized to sign this Agreement and each person authorized to request
a borrowing hereunder. Each Bank may conclusively rely on such certifications
until it receives notice in writing to the contrary.
(2) Opinion of ▇▇▇▇▇▇ US Counsel. Each Bank shall have received from
Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to ▇▇▇▇▇▇ US, a favorable written opinion
satisfactory to the Banks and ▇▇▇▇▇▇ US as to:
(i) The matters concerning ▇▇▇▇▇▇ US referred to in the initial
sentence of Section 2.01 (excluding the qualification to do business
issues), Section 2.02(1)(i) and Section 2.02(1)(ii).
(ii) The due authorization, execution and delivery by ▇▇▇▇▇▇ US of
this Agreement, and the validity and enforceability of this Agreement and
of the Loans (when made pursuant to this Agreement) in accordance with the
terms hereof (subject to limitation as to enforceability which might
result from bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar law affecting creditors' rights generally).
10
(iii) The necessity of any authorization or approval by any public
regulatory body of the State of Delaware or the United States of America
of the transactions contemplated hereby and as to the sufficiency of any
which have been obtained.
(iv) Such other matters incident to the transactions hereby
contemplated as the Banks may reasonably request.
For purposes of such opinion, counsel to ▇▇▇▇▇▇ US may rely upon (a) opinions of
counsel in other jurisdictions, provided that such other counsel is satisfactory
to the Banks and ▇▇▇▇▇▇ US; and (b) as to matters of fact upon certificates of
public officials and of officers of ▇▇▇▇▇▇ US.
This section shall not require counsel for ▇▇▇▇▇▇ US to express any opinion as
to the applicability to any Loan held by any Bank, or as to the effect, of the
law of any state wherein any Bank may be located which limits rates of interest
which may be charged or collected by such Bank.
(3) Opinion of ▇▇▇▇▇▇ Bermuda Counsel. Each Bank shall have received
from ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to ▇▇▇▇▇▇ Bermuda, a favorable written
opinion satisfactory to the Banks and ▇▇▇▇▇▇ Bermuda as to:
(i) The matters concerning ▇▇▇▇▇▇ Bermuda referred to in the second
sentence of Section 2.01 (excluding the qualification to do business
issues), Section 2.02(2)(i) and Section 2.02(2)(ii).
(ii) The due authorization, execution and delivery by ▇▇▇▇▇▇ Bermuda
of this Agreement, and the validity and enforceability of this Agreement
(subject to limitation as to enforceability which might result from
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar law affecting creditors' rights generally).
(iii) The necessity of any authorization or approval by any public
regulatory body of Bermuda of the transactions contemplated hereby and as
to the sufficiency of any which have been obtained.
(iv) Such other matters incident to the transactions hereby
contemplated as the Banks may reasonably request.
For purposes of such opinion, counsel to ▇▇▇▇▇▇ Bermuda may rely upon (a)
opinions of counsel in other jurisdictions, provided that such other counsel is
satisfactory to the Bank and ▇▇▇▇▇▇ Bermuda; and (b) as to matters of fact upon
certificates of public officials and of officers of ▇▇▇▇▇▇ Bermuda.
This section shall not require counsel for ▇▇▇▇▇▇ Bermuda to express any opinion
as to the applicability to the Loans held by any Bank, or as to the effect, of
the law of any state wherein
11
any Bank may be located which limits rates of interest which may be charged or
collected by such Bank.
(4) Opinion of General Counsel of ▇▇▇▇▇▇ US. Each Bank shall have
received from the General Counsel of ▇▇▇▇▇▇ US one or more favorable written
opinions as to (i) the matters concerning ▇▇▇▇▇▇ US referred to in Section 2.01
(insofar as they relate to qualification to do business) and Section 2.04, and
(ii) the absence, as of the date of this Agreement, of any requirement for
consent and of any default, by reason of the making and performance by ▇▇▇▇▇▇ US
of this Agreement, under any agreement presently in effect providing for or
relating to extensions of credit (including credit agreements, indentures,
guarantees and other instruments), other than for goods and services purchased
in the ordinary course of business, in respect of which ▇▇▇▇▇▇ US and/or any
Subsidiary is or may become directly or contingently obligated, of which such
counsel has knowledge, other than any disclosed to each Bank by ▇▇▇▇▇▇ US
pursuant to Section 2.02(1)(iii).
(5) Opinion of General Counsel of ▇▇▇▇▇▇ Bermuda. Each Bank shall
have received from the General Counsel of ▇▇▇▇▇▇ Bermuda one or more favorable
written opinions as to (i) the matters concerning ▇▇▇▇▇▇ Bermuda referred to in
Section 2.01 (insofar as they relate to qualification to do business) and
Section 2.04, and (ii) the absence, as of the date of this Agreement, of any
requirement for consent and of any default, by reason of the making and
performance by ▇▇▇▇▇▇ Bermuda of this Agreement, under any agreement presently
in effect providing for or relating to extensions of credit (including credit
agreements, indentures, guarantees and other instruments), other than for goods
and services purchased in the ordinary course of business, in respect of which
▇▇▇▇▇▇ Bermuda and/or any Subsidiary is or may become directly or contingently
obligated, of which such counsel has knowledge, other than any disclosed to each
Bank by ▇▇▇▇▇▇ Bermuda pursuant to Section 2.02(2)(iii).
(6) Proof of Corporate Action. Each Bank shall have received
certified copies of all corporate action taken by ▇▇▇▇▇▇ US and ▇▇▇▇▇▇ Bermuda
to authorize the execution, delivery and performance of this Agreement and
borrowings hereunder, and such other authorization papers as the Banks shall
reasonably require.
(7) ▇▇▇▇▇▇ Industries, Inc. Guarantee. ▇▇▇▇▇▇ Bermuda shall cause
▇▇▇▇▇▇ Industries, Inc. to execute and deliver to each Bank: (i) a guarantee in
the form of Exhibit C; (ii) a certification of the name and signature of each
officer of ▇▇▇▇▇▇ Industries, Inc. authorized to sign the guarantee; and (iii) a
certified copy of all corporate action taken by ▇▇▇▇▇▇ Industries, Inc. to
authorize the execution, delivery and performance of the guarantee.
(8) ▇▇▇▇▇▇ Industries, LLC Guarantee. ▇▇▇▇▇▇ Bermuda shall cause
▇▇▇▇▇▇ Industries, LLC to execute and deliver to each Bank: (i) a guarantee in
the form of Exhibit D; (ii) a certification of the name and signature of each
officer of ▇▇▇▇▇▇ Industries, LLC authorized to sign the guarantee; and (iii) a
certified copy of all corporate action taken by ▇▇▇▇▇▇ Industries, LLC to
authorize the execution, delivery and performance of the guarantee.
4.02 Each Loan. The obligation of the Banks to make Loans hereunder
is subject to the conditions precedent that no Event of Default and no event
which with notice or
12
lapse of time or both would become an Event of Default, shall have occurred and
be continuing or shall result from the making of any such Loan; and the
representations and warranties in Section 2 shall be true in all material
respects on and as of the date of the making of such Loan with the same force
and effect as if made on and as of such date. Each notice of borrowing by each
Borrower hereunder shall constitute a certification by such Borrower to the
effect set forth in the preceding sentence (both as of the date of such notice
and as of the date of such borrowing).
Section 5. Drawings.
5.01 Loans.
(a) Each Bank agrees, on the terms of this Agreement, to make Loans
to the Borrowers during the period from and including the Effective Date of the
Agreement to but excluding the Commitment Termination Date in an aggregate
principal amount at any one time outstanding up to but not exceeding the amount
of such Bank's Commitment. Subject to the terms of this Agreement, during such
period the Borrowers may borrow, repay and reborrow the amount of each Bank's
Commitment. The proceeds of the Loans will be used for the general corporate
purposes of the Borrowers.
(b) The Loans shall be evidenced by the Notes, which Notes shall be
delivered prior to or contemporaneously with the making of the initial Loans and
shall, upon execution and delivery thereof, constitute the legal, valid and
binding obligation of each Borrower. Each Bank is hereby authorized to record
the principal amount of each its Loans and each repayment on the schedule
attached to the applicable Note provided, however, that the failure to so record
shall not affect the Borrower's obligations under such Note.
5.02 Borrowings and Interest Elections. A Borrower shall give each
Bank notice by telephone or in writing by hand delivery or telecopier of each
borrowing under this Agreement, which notice shall specify the amount (which
shall be at least $1,000,000 per Bank in the case of Eurodollar Loans and
$1,000,000 per Bank in the case of Base Rate Loans), the type and date (which
shall be a Business Day) of the Loan to be borrowed and (in the case of a
Eurodollar Loan) the duration of the Interest Period therefor and shall be
received by each Bank not later than the Loan Notification Time. Each group of
borrowing notices given by a Borrower under this Agreement shall be pro rata
(and each group of pro rata notices shall be for borrowings of the same term)
based on the aggregate of the unused Commitments (as of the effective date of
such requested Loan) of the Banks under this Agreement.
All payments of proceeds of Loans to be made by each Bank to ▇▇▇▇▇▇ Bermuda
under this Agreement shall be made in U.S. Dollars ("Dollars"), in immediately
available funds, to ▇▇▇▇▇▇ Bermuda at its account number 323313701 at JPMorgan
Chase Bank, New York, New York (or to such other account of ▇▇▇▇▇▇ Bermuda as
▇▇▇▇▇▇ Bermuda may from time to time direct each Bank in writing) not later than
12:00 noon New York time on the date such Loan is to be made.
All payments of proceeds of Loans to be made by each Bank to ▇▇▇▇▇▇ US under
this Agreement shall be made in Dollars, in immediately available funds, to
▇▇▇▇▇▇ US at its account
13
number 304264946 at JPMorgan Chase Bank, New York, New York (or to such other
account of ▇▇▇▇▇▇ US as ▇▇▇▇▇▇ US may from time to time direct the Bank in
writing) not later than 12:00 noon New York time on the date such Loan is to be
made.
Each Borrower agrees that each Bank may act upon phone or facsimile instructions
for borrowings, interest elections, loan extensions and repayments (provided
such instructions do not conflict with any provisions of this Agreement) which
are received by such Bank and believed in good faith to be from persons
authorized by such Borrower. Each Borrower further agrees to indemnify and hold
each Bank harmless from any claims by virtue of such Bank's acting upon such
phone or facsimile instructions except for claims arising solely from such
Bank's gross negligence, willful misconduct or action in conflict with this
Agreement.
5.03 Lending Offices. The Loans of each type shall be made and
maintained at each Bank's Applicable Lending Office for Loans of such type.
5.04 Prepayments. A Borrower may prepay any Base Rate Loan upon not
less than one Business Day's prior notice to the Banks, which notice shall
specify the prepayment date (which shall be a Business Day) and the amount of
the prepayment (which shall be not less than $1,000,000 per Bank or, the total
amount outstanding of such Base Rate Loan if such amount outstanding is less
than $1,000,000 per Bank), provided that interest on the principal prepaid,
accrued to the prepayment date, shall be paid on the prepayment date. No
Borrower may prepay any Eurodollar Loan except as provided in Section 8.06. All
prepayments by a Borrower shall be pro rata based on the unpaid principal
balance of the Loans owed to each Bank.
5.05 Nature of Bank's Obligations with Respect to Loans. Each Bank
shall be obligated to make its pro rata share of the Loans in connection with
each request for a Loan pursuant to Section 5.02. The aggregate principal amount
of each Bank's Loans outstanding hereunder to the Borrowers at any time shall
never exceed its Commitment. The obligations of each Bank hereunder are several.
The failure of any Bank to perform its obligations hereunder shall not affect
the obligations of the Borrowers to any other Bank nor shall any other Bank be
liable for the failure of such Bank to perform its obligations hereunder. The
Banks shall have no obligations to make Loans hereunder on or after the
Commitment Termination Date.
Section 6. Payments of Principal and Interest.
6.01 Repayment of Loans.
(a) Each repayment by a Borrower shall be pro rata based on the
amounts advanced by the Banks to such Borrower under each group of pro rata
borrowing notices. The unpaid principal balance of the Loans and all accrued and
unpaid interest thereon shall be due and payable on the Commitment Termination
Date.
(b) If the outstanding aggregate principal amount of the Loans from
any Bank exceeds the amount of such Bank's Commitment at any time, the Borrowers
shall promptly pay or prepay the Loans in an aggregate principal amount equal to
such excess, together with interest thereon accrued to the date of such payment
or prepayment and any amounts payable pursuant to Section 8.06 hereof in
connection therewith.
14
6.02 Interest. The applicable Borrower shall pay to each applicable
Bank interest on the unpaid principal amount of each Loan for the period
commencing on the date of such Loan to but excluding the date such Loan shall be
paid in full, at the following rate per annum: (a) if such Loan is a Base Rate
Loan, the Base Rate (as in effect from time to time); and (b) if such Loan is a
Eurodollar Loan, the Eurodollar Rate for such Loan for the Interest Period
therefor. Notwithstanding the foregoing, such Borrower shall pay to each
applicable Bank interest on any principal of any Loan, and (to the extent
legally enforceable) on any other amount payable by such Borrower under this
Agreement, which shall not be paid in full when due (whether at stated maturity,
by acceleration or otherwise) for the period commencing on the due date thereof
until the same is paid in full at the applicable Post-Default Rate. Accrued
interest on each Loan shall be payable (i) for Base Rate Loans, on the first day
of each calendar month and (ii) for Eurodollar Loans, on the Eurodollar Loan
Interest Payment Date, except that interest payable at the Post-Default Rate
shall be payable from time to time on demand of each Bank.
Section 7. Payments; Computations; Etc.
7.01 Payments. All payments of principal, interest and other
amounts to be made by a Borrower under this Agreement shall be made in Dollars,
in immediately available funds, to the applicable Bank at the address specified
in writing by the Bank, not later than 12:00 noon New York time on the date on
which such payment shall become due (each such payment made after such time on
such due date to be deemed to have been made on the next succeeding Business
Day).
7.02 Non-Business Days. If the due date of any payment under this
Agreement would otherwise fall on a day which is not a Business Day such date
shall be extended to the next succeeding Business Day and interest shall be
payable for any principal so extended for the period of such extension.
7.03 Computations. Interest on Eurodollar Loans shall be computed
on the basis of a year of 360 days and actual days elapsed (including the first
day but excluding the last day) occurring in the period for which payable and
interest on Base Rate Loans and facility fees shall be computed on the basis of
a year of 365 or 366 days, as the case may be, and actual days elapsed
(including the first day but excluding the last day) occurring in the period for
which payable.
7.04 Setoff. Each Borrower agrees that, in addition to (and without
limitation of) any right of setoff, bankers' lien or counterclaim any Bank may
otherwise have, each Bank shall be entitled, at its option, to offset balances
held by it or any of its affiliates for the account of either Borrower at any of
its or their offices, in Dollars or in any other currency, against any principal
of or interest on any of the Loans or any other amount payable by either
Borrower to such Bank under this Agreement which is not paid when due and after
the expiration of any express grace or cure period (regardless of whether such
balances are then due to either Borrower) and each such affiliate is hereby
irrevocably authorized to permit such offset, in which case such Bank shall
promptly notify either Borrower thereof, provided that such Bank's failure to
give such notice shall not affect the validity thereof.
15
7.05 Sharing of Payments and Setoffs. Each Bank agrees that if it
shall, by exercising any right of setoff or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Loan made by it which is greater than its pro rata share
based on the unpaid principal balance of the Loans, the Bank receiving such
proportionately greater payment shall purchase such participations in the Loans
made by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest shall be shared by
the Banks pro rata; provided that nothing in this Section shall impair the right
of any Bank to exercise any right of setoff or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of a
Borrower other than its indebtedness under the Loans. Each Borrower agrees, to
the fullest extent it may effectively do so under applicable law, that any Bank
acquiring a participation in a Loan pursuant to the foregoing arrangements may
exercise rights of setoff or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of such Borrower in the amount of such participation.
Section 8. Illegality and Yield Protection.
8.01 Basis for Determining Interest Rate Inadequate. If on or prior
to the first day of any Interest Period for any Eurodollar Loan, the Required
Banks notify ▇▇▇▇▇▇ US that the Eurodollar Rate will not adequately reflect the
cost to such Banks (the "Notifying Banks") of funding their Eurodollar Loans for
such Interest Period, then until a sufficient number of Notifying Banks have
given notice to ▇▇▇▇▇▇ US that the circumstances giving rise to such suspension
no longer exist, the obligations of the Banks to make Eurodollar Loans shall be
suspended. Unless a Borrower notifies each Bank at least two Business Days
before the date of such Eurodollar Loan for which a notice of borrowing has
previously been given that it elects not to borrow on such date, such Eurodollar
Loan shall instead be made as a Base Rate Loan. When each Notifying Bank
determines that the circumstances giving rise to such suspension no longer
exist, such Bank shall so notify ▇▇▇▇▇▇ US at which time such Bank shall cease
to be regarded as a Notifying Bank. When the Notifying Banks are less than the
Required Banks, then such suspension will terminate and after such date the
obligations of the Banks to make Eurodollar Loans shall resume and the Borrowers
may resume giving notices for Eurodollar Loans.
8.02 Illegality. If, on or after the date of this Agreement, any
Regulatory Change shall make it unlawful or impossible for any Bank (or its
Applicable Lending Office) to make, maintain or fund its Eurodollar Loans and
such Bank shall so notify the Borrowers and the Borrowers shall forthwith give
notice thereof to the other Banks, then until such Bank notifies the Borrowers
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Eurodollar Loans shall be suspended. Before
giving any notice to the Borrowers pursuant to this Section, such Bank shall
designate a different Applicable Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgement of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall determine that it may
not lawfully continue to maintain and fund any of its outstanding Eurodollar
Loans to maturity and shall so specify in such notice, the applicable Borrower
shall immediately prepay in full the then outstanding principal amount of each
such Eurodollar Loan, together with accrued interest thereon, without the
payment of any cost, fee or penalty for the early payment of the Eurodollar
Loan.
16
8.03 Increased Cost and Reduced Return.
(a) If on or after the date of this Agreement, any Regulatory Change: (i)
shall subject any Bank (or its Applicable Lending Office) to any tax, duty or
other charge with respect to its Eurodollar Loans, its Note or its obligation to
make Eurodollar Loans, or shall change the basis of taxation of payments to any
Bank (or its Applicable Lending Office) 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 Bank or its Applicable
Lending Office imposed by the jurisdiction in which such Bank's principal
executive office or Applicable Lending Office is located); or (ii) shall impose,
modify or deem applicable any reserve (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System or
any similar Governmental Authority), special deposit, insurance assessment or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its Applicable Lending Office) or shall impose
on any Bank (or its Applicable Lending Office) or the London interbank market
any other condition affecting its Eurodollar Loans, its Note or its obligation
to make Eurodollar Loans; and the result of any of the foregoing is to increase
the cost to such Bank (or its Applicable Lending Office) of making or
maintaining any Eurodollar Loan, or to reduce the amount of any sum received or
receivable by such Bank (or its Applicable Lending Office) under this Agreement
or under its Note with respect thereto, by an amount deemed by such Bank to be
material, then, within 30 days after demand by such Bank, the Borrowers shall
pay to such Bank such additional amount or amounts as will compensate such Bank
for such increased cost or reduction. The Banks acknowledge and agree that the
foregoing subsection (a) creates no right to demand payment of additional
amounts (1) in respect of laws, rules and regulations, as in effect and
interpreted and administered on the date hereof, or (2) already accounted for in
the Statutory Reserve Rate.
(b) If any Bank shall have determined that, after the date hereof, any
Regulatory Change has or would have the effect of reducing the rate of return on
capital of such Bank as a consequence of such Bank's obligations hereunder to a
level below that which such Bank could have achieved but for such any Regulatory
Change (taking into consideration its policies with respect to capital adequacy)
by an amount deemed by such Bank to be material, then from time to time, within
30 days after demand by such Bank, the applicable Borrower shall pay to such
Bank such additional amount or amounts as will compensate such Bank for such
reduction; provided that such Borrower shall not be obligated to compensate such
Bank for any reduction incurred more than 60 days prior to the receipt by such
Borrower from such Bank of the notice contemplated by subsection (c) below. The
Banks acknowledge and agree that the foregoing subsection (b) creates no right
to demand payment of additional amounts in respect of laws, rules and
regulations regarding capital adequacy as in effect and interpreted and
administered on the date hereof.
(c) Each Bank will notify the Borrowers within 90 days of any event of
which it has knowledge, occurring after the date hereof, which will entitle such
Bank to compensation pursuant to this Section and will designate a different
Applicable Lending Office if such designation will avoid the need for, reduce
the amount of, such compensation and will not, in the judgement of such Bank, be
otherwise disadvantageous to such Bank; provided that if a Bank
17
shall not have so notified the Borrowers within 90 days of such event, such Bank
may not seek compensation for any period beginning prior to the date upon which
the Borrowers are notified of such event. A certificate of any Bank claiming
compensation under this Section and setting forth the calculation of the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
8.04 Base Rate Loans Substituted for Affected Eurodollar Loans. If
(i) the obligation of any Bank to make Eurodollar Loans has been suspended
pursuant to Section 8.02 or (ii) any Bank has demanded compensation under
Section 8.03(a), then unless and until such Bank notifies the Borrowers that the
circumstances giving rise to such suspension or demand for compensation no
longer apply, all Loans which would otherwise be made by such Bank as Eurodollar
Loans shall be made instead as Base Rate Loans (on which interest and principal
shall be payable contemporaneously with the related Eurodollar Rate Loans of the
other Banks).
8.05 Taxes.
(a) Any and all payments by any Borrower or Guarantor to or for the
account of any Bank hereunder or under any Note shall be made free and clear of
and without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto; excluding taxes imposed on or measured by such Bank's income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which such
Bank is organized or any political subdivision thereof and taxes imposed on or
measured by such Bank's income, and franchise or similar taxes imposed on it, by
the jurisdiction of such Bank's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Withholding Taxes," and all such excluded taxes being hereinafter referred
to as "Domestic Taxes"). If any Borrower or Guarantor shall be required by law
to deduct any Withholding Taxes from or in respect of any sum payable hereunder
or under any Note to any Bank, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) such Bank receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the applicable Borrower or Guarantor shall make such deductions, (iii) the
applicable Borrower or Guarantor shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law, and (iv) shall furnish to such Bank the original or a certified copy of a
receipt evidencing payment thereof.
(b) In addition, each applicable Borrower agrees to pay any present
or future stamp or documentary taxes and any other excise or property taxes, or
charges or similar levies which arise from any payment made hereunder or under
any Note or from the execution or delivery of, or otherwise with respect to,
this Agreement (hereinafter referred to as "Other Taxes").
(c) Each Borrower and Guarantor agrees to indemnify each Bank for
the full amount of Withholding Taxes or Other Taxes (including, without
limitation, any Withholding Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by such Bank and any
penalties, interest and expenses arising therefrom or with
18
respect thereto. This indemnification payment shall be made within 15 days from
the date the Bank makes written demand therefor.
(d) At such times as each Borrower shall reasonably request, each
Bank, if organized under the laws of a jurisdiction outside the United States,
shall provide each Borrower with Internal Revenue Service forms (in each case
accompanied by any statements which may be required under applicable Treasury
regulations), as appropriate, certifying that such Bank is entitled to receive
payments under this Agreement (i) without deduction or withholding of any United
States federal income taxes, or (ii) subject to a reduced rate of United States
federal withholding tax, unless an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank advises ▇▇▇▇▇▇ US that it is not capable
of receiving payments without any deduction or withholding of such taxes.
(e) For any period with respect to which any Bank has failed to
provide the Borrowers with the appropriate form in accordance with Section
8.05(d), such Bank shall not be entitled to indemnification under Section
8.05(a) or 8.05(c) with respect to Withholding Taxes imposed by the United
States; provided, however, that should such Bank, which is otherwise exempt from
or subject to a reduced rate of withholding tax, become subject to Withholding
Taxes because of its failure to deliver a form required hereunder, Borrower
shall take such steps as such Bank shall reasonably request to assist such Bank
to recover such Withholding Taxes.
(f) If a Borrower is required to pay additional amounts to or for
the account of any Bank pursuant to this Section, then such Bank will change the
jurisdiction of its Applicable Lending Office so as to eliminate or reduce any
such additional payment which may thereafter accrue if such change, in the
judgement of the Bank in the good faith exercise of its discretion, is not
otherwise disadvantageous to such Bank.
(g) If a Bank determines that it has received a refund of any
Withholding Taxes or Other Taxes as to which it has been indemnified by a
Borrower or with respect to which such Borrower has paid additional amounts
pursuant to this Section, it shall pay over such refund to such Borrower, net of
all out-of-pocket expenses of such Bank and without interest (other than any
interest paid by the relevant governmental authority with respect to such
refund). This Subsection shall not be construed to require any Bank to make
available its tax returns (or any other information relating to its taxes which
it deems confidential) to the Borrowers.
8.06 Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, or (c) the failure to borrow, convert, continue or
prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto, the applicable Borrower shall compensate each Bank for the
loss, cost and expense attributable to such event. Such loss, cost or expense to
any Bank shall be deemed to include an amount determined by such Bank to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the
19
Eurodollar Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Bank would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Bank
setting forth any amount or amounts that such Bank is entitled to receive
pursuant to this Section shall be delivered to the applicable Borrower and shall
be conclusive absent manifest error. The applicable Borrower shall pay such Bank
the amount shown as due on any such certificate within 10 days after receipt
thereof.
Section 9. Covenants. From the date hereof and so long as the Commitments
shall be outstanding and until the payment in full of all Loans outstanding
hereunder and the performance of all other obligations of ▇▇▇▇▇▇ US and ▇▇▇▇▇▇
Bermuda hereunder, ▇▇▇▇▇▇ US and ▇▇▇▇▇▇ Bermuda agree that, unless the Required
Banks shall otherwise consent in writing:
9.01 Financial Statements. ▇▇▇▇▇▇ Bermuda will deliver to each
Bank:
(1) As soon as available and in any event within 30 days after such
statements are due to be filed with the Securities and Exchange Commission for
each of the first three fiscal quarters in each fiscal year, consolidated
statements of income of ▇▇▇▇▇▇ Bermuda and its Consolidated Subsidiaries, for
the period from the beginning of such fiscal year to the end of such fiscal
quarter, the related consolidated balance sheet of ▇▇▇▇▇▇ Bermuda and its
Consolidated Subsidiaries as at the end of such fiscal quarter and the related
consolidated statement of cash flows, setting forth in comparative form in the
case of consolidated statements of income and consolidated statements of cash
flows, the corresponding figures for the corresponding period of the preceding
fiscal year, all in reasonable detail and accompanied by (i) a certificate
signed by an authorized financial officer of ▇▇▇▇▇▇ Bermuda stating that said
financial statements include all adjustments, consisting only of normal
recurring adjustments, necessary for a fair presentation in all material
respects of the financial information for the periods indicated, which
certificate shall include a statement that such officer has no knowledge, except
as specifically stated, of any default by ▇▇▇▇▇▇ Bermuda in the observance of
any of the provisions in this Agreement and (ii) a certificate signed by an
authorized financial officer of ▇▇▇▇▇▇ Bermuda, in form and substance
satisfactory to the Required Banks, demonstrating compliance with the covenants
contained in this Section.
(2) As soon as available and in any event within 30 days after such
statements are due to be filed with the Securities and Exchange Commission for
each fiscal year, consolidated statements of income and reconciliation of
capital accounts of ▇▇▇▇▇▇ Bermuda and its Consolidated Subsidiaries for such
year, the related consolidated balance sheet of ▇▇▇▇▇▇ Bermuda and its
Consolidated Subsidiaries as at the end of such year and the related
consolidated statement of cash flows, setting forth in each case in comparative
form the corresponding figures for the preceding fiscal year, all in reasonable
detail and accompanied by (i) an opinion, which opinion shall not be subject to
(a) any "going concern" or like qualification or exception or (b) any
qualification or exception as to the scope of the related audit, of ▇▇▇▇▇▇
Bermuda's independent public accountants together with a written statement of
such accountants to the
20
effect that in making the examination necessary to support an opinion for such
financial statements, they obtained no knowledge of any default by ▇▇▇▇▇▇
Bermuda in the fulfillment of any of the covenants contained in this Agreement
or if, in the opinion of such accountants any such default exists, specifying
such default and the nature thereof, (ii) a certificate signed by an authorized
financial officer of ▇▇▇▇▇▇ Bermuda stating that said financial statements
fairly present in all material respects in accordance with GAAP the financial
condition and the results of operations of ▇▇▇▇▇▇ Bermuda and its Consolidated
Subsidiaries as at the end of such year and for the year involved and that such
officer has no knowledge, except as specifically stated, of any default by
▇▇▇▇▇▇ Bermuda in the observance of any of the provisions in this Agreement; and
(iii) a certificate signed by an authorized financial officer of ▇▇▇▇▇▇ Bermuda,
in form and substance satisfactory to the Required Banks, demonstrating
compliance with the covenants contained in this Section.
(3) Promptly upon a responsible financial officer of ▇▇▇▇▇▇ US or
▇▇▇▇▇▇ Bermuda becoming aware of the existence of a condition, event or act
which constitutes an Event of Default or which, with notice or lapse of time or
both, would constitute such an Event of Default, a written notice to each Bank
specifying the nature and period of existence thereof and what action ▇▇▇▇▇▇ US,
▇▇▇▇▇▇ Bermuda or such Subsidiary, as the case may be, is taking or proposes to
take with respect thereto.
(4) Promptly after their becoming available:
(a) Copies of all financial statements, reports and proxy statements
which ▇▇▇▇▇▇ Bermuda or any Consolidated Subsidiary which has shares listed on a
stock exchange shall have sent to its respective public stockholders.
(b) Copies of all regular periodic reports, if any, which ▇▇▇▇▇▇
Bermuda or any Consolidated Subsidiary shall have filed with the Securities and
Exchange Commission.
(5) From time to time, with reasonable promptness, such additional
information regarding the business, affairs and financial condition of ▇▇▇▇▇▇
Bermuda and its Subsidiaries as the Required Banks may reasonably request.
Documents required to be delivered pursuant to this Section (to the extent any
such documents are filed with, or included in materials otherwise filed with,
the Securities and Exchange Commission) may be delivered electronically and if
so delivered, shall be deemed to have been delivered on the date on which the
Company posts such documents on the internet, or provides a link thereto on the
Company's website; provided that documents not so filed with the Securities and
Exchange Commission shall be delivered in paper form.
9.02 Indebtedness. ▇▇▇▇▇▇ Bermuda and the Consolidated Subsidiaries
may incur, create, assume or suffer to exist any indebtedness of any kind or
character, provided that ▇▇▇▇▇▇ Bermuda shall at no time permit Debt of ▇▇▇▇▇▇
Bermuda and the Consolidated Subsidiaries, determined on a consolidated basis,
to exceed 60% of Total Capitalization.
21
9.03 Liens. ▇▇▇▇▇▇ Bermuda shall not, nor shall it permit any
Consolidated Subsidiary to, create or suffer to exist any mortgage, pledge,
security interest, conditional sale or other title retention agreement, lien,
charge or encumbrance upon any of its property or assets, now owned or hereafter
acquired, securing any indebtedness or obligation (all such security being
hereinafter called "liens"), except:
(i) Materialmen's, suppliers', tax and other like liens arising in
the ordinary course of business securing obligations which are not overdue
or are being contested in good faith by appropriate proceedings;
(ii) Other liens incidental to the conduct of its business or the
ownership of its property and assets which were not incurred in connection
with the borrowing of money or the obtaining of advances or credit, the
existence of which could not reasonably be expected to have a Material
Adverse Effect;
(iii) Liens on property or assets of any corporation existing on the
date such corporation becomes a Consolidated Subsidiary or such property
or assets become property or assets of ▇▇▇▇▇▇ Bermuda; provided that such
liens had not been created in anticipation of such corporation becoming a
Consolidated Subsidiary or such property or assets being acquired by
▇▇▇▇▇▇ Bermuda;
(iv) Any lien renewing, extending or refunding any lien permitted by
clause (iii) immediately above; provided that the principal amount secured
is not increased and the lien is not extended to any other property;
(v) Pre-existing liens, namely liens (including interests existing
in favor of a lessor under a lease) securing Capitalized Lease Obligations
and other Debt of ▇▇▇▇▇▇ Bermuda, which liens were in existence on
December 31, 2003; provided that pre-existing liens shall not include any
lien renewing, extending or refunding any such pre-existing lien existing
on December 31, 2003;
(vi) ▇▇▇▇▇▇ Bermuda or any Consolidated Subsidiary may create or
suffer to exist or renew, extend or refund any interests in favor of the
United States of America or any state thereof or any department, agency,
instrumentality or political subdivision of any such jurisdiction to
secure partial, progress, advance or other payments pursuant to any
contract or statute, or to secure any Debt payable to the foregoing
incurred for the purpose of financing or refinancing all or any part of
the purchase price or cost of constructing or improving the property
subject to such interests, including without limitation interests to
secure Debt in respect of any pollution control, industrial revenue bond
or similar type of financing;
(vii) Liens which are incidental to interest rate or currency swaps,
the purchase or sale of marketable securities, or the hedging of
commodities and which secure obligations not exceeding 10% of Net Worth;
22
(viii) Liens on and security interests in all goods, documents,
deposits, instruments, securities, general intangibles, policies of
insurance, and all proceeds and products thereof, in which ▇▇▇▇▇▇ Bermuda
or any Consolidated Subsidiary may have or obtains any interest in
connection with a letter of credit or letter of guarantee or any
underlying transaction, securing letters of credit and letters of
guarantee issued in the ordinary course of business; and
(ix) Liens, not otherwise permitted by the foregoing provisions of
this Section, securing Debt not exceeding 2% of Net Worth in principal
amount at any one time outstanding.
9.04 Merger and Sale of Assets. ▇▇▇▇▇▇ Bermuda shall not, nor shall
it permit any Consolidated Subsidiary to, merge or consolidate with any other
Person or sell, lease, transfer or otherwise dispose of all or a substantial
part of its assets to any Person, or acquire by purchase or otherwise all or
substantially all of the stock or assets of any Person, except that:
(i) Any Consolidated Subsidiary may merge or consolidate with ▇▇▇▇▇▇
Bermuda (provided that ▇▇▇▇▇▇ Bermuda shall be the continuing or surviving
corporation, unless the purpose of such merger or consolidation is to
effect a change in the state of incorporation or Country of organization
of ▇▇▇▇▇▇ Bermuda) or with any one or more other Consolidated
Subsidiaries.
(ii) Any Consolidated Subsidiary may sell, lease, transfer or
otherwise dispose of any of its assets to ▇▇▇▇▇▇ Bermuda or one or more
other Consolidated Subsidiaries;
(iii) ▇▇▇▇▇▇ Bermuda or any Consolidated Subsidiary may sell, lease,
transfer or otherwise dispose of assets in a transaction (including a
transfer of assets through a merger or consolidation) with any other
Person that is not a Consolidated Subsidiary, if the assets sold
contributed less than 10% of Operating Earnings for the fiscal year then
most recently ended; and
(iv) Any Person that is not a Consolidated Subsidiary may be merged
into or consolidated with ▇▇▇▇▇▇ Bermuda or any Consolidated Subsidiary,
or ▇▇▇▇▇▇ Bermuda or any Consolidated Subsidiary may acquire all or
substantially all of the stock or assets of any Person, if, in the case of
each such transaction, immediately thereafter and after giving effect
thereto:
(a) ▇▇▇▇▇▇ Bermuda and its Consolidated Subsidiaries shall be in
compliance with this Agreement;
(b) in the case of any merger into or consolidation with ▇▇▇▇▇▇
Bermuda, ▇▇▇▇▇▇ Bermuda shall be the continuing or surviving
corporation;
(c) if the consideration payable by ▇▇▇▇▇▇ Bermuda and/or the
Consolidated Subsidiaries in connection with any such transaction
shall consist, in whole or in part, of shares of stock of ▇▇▇▇▇▇
Bermuda (except for liabilities to dissenting
23
shareholders), the total number of shares of stock of ▇▇▇▇▇▇ Bermuda
having ordinary voting power for the election of directors issued or
exchanged in connection with, or outstanding as a result of, such
transaction shall not exceed 40% of the total of such voting shares
of ▇▇▇▇▇▇ Bermuda outstanding immediately prior to such transaction;
and
(d) any Subsidiary acquired in, or continuing as a result of, any
such transaction shall be or forthwith become a Consolidated
Subsidiary.
9.05 Taxes. ▇▇▇▇▇▇ Bermuda shall, and shall cause each Consolidated
Subsidiary to pay and discharge all taxes, assessments and governmental charges
or levies imposed on it or on its income or profits or on any of its property
prior to the date on which penalties attach thereto, except that no corporation
will be required hereby to pay any such tax, assessment, charge or levy, the
payment of which is being contested in good faith and by proper proceedings.
9.06 Sale-and-Leaseback. ▇▇▇▇▇▇ Bermuda shall not, nor shall it
permit any Consolidated Subsidiary to, sell or transfer to a person (other than
▇▇▇▇▇▇ Bermuda or a Consolidated Subsidiary) any property, whether now owned or
hereafter acquired, if at the time or thereafter ▇▇▇▇▇▇ Bermuda or a
Consolidated Subsidiary shall lease as lessee such property or any part thereof
or other property which ▇▇▇▇▇▇ Bermuda or a Consolidated Subsidiary intends to
use for substantially the same purpose as the property sold or transferred
except such transactions:
(i) Incidental to transactions permitted by Section 9.03(vi); or
(ii) From which arise Capitalized Lease Obligations and other rental
obligations not exceeding two percent of Net Worth in the aggregate at any
one time.
9.07 Maintenance of Property; Insurance. ▇▇▇▇▇▇ Bermuda will keep,
and will cause each Significant Subsidiary to keep, all property useful and
necessary in its business in good working order and condition, ordinary wear and
tear excepted; will maintain, and will cause each Significant Subsidiary to
maintain (either in the name of ▇▇▇▇▇▇ Bermuda or in such Significant
Subsidiary's own name) either with financially sound and reputable insurance
companies or pursuant to a plan of self-insurance established in accordance with
sound and appropriate practices, insurance on all their property in at least
such amounts and against at least such risks as are usually insured against in
the same general area by companies of established repute engaged in the same or
a similar business.
9.08 ▇▇▇▇▇▇ US. ▇▇▇▇▇▇ US shall at all times be a Consolidated
Subsidiary.
9.09 Interest Coverage. As of the end of each fiscal four quarter
period ▇▇▇▇▇▇ Bermuda's Interest Coverage Ratio shall be at least 3.0 to 1.0.
9.10 Principal Domestic Operating Subsidiaries. The aggregate
amount of all of the Debt of the Principal Domestic Operating Subsidiaries may
not exceed $50,000,000. ▇▇▇▇▇▇ Bermuda shall not cause or permit any of the
Principal Domestic Operating Subsidiaries,
24
directly or indirectly, to guarantee the payment of any Debt of ▇▇▇▇▇▇ Bermuda
or any Consolidated Subsidiary ("Upstream Guaranteed Debt") without for the same
period of time also causing such Principal Domestic Operating Subsidiary, or
Principal Domestic Operating Subsidiaries as the case may be, to guarantee the
obligations of the Borrowers hereunder. Notwithstanding the immediately
preceding sentence, such guarantee of the Borrowers' obligations hereunder shall
not be required so long as the aggregate amount of all of the Debt of the
Principal Domestic Operating Subsidiaries and the Upstream Guaranteed Debt does
not exceed $50,000,000.
Section 10. Events of Default. If any one of the following events (herein
called "Events of Default") shall occur and be continuing:
(a) Any representation or warranty made or deemed made herein by
▇▇▇▇▇▇ US or ▇▇▇▇▇▇ Bermuda, or any certificate furnished to any Bank
hereunder, shall prove to have been incorrect in any material respect when
made or deemed made; or
(b) Default in the payment when due hereunder of any principal of or
interest on any Loan; or
(c) (i) Default by ▇▇▇▇▇▇ US or ▇▇▇▇▇▇ Bermuda in the performance of
any agreement contained in Section 9.04, Section 9.06 or Section 9.09; or
(ii) default by ▇▇▇▇▇▇ US or ▇▇▇▇▇▇ Bermuda in the performance of any
other agreement contained in Section 9, other than in Sections 9.01(1),
(2), (4) or (5), which shall remain unremedied for 10 days after either
▇▇▇▇▇▇ US or ▇▇▇▇▇▇ Bermuda shall have had knowledge of the occurrence
thereof; or
(d) Default by ▇▇▇▇▇▇ US or ▇▇▇▇▇▇ Bermuda, as applicable, in the
performance of any other agreement herein which shall remain unremedied
for 30 days after written notice thereof shall have been given to ▇▇▇▇▇▇
US by any Bank; or
(e) Any payment on any bond, debenture, note or other evidence of
indebtedness of ▇▇▇▇▇▇ Bermuda or any Consolidated Subsidiary, where the
amount of the facility under which the default occurred exceeds one
percent of Net Worth as of the date of the most recent financial statement
provided to the Banks pursuant to Section 9.01, shall become due whether
by maturity, acceleration or otherwise and shall not be promptly paid; or
(f) ▇▇▇▇▇▇ Bermuda or any Significant Subsidiary (each such Person,
whether ▇▇▇▇▇▇ Bermuda or a Significant Subsidiary, hereafter in this
Section is called a "Corporation"), shall (i) apply for or consent to the
appointment of a receiver, trustee or liquidator of itself or of its
property, (ii) be unable, or admit in writing inability, to pay its debts
as they mature, (iii) make a general assignment for the benefit of
creditors, (iv) be adjudicated a bankrupt or insolvent, or (v) file a
voluntary petition in bankruptcy or a petition or answer seeking
reorganization or an arrangement with creditors or to take advantage of
any insolvency law or an answer admitting the material allegations of a
petition filed against it in any bankruptcy, reorganization or insolvency
proceeding, or corporate action shall be taken by it for the purpose of
effecting any of the foregoing; or
25
(g) An order, judgement or decree shall be entered, without the
application, approval or consent of the respective Corporation, by any
court or governmental agency of competent jurisdiction, approving a
petition seeking reorganization of any Corporation, or appointing a
receiver, trustee, liquidator, intervenor or the like of such Corporation,
or of all or a substantial part of its assets, and such order, judgement
or decree, unless being contested in good faith and by appropriate
proceedings, shall continue unstayed and in effect for any period of 30
consecutive days; or
(h) Any Termination Event shall have occurred and shall have
continued under circumstances which may result in an uninsured payment or
repayment liability of any Corporation to PBGC in an amount which could
reasonably be expected to have a Material Adverse Effect; or
(i) The occurrence of a Stock Acquisition Date (as hereinafter
defined). For the purposes of this Section 10(i), the term "Stock
Acquisition Date" shall mean the earlier of (i) the date of public
announcement, or a filing with the Securities and Exchange Commission
pursuant to Section 13 of the Securities and Exchange Act of 1934, as
amended, (the "1934 Act"), by an Acquiring Person to the effect that such
Acquiring Person has become such or (ii) the determination by ▇▇▇▇▇▇
Bermuda that an Acquiring Person has become such; "Acquiring Person" shall
mean any Person who, or which, together with all Affiliates and Associates
of such Person, shall be the Beneficial Owner of Voting Stock constituting
a Controlling Block but shall not mean any Plan; "Affiliate" and
"Associate" shall have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the 1934 Act, as in
effect on the date of the Agreement; "Beneficial Owner" shall have the
meaning ascribed to such term in Rule 13d-3 of the General Rules and
Regulations under the 1934 Act, as in effect on the date of the Agreement;
"Controlling Block" shall mean a number of shares of Voting Stock which
possess more than 50 percent of the aggregate voting power of Voting Stock
then outstanding; and "Voting Stock" shall mean all securities of ▇▇▇▇▇▇
Bermuda entitling the owner or holder thereof to vote for the election of
directors of ▇▇▇▇▇▇ Bermuda, other than upon the happening of a default or
contingency; or
(j) Judgements or orders for the payment of money in excess of
$100,000,000 in the aggregate shall be rendered against ▇▇▇▇▇▇ Bermuda or
any Consolidated Subsidiary and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgement or order or (ii)
there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgement or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided, however, that any such
judgement or order shall not be an Event of Default under this Section 10
(j) if, for so long as and to the extent that (i) the amount of such
judgement or order is covered by a valid and binding policy of insurance
between the defendant and the insurer covering payment thereof and (ii)
such insurer, which shall be rated at least "A" by A.M. Best company, has
been notified and has not disputed the claim made for payment of the
amount of such judgement or order; or
26
(k) Any provision of Section 12 hereof or of either of the
Guarantees given by ▇▇▇▇▇▇ Industries, LLC or ▇▇▇▇▇▇ Industries, Inc.
pursuant hereto (Section 12 and such Guarantees being referred to
collectively in this Section 10(k) as the "Guarantees"), at any time after
their execution and delivery and for any reason other than as expressly
permitted hereunder or thereunder or satisfaction in full of all the
obligations and liabilities of the Borrowers hereunder, ceases to be in
full force and effect; or any Guarantor, ▇▇▇▇▇▇ Industries, LLC or ▇▇▇▇▇▇
Industries, Inc. or any other Person contests in any manner the validity
or enforceability of any provision of any Guarantee; or any Guarantor,
▇▇▇▇▇▇ Industries, LLC or ▇▇▇▇▇▇ Industries, Inc. denies that it has any
or further liability or obligation under the Guarantee given by it, or
purports to revoke, terminate or rescind any such Guarantee (it being
acknowledged and agreed that ▇▇▇▇▇▇ Industries, Inc. may merge into ▇▇▇▇▇▇
Industries, LLC without causing an Event of Default under this Section
10(k)).
THEREUPON, in case of any Event of Default specified in Section
10(f) or Section 10(g), the Commitments shall automatically terminate and the
principal of and interest on all Loans shall become forthwith due and payable
all without protest, presentment, notice or demand, all of which are expressly
waived by ▇▇▇▇▇▇ US and ▇▇▇▇▇▇ Bermuda, and in case of any other Event of
Default specified above, the Required Banks, may, by written notice to ▇▇▇▇▇▇ US
terminate the Commitments and/or, if Loans are then outstanding, declare the
principal of and interest on all the Loans to be forthwith due and payable,
whereupon the same will become forthwith due and payable, all without protest,
presentment, notice or demand, all of which are expressly waived by ▇▇▇▇▇▇ US
and ▇▇▇▇▇▇ Bermuda.
Section 11. Miscellaneous.
11.01 Waiver. No failure on the part of any Bank to exercise and no
delay in exercising, and no course of dealing with respect to, any right, power
or privilege under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law.
11.02 Notices. All notices and other communications provided for
herein shall be in writing and telecopied, e-mailed, mailed or delivered to the
intended recipient at the "Address for Notices" specified below its name on the
signature pages hereof; or, as to either party, at such other address as shall
be designated by such party in a notice to the other party. Except as otherwise
provided herein, all notices and other communications hereunder shall be deemed
to have been duly given when transmitted by telecopier, e-mail or personally
delivered or, in the case of a mailed notice, four Business Days after the date
deposited in the mails, first class postage prepaid, in each case given or
addressed as aforesaid, except that notices to any Bank pursuant to Section 5
shall be effective only upon receipt and shall be irrevocable.
11.03 Amendments and Waivers. Any provision of this Agreement or the
Notes may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed in the case of the Agreement by ▇▇▇▇▇▇ Bermuda and ▇▇▇▇▇▇
US and the Required Banks, and in the case of any Note by the applicable
Borrower and the applicable Bank; provided that no such
27
amendment or waiver shall, unless signed by each of the Banks directly affected
thereby, (i) increase or decrease the Commitment of any Bank (except for a
ratable decrease in the Commitments of all Banks) or subject any Bank to any
additional obligation, (ii) reduce the principal of or rate of interest on any
Loan or any fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder or for any reduction
or termination of any Commitment, (iv) change any Bank's percentage of the
Commitments (other than through the execution of an agreement in the form of
Exhibit B) or of the aggregate unpaid principal amount of the Loans which shall
be required for the Banks or any of them to take any action under this Section
or any other provision of this Agreement, or (v) release ▇▇▇▇▇▇ Bermuda or
▇▇▇▇▇▇ US from their obligations under Section 12 hereof.
11.04 Successors and Assigns. (a) This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that neither ▇▇▇▇▇▇ US nor ▇▇▇▇▇▇ Bermuda may
assign any of its rights or obligations hereunder without the prior written
consent of the Banks, and no Bank may assign any of its rights or obligations
hereunder without the prior written consent of ▇▇▇▇▇▇ Bermuda and ▇▇▇▇▇▇ US.
Notwithstanding the preceding sentence of this Section, any Bank may, upon
written notice to ▇▇▇▇▇▇ US, (i) assign all, or a proportionate part of all, of
the rights and obligations under this Agreement and any Note issued hereunder to
any Affiliate; and (ii) assign all, or a proportionate part of all, of its
rights and obligations under any Loans to any Affiliate. Notwithstanding
anything to the contrary in this Agreement, if any Bank makes an assignment
under this Section, neither ▇▇▇▇▇▇ Bermuda nor ▇▇▇▇▇▇ US shall be obliged to pay
any greater amount to such assignee under this Agreement than it would have been
obliged to pay had there been no such assignment. "Affiliate" means either a
wholly-owned subsidiary of the Bank or a wholly-owned subsidiary of any
corporation controlling the Bank. Any Bank may from time to time deposit the
Note with any Federal Reserve Bank to serve as collateral for obligations of
such Bank to such Federal Reserve Bank.
(b) The Borrowers shall have the right to replace a Bank as a party to
this Agreement at any time when there are no Loans outstanding and the Borrowers
may, upon written notice to such Bank, replace such Bank by causing such Bank to
terminate its Commitment which is being replaced. The Borrowers shall pay in
full all accrued fees and other amounts owing to such replaced Bank through the
date of replacement. The replacement bank will execute an amendment in the form
of Exhibit B attached hereto, and a photocopy of each executed amendment to
replace a Bank shall be delivered to each of the Banks by ▇▇▇▇▇▇ US.
11.05 Participations. Any Bank may sell participations in all or any
part of any Loan or Loans and/or its Commitment to another bank or other entity,
in which event, the participant shall not have any rights (unless such rights
are acquired pursuant to Section 7.05) under this Agreement (the participant's
rights against such Bank in respect of such participation to be those set forth
in the agreement executed by such Bank in favor of the participant relating
thereto) and all amounts payable by the Borrowers under Section 8 shall be
determined as if such Bank had not sold such participation. Any Bank may furnish
to participants (including prospective participants) copies of (i) this
Agreement, (ii) the promissory note or notes (if any) evidencing the Loans,
(iii) any guaranty, security or similar agreement providing for any guaranty,
collateral or other similar support for the Loans, (iv) any amendments, consents
or
28
waivers relating to the items listed in (i), (ii) or (iii) of this Section, (v)
any documents furnished to any Bank in satisfaction of conditions precedent to
the making of any Loan and (vi) any other documents or information expressly
required by this Agreement to be furnished to any Bank.
11.06 Expenses. The applicable Borrower shall pay or reimburse the
Banks for paying costs of collection (including reasonable counsel fees) if
default is made in the payment of any Loan.
11.07 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
11.08 Indemnity. ▇▇▇▇▇▇ Bermuda and ▇▇▇▇▇▇ US hereby agree to
indemnify each Bank, its affiliates, and their respective officers, directors,
employees and agents from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages or expenses incurred by, imposed upon or
asserted against any of them arising out of or by reason of any investigation,
litigation or other proceedings (including any threatened investigation or
litigation or other proceedings) relating to the making or performance by ▇▇▇▇▇▇
Bermuda or ▇▇▇▇▇▇ US of this Agreement or any actual or proposed use by ▇▇▇▇▇▇
Bermuda or ▇▇▇▇▇▇ US or any of the Subsidiaries of the proceeds of any of the
Loans, including, without limitation, the reasonable fees and disbursements of
counsel incurred in connection with any such investigation or litigation or
other proceedings (but excluding any such losses, liabilities, claims, damages
or expenses incurred by reason of the gross negligence or willful misconduct of
the person or entity to be indemnified). The obligations of ▇▇▇▇▇▇ Bermuda or
▇▇▇▇▇▇ US under this Section shall survive the repayment of the Loans and the
termination of the Commitments. ▇▇▇▇▇▇ Bermuda and ▇▇▇▇▇▇ US, on behalf of
itself and its Subsidiaries, also agree not to assert any claim for special,
indirect, consequential or punitive damages against any Bank, any of its
affiliates, or any of its or their respective directors, officers, employees,
attorneys and agents, on any theory of liability arising out of or otherwise
relating to this Agreement.
11.09 Survival. The obligations of the Borrowers under
Sections 8.03, 8.06, 11.06 and 11.08 shall survive the repayment of the Loans
and the termination of the Commitments.
11.10 Usury. If the effective rate of interest to be received by any
Bank under this Agreement or the Note, including the stated rates of interest
and fees contracted for hereunder and any other amounts contracted for hereunder
which are deemed to be interest, at any time exceeds the highest lawful rate,
then the outstanding principal amount of the Loans made hereunder by such Bank
shall bear interest at a rate which would make the effective rate of interest
for such Bank equal the highest lawful rate until the difference between the
amounts which would have been due at the stated rates and the amounts which were
due at the highest lawful rate (the "Lost Interest") has been recaptured by such
Bank. If when the Loans made hereunder are repaid in full the Lost Interest has
not been fully recaptured by such Bank pursuant to the preceding sentence, then,
to the extent permitted by law, the interest rates charged under Section 6.02
shall be retroactively increased such that the effective rate of interest was at
the highest lawful rate since the effectiveness of this Agreement to the extent
necessary to recapture the Lost Interest not recaptured pursuant to the
preceding sentence and, to the extent allowed by
29
law, the applicable Borrower shall pay to such Bank the amount of the Lost
Interest remaining to be recaptured by such Bank. NOTWITHSTANDING the foregoing
or any other term in this Agreement to the contrary, it is the intention of the
Banks and the Borrowers to conform strictly to any applicable usury laws.
Accordingly, if any Bank contracts for, charges, or receives any consideration
which constitutes interest in excess of the highest lawful rate, then any such
excess shall be cancelled automatically and, if previously paid, shall at the
affected Bank's option be applied to the outstanding amount of the Loans made
hereunder by such Bank or be refunded to the applicable Borrower.
11.11 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES.
11.12 Jurisdiction. In addition to any other jurisdiction in which
▇▇▇▇▇▇ US and ▇▇▇▇▇▇ Bermuda may be legally served with process, ▇▇▇▇▇▇ US and
▇▇▇▇▇▇ Bermuda hereby agree that they each may also both be served with process
at ▇▇▇▇▇▇ US's corporate headquarters in Houston, Texas at the "Address for
Notices" specified below ▇▇▇▇▇▇ US's name on the signature pages hereof. ▇▇▇▇▇▇
US and ▇▇▇▇▇▇ Bermuda hereby irrevocably and unconditionally submit, for
themselves and their property, to the nonexclusive jurisdiction of the Supreme
Court of the state of New York and of any United States District Court sitting
in the state of New York, and any state or federal appellate court with
jurisdiction to hear an appeal from the aforementioned courts, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgement, 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 the state of New York, or, to the
extent permitted by law, in any federal court in the state of New York. Each of
the parties hereto agrees that a final judgement in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgement or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any Bank may otherwise have to bring any
action or proceeding relating to this Agreement against ▇▇▇▇▇▇ US, ▇▇▇▇▇▇
Bermuda or their properties in the courts of any jurisdiction.
11.13 Waiver of Jury Trial. ▇▇▇▇▇▇ US, ▇▇▇▇▇▇ Bermuda and the Banks
hereby irrevocably waive all rights to trial by jury in any action, proceeding
or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement or the Note.
11.14 Patriot Act. The Borrowers hereby acknowledge that pursuant to
the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the "Act"), each Bank is required to obtain, verify
and record information that identifies the Borrowers, which information includes
the name and address of the Borrowers and other information that will allow the
Banks to identify the Borrowers in accordance with the Act.
Section 12. Guarantee.
12.01 Guarantee. Each Guarantor hereby guarantees the full and
punctual payment (whether at stated maturity, upon acceleration or otherwise) of
all principal of and interest on amounts loaned to either Borrower under the
Agreement and all other amounts
30
payable by either Borrower under the Agreement. This is a guarantee of payment
and not merely of collection. Upon failure by either Borrower to pay punctually
any such amount, the applicable Guarantor shall be jointly and severally liable
to pay on demand the amount not so paid at the place and in the manner specified
in the Agreement.
12.02 Guarantee Unconditional. The obligations of each Guarantor
hereunder shall be unconditional and absolute, and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected, at any time by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of either Borrower under the
Agreement, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to the
Agreement;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of either Borrower under
the Agreement;
(iv) any change in the corporate existence, structure or ownership
of either Borrower, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting such Borrower or its assets or any resulting
release or discharge of any obligation of either Guarantor or Borrower
contained in the Agreement;
(v) the existence of any claim, set-off or other rights which either
Guarantor may have at any time against a Borrower or any other party,
whether in connection herewith or any unrelated transactions, PROVIDED
that nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against a
Borrower for any reason under the Agreement, or any provision of
applicable law or regulation purporting to prohibit the payment by such
Borrower of any amount payable by it under the Agreement; or
(vii) any other act or omission to act, or delay of any kind by a
Borrower, a Bank or any other party or any other circumstance whatsoever
which might, but for the provisions of this paragraph, constitute a legal
or equitable discharge of or defense to either of the Guarantors'
obligations hereunder.
12.03 Discharge Upon Payment in Full; Reinstatement in Certain
Circumstances. Except as otherwise provided below, this guarantee shall remain
in full force and effect until the Agreement shall have terminated and the
principal of and interest on the Loans and all other amounts payable by the
Borrowers under the Agreement shall have been paid in full. If at any time any
payment of principal of or interest on any Loan or any other amount payable by a
Borrower under the Agreement is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of such Borrower or
otherwise, the applicable
31
Guarantor's obligations hereunder with respect to such payment shall be
reinstated at such time as though such payment had been due but not made at such
time.
12.04 Waiver by the Guarantor. Each Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
party against a Borrower or any other party.
12.05 Subrogation. Upon making any payment hereunder with respect to
a Borrower, the applicable Guarantor shall be subrogated to the rights of the
payee against such Borrower with respect to such payment; PROVIDED that no
Guarantor shall enforce any payment by way of subrogation until all amounts of
principal of an interest on any Loans and all other amounts payable by a
Borrower under the Agreement have been paid in full and the Agreement has been
terminated.
12.06 Stay of Acceleration. In the event that acceleration of the
time for payment of any amount payable by a Borrower under the Agreement is
stayed upon insolvency, bankruptcy or reorganization of such Borrower all such
amounts otherwise subject to acceleration under the terms of this Guarantee
shall nonetheless be payable by the applicable Guarantor hereunder forthwith on
demand by the Banks.
32
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the day and year first above written.
▇▇▇▇▇▇ US, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Title: Vice President and Treasurer
Address for Notices:
By Mail:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
By Courier:
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ INDUSTRIES, LTD.,
A Bermuda company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Title: Vice President and Treasurer
Address for Notices:
By Mail:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
By Courier:
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
33
AUSTRALIA AND NEW ZEALAND BANKING GROUP
LIMITED
By _____________________________
Title:__________________________
Commitment: $50,000,000
Address for Notices:
AUSTRALIA AND NEW ZEALAND BANKING GROUP
LIMITED
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
34
BANK OF AMERICA, N.A.
By __________________________
Title:__________________________
Commitment: $50,000,000
Address for Notices:
BANK OF AMERICA, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Hari Kalyandurg
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Copy of Notices To:
BANK OF AMERICA, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: 212-503-7066
e-mail: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
35
Citibank, N.A.
By ___________________________
Title:___________________________
Commitment: $50,000,000
Address for Notices:
Citibank, N.A.
▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Copy of Notices To:
Citicorp North America, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇.▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
36
Deutsche Bank AG New York Branch
By _____________________________
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By _____________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
Commitment: $50,000,000
Address for Notices:
Deutsche Bank AG New York Branch
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇ ▇▇▇▇
Telecopier: ▇▇▇-▇▇▇ ▇▇▇▇
e-mail: ▇▇▇.▇▇▇▇▇▇@▇▇.▇▇▇
37
JPMORGAN CHASE BANK
By _____________________________
Title:__________________________
Commitment: $50,000,000
Address for Notices:
JPMorgan Chase Bank
Loan & Agency Services
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Copy of Notices To:
JPMorgan Chase Bank
Credit & Lending
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
38
MELLON BANK, N.A.
By _____________________________
Title: First Vice President
Commitment: $50,000,000
Address for Notices:
Mellon Bank, N.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Copy of Notices To:
Mellon Global Exposure Management
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇.▇@▇▇▇▇▇▇.▇▇▇
39
PNC BANK, NATIONAL ASSOCIATION.
By _________________________________
Title:__________________________
Commitment: $50,000,000
Address for Notices:
PNC Bank, National Association
One PNC Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Copy of Notices to:
PNC Bank, National Association
One PNC Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ PLC
By __________________________________
Title:____________________________
Commitment: $50,000,000
Address for Notices:
The Royal Bank of Scotland plc
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Yao-▇▇ ▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
41
UBS Loan Finance LLC
By __________________________________
Title:____________________________
By __________________________________
Title:____________________________
Commitment: $50,000,000
Address for Notices:
UBS Loan Finance LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
42
WACHOVIA BANK, N.A.
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
Commitment: $50,000,000
Address for Borrowing Notices:
Wachovia Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail code NC1183
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Address for Other Notices:
Wachovia Bank
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: 704-383-1625
e-mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
43
EXHIBIT A
NOTE
$_____________ Month Day, 2004
▇▇▇▇▇▇ Industries, Ltd., a Bermuda company ("▇▇▇▇▇▇ Bermuda"), promises to
pay to Name of Bank (the "Bank") the principal sum of___________ Million Dollars
or the aggregate unpaid principal amount of all Loans made by the Bank to ▇▇▇▇▇▇
Bermuda pursuant to the Five Year Credit Agreement dated as of Month Day 1,
2004, between ▇▇▇▇▇▇ Bermuda, ▇▇▇▇▇▇ US, Inc., a Delaware corporation ("▇▇▇▇▇▇
US"), the Bank and certain other lenders (the "Agreement"), whichever is less,
in immediately available funds at______________________________, together with
interest on the unpaid principal amount hereof at the rates and on the dates set
forth in the Agreement. ▇▇▇▇▇▇ Bermuda shall pay each Loan as set forth in the
Agreement.
The Bank shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is issued pursuant to, and is entitled to the benefits of, the
Agreement, as it may be amended from time to time, to which reference is hereby
made for a statement of the terms and conditions under which this Note may be
transferred, prepaid or its maturity date accelerated. Capitalized terms used
herein and not otherwise defined herein are used with the meanings attributed to
them in the Agreement.
Except as otherwise provided in the Agreement, ▇▇▇▇▇▇ Bermuda waives
presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note and the Agreement.
This Note is governed by New York law.
▇▇▇▇▇▇ INDUSTRIES, LTD.
By: _______________________________
Title: Vice President and Treasurer
1
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF ▇▇▇▇▇▇ INDUSTRIES, LTD.
dated _____________________
Principal
Amount Interest Principal Unpaid
Date of Loan Period Amount Paid Balance
---- --------- -------- ----------- -------
1
NOTE
$_____________ Month Day, 2004
▇▇▇▇▇▇ US, Inc., a Delaware corporation ("▇▇▇▇▇▇ US"), promises to pay to
JPMorgan Chase Bank (the "Bank") the principal sum of ___________ Million
Dollars or the aggregate unpaid principal amount of all Loans made by the Bank
to ▇▇▇▇▇▇ US pursuant to the Five Year Credit Agreement dated as of Month Day,
2004, between ▇▇▇▇▇▇ US, ▇▇▇▇▇▇ Industries, Ltd., a Bermuda company ("▇▇▇▇▇▇
Bermuda"), the Bank and certain other lenders (the "Agreement"), whichever is
less, in immediately available funds at _______________________________________,
together with interest on the unpaid principal amount hereof at the rates and on
the dates set forth in the Agreement. ▇▇▇▇▇▇ US shall pay each Loan as set forth
in the Agreement.
The Bank shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is issued pursuant to, and is entitled to the benefits of, the
Agreement, as it may be amended from time to time, to which reference is hereby
made for a statement of the terms and conditions under which this Note may be
transferred, prepaid or its maturity date accelerated. Capitalized terms used
herein and not otherwise defined herein are used with the meanings attributed to
them in the Agreement.
Except as otherwise provided in the Agreement, ▇▇▇▇▇▇ US waives
presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note and the Agreement.
This Note is governed by New York law.
▇▇▇▇▇▇ US, INC.
By: _______________________________
Title: Vice President and Treasurer
1
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF ▇▇▇▇▇▇ US, INC
dated _____________________
Principal
Amount Interest Principal Unpaid
Date of Loan Period Amount Paid Balance
---- --------- -------- ----------- -------
1
EXHIBIT B
AMENDMENT
This Amendment (the "Amendment") is dated as of ______________ and is
entered into by and among ▇▇▇▇▇▇ Industries, Ltd. and ▇▇▇▇▇▇ US, Inc.
(collectively, the "Borrower"), and ________________________________ (the "New
Bank"). Capitalized terms used but not defined herein shall have the meanings
given to them in the Five Year Credit Agreement dated as of _____________, 2004
among the Borrower and the banks parties thereto (as amended, the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the New Bank.
The Borrower and the New Bank hereby agree as follows:
1. The New Bank hereby irrevocably assumes all of the obligations of a "Bank"
under the Credit Agreement and any other documents or instruments delivered
pursuant thereto just as if the New Bank had been an original signatory to the
Credit Agreement as a "Bank."
2. The New Bank shall become a "Bank" under the Credit Agreement.
3. The amount of the Commitment of the New Bank is $ ______________
4. The Borrower has executed and delivered to the New Bank promissory notes
in the form attached to the Credit Agreement.
5. This Amendment shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and assigns. This Amendment may
be executed in any number of counterparts, which together shall constitute one
instrument. This Amendment shall be governed by and construed in accordance with
the laws of the State of New York.
The terms set forth in this Amendment are hereby agreed to:
▇▇▇▇▇▇ INDUSTRIES, LTD.
By:____________________________
Name:__________________________
Title:_________________________
▇▇▇▇▇▇ US, INC.
By:____________________________
Name:__________________________
Title:_________________________
[Signature Block for New Bank]
1
EXHIBIT C
GUARANTEE BY
▇▇▇▇▇▇ INDUSTRIES, INC.
This Guarantee is a guarantee of payment of amounts loaned to the
Borrowers pursuant to a Five-Year Credit Agreement ("Agreement") dated the ____
day of ____________, 2004 between ▇▇▇▇▇▇ Industries, Ltd., a Bermuda company,
("▇▇▇▇▇▇ Bermuda"), ▇▇▇▇▇▇ US, Inc., a Delaware corporation ("▇▇▇▇▇▇ US") and
the Banks as defined in such Agreement. Defined terms in this Guarantee shall
have the meaning ascribed to such terms in the Agreement.
1. Guarantee. The undersigned ▇▇▇▇▇▇ Industries, Inc., an Ohio
corporation, hereby guarantees the full and punctual payment (whether at
stated maturity, upon acceleration or otherwise) of all principal of and
interest on amounts loaned to either Borrower under the Agreement and all
other amounts payable by either Borrower under the Agreement. This is a
guarantee of payment and not merely of collection. Upon failure by either
Borrower to pay punctually any such amount, ▇▇▇▇▇▇ Industries, Inc. shall
be jointly and severally liable to pay on demand the amount not so paid at
the place and in the manner specified in the Agreement.
2. Guarantee Unconditional. The obligations of ▇▇▇▇▇▇ Industries, Inc.
hereunder shall be unconditional and absolute, and, without limiting the
generality of the foregoing, shall not be released, discharged or
otherwise affected, at any time by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of either Borrower under the
Agreement, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to the
Agreement;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of either Borrower
under the Agreement;
(iv) any change in the corporate existence, structure or ownership
of either Borrower, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting such Borrower or its assets or
any resulting release or discharge of any obligation of any
guarantor or Borrower contained in the Agreement;
(v) the existence of any claim, set-off or other rights which any
guarantor may have at any time against a Borrower or any other
party, whether in connection herewith or any unrelated transactions,
PROVIDED that nothing herein shall prevent the assertion of any such
claim by separate suit or compulsory counterclaim;
1
(vi) any invalidity or unenforceability relating to or against a
Borrower for any reason under the Agreement, or any provision of
applicable law or regulation purporting to prohibit the payment by
such Borrower of any amount payable by it under the Agreement; or
(vii) any other act or omission to act, or delay of any kind by a
Borrower, a Bank or any other party or any other circumstance
whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of or defense to any of
the undersigned guarantors' obligations hereunder.
3. Term. The obligations of ▇▇▇▇▇▇ Industries, Inc. under this
Guarantee shall terminate at such time as ▇▇▇▇▇▇ Industries, Inc. ceases
to be a direct or indirect subsidiary of ▇▇▇▇▇▇ Bermuda.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed as of this ____ day of _______________, 200__.
▇▇▇▇▇▇ INDUSTRIES, INC.
By: _____________________________
Title: _____________________________
By: _____________________________
Title: _____________________________
2
EXHIBIT D
GUARANTEE BY
▇▇▇▇▇▇ INDUSTRIES, LLC
This Guarantee is a guarantee of payment of amounts loaned to the
Borrowers pursuant to a Five-Year Credit Agreement ("Agreement") dated the ____
day of ____________, 2004 between ▇▇▇▇▇▇ Industries, Ltd., a Bermuda company,
("▇▇▇▇▇▇ Bermuda"), ▇▇▇▇▇▇ US, Inc., a Delaware corporation ("▇▇▇▇▇▇ US") and
the Banks as defined in such Agreement. Defined terms in this Guarantee shall
have the meaning ascribed to such terms in the Agreement.
1. Guarantee. The undersigned ▇▇▇▇▇▇ Industries, LLC, a Delaware
limited liability company, hereby guarantees the full and punctual payment
(whether at stated maturity, upon acceleration or otherwise) of all
principal of and interest on amounts loaned to either Borrower under the
Agreement and all other amounts payable by either Borrower under the
Agreement. This is a guarantee of payment and not merely of collection.
Upon failure by either Borrower to pay punctually any such amount, ▇▇▇▇▇▇
Industries, LLC shall be jointly and severally liable to pay on demand the
amount not so paid at the place and in the manner specified in the
Agreement.
2. Guarantee Unconditional. The obligations of ▇▇▇▇▇▇ Industries, LLC
hereunder shall be unconditional and absolute, and, without limiting the
generality of the foregoing, shall not be released, discharged or
otherwise affected, at any time by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of either Borrower under the
Agreement, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to the
Agreement;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of either Borrower
under the Agreement;
(iv) any change in the corporate existence, structure or ownership
of either Borrower, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting such Borrower or its assets or
any resulting release or discharge of any obligation of any
guarantor or Borrower contained in the Agreement;
3
(v) the existence of any claim, set-off or other rights which any
guarantor may have at any time against a Borrower or any other
party, whether in connection herewith or any unrelated transactions,
PROVIDED that nothing herein shall prevent the assertion of any such
claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against a
Borrower for any reason under the Agreement, or any provision of
applicable law or regulation purporting to prohibit the payment by
such Borrower of any amount payable by it under the Agreement; or
(vii) any other act or omission to act, or delay of any kind by a
Borrower, a Bank or any other party or any other circumstance
whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of or defense to any of
the undersigned guarantors' obligations hereunder.
3. Term. The obligations of ▇▇▇▇▇▇ Industries, LLC under this Guarantee
shall terminate at such time as of ▇▇▇▇▇▇ Industries, LLC ceases to be a
direct or indirect subsidiary of ▇▇▇▇▇▇ Bermuda.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed as of this ____ day of _______________, 200__.
▇▇▇▇▇▇ INDUSTRIES, LLC
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
4