EXHIBIT 4.2
$400,000,000
FIVE-YEAR CREDIT AGREEMENT
dated as of
October 28, 1999
among
CK Witco Corporation
The Eligible Subsidiaries
Referred to Herein
The Banks Listed Herein
The Chase Manhattan Bank,
as Syndication Agent
Citibank, N.A.,
as Administrative Agent
and
Bank of America, N.A. and Deutsche Bank Securities Inc., as Co-
Documentation Agents
Chase Securities Inc.,
as Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions 1
SECTION 1.02. Accounting Terms and Determinations 14
SECTION 1.03. Types of Borrowings 14
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend 15
SECTION 2.02. Method of Committed Borrowing 15
SECTION 2.03. Money Market Borrowings 16
SECTION 2.04. Notice to Banks; Funding of Loans 20
SECTION 2.05. Notes 21
SECTION 2.06. Maturity of Loans 21
SECTION 2.07. Interest Rates 22
SECTION 2.08. Facility Fees 25
SECTION 2.09. Optional Termination or Reduction of
Commitments 22
SECTION 2.10. Mandatory Termination of Commitments 25
SECTION 2.11. Prepayments 25
SECTION 2.12. General Provisions as to Payments 26
SECTION 2.13. Funding Losses 27
SECTION 2.14. Computation of Interest and Fees 27
SECTION 2.15. Taxes 27
SECTION 2.16. Judgment Currency 29
SECTION 2.17. Foreign Subsidiary Costs 30
SECTION 2.18. Letters of Credit 30
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness 35
SECTION 3.02. Borrowings 36
SECTION 3.03. First Borrowing by Each Eligible
Subsidiary 37
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power 37
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention 37
SECTION 4.03. Binding Effect 38
SECTION 4.04. Financial Information 38
SECTION 4.05. Litigation 38
SECTION 4.06. Compliance with ERISA 38
SECTION 4.07. Environmental Matters 39
SECTION 4.08. Taxes 39
SECTION 4.09. Subsidiaries 34
SECTION 4.10. Not an Investment Company or a
Public Utility Holding Company 40
SECTION 4.11. Full Disclosure 40
SECTION 4.12. Year 2000 40
ARTICLE 5
COVENANTS
SECTION 5.01. Information 41
SECTION 5.02. Payment of Obligations 43
SECTION 5.03. Maintenance of Property; Insurance 43
SECTION 5.04. Conduct of Business and Maintenance of
Existence 43
SECTION 5.05. Compliance with Laws 44
SECTION 5.06. Inspection of Property, Books and
Records 44
SECTION 5.07. Financial Covenants 44
SECTION 5.08. Negative Pledge 45
SECTION 5.09. Consolidations, Mergers and Sales of
Assets 45
SECTION 5.10. Use of Proceeds 46
SECTION 5.11. Additional Subsidiaries 45
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default 46
SECTION 6.02. Notice of Default 48
ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization 48
SECTION 7.02. Agents and Affiliates 49
SECTION 7.03. Action by Agents 49
SECTION 7.04. Consultation with Experts 49
SECTION 7.05. Liability of Agents 49
SECTION 7.06. Indemnification 49
SECTION 7.07. Credit Decision 50
SECTION 7.08. Successor Agents 50
SECTION 7.09. Agents= Fees 50
SECTION 7.10. Co-Documentation Agents 50
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair 51
SECTION 8.02. Illegality 51
SECTION 8.03. Increased Cost and Reduced Return 52
SECTION 8.04. Base Rate Loans Substituted for
Affected Fixed Rate Loans 53
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF ELIGIBLE SUBSIDIARIES
SECTION 9.01. Corporate Existence and Power 54
SECTION 9.02. Corporate and Governmental
Authorization; No Contravention 54
SECTION 9.03. Binding Effect 54
SECTION 9.04. Taxes 54
ARTICLE 10
GUARANTY
SECTION 10.01. The Guaranty 55
SECTION 10.02. Guaranty Unconditional 55
SECTION 10.03. Discharge Only upon Payment in Full;
Reinstatement in Certain Circumstances 56
SECTION 10.04. Waiver by the Company 56
SECTION 10.05. Subrogation 56
SECTION 10.06. Stay of Acceleration 56
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices 57
SECTION 11.02. No Waivers 57
SECTION 11.03. Expenses; Indemnification 57
SECTION 11.04. Sharing of Set-offs 57
SECTION 11.05. Amendments and Waivers 58
SECTION 11.06. Successors and Assigns 59
SECTION 11.07. Collateral 60
SECTION 11.08. Governing Law; Submission to
Jurisdiction 60
SECTION 11.09. Counterparts; Integration 61
SECTION 11.10. Waiver of Jury Trial 61
SECTION 11.11. Confidentiality 62
PRICING SCHEDULE
EXHIBIT A Note
EXHIBIT B Opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇, Esq., General
Counsel of the Company
EXHIBIT C Opinion of Wachtell Lipton ▇▇▇▇▇ & ▇▇▇▇, Special
Counsel for the Company
EXHIBIT D Assignment and Assumption Agreement
EXHIBIT E Form of Money Market Quote Request
EXHIBIT F Form of Invitation for Money Market Quotes
EXHIBIT G Form of Money Market Quote
EXHIBIT H Form of Election to Participate
EXHIBIT I Form of Election to Terminate
EXHIBIT J Opinion of Counsel for the Borrower
EXHIBIT K Form of Subsidiary Guarantee Agreement
EXHIBIT L Form of Indemnity, Subrogation and Contribution
Agreement
EXHIBIT M Existing Letters of Credit
FIVE-YEAR CREDIT AGREEMENT
AGREEMENT dated as of October 28, 1999 among CK WITCO
CORPORATION, the ELIGIBLE SUBSIDIARIES referred to herein, the
BANKS listed on the signature pages hereof, CITIBANK, N.A., as
Administrative Agent, THE CHASE MANHATTAN BANK, as Syndication
Agent, and BANK OF AMERICA, N.A. and DEUTSCHE BANK SECURITIES
INC., as Co-Documentation Agents.
WHEREAS, the Company wishes to have a revolving credit
facility under which it or any of its Eligible Subsidiaries may
from time to time borrow funds, denominated in Dollars, from the
Banks ratably in proportion to their respective Commitments and
may from time to time obtain letters of credit to support
obligations of the Company or any of its Eligible Subsidiaries
incurred in the ordinary course of their businesses;
WHEREAS, the Company wishes said credit facility to
permit the Company or any Eligible Subsidiary from time to time
to borrow funds, denominated in Dollars, from one or more Banks
on the basis of their competitive bids;
WHEREAS, the Banks are willing to extend said credit
facility to the Company and its Eligible Subsidiaries, and the
Issuing Bank is willing to issue Letters of Credit for the
account of the Company and its Eligible Subsidiaries, in each
case on the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as
used herein, have the following meanings:
A364-Day Credit Agreement@ means the 364-Day Credit
Agreement dated as of the date hereof among the Company, the
eligible subsidiaries named therein, Citibank, N.A., as
administrative agent, the banks named therein, The Chase
Manhattan Bank, as syndication agent, and Bank of America, N.A.
and Deutsche Bank Securities Inc., as co-documentation agents.
AAbsolute Rate Auction@ means a solicitation of Money
Market Quotes setting forth Money Market Absolute Rates pursuant
to Section 2.03.
AAdjusted CD Rate@ has the meaning set forth in
Section 2.07(b).
AAdjusted London Interbank Offered Rate@ has the
meaning set forth in Section 2.07(c).
AAdministrative Agent@ means Citibank, N.A., in its
capacity as administrative agent for the Banks hereunder, and its
successors in such capacity.
AAdministrative Questionnaire@ means, with respect to
each Bank, an administrative questionnaire in the form prepared
by the Administrative Agent, duly completed by such Bank and
submitted to the Administrative Agent (with a copy to the
Company).
AAffiliate@ means, with respect to a specified Person,
another Person that directly, or indirectly through one or more
intermediaries, controls or is controlled by or is under common
control with the Person specified.
AAgents@ means the Administrative Agent, the
Syndication Agent and the Co-Documentation Agents, and AAgent@
means any of the foregoing.
AApplicable Lending Office@ means, with respect to any
Bank, (i) in the case of its Domestic Loans, its Domestic Lending
Office, (ii) in the case of its Euro-Dollar Loans, its
Euro-Dollar Lending Office and (iii) in the case of its Money
Market Loans, its Money Market Lending Office.
AApplicable Percentage@ means, with respect to any
Bank, the percentage of the total Commitments represented by such
Bank's Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based
upon the Commitments most recently in effect, giving effect to
any assignments.
AAssessment Rate@ has the meaning set forth in
Section 2.07(b).
AAssignee@ has the meaning set forth in
Section 11.06(c).
AAvailability Period@ means the period from and
including the Effective Date to but not including the Termination
Date.
ABank@ means each Person listed on the signature pages
hereof, each Assignee which becomes a Bank pursuant to
Section 11.06(c), and their respective successors.
ABase Rate@ means, for any day, a rate per annum equal
to the higher of (i) the Prime Rate for such day and (ii) the sum
of 2 of 1% plus the Federal Funds Rate for such day.
ABase Rate Loan@ means a Committed Loan to be made by a
Bank as a Base Rate Loan pursuant to the applicable Notice of
Committed Borrowing or Article 8.
ABorrower@ means the Company or any Eligible
Subsidiary, as the context may require, and their respective
successors, and ABorrowers@ means all of the foregoing.
ABorrowing@ has the meaning set forth in Section 1.03.
ACD Base Rate@ has the meaning set forth in
Section 2.07(b).
ACD Loan@ means a Committed Loan to be made by a Bank
as a CD Loan pursuant to the applicable Notice of Committed
Borrowing.
ACD Reference Banks@ means the financial institutions
acting as the Administrative Agent, the Syndication Agent and
the Co-Documentation Agents.
ACo-Documentation Agents@ means Bank of America, N.A.
and Deutsche Bank Securities Inc. in their capacities as co-
documentation agents for the Banks hereunder, and their
successors in such capacity.
ACommitment@ means, with respect to each Bank, the
amount set forth opposite the name of such Bank on the signature
pages hereof, as such amount may be reduced from time to time
pursuant to Section 2.09 or 2.10 and as such amount may be
reduced or increased from time to time pursuant to assignments to
or by such Bank in accordance with Section 11.06.
ACommitted Loan@ means a loan made by a Bank pursuant
to Section 2.01.
ACompany@ means CK Witco Corporation, a Delaware
corporation, and its successors.
ACompany=s S-4@ means the Company=s registration
statement on Form S-4, as filed on July 28, 1999 with the
Securities and Exchange Commission.
AConsolidated Debt@ means at any date the Debt of the
Company and its Consolidated Subsidiaries, determined on a
consolidated basis as of such date.
AConsolidated Subsidiary@ means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Company in its consolidated
financial statements if such statements were prepared as of such
date.
ADebt@ of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all
obligations of such Person to pay the deferred purchase price of
property or services, except (a) trade accounts payable arising
in the ordinary course of business, (b) obligations incurred in
the ordinary course of business in connection with additions to
property, plant or equipment which are deferred for no more than
120 days after the later of the acquisition or completion of
installation of such additions, (c) other obligations arising in
the ordinary course of business which are deferred for no more
than 120 days after the date on which they would first be
reflected as liabilities on a balance sheet of such Person and
(d) obligations in connection with the compensation for services
of officers, directors or employees of such Person, (iv) the
capitalized amount of all obligations of such Person as lessee
which are capitalized in accordance with generally accepted
accounting principles, (v) all Debt of others secured by a Lien
on any asset of such Person, whether or not such Debt is assumed
by such Person, (vi) all Debt of others Guaranteed by such
Person and (vii) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit
or letters of guaranty.
ADefault@ means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or waived,
become an Event of Default.
ADerivatives Obligations@ of any Person means all
obligations of such Person in respect of any rate swap
transaction, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or
equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or other similar transaction
(including any option with respect to any of the foregoing
transactions) or any combination of the foregoing transactions.
ADollars@ and the sign A$@ mean lawful money of the
United States.
ADomestic Business Day@ means any day except a
Saturday, Sunday or other day on which commercial banks in New
York City are authorized by law to close.
ADomestic Lending Office@ means, as to each Bank, its
office located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire
as its Domestic Lending Office) or such other office as such Bank
may hereafter designate as its Domestic Lending Office by notice
to the Company and the Administrative Agent; provided that any
Bank may so designate separate Domestic Lending Offices for its
Base Rate Loans, on the one hand, and its CD Loans, on the other
hand, in which case all references herein to the Domestic Lending
Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
ADomestic Loans@ means CD Loans or Base Rate Loans or
both.
ADomestic Reserve Percentage@ has the meaning set forth
in Section 2.07(b).
ADomestic Subsidiary@ means each Subsidiary that is
organized under a jurisdiction which is any of the United States,
any State thereof or the District of Columbia.
AEBITDA@ means, for any period, the consolidated net
income of the Company and its Consolidated Subsidiaries for such
period plus, to the extent deducted in computing such
consolidated net income for such period, the sum (without
duplication) of (a) income tax expense, (b) Interest Expense,
(c) depreciation and amortization expense, (d) non-recurring
restructuring charges in an amount not to exceed $65 million in
any fiscal year of the Company, (e) extraordinary and other non-
recurring losses and (f) any other non-cash charges (including
merger-related purchase accounting adjustments in an amount not
to exceed $289 million made as a result of the merger of Crompton
& ▇▇▇▇▇▇▇ Corporation and Witco Corporation), minus, to the
extent added in computing such consolidated net income for such
period, (a) consolidated interest income, (b) extraordinary and
other non-recurring gains and (c) any other non-cash income.
Anything contained in this definition or elsewhere in this
Agreement to the contrary notwithstanding, in calculating EBITDA
for the four fiscal-quarter periods ending on December 31, 1999,
March 31, 2000 and June 30, 2000, respectively, EBITDA in fiscal
quarters ended March 31, 1999, June 30, 1999 and September 30,
1999 shall be deemed to equal the combined EBITDA of Crompton &
▇▇▇▇▇▇▇ Corporation and Witco Corporation for such fiscal
quarters, as adjusted on a pro forma basis to give effect to the
merger of Crompton & ▇▇▇▇▇▇▇ Corporation and Witco Corporation as
if such merger had occurred on December 31, 1998.
AEffective Date@ means the date the obligations of the
Banks to extend credit under this Agreement become effective in
accordance with Section 3.01.
AElection to Participate@ means an Election to
Participate substantially in the form of Exhibit H hereto.
AElection to Terminate@ means an Election to Terminate
substantially in the form of Exhibit I hereto.
AEligible Subsidiary@ means any Wholly-Owned
Consolidated Subsidiary as to which an Election to Participate
shall have been delivered to the Administrative Agent and as to
which an Election to Terminate shall not have been delivered to
the Administrative Agent. Each such Election to Participate and
Election to Terminate shall be duly executed on behalf of such
Wholly-Owned Consolidated Subsidiary and the Company in such
number of copies as the Administrative Agent may request. The
delivery of an Election to Terminate shall not affect any
obligation of an Eligible Subsidiary theretofore incurred. The
Administrative Agent shall promptly give notice to the Issuing
Bank and the Banks of the receipt of any Election to Participate
or Election to Terminate.
AEnvironmental Laws@ means any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous
substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or wastes
or the clean-up or other remediation thereof.
AERISA@ means the Employee Retirement Income Security
Act of 1974, as amended, or any successor statute.
AERISA Group@ at any time means the Company and all
members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control
which, together with the Company, are treated at such time as a
single employer under Section 414 of the Internal Revenue Code.
AEuro-Dollar Business Day@ means any Domestic Business
Day on which commercial banks are open for international business
(including dealings in dollar deposits) in London.
AEuro-Dollar Lending Office@ means, as to each Bank,
its office, branch or affiliate located at its address set forth
in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Euro-Dollar Lending
Office) or such other office, branch or affiliate of such Bank as
it may hereafter designate as its Euro-Dollar Lending Office by
notice to the Company and the Administrative Agent.
AEuro-Dollar Loan@ means a Committed Loan that bears
interest at a Euro-Dollar Rate pursuant to the applicable Notice
of Committed Borrowing.
AEuro-Dollar Margin@ means a rate per annum determined
in accordance with the Pricing Schedule.
AEuro-Dollar Rate@ means a rate of interest determined
pursuant to Section 2.07(c) on the basis of a London Interbank
Offered Rate.
AEuro-Dollar Reference Banks@ means the principal
London offices of the financial institutions acting as the
Administrative Agent, the Syndication Agent and the Co-
Documentation Agents.
AEuro-Dollar Reserve Percentage@ means, for any day,
that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion
dollars in respect of AEurocurrency liabilities@ (or in respect
of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is
determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any
Bank to United States residents).
AEvent of Default@ has the meaning set forth in
Section 6.01.
AExisting Credit Agreements@ means (i) the $500,000,000
Credit Agreement dated as of March 31, 1997, among Witco
Corporation, the Eligible Subsidiaries referred to therein, the
banks listed on the signature pages thereof, The Chase Manhattan
Bank, as Administrative Agent, and ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Documentation Agent and (ii) the US$600,000,000
Third Amended and Restated Credit Agreement dated as of March 31,
1998, among Crompton & ▇▇▇▇▇▇▇ Corporation, Crompton & ▇▇▇▇▇▇▇
Colors Incorporated, ▇▇▇▇▇-Standard Corporation, Ingredient
Technology Corporation, Uniroyal Chemical Company, Inc., the B-2
Borrowers named therein and Uniroyal Chemical Co., as Borrowers,
the Initial Lenders, Initial Issuing Banks and Swing Line Bank
named therein, Citicorp USA, Inc., as Agent, and The Chase
Manhattan Bank, Corestates Bank, N.A. and First Union National
Bank, as Managing Agents.
AFederal Funds Rate@ means, for any day, the rate per
annum (rounded upward, if necessary, to the nearest 1/100th 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 Domestic
Business Day next succeeding such day, provided that (i) if such
day is not a Domestic Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next
preceding Domestic Business Day as so published on the next
succeeding Domestic Business Day, and (ii) if no such rate is so
published on such next succeeding Domestic Business Day, the
Federal Funds Rate for such day shall be the average rate quoted
to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.
AFixed Rate Loans@ means CD Loans or Euro-Dollar Loans
or Money Market Loans (excluding Money Market LIBOR Loans bearing
interest at the Base Rate pursuant to Section 8.01) or any
combination of the foregoing.
AGuaranty@ by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any Debt or other obligation of any other Person
and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether
arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or
otherwise) or (ii) entered into for the purpose of assuring in
any other manner the obligee of such Debt or other obligation of
the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term
Guaranty shall not include endorsements for collection or deposit
in the ordinary course of business. The term AGuarantee@ used as
a verb has a corresponding meaning.
AIndemnity, Subrogation and Contribution Agreement@
means the Five-Year Indemnity, Subrogation and Contribution
Agreement, substantially in the form of Exhibit L hereto, among
the Company, the Subsidiary Guarantors and the Administrative
Agent.
AInterest Coverage Ratio@ means, on any date, the ratio
of (a) EBITDA for the period of four consecutive fiscal quarters
ended on or most recently prior to such date to (b) Interest
Expense for the period of four consecutive fiscal quarters ended
on or most recently prior to such date.
AInterest Expense@ means, for any period, the interest
expense of the Company and its Consolidated Subsidiaries for such
period determined on a consolidated basis in accordance with
generally accepted accounting principles, including (i) the
amortization of debt discounts to the extent included in interest
expense in accordance with generally accepted accounting
principles, (ii) the amortization of all fees (including fees
with respect to interest rate protection agreements or other
interest rate hedging arrangements) payable in connection with
the incurrence of Debt to the extent included in interest expense
in accordance with generally accepted accounting principles and
(iii) the portion of any rents payable under capital leases
allocable to interest expense in accordance with generally
accepted accounting principles. Anything contained in this
definition or elsewhere in this Agreement to the contrary
notwithstanding, in calculating Interest Expense for the four
fiscal-quarter periods ending on December 31, 1999, March 31,
2000 and June 30, 2000, respectively, Interest Expense in fiscal
quarters ended March 31, 1999, June 30, 1999 and September 30,
1999 shall be deemed to equal the combined Interest Expense of
Crompton & ▇▇▇▇▇▇▇ Corporation and Witco Corporation for such
fiscal quarters, as adjusted on a pro forma basis to give effect
to the merger of Crompton & ▇▇▇▇▇▇▇ Corporation and Witco
Corporation as if such merger had occurred on December 31, 1998.
AInterest Period@ means: (1) with respect to each
Euro-Dollar Borrowing, the period commencing on the date of such
Borrowing and ending one, two, three or six months thereafter (or
nine or twelve months thereafter if, at the time of the relevant
Borrowing, an interest period of such duration is available to
all Banks), as the relevant Borrower may elect in the applicable
Notice of Borrowing; provided that:
(a) any Interest Period (except an Interest Period
determined pursuant to clause (c) below) which would otherwise
end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day unless
such Euro-Dollar Business Day falls in another calendar month, in
which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day in a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject to
clause (c) below, end on the last Euro-Dollar Business Day in a
calendar month; and
(c) any Interest Period which begins before the
Termination Date and would otherwise end after the Termination
Date shall end on the Termination Date.
(2) with respect to each CD Borrowing, the period commencing on
the date of such Borrowing and ending 30, 60, 90 or 180 days
thereafter, as the relevant Borrower may elect in the applicable
Notice of Borrowing; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise
end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
(b) any Interest Period which begins before the
Termination Date and would otherwise end after the Termination
Date shall end on the Termination Date.
(3) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 30 days
thereafter; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise
end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
(b) any Interest Period which begins before the
Termination Date and would otherwise end after the Termination
Date shall end on the Termination Date.
(4) with respect to each Money Market LIBOR Borrowing, the period
commencing on the date of such Borrowing and ending such whole
number of months thereafter as the relevant Borrower may elect in
accordance with Section 2.03; provided that:
(a) any Interest Period (except an Interest Period
determined pursuant to clause (c) below) which would otherwise
end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day unless
such Euro-Dollar Business Day falls in another calendar month, in
which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day in a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject to
clause (c) below, end on the last Euro-Dollar Business Day in a
calendar month; and
(c) any Interest Period which would otherwise end after
the Termination Date shall end on the Termination Date.
(5) with respect to each Money Market Absolute Rate Borrowing,
the period commencing on the date of such Borrowing and ending
such number of days thereafter (but not less than 7 days) as the
relevant Borrower may elect in accordance with Section 2.03;
provided that:
(a) any Interest Period which would otherwise end on a
day which is not a Euro-Dollar Business Day shall be extended to
the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after
the Termination Date shall end on the Termination Date.
AInternal Revenue Code@ means the Internal Revenue Code
of 1986, as amended, or any successor statute.
AInvestment@ means any investment in any Person,
whether by means of share purchase, capital contribution, loan,
time deposit or otherwise.
"Issuing Bank" means Citibank, N.A., in its capacity as
the issuer of Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.18(i). The Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of the Issuing Bank, in which case the
term "Issuing Bank" shall include any such Affiliate with respect
to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing
Bank pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at
such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the
Borrowers at such time. The LC Exposure of any Bank at any time
shall be its Applicable Percentage of the total LC Exposure at
such time.
ALetter of Credit@ means each letter of credit listed
in Exhibit M (to the extent outstanding as of the Effective Date)
and any letter of credit issued pursuant to this Agreement.
ALeverage Ratio@ means, on any date, the ratio of
(a) Total Debt on such date to (b) EBITDA for the period of four
consecutive fiscal quarters ended on or most recently prior to
such date.
ALIBOR Auction@ means a solicitation of Money Market
Quotes setting forth Money Market Margins based on the London
Interbank Offered Rate pursuant to Section 2.03.
ALien@ means, with respect to any asset, any mortgage,
lien, pledge, security interest or encumbrance of any kind in
respect of such asset. For the purposes of this Agreement, the
Company or any Subsidiary shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement
relating to such asset.
ALoan@ means a Domestic Loan, a Euro-Dollar Loan or a
Money Market Loan, and ALoans@ means Domestic Loans, Euro-Dollar
Loans or Money Market Loans or any combination of the foregoing.
ALoan Documents@ means this Agreement, the Subsidiary
Guarantee Agreement and the Indemnity, Subrogation and
Contribution Agreement.
ALoan Parties@ means the Company, the other Borrowers
and the Subsidiary Guarantors.
ALondon Interbank Offered Rate@ has the meaning set
forth in Section 2.07(c).
ALondon Office@ means, at any time, the office of the
Administrative Agent in London specified in or pursuant to
Section 11.01 at such time.
AMaterial Debt@ means Debt (other than the obligations
under this Agreement and the 364-Day Credit Agreement) of the
Company and/or one or more of its Subsidiaries, arising in one or
more related or unrelated transactions, in an aggregate principal
or face amount exceeding $25,000,000.
AMaterial Financial Obligations@ means a principal or
face amount of Debt and/or payment or collateralization
obligations in respect of Derivatives Obligations of the Company
and/or one or more of its Subsidiaries, arising in one or more
related or unrelated transactions, in an aggregate amount
exceeding $25,000,000.
AMaterial Plan@ means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of $25,000,000.
AMaterial Subsidiary@ means at any time any Subsidiary,
except Subsidiaries which at such time have been designated by
the Company (by notice to the Agents, which may be amended from
time to time) as nonmaterial, none of which singly would meet the
definition of a Asignificant subsidiary@ contained as of the date
hereof in Regulation S-X of the Securities and Exchange
Commission and all of which, if aggregated and considered as a
single Subsidiary, would not have total assets (determined on a
consolidated basis for such Subsidiaries and their consolidated
subsidiaries) in excess of 15% of the consolidated assets of the
Company and its Consolidated Subsidiaries at such time.
AMoney Market Absolute Rate@ has the meaning set forth
in Section 2.03(d).
AMoney Market Absolute Rate Loan@ means a loan to be
made by a Bank pursuant to an Absolute Rate Auction.
AMoney Market Lending Office@ means, as to each Bank,
its Domestic Lending Office or such other office, branch or
affiliate of such Bank as it may hereafter designate as its Money
Market Lending Office by notice to the Company and the
Administrative Agent; provided that any Bank may from time to
time by notice to the Company and the Administrative Agent
designate separate Money Market Lending Offices for its Money
Market LIBOR Loans, on the one hand, and its Money Market
Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Bank
shall be deemed to refer to either or both of such offices, as
the context may require.
AMoney Market LIBOR Loan@ means a loan to be made by a
Bank pursuant to a LIBOR Auction (including such a loan bearing
interest at the Base Rate pursuant to Section 8.01).
AMoney Market Loan@ means a Money Market LIBOR Loan or
a Money Market Absolute Rate Loan.
AMoney Market Margin@ has the meaning set forth in
Section 2.03(d)(ii)(C).
AMoney Market Quote@ means an offer by a Bank to make a
Money Market Loan in accordance with Section 2.03.
AMultiemployer Plan@ means at any time an employee
pension benefit plan within the meaning of Section 4001(a)(3) of
ERISA to which any member of the ERISA Group (i) is then making
or accruing an obligation to make contributions or (ii) for
purposes of Section 6.01(i) only, has within the preceding five
plan years made contributions, including for purposes of this
clause (ii) any Person which ceased to be a member of the ERISA
Group during such five year period.
ANew York Office@ means, at any time, the office of the
Administrative Agent in New York specified in or pursuant to
Section 11.01 at such time.
ANotes@ means promissory notes of a Borrower,
substantially in the form of Exhibit A hereto, evidencing the
obligation of such Borrower to repay the Loans made to it, and
ANote@ means any one of such promissory notes issued hereunder.
ANotice of Borrowing@ means a Notice of Committed
Borrowing (as defined in Section 2.02) or a Notice of Money
Market Borrowing (as defined in Section 2.03(f)).
AParent@ means, with respect to the Issuing Bank or any
Bank, any Person controlling the Issuing Bank or such Bank.
AParticipant@ has the meaning set forth in
Section 11.06(b).
APBGC@ means the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all of its functions under
ERISA.
APerson@ means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any
other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
APlan@ means at any time an employee pension benefit
plan (other than a Multiemployer Plan) which is covered by
Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Internal Revenue Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) for
purposes of Section 6.01(i) only, has at any time within the
preceding five years been maintained, or contributed to, by any
Person which was at such time a member of the ERISA Group for
employees of any Person which was at such time a member of the
ERISA Group.
APricing Schedule@ means the Pricing Schedule attached
hereto.
APrime Rate@ means the rate of interest publicly
announced by the Administrative Agent in New York City from time
to time as its Prime Rate.
APrincipal Officer@ means any of the following officers
of the Company: the Chairman of the Board, the President, the
chief executive officer, the chief financial officer, the
treasurer, the controller and the general counsel. If the titles
of the Company=s officers are changed after the date hereof, the
term APrincipal Officer@ shall thereafter mean any officer
performing substantially the same functions as are presently
performed by one or more of the officers listed in the first
sentence of this definition.
AReference Banks@ means the CD Reference Banks or the
Euro-Dollar Reference Banks, as the context may require, and
AReference Bank@ means any one of such Reference Banks.
ARefunding Borrowing@ means a Committed Borrowing
which, after application of the proceeds thereof, results in no
net increase in the outstanding principal amount of Committed
Loans made by any Bank to any Borrower.
ARegulation U@ means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from time
to time.
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such
Person's Affiliates.
ARequired Banks@ means at any time Banks having more
than 50% of the aggregate amount of the Commitments or, if the
Commitments shall have been terminated, having Loans and
unreimbursed LC Disbursements amounting to more than 50% of the
aggregate unpaid principal amount of the Loans and unreimbursed
LC Disbursements.
ASubsidiary@ means any corporation or other entity of
which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time
directly or indirectly owned by the Company.
ASubsidiary Guarantee Agreement@ means the Five-Year
Subsidiary Guarantee Agreement substantially in the form of
Exhibit K hereto, among the Company, the Subsidiary Guarantors,
and the Administrative Agent.
ASubsidiary Guarantors@ means, collectively, each
Domestic Subsidiary of the Company that is a party to the
Subsidiary Guarantee Agreement and the Indemnity, Subrogation and
Contribution Agreement as of the date hereof, and each Domestic
Subsidiary that, pursuant to Section 5.11, becomes a party to
such agreements by execution of supplements in the forms provided
therein.
ASyndication Agent@ means The Chase Manhattan Bank, in
its capacity as syndication agent for the Banks hereunder.
ATermination Date@ means October 28, 2004, or, if such
day is not a Euro-Dollar Business Day, the next preceding
Euro-Dollar Business Day.
ATotal Debt@ means, at any date, all Debt of the
Company and its Consolidated Subsidiaries at such date to the
extent such Debt should be reflected on a consolidated balance
sheet of the Company at such date in accordance with generally
accepted accounting principles.
AUnfunded Liabilities@ means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value
of all benefit liabilities under such Plan exceeds (ii) the fair
market value of all Plan assets allocable to such liabilities
(excluding any accrued but unpaid contributions), all determined
as of the then most recent valuation date for such Plan, but only
to the extent that such excess represents a potential liability
of a member of the ERISA Group to the PBGC or any other Person
under Title IV of ERISA.
AWholly-Owned Consolidated Subsidiary@ means any
Consolidated Subsidiary all of the shares of capital stock or
other ownership interests of which (except directors= qualifying
shares or nominal shares of foreign entities) are at the time
directly or indirectly owned by the Company.
SECTION 1.02. Accounting Terms and Determinations.
Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes
concurred in by the Company=s independent public accountants)
with the most recent audited consolidated financial statements of
the Company and its Consolidated Subsidiaries delivered to the
Banks; provided that, if the Company notifies the Agents that the
Company wishes to amend any covenant in Article 5 to eliminate
the effect of any change in generally accepted accounting
principles on the operation of such covenant (or if either Agent
notifies the Company that the Required Banks wish to amend
Article 5 for such purpose), then the Company=s compliance with
such covenant shall be determined on the basis of generally
accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles
became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Company and
the Required Banks.
SECTION 1.03. Types of Borrowings. The term
ABorrowing@ denotes
(a) an aggregation of Committed Loans to be made by
the Banks to the same Borrower pursuant to Section 2.01 on the
same day, all of which Loans (i) are of the same type (subject to
Article 8) and (ii) have the same initial Interest Period; and
(b) an aggregation of one or more Money Market
Loans to be made by one or more Banks to the same Borrower
pursuant to Section 2.03 on the same day, all of which Loans
(i) are of the same type and (ii) have the same Interest Period.
Borrowings may be classified for purposes of this Agreement
by reference to the pricing of the Loans comprising such
Borrowing (e.g., a AEuro-Dollar Borrowing@ is a Borrowing
comprised of Euro-Dollar Loans) or (ii) by reference to the
provisions of Article 2 under which participation therein is
determined (i.e., a ACommitted Borrowing@ is a Borrowing under
Section 2.01 in which all Banks participate in proportion to
their Commitments, while a AMoney Market Borrowing@ is a
Borrowing under Section 2.03 in which one or more Banks
participate on the basis of their bids).
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend.
Each Bank severally agrees, on the terms and conditions
set forth in this Agreement, to make loans to the Borrowers
during the Availability Period, provided that the aggregate
amount of the Committed Loans made by such Bank plus its LC
Exposure at any one time outstanding shall not exceed the amount
of its Commitment. Each Borrowing under this Section shall be in
an aggregate principal amount of $5,000,000 or any larger
multiple of $1,000,000 (except that any such Borrowing may be in
an aggregate amount equal to the aggregate amount available in
accordance with Section 3.02 or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section
2.18(e)) and shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the foregoing
limits, the Borrowers may borrow under this Section, repay, or to
the extent permitted by Section 2.11, prepay, Loans and reborrow
at any time during the Availability Period.
SECTION 2.02. Method of Committed Borrowing. The
relevant Borrower shall give the Administrative Agent notice (a
ANotice of Committed Borrowing@) not later than 10:30 A.M. (New
York City time) on (w) the date of each Base Rate Borrowing,
(x) the second Domestic Business Day before each CD Borrowing and
(y) the third Euro-Dollar Business Day before each Euro-Dollar
Borrowing, specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Domestic Borrowing or a
Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Committed Loans comprising such
Borrowing are to be CD Loans, Base Rate Loans or Euro-Dollar
Loans, and
(iv) in the case of a Fixed Rate Borrowing, the duration
of the Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period.
On the last day of the Interest Period for any Borrowing, unless
the Borrower has otherwise notified the Administrative Agent on
or prior to such day, the Borrower shall be deemed to have given
a Committed Notice of Borrowing for a new Base Rate Borrowing in
the same amount as the Borrowing that has become due on such day,
and the Borrowing becoming due on such day shall be deemed
replaced with such new Base Rate Borrowing.
SECTION 2.03. Money Market Borrowings. (a) The Money
Market Option. In addition to Committed Loans pursuant to
Section 2.01, any Borrower may, as set forth in this Section,
request the Banks during the period beginning on the Effective
Date and continuing to at least seven days prior to the
Termination Date to make offers to make Money Market Loans to
such Borrower. The Banks may, but shall have no obligation to,
make such offers and such Borrower may, but shall have no
obligation to, accept any such offers in a manner set forth in
this Section.
(b) Money Market Quote Request. When a Borrower wishes
to request offers to make Money Market Loans under this Section,
it shall transmit to the Administrative Agent by telex or
facsimile transmission a Money Market Quote Request substantially
in the form of Exhibit E hereto so as to be received by the
Administrative Agent at its New York Office not later than
10:30 AM. (New York City time) on (x) the fourth Euro-Dollar
Business Day before the date of Borrowing proposed therein, in
the case of a LIBOR Auction or (y) the Domestic Business Day next
preceding the date of Borrowing proposed therein, in the case of
an Absolute Rate Auction or, in any such case, such other time or
date as the Company and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later
than the date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is
to be effective. Each such Money Market Quote Request shall
specify:
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a
Domestic Business Day in the case of an Absolute Rate Auction,
(ii) the proposed aggregate amount of such Borrowing,
which shall be an aggregate amount equal to $5,000,000 or a
larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period, and
(iv) whether the Money Market Quotes requested are to
set forth a Money Market Margin or a Money Market Absolute Rate.
A Borrower may request offers to make Money Market Loans for
more than one Interest Period in a single Money Market Quote
Request. No Money Market Quote Request shall be given within five
Euro-Dollar Business Days (or such other number of days as the
Company and the Administrative Agent may agree) of any other
Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon
receipt of a Money Market Quote Request, the Administrative Agent
shall send to the Banks by telex or facsimile transmission an
Invitation for Money Market Quotes substantially in the form of
Exhibit F hereto, which shall constitute an invitation by the
Borrower to each Bank to submit Money Market Quotes offering to
make the Money Market Loans to which such Money Market Quote
Request relates in accordance with this Section.
(d) Submission and Contents of Money Market Quotes.
(i) Each Bank may submit a Money Market Quote containing an
offer or offers to make Money Market Loans in response to any
Invitation for Money Market Quotes. Each Money Market Quote must
comply with the requirements of this subsection (d) and must be
submitted to the Administrative Agent by telex or facsimile at
its New York Office not later than (x) 2:00 P.M. (New York City
time) on the fourth Euro-Dollar Business Day before the proposed
date of Borrowing, in the case of a LIBOR Auction, or
(y) 9:30 A.M. (New York City time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction or, in any
such case, such other time or date as the Company and the
Administrative Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective; provided that
Money Market Quotes submitted by the Administrative Agent (or any
affiliate of the Administrative Agent) in the capacity of a Bank
may be submitted, and may only be submitted, if the
Administrative Agent or such affiliate notifies the Borrower of
the terms of the offer or offers contained therein not later than
(x) one hour prior to the deadline for the other Banks, in the
case of a LIBOR Auction or (y) 15 minutes prior to the deadline
for the other Banks, in the case of an Absolute Rate Auction.
Subject to Articles 2 and 6, any Money Market Quote so made shall
be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially
the form of Exhibit G hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan
for which each such offer is being made, which principal amount
(w) may be greater than or less than the Commitment of the
quoting Bank, (x) must be an aggregate amount equal to $5,000,000
or a larger multiple of $1,000,000, (y) may not exceed the
principal amount of Money Market Loans for which offers were
requested and (z) may be subject to an aggregate limitation as to
the principal amount of Money Market Loans for which offers being
made by such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin
above or below the applicable London Interbank Offered Rate (the
AMoney Market Margin@) offered for each such Money Market Loan,
expressed as a percentage (specified to the nearest 1/10,000th of
1%) to be added to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the
rate of interest per annum (specified to the nearest 1/10,000th
of 1%) (the AMoney Market Absolute Rate@) offered for each such
Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate
offers by the quoting Bank with respect to each Interest Period
specified in the related Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with
Exhibit G hereto or does not specify all of the information
required by subsection (d)(ii) above;
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for Money Market
Quotes; or
(D) arrives after the time set forth in
subsection (d)(i).
(e) Notice to Borrower. The Administrative Agent shall
promptly notify the Borrower of the terms (x) of any Money Market
Quote submitted by a Bank that is in accordance with
subsection (d) and (y) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money
Market Quote submitted by such Bank with respect to the same
Money Market Quote Request. Any such subsequent Money Market
Quote shall be disregarded by the Administrative Agent unless
such subsequent Money Market Quote is submitted solely to correct
a manifest error in such former Money Market Quote. The
Administrative Agent=s notice to the Borrower shall specify
(A) the aggregate principal amount of Money Market Loans for
which offers have been received for each Interest Period
specified in the related Money Market Quote Request, (B) the
respective principal amounts and Money Market Margins or Money
Market Absolute Rates, as the case may be, so offered and (C) if
applicable, limitations on the aggregate principal amount of
Money Market Loans for which offers in any single Money Market
Quote may be accepted.
(f) Acceptance and Notice by Borrower. The Borrower
shall notify the Administrative Agent of its acceptance or
non-acceptance of the offers notified to it pursuant to
subsection (e) at its New York Office not later than 10:30 A.M.
(New York City time) on (x) the third Euro-Dollar Business Day
before the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) the proposed date of Borrowing, in the case of an
Absolute Rate Auction or, in any such case, such other time or
date as the Company and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later
than the date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is
to be effective. In the case of acceptance, such notice (a
ANotice of Money Market Borrowing@) shall specify the aggregate
principal amount of offers for each Interest Period that are
accepted. The Borrower may accept any Money Market Quote in whole
or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request;
(ii) the principal amount of each Money Market Borrowing
must be an aggregate amount equal to $5,000,000 or a larger
multiple of $1,000,000;
(iii) acceptance of offers may only be made on the basis
of ascending Money Market Margins or Money Market Absolute Rates,
as the case may be; and
(iv) the Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(g) Allocation by Administrative Agent. If offers are
made by two or more Banks with the same Money Market Margins or
Money Market Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which
such offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which such
offers are accepted shall be allocated by the Administrative
Agent among such Banks as nearly as possible (in multiples of
$1,000,000, as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers.
Determinations by the Administrative Agent of the amounts of
Money Market Loans shall be conclusive in the absence of manifest
error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Administrative
Agent shall promptly notify each Bank of the contents thereof and
of such Bank=s share (if any) of such Borrowing and such Notice
of Borrowing shall not thereafter be revocable by the Borrower.
(b) On the date of each Borrowing, each Bank
participating therein shall make available its share of such
Borrowing in Dollars not later than 12:00 Noon (New York City
time), in Federal or other funds immediately available in New
York City, to the Administrative Agent at its New York Office.
Unless the Administrative Agent determines that any applicable
condition specified in Article 3 has not been satisfied, the
Administrative Agent will make the funds so received from the
Banks available to the Borrower in its bank account maintained at
the Administrative Agent=s aforesaid address; provided, that
funds in respect of Base Rate Loans made to finance the
reimbursement of an LC Disbursement as provided in Section
2.18(e) shall be remitted by the Administrative Agent to the
Issuing Bank.
(c) If any Bank makes a new Loan hereunder to a
Borrower on a day on which such Borrower is to repay all or any
part of an outstanding Loan from such Bank, such Bank shall apply
the proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount being
borrowed by such Borrower and the amount being repaid shall be
made available by such Bank to the Administrative Agent as
provided in subsection (b) of this Section, or remitted by such
Borrower to the Administrative Agent as provided in Section 2.12,
as the case may be.
(d) Unless the Administrative Agent shall have
received notice from a Bank prior to the date of any Borrowing
that such Bank will not make available to the Administrative
Agent such Bank=s share of such Borrowing, the Administrative
Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in
accordance with subsections (b) and (c) of this Section and the
Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If
and to the extent that such Bank shall not have so made such
share available to the Administrative Agent, such Bank and the
Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to
the Administrative Agent, at (i) in the case of the Borrower, a
rate per annum equal to the interest rate applicable thereto
pursuant to Section 2.07 and (ii) in the case of such Bank, the
Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so
repaid shall constitute such Bank=s Loan included in such
Borrowing for purposes of this Agreement. In no event shall any
payment by the Administrative Agent, or repayment by the
Borrower, of any amount pursuant to this Section relieve the Bank
that failed to make available its share of the related Borrowing
of its obligations hereunder.
SECTION 2.05. Notes. (a) The Loans of each Bank to
each Borrower shall, upon request of the applicable Bank, be
evidenced by a single Note of such Borrower payable to the order
of such Bank for the account of its Applicable Lending Office in
an amount equal to the aggregate unpaid principal amount of such
Bank=s Loans to such Borrower.
(b) Each Bank may, by notice to a Borrower and the
Administrative Agent, request that its Loans of a particular type
to such Borrower be evidenced by a separate Note of such Borrower
in an amount equal to the aggregate unpaid principal amount of
such Loans. Each such Note shall be in substantially the form of
Exhibit A hereto with appropriate modifications to reflect the
fact that it evidences solely Loans of the relevant type. Each
reference in this Agreement to the ANote@ of such Bank shall be
deemed to refer to and include any or all of such Notes, as the
context may require.
(c) Upon receipt of each Bank=s Note requested
pursuant to Section 2.05(a), the Administrative Agent shall
forward such Note to such Bank. Each Bank shall record the date,
amount, type and maturity of each Loan made by it to each
Borrower and the date and amount of each payment of principal
made by the Borrower with respect thereto, and may, if such Bank
so elects in connection with any transfer or enforcement of its
Note of any Borrower, endorse on the schedule forming a part
thereof appropriate notations to evidence the foregoing
information with respect to each such Loan to such Borrower then
outstanding; provided that the failure of any Bank to make any
such recordation or endorsement shall not affect the obligations
of any Borrower hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by each Borrower so to endorse its Notes
and to attach to and make a part of any Note a continuation of
any such schedule as and when required.
SECTION 2.06. Maturity of Loans. Each Loan included in
any Borrowing shall mature, and the principal amount thereof
shall be due and payable, on the last day of the Interest Period
applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate
Loan shall bear interest on the outstanding principal amount
thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such
day. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of or interest on
any Base Rate Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the sum of 2%
plus the rate otherwise applicable to Base Rate Loans for such
day.
(b) Each CD Loan shall bear interest on the
outstanding principal amount thereof, for each day during the
Interest Period applicable thereto, at a rate per annum equal to
the sum of the CD Margin for such day plus the applicable
Adjusted CD Rate; provided that if any CD Loan shall, as a result
of clause (2)(b) of the definition of Interest Period, have an
Interest Period of less than 30 days, such CD Loan shall bear
interest during such Interest Period at the rate applicable to
Base Rate Loans during such period. Such interest shall be
payable for each Interest Period on the last day thereof and, if
such Interest Period is longer than 90 days, at intervals of
90 days after the first day thereof. Any overdue principal of or
interest on any CD Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the sum of
2% plus the higher of (i) the sum of the CD Margin for such day
plus the Adjusted CD Rate applicable to such Loan and (ii) the
rate applicable to Base Rate Loans for such day.
The AAdjusted CD Rate@ applicable to a day during any
Interest Period means a rate per annum determined pursuant to the
following formula:
CDBR*
ACDR = ------------ + AR
1.00-DRP
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
* The amount in brackets being rounded upward, if necessary, to
the next higher 1/100 of 1%.
The ACD Base Rate@ applicable to any Interest Period is
the rate of interest determined by the Administrative Agent to be
the average (rounded upward, if necessary, to the next higher
1/100 of 1%) of the prevailing rates per annum bid at 10:00 A.M.
(New York City time) (or as soon thereafter as practicable) on
the first day of such Interest Period by two or more New York
certificate of deposit dealers of recognized standing for the
purchase at face value from each CD Reference Bank of its
certificates of deposit in an amount comparable to the principal
amount of the CD Loan of such CD Reference Bank to which such
Interest Period applies and having a maturity comparable to such
Interest Period.
ACD Margin@ means a rate per annum determined in
accordance with the Pricing Schedule.
ADomestic Reserve Percentage@ means for any day that
percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including without limitation any basic,
supplemental or emergency reserves) for a member bank of the
Federal Reserve System in New York City with deposits exceeding
five billion dollars in respect of new non-personal time deposits
in Dollars in New York City having a maturity comparable to the
related Interest Period and in an amount of $100,000 or more. The
Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve Percentage.
AAssessment Rate@ means for any day the annual
assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup AA@ (or a comparable
successor assessment risk classification) within the meaning of
12 C.F.R. Section 327.4(a) (or any successor provision) to the
Federal Deposit Insurance Corporation (or any successor) for such
Corporation=s (or such successor=s) insuring time deposits at
offices of such institution in the United States of America. The
Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for each day during the
Interest Period applicable thereto, at a rate per annum equal to
the sum of the Euro-Dollar Margin for such day plus the
applicable Adjusted London Interbank Offered Rate. Such interest
shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof.
The AAdjusted London Interbank Offered Rate@ applicable
to any Interest Period means a rate per annum equal to the
quotient obtained (rounded upward, if necessary, to the next
higher 1/100 of 1%) by dividing (i) the applicable London
Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve
Percentage.
The ALondon Interbank Offered Rate@ applicable to any
Interest Period means the average (rounded upward, if necessary,
to the next higher 1/16 of 1%) of the respective rates per annum
at which deposits are offered to each of the Euro-Dollar
Reference Banks in the London interbank market at approximately
11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately
equal to the principal amount of the Euro-Dollar Loan of such
Euro-Dollar Reference Bank to which such Interest Period is to
apply and for a period of time comparable to such Interest
Period.
(d) Any overdue principal of or interest on any
Euro-Dollar Loan, and any overdue reimbursement of an LC
Disbursement, shall bear interest, payable on demand, for each
day from and including the date payment thereof was due to but
excluding the date of actual payment, at a rate per annum equal
to the sum of 2% plus the higher of (i) the sum of the
Euro-Dollar Margin for such day plus the Adjusted London
Interbank Offered Rate applicable to such Loan and (ii) the sum
of the Euro-Dollar Margin for such day plus the quotient obtained
(rounded upward, if necessary, to the next higher 1/100 of 1%) by
dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at
which one day (or, if such amount due remains unpaid more than
three Euro-Dollar Business Days, then for such other period of
time not longer than one month as the Administrative Agent may
select) deposits in dollars in an amount approximately equal to
such overdue payment due to each of the Euro-Dollar Reference
Banks are offered to such Euro-Dollar Reference Bank in the
London interbank market for the applicable period determined as
provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or
(b) of Section 8.01 shall exist, at a rate per annum equal to the
sum of 2% plus the rate applicable to Base Rate Loans for such
day).
(e) Subject to Section 8.01, each Money Market LIBOR
Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the sum of the London Interbank Offered Rate
for such Interest Period (determined in accordance with
Section 2.07(c) as if the related Money Market LIBOR Borrowing
were a Committed Euro-Dollar Borrowing) plus (or minus) the Money
Market Margin quoted by the Bank making such Loan in accordance
with Section 2.03. Each Money Market Absolute Rate Loan shall
bear interest on the outstanding principal amount thereof, for
the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such
Loan in accordance with Section 2.03. Such interest shall be
payable for each Interest Period on the last day thereof and, if
such Interest Period is longer than three months, at intervals of
three months after the first day thereof. Any overdue principal
of or interest on any Money Market Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the Base Rate for such day.
(f) The Administrative Agent shall determine each
interest rate applicable to the Loans hereunder. The
Administrative Agent shall give prompt notice to the Borrower and
the participating Banks of each rate of interest so determined,
and its determination thereof shall be conclusive in the absence
of manifest error.
(g) Each Reference Bank agrees to use its best efforts
to furnish quotations to the Administrative Agent as contemplated
hereby. If any Reference Bank does not furnish a timely
quotation, the Administrative Agent shall determine the relevant
interest rate on the basis of the quotation or quotations
furnished by the remaining Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of
Section 8.01 shall apply
SECTION 2.08. Fees. (a) The Company shall pay to the
Administrative Agent for the account of each Bank a facility fee
calculated for each day at the Facility Fee Rate for such day
(determined in accordance with the Pricing Schedule). Such
facility fees shall accrue from and including the Effective Date
to but excluding the date of termination of the Commitments in
their entirety, on the daily aggregate amount of the Commitments
(whether used or unused) or, if the Commitments have terminated,
on the outstanding amount of the Loans. Accrued fees under this
Section shall be payable quarterly in arrears on each March 31,
June 30, September 30 and December 31 and on the date of
termination of the Commitments in their entirety (and, if later,
the date the Loans shall be repaid in their entirety).
(b) The Company agrees to pay (i) to the
Administrative Agent for the account of each Bank a participation
fee with respect to its participations in Letters of Credit,
which shall accrue at the Euro-Dollar Margin used to compute
interest on Euro-Dollar Loans on the average daily amount of such
Bank's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the
date on which such Bank's Commitment terminates and the date on
which such Bank ceases to have any LC Exposure, and (ii) to the
Issuing Bank a fronting fee, which shall accrue at the rate of
0.125% per annum on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective
Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any LC
Exposure, as well as the Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or extension of any
Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees shall be payable quarterly
in arrears on each March 31, June 30, September 30 and
December 31 and on the date of termination of the Commitments in
their entirety (and, if later, the date there are no remaining LC
Exposures); provided that all such fees shall be payable on the
date on which the Commitments terminate and any such fees
accruing after the date on which the Commitments terminate shall
be payable on demand. Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be
computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day
but excluding the last day).
(c) For any day on which the outstanding principal
amount of Loans shall be greater than 33% of the total
Commitments (and for any day after the termination of all the
Commitments on which Loans shall be outstanding), the Company
shall pay to the Administrative Agent for the account of each
Bank a utilization fee at the per annum rate indicated in the
Pricing Schedule on the aggregate amount of each Bank's
outstanding Loans on such day. Accrued and unpaid utilization
fees, if any, shall be payable on the last day of each March,
June, September and December and on the date on which the
Commitments shall have terminated, all Loans shall have been
repaid in full and the Banks shall have no LC Exposures. All
utilization fees shall be computed on the basis of a year of 360
days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Company agrees to pay to the Administrative
Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Company and the
Administrative Agent.
(d) All fees payable hereunder shall be paid on the
dates due, in immediately available funds, to the Administrative
Agent (or to the Issuing Bank, in the case of fees payable to it)
for distribution, in the case of facility fees and utilization
fees, to the Banks entitled thereto. Fees paid shall not be
refundable under any circumstances.
SECTION 2.09. Optional Termination or Reduction of
Commitments. During the Availability Period, the Company may,
upon at least three Domestic Business Days= notice to the
Administrative Agent, terminate at any time, or proportionately
reduce from time to time by an aggregate amount of at least
$10,000,000 or any larger multiple of $1,000,000, the unused
portions of the Commitments. If the Commitments are terminated in
their entirety, all accrued facility fees shall be payable on the
effective date of such termination.
SECTION 2.10. Mandatory Termination of Commitments.
The Commitments shall terminate on the Termination Date, and any
Loans then outstanding (together with accrued interest thereon)
shall be due and payable on such date.
SECTION 2.11. Prepayments. (a) The Borrower may,
upon at least one Domestic Business Day=s notice to the
Administrative Agent, prepay any Base Rate Borrowing (or any
Money Market Borrowing bearing interest at the Base Rate pursuant
to Section 8.01) in whole at any time, or from time to time in
part in amounts aggregating $5,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid together
with accrued interest thereon to the date of prepayment. Each
such optional prepayment shall be applied to prepay ratably the
Loans of the several Banks included in such Borrowing.
(b) Except as provided in subsection (c) or (d) below
or in Section 8.02, the Borrower may not prepay all or any
portion of the principal amount of any Fixed Rate Loan prior to
the maturity thereof unless the Borrower pays any breakage costs
under Section 2.13.
(c) If the Company becomes obligated to indemnify any
Bank, the Issuing Bank or the Administrative Agent for Taxes or
Other Taxes pursuant to Section 2.15(c) and actions taken
pursuant to Section 2.15(f) do not or will not eliminate such
indemnity payments, then (i) the Company may, upon at least one
Domestic Business Day=s notice to the Administrative Agent, (A)
prepay all Borrowings in whole by paying the principal amount
together with accrued interest thereon to the date of prepayment
and (B) deposit cash collateral in respect of any outstanding
Letters of Credit as provided in Section 2.18(j) (in which event
the Company shall also terminate the Commitments in their
entirety pursuant to Section 2.09) or (ii) the Company may, at
its sole expense and effort, upon notice to such Bank and the
Administrative Agent, require such Bank to assign and delegate,
without recourse (in accordance with and subject to the
restrictions contained in Section 11.06(c)), all its interests,
rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another
Bank, if a Bank accepts such assignment); provided that (A) the
Company shall have received the prior written consent of the
Administrative Agent and the Issuing Bank, which consent shall
not unreasonably be withheld, (B) such Bank shall have received
payment of an amount equal to the outstanding principal of its
Loans and participations in LC Disbursements, accrued interest
thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Company (in the
case of all other amounts) and (C) such assignment will result in
a reduction to the indemnity payable pursuant to Section 2.15(c).
A Bank shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such
Bank or otherwise, the circumstances entitling the Company to
require such assignment and delegation cease to apply.
(d) The Company shall cause one or more Borrowers to
prepay Loans to the extent (if any) required so that on any date,
after giving effect to such prepayment, the aggregate amount of
the Loans plus the aggregate LC Exposures do not exceed the
aggregate amount of the Commitments.
(e) Upon receipt of a notice of prepayment pursuant to
this Section, the Administrative Agent shall promptly notify each
Bank of the contents thereof and of such Bank=s ratable share (if
any) of such prepayment and such notice shall not thereafter be
revocable by the Borrower.
SECTION 2.12. General Provisions as to Payments.
(a) The Borrowers shall make each payment of principal of, and
interest on, the Loans and of fees hereunder and of reimbursement
of LC Disbursements, not later than 11:00 A.M. (New York City
time) on the date when due, in Federal or other funds immediately
available in New York City, to the Administrative Agent at its
New York Office. The Administrative Agent will promptly
distribute to each Bank or the Issuing Bank its ratable share of
each such payment received by the Administrative Agent for the
account of the Banks or the Issuing Bank, as the case may be.
Whenever any payment of principal of, or interest on, the
Domestic Loans or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever
any payment of principal of, or interest on, the Euro-Dollar
Loans shall be due on a day which is not a Euro-Dollar Business
Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the
date for payment thereof shall be the next preceding Euro-Dollar
Business Day. Whenever any payment of principal of, or interest
on, the Money Market Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the
date for any payment of principal is extended by operation of law
or otherwise, interest thereon shall be payable for such extended
time. All payments by each Borrower shall be made without
deduction for any counterclaim, defense, recoupment or setoff.
(b) Unless the Administrative Agent shall have
received notice from a Borrower prior to the date on which any
payment is due from such Borrower to the Banks or the Issuing
Bank hereunder that such Borrower will not make such payment in
full, the Administrative Agent may assume that such Borrower has
made such payment in full to the Administrative Agent on such
date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Bank or the Issuing
Bank, as the case may be, on such due date an amount equal to the
amount then due such Bank or the Issuing Bank. If and to the
extent that such Borrower shall not have so made such payment,
each Bank and the Issuing Bank shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Bank or
the Issuing Bank together with interest thereon, for each day
from the date such amount is distributed to such Bank or the
Issuing Bank until the date such Bank or the Issuing Bank repays
such amount to the Administrative Agent at the Federal Funds
Rate.
SECTION 2.13. Funding Losses. If a Borrower makes any
payment of principal with respect to any Fixed Rate Loan
(pursuant to Article 2, 6 or 8 or otherwise) on any day other
than the last day of the Interest Period applicable thereto, or
the last day of an applicable period fixed pursuant to
Section 2.07(d), or if the Borrower fails to borrow or prepay any
Fixed Rate Loans after notice has been given to any Bank in
accordance with Section 2.04(a) or 2.11, the Company shall
reimburse each Bank within 15 days after demand for any resulting
loss or expense incurred by it (or by an existing or prospective
Participant in the related Loan), including (without limitation)
any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period
after any such payment or failure to borrow or prepay, provided
that such Bank shall have delivered to the Borrower a certificate
as to the amount of such loss or expense, which certificate shall
be conclusive in the absence of manifest error.
SECTION 2.14. Computation of Interest and Fees.
Interest based on the Prime Rate hereunder shall be computed on
the basis of a year of 365 days (or 366 days in a leap year) and
paid for the actual number of days elapsed (including the first
day but excluding the last day). All other interest and fees
shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed (including the first day but
excluding the last day).
SECTION 2.15. Taxes. (a) For the purposes of this
Section 2.15, the following terms have the following meanings:
ATaxes@ means any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings with
respect to any payment by any Loan Party pursuant to any Loan
Document or under any Note, and all liabilities with respect
thereto, excluding (i) in the case of each Bank, the Issuing Bank
and Agent, taxes imposed on its income, and franchise or similar
taxes imposed on it, by a jurisdiction (or any subdivision
thereof) under the laws of which such Bank or Agent or the
Issuing Bank (as the case may be) is organized or in which its
principal executive office is located or, in the case of each
Bank, in which its Applicable Lending Office is located and
(ii) in the case of each Bank and the Issuing Bank, any United
States withholding tax imposed on such payments but only to the
extent that such Bank or the Issuing Bank is subject to United
States withholding tax at the time such Bank or the Issuing Bank
first becomes a party to this Agreement or changes its Applicable
Lending Office.
AOther Taxes@ means any present or future stamp or
documentary taxes and any other excise or property taxes, or
similar charges or levies, which arise from any payment made
pursuant to any Loan Document or any Letter of Credit or under
any Note or from the execution or delivery of, or otherwise with
respect to, any Loan Document, any Letter of Credit or any Note.
(b) Any and all payments by any Loan Party to or for
the account of any Bank or Agent or the Issuing Bank under any
Loan Document or under any Note or Letter of Credit shall be made
without deduction for any Taxes or Other Taxes except as required
by law; provided that, if any change in law occurring after any
Bank or Agent or the Issuing Bank first becomes a party to this
Agreement (or any law of a jurisdiction other than the U.S.,
regardless of whether a change in law has occurred, in the case
of any Taxes or Other Taxes arising as a result of any Subsidiary
other than a Domestic Subsidiary becoming an Eligible Subsidiary
after the date hereof) requires any Loan Party to deduct any
Taxes or Other Taxes from any payments to any such Bank or Agent
or the Issuing 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 or Agent or the Issuing Bank (as the case may
be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) such Loan Party shall make
such deductions, (iii) such Loan Party shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) such Loan Party shall
furnish to the Administrative Agent, at its address referred to
in Section 11.01, the original or a certified copy of a receipt
evidencing payment thereof.
(c) The Company and each other Loan Party agrees to
indemnify the Issuing Bank and each Bank and Agent for the full
amount of Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section because of a
change in law occurring after such Issuing Bank, Bank or Agent
first becomes a party to this Agreement (or under any law of a
jurisdiction other than the U.S., regardless of whether a change
in law has occurred, in the case of any Taxes or Other Taxes arising
as a result of any Subsidiary other than a Domestic Subsidiary becoming
an Eligible Subsidiary after the date
hereof) paid by the Issuing Bank or such Bank or Agent (as the
case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto as certified
in good faith to the Company and each other Borrower by each
Bank, Agent, or Issuing Bank seeking indemnification pursuant to
this Section 2.15(c). This indemnification shall be paid within
30 days after the Issuing Bank or such Bank or Agent (as the case
may be) makes demand therefor; provided, however, that the
indemnification obligations of the Company and each other
Borrower under this Section 2.15 shall be reduced appropriately
to take into account any Tax deduction, credit or benefit or
Other Tax deduction, credit or benefit to which a Bank, Agent, or
the Issuing Bank is entitled as a result of its payment of Taxes
or Other Taxes. If a Bank, Agent, or the Issuing Bank receives a
refund of indemnified Taxes or Other Taxes with respect to which
the Company or any other Borrower has made payment to the Bank,
Agent, or the Issuing Bank pursuant to this Section 2.15(c), the
Bank, Agent, or the Issuing Bank, as the case may be, shall pay
over such refund to the Company or other Borrower within 10 Days
after receipt of such refund.
(d) Each Bank organized under the laws of a
jurisdiction outside the United States, on or prior to the date
of its execution and delivery of this Agreement in the case of
each Bank listed on the signature pages hereof and on or prior to
the date on which it becomes a Bank in the case of each other
Bank, from time to time thereafter if requested in writing by the
Company (but only so long as such Bank remains lawfully able to
do so), and at any time it changes its Applicable Lending Office,
shall provide the Company and the Administrative Agent with
Internal Revenue Service form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service,
certifying that such Bank is entitled to benefits under an income
tax treaty to which the United States is a party which exempts
the Bank from United States withholding tax or reduces the rate
of withholding tax on payments of interest for the account of
such Bank or certifying that the income receivable pursuant to
this Agreement is effectively connected with the conduct of a
trade or business in the United States.
(e) For any period with respect to which a Bank has
failed to provide the Company or the Administrative Agent with
the appropriate form pursuant to Section 2.15(d) (unless such
failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which such form originally was required
to be provided), such Bank shall not be entitled to
indemnification under Section 2.15(b) or (c) with respect to
Taxes imposed by the United States; provided that if a Bank,
which is otherwise exempt from or subject to a reduced rate of
withholding tax, becomes subject to Taxes because of its failure
to deliver a form required hereunder, the Borrowers shall take
such steps as such Bank shall reasonably request to assist such
Bank to recover such Taxes.
(f) If any Loan Party 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 if, in the judgment of such Bank, such
change (i) will eliminate or reduce any such additional payment
which may thereafter accrue and (ii) is not otherwise
disadvantageous to such Bank.
(g) If any Borrower is organized under a jurisdiction
outside of the United States, the Issuing Bank and each Bank and
Agent will use reasonable efforts to cooperate with such Borrower
and the Company (but shall not be required to disclose any
information it considers, in its sole discretion, to be
confidential) to assist such Borrower to obtain any reduction of
or limit on Taxes subject to the indemnification provisions of
this Section 2.15.
SECTION 2.16. Judgment Currency. If for the purpose
of obtaining judgment in any court it is necessary to convert a
sum due from any Loan Party under any Loan Document in the
currency expressed to be payable herein or therein (the
Aspecified currency@) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative
Agent could purchase the specified currency with such other
currency at the Administrative Agent=s New York office on the
Euro-Dollar Business Day preceding that on which final judgment
is given. The obligations of each Loan Party in respect of any
sum due to the Issuing Bank or any Bank or Agent under any Loan
Document or under any Note or Letter of Credit shall,
notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the
Euro-Dollar Business Day following receipt by the Issuing Bank or
such Bank or Agent (as the case may be) of any sum adjudged to be
so due in such other currency the Issuing Bank or such Bank or
Agent (as the case may be) may in accordance with normal banking
procedures purchase the specified currency with such other
currency; if the amount of the specified currency so purchased is
less than the sum originally due to the Issuing Bank or such Bank
or Agent, as the case may be, in the specified currency, each
Borrower agrees, to the fullest extent that it may effectively do
so, as a separate obligation and notwithstanding any such
judgment, to indemnify the Issuing Bank or such Bank or Agent, as
the case may be, against such loss, and if the amount of the
specified currency so purchased exceeds (a) the sum originally
due to the Issuing Bank or any Bank or Agent, as the case may be,
the specified currency and (b) any amounts shared with other
Banks as a result of allocations of such excess as a
disproportionate payment to such Bank under Section 11.04, the
Issuing Bank and such Bank or Agent, as the case may be, agrees
to remit such excess to the appropriate Borrower.
SECTION 2.17. Foreign Subsidiary Costs. (a) If the
cost to any Bank of making or maintaining any Loan to an Eligible
Subsidiary is increased or the cost to the Issuing Bank of
issuing or maintaining any Letter of Credit for the account of an
Eligible Subsidiary hereunder, or the amount of any sum received
or receivable by the Issuing Bank or any Bank (or its Applicable
Lending Office) is reduced by an amount deemed by the Issuing
Bank or such Bank to be material, by reason of the fact that such
Eligible Subsidiary is incorporated in, or conducts business in,
a jurisdiction outside the United States of America, the Company
shall indemnify the Issuing Bank or such Bank for such increased
cost or reduction within 15 days after demand by the Issuing Bank
or such Bank (with a copy to the Administrative Agent). A
certificate of the Issuing Bank or such Bank claiming
compensation under this subsection 2.17(a) and setting forth the
additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error.
(b) Each Bank and the Issuing Bank will promptly
notify the Company and the Administrative Agent of any event of
which it has knowledge that will entitle the Issuing Bank or such
Bank to additional interest or payments pursuant to
subsection 2.17(a) and, in the case of any Bank, will use
reasonable efforts to designate a different Applicable Lending
Office, if, in the judgment of such Bank, such designation will
avoid the need for, or reduce the amount of, such compensation
and will not be otherwise disadvantageous to such Bank.
SECTION 2.18. Letters of Credit. (a) General.
Subject to the terms and conditions set forth herein, each of the
Borrowers may request the issuance of Letters of Credit,
denominated in Dollars, for its own account, in a form reasonably
acceptable to the Administrative Agent and the Issuing Bank, at
any time and from time to time during the Availability Period.
In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any
form of letter of credit application or other agreement submitted
by a Borrower to, or entered into by a Borrower with, the Issuing
Bank relating to any Letter of Credit, the terms and conditions
of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension;
Certain Conditions. To request the issuance of a Letter of
Credit (or the amendment, renewal or extension of an outstanding
Letter of Credit), a Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing
so have been approved by the Issuing Bank) to the Issuing Bank
and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal
or extension (which shall be a Euro-Dollar Business Day), the
date on which such Letter of Credit is to expire (which shall
comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by
the Issuing Bank, the applicable Borrower also shall submit a
letter of credit application on the Issuing Bank's standard form
in connection with any request for a Letter of Credit. A Letter
of Credit shall be issued, amended, renewed or extended only if
the conditions to issue set forth in Section 3.02 hereof have
been satisfied and only if (and upon issuance, amendment, renewal
or extension of each Letter of Credit the applicable Borrower
shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension (i) the
LC Exposure shall not exceed $50,000,000 and (ii) the sum of the
LC Exposures and the principal amount of outstanding Loans shall
not exceed the total Commitments.
(c) Expiration Date. Each Letter of Credit shall
expire at or prior to the close of business on the earlier of
(i) the date one year after the date of the issuance of such
Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the
date that is ten Domestic Business Days prior to the Termination
Date.
(d) Participations. By the issuance of a Letter of
Credit (or an amendment to a Letter of Credit increasing the
amount thereof) and without any further action on the part of the
Issuing Bank or the Banks, the Issuing Bank hereby grants to each
Bank, and each Bank hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such Bank's
Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Bank hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Bank's Applicable
Percentage of each LC Disbursement made by the Issuing Bank and
not reimbursed by the Borrower on the date due as provided in
paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to any Borrower for any reason. Each
Bank acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters
of Credit is absolute and unconditional and shall not be affected
by any circumstance whatsoever, including any amendment, renewal
or extension of any Letter of Credit in accordance with the terms
hereof or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any
LC Disbursement in respect of a Letter of Credit, the Borrower
shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not
later than 12:00 noon, New York City time, on or prior to the
second Domestic Business Day following the date such LC
Disbursement is made, if the Borrower shall have received notice
of such LC Disbursement prior to 10:00 a.m., New York City time,
on such second Domestic Business Day, or, if such notice has not
been received by the Borrower prior to such time on such date,
then not later than 12:00 noon, New York City time, on (i) the
Domestic Business Day that the Borrower receives such notice, if
such notice is received prior to 10:00 a.m., New York City time,
on the day of receipt, or (ii) the Domestic Business Day
immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time on the
day of receipt; provided that, if such LC Disbursement is not
less than $5,000,000, the Borrower may, subject to the conditions
to borrowing set forth herein, request in accordance with Section
2.02 that such payment be financed with a Base Rate Borrowing in
an equivalent amount and, to the extent so financed, the
Borrower's obligation to make such payment shall be discharged
and replaced by the resulting Base Rate Borrowing. If the
Borrower fails to make such payment when due, the Administrative
Agent shall notify each Bank of the applicable LC Disbursement,
the payment then due from the Borrower in respect thereof and
such Bank's Applicable Percentage thereof. Promptly following
receipt of such notice, each Bank shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the
Borrower, in the same manner as provided in Section 2.04 with
respect to Loans made by such Bank (and Section 2.04 shall apply,
mutatis mutandis, to the payment obligations of the Banks), and
the Administrative Agent shall promptly pay to the Issuing Bank
the amounts so received by it from the Banks. Promptly following
receipt by the Administrative Agent of any payment from the
Borrower pursuant to this paragraph, the Administrative Agent
shall distribute such payment to the Issuing Bank or, to the
extent that Banks have made payments pursuant to this paragraph
to reimburse the Issuing Bank, then to such Banks and the Issuing
Bank as their interests may appear. Any payment made by a Bank
pursuant to this paragraph to reimburse the Issuing Bank for any
LC Disbursement (other than the funding of Base Rate Loans as
contemplated above) shall not constitute a Loan and shall not
relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. The Borrower's obligation
to reimburse LC Disbursements as provided in paragraph (e) of
this Section shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision
therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in
any respect or any statement therein being untrue or inaccurate
in any respect, (iii) payment by the Issuing Bank under a Letter
of Credit against presentation of a draft or other document that
does not comply with the terms of such Letter of Credit, or (iv)
any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither the Administrative
Agent, the Banks nor the Issuing Bank, nor any of their Related
Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent
permitted by applicable law) suffered by the Borrower that are
caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence
or wilful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing
Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with
respect to documents presented which appear on their face to be
in substantial compliance with the terms of a Letter of Credit,
the Issuing Bank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to
the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall,
promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank
has made or will make an LC Disbursement thereunder; provided
that any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse the Issuing
Bank and the Banks with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make
any LC Disbursement, then, unless the Borrower shall reimburse
such LC Disbursement in full on the date such LC Disbursement is
made, the unpaid amount thereof shall bear interest, for each day
from and including the date such LC Disbursement is made to but
excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to Base Rate
Loans; provided that, if the Borrower fails to reimburse such LC
Disbursement when due pursuant to paragraph (e) of this Section,
then Section 2.07(d) shall apply. Interest accrued pursuant to
this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by
any Bank pursuant to paragraph (e) of this Section to reimburse
the Issuing Bank shall be for the account of such Bank to the
extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank
may be replaced at any time by written agreement among the
Borrower, the Administrative Agent, the replaced Issuing Bank and
the successor Issuing Bank. The Administrative Agent shall
notify the Banks of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the
replaced Issuing Bank pursuant to Section 2.08(b). From and
after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations
of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to
the term "Issuing Bank" shall be deemed to refer to such
successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require.
After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to
have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to
such replacement, but shall not be required to issue additional
Letters of Credit.
(j) Cash Collateralization. If any Event of Default
shall occur and be continuing, on the Business Day that the
Borrower receives notice from the Administrative Agent or the
Required Banks (or, if the maturity of the Loans has been
accelerated, Banks with LC Exposure representing greater than 50%
of the total LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit
in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Banks, an amount
in cash equal to the LC Exposure as of such date plus any accrued
and unpaid interest thereon; provided that the obligation to
deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable,
without demand or other notice of any kind, upon the occurrence
of any Event of Default with respect to the Borrower described in
clause (g) or (h) of Article VI. Each such deposit shall be held
by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this
Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on
the investment of such deposits, which investments shall be made
at the option and sole discretion of the Administrative Agent and
at the Borrower's risk and expense, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Bank
for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of
the reimbursement obligations of the Borrower for the LC Exposure
at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Banks with LC Exposure
representing greater than 50% of the total LC Exposure), be
applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an
Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three
Business Days after all Events of Default have been cured or
waived.
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness. The obligations of the
Banks to extend credit under this Agreement shall become
effective on the date that each of the following conditions shall
have been satisfied (or waived in accordance with Section 11.05):
(a) receipt by the Syndication Agent of
counterparts hereof and of each Loan Document signed by each of
the parties hereto and thereto (or, in the case of any party as
to which an executed counterpart shall not have been received,
receipt by the Syndication Agent in form satisfactory to it of
telex, facsimile transmission or other written confirmation from
such party of execution of a counterpart hereof or thereof by
such party);
(b) receipt by the Syndication Agent of an opinion
of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇, Esq., General Counsel of the Company,
substantially in the form of Exhibit B hereto, and covering such
additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(c) receipt by the Syndication Agent of an opinion
of Wachtell Lipton ▇▇▇▇▇ & ▇▇▇▇, special counsel for the Company,
substantially in the form of Exhibit C hereto and covering such
additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(d) receipt by the Syndication Agent of evidence
satisfactory to it that (i) all fees and expenses payable for the
account of the Banks and the Agents and their affiliates on or
before the Effective Date have been paid in full in the amounts
previously agreed upon on or prior to the Effective Date and
(ii) the commitments under the Existing Credit Agreements have
been terminated and the principal of and interest on all loans
and accrued fees outstanding thereunder have been paid in full;
and
(e) receipt by the Syndication Agent of all
documents it may reasonably request relating to the existence of
the Loan Parties, the corporate authority for and the validity of
this Agreement, the other Loan Documents and the Notes, and any
other matters relevant hereto, all in form and substance
satisfactory to the Syndication Agent;
provided that the Banks shall have no obligation to extend credit
hereunder and their commitments under this Agreement shall become
null and void unless all of the foregoing conditions are
satisfied not later than November 14, 1999. The Syndication Agent
shall promptly notify the Company, the Administrative Agent and
the Banks of the Effective Date, and such notice shall be
conclusive and binding on all parties hereto.
SECTION 3.02. Borrowings. The obligations of any Bank
to make a Loan on the occasion of any Borrowing (excluding a
continuation or conversion of any Borrowing which does not
increase the principal amount of Loans outstanding under such
Borrowing) and of the Issuing Bank to issue, amend, renew or
extend any Letter of Credit, are subject to the satisfaction of
the following conditions:
(a) in the case of a Loan, receipt by the
Administrative Agent of a Notice of Borrowing as required by
Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such
Borrowing or such issuance, amendment, renewal or extension of
such Letter of Credit, the sum of the aggregate outstanding
principal amount of the Loans and the aggregate LC Exposures will
not exceed the aggregate amount of the Commitments;
(c) the fact that, immediately before and after
such Borrowing or such issuance, amendment, renewal or extension
of such Letter of Credit, no Default shall have occurred and be
continuing; and
(d) the fact that the representations and
warranties of the Borrowers contained in this Agreement (except,
unless the Borrowing is taking place on the Effective Date, the
representation and warranty set forth in Section 4.04(b) as to
any matter which has theretofore been disclosed in writing by the
Company to the Banks) shall be true and correct on and as of the
date of such Borrowing.
Each Borrowing hereunder and the issuance, amendment, renewal or
extension of any Letter of Credit hereunder, shall be deemed to
be a representation and warranty by the Borrower on the date of
such Borrowing, or such issuance, amendment, renewal or extension
of such Letter of Credit, that the facts specified in
clauses (b), (c) and, to the extent applicable, (d) of this
Section are true and correct.
SECTION 3.03. First Borrowing by Each Eligible
Subsidiary. The obligation of each Bank to make a Loan on the
occasion of the first Borrowing by each Eligible Subsidiary, and
of the Issuing Bank to issue a Letter of Credit on the occasion
of the first Letter of Credit issued for the account of each
Eligible Subsidiary, is subject to the satisfaction of the
following further conditions:
(a) receipt by the Administrative Agent of an
opinion of counsel for such Eligible Subsidiary acceptable to the
Administrative Agent, substantially in the form of Exhibit J
hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may
reasonably request; and
(b) receipt by the Administrative Agent of all
documents which it may reasonably request relating to the
existence of such Eligible Subsidiary, the corporate authority
for and the validity of the Election to Participate of such
Eligible Subsidiary, the Loan Documents and the Notes of such
Eligible Subsidiary, and any other matters relevant thereto, all
in form and substance satisfactory to the Administrative Agent.
The opinion referred to in clause (a) above shall be
dated no more than five Euro-Dollar Business Days before the date
of the first Borrowing by such Eligible Subsidiary hereunder or
the issuance of the first Letter of Credit for the account of
such Eligible Subsidiary hereunder.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The
Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and has
all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document to which
such Loan Party is a party are within the corporate powers of
such Loan Party, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of
applicable law or Regulation or of the certificate of
incorporation or by-laws of any Loan Party or of any agreement,
judgment, injunction, order, decree or other instrument binding
upon any Loan Party or result in the creation or imposition of
any Lien on any asset of the Company or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement and each
Loan Document constitutes a valid and binding agreement of each
Loan Party party thereto and each Note, when executed and
delivered in accordance with this Agreement, will constitute a
valid and binding obligation of the relevant Borrower.
SECTION 4.04. Financial Information. (a) The
unaudited pro forma combined balance sheet of Crompton & ▇▇▇▇▇▇▇
Corporation and Witco Corporation as of June 26, 1999 (for
Crompton & ▇▇▇▇▇▇▇ Corporation) and as of June 30, 1999 (for
Witco Corporation) and the related consolidated statement of
operations for the years ended December 26, 1998 (for Crompton &
▇▇▇▇▇▇▇ Corporation) and December 31, 1998 (for Witco
Corporation), a copy of which has been delivered to each of the
Banks, fairly present, in conformity with generally accepted
accounting principles, the consolidated financial position of
Crompton & ▇▇▇▇▇▇▇ Corporation and Witco Corporation and their
respective consolidated subsidiaries as of such dates and their
consolidated results of operations for such periods.
(b) Since June 26, 1999, there has been no
material adverse change in the business, financial position or
results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole or, with respect to any
change occurring prior to September 1, 1999, of Witco Corporation
and its consolidated subsidiaries and Crompton & ▇▇▇▇▇▇▇
Corporation and its consolidated subsidiaries, all taken as a
whole.
(c) the Management Projections contained in the
Confidential Information Memorandum dated September, 1999,
relating to the credit facility hereunder, were prepared in good
faith on the basis of assumptions believed to reasonable at the
time such assumptions were made.
SECTION 4.05. Litigation. Except as disclosed in the
Company=s S-4, there is no action, suit or proceeding pending
against, or to the knowledge of the Company threatened against or
affecting, the Company or any of its Subsidiaries before any
court or arbitrator or any governmental body, agency or official
in which there is a reasonable likelihood of an adverse decision
which would materially adversely affect the business (taken as a
whole), consolidated financial position or consolidated results
of operations of the Company and its Consolidated Subsidiaries or
which in any manner draws into question the validity or
enforceability of any Loan Document or the Notes.
SECTION 4.06. Compliance with ERISA. Each member of
the ERISA Group has fulfilled its obligations under the minimum
funding standards of ERISA and the Internal Revenue Code with
respect to each Plan and is in compliance in all respect with the
presently applicable provisions of ERISA and the Internal Revenue
Code with respect to each Plan, except for such noncompliance
which would not have a material adverse effect on the business,
financial position or results of operations of the Company and
its Consolidated Subsidiaries, considered as a whole. No member
of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code in
respect of any Plan, (ii) failed to make any contribution or
payment to any Plan or Multiemployer Plan, or made any amendment
to any Plan, which has resulted or could result in the imposition
of a Lien or the posting of a bond or other security under ERISA
or the Internal Revenue Code or (iii) incurred any liability
under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA, except in the case of
clause (iii) above for such liabilities which do not exceed
$5,000,000 in the aggregate during the term of this Agreement.
SECTION 4.07. Environmental Matters. In the ordinary
course of its business, the Company conducts an ongoing review of
the effect of Environmental Laws on the business, operations and
properties of the Company and its Subsidiaries, in the course of
which it identifies and evaluates associated liabilities and
costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties
presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a
condition of any license, permit or contract, any related
constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of
or change in the nature of operations conducted thereat and any
actual or potential liabilities to third parties, including
employees, and any related costs and expenses). On the basis of
this review, the Company has reasonably concluded that, except as
disclosed in the Company=s S-4, Environmental Laws are unlikely
to have a material adverse effect on the business, financial
position or results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.08. Taxes. United States Federal income tax
returns of Crompton & ▇▇▇▇▇▇▇ Corporation and Witco Corporation
have been examined and settled through December 31, 1997, for
Crompton & ▇▇▇▇▇▇▇ Corporation, and through December 31, 1995,
for Witco Corporation. The Company and its Subsidiaries have
filed all United States Federal income tax returns and all other
material tax returns which are required to be filed by them and
have paid all taxes due pursuant to such returns or pursuant to
any assessment received by the Company or any Subsidiary, except
for items being diligently contested in good faith and by
appropriate proceedings. The charges, accruals and reserves on
the books of the Company and its Subsidiaries in respect of taxes
or other governmental charges are, in the opinion of the Company,
adequate.
SECTION 4.09. Subsidiaries. Each of the Company=s
Material Subsidiaries is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction
of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 4.10. Not an Investment Company or a Public
Utility Holding Company. The Company is not an Ainvestment
company@ within the meaning of the Investment Company Act of
1940, as amended, or a Aholding company@ within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. Full Disclosure. All information
heretofore furnished by the Company to the Agents or any Bank in
writing for purposes of or in connection with this Agreement or
any transaction contemplated hereby is, and all such information
hereafter furnished by the Company to the Agents or any Bank in
writing will be, taken as a whole, true and accurate in all
material respects on the date as of which such information is
stated or certified. The Company has disclosed to the Banks in
writing any and all facts which materially and adversely affect
or may affect (to the extent the Company can now reasonably
foresee) the business, operations or financial condition of the
Company and its Consolidated Subsidiaries, taken as a whole, or
the ability of the Company or any other Loan Party to perform its
obligations under this Agreement or any other Loan Document.
SECTION 4.12. Year 2000. The Company and its
Subsidiaries are taking commercially reasonable steps to
ascertain the extent of, and to quantify and successfully
address, business and financial risks facing the Company and its
Subsidiaries as a result of what is commonly referred to as the
AYear 2000 Problem@ (i.e., the inability of certain computer
applications to recognize correctly and perform date-sensitive
functions involving certain dates prior to and after December 31,
1999), (b) the Company and its Subsidiaries reasonably believe
that any remedial actions required to permit the proper
functioning of any systems critical to the operations of the
Company and its Subsidiaries, taken as a whole, despite the Year
2000 Problem have been or will be performed on or prior to
December 31, 1999 and (c) the Company and its Subsidiaries
reasonably believe that the Year 2000 Problem (including any
preparations or remediations in response thereto) will not have a
material adverse effect on the business, financial position or
results of operations of the Company and its Consolidated
Subsidiaries, taken as a whole.
ARTICLE 5
COVENANTS
The Company agrees that, so long as any Bank has any
Commitment or LC Exposure hereunder or any LC Disbursement
remains unreimbursed or any amount payable hereunder or under
any Note remains unpaid:
SECTION 5.01. Information. The Company will deliver
to the Administrative Agent for distribution to each of the
Banks:
(a) as soon as available and in any event within
120 days after the end of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of operations, cash flows and
shareholders= equity for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal
year, all reported on in accordance with generally accepted
accounting principles by KPMG LLP or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within
60 days after the end of each of the first three quarters of each
fiscal year of the Company, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such
quarter and the related consolidated statements of operations for
such quarter and consolidated statements of operations and
condensed cash flows for the portion of the Company=s fiscal year
ended at the end of such quarter, setting forth in the case of
the statement of operations in comparative form the figures for
the corresponding quarter, in the case of the statements of
operations and cash flows the figures for the corresponding
portion of the Company=s previous fiscal year and in the case of
the balance sheet the figures for the previous year end, all
certified (subject to normal year-end adjustments) as to fairness
of presentation, generally accepted accounting principles and
consistency by the chief financial officer, treasurer or the
controller or other chief accounting officer of the Company;
(c) simultaneously with the delivery of each set
of financial statements referred to in clauses (a) and (b) above,
a certificate of the chief financial officer, treasurer or the
controller or other chief accounting officer of the Company
(i) setting forth in reasonable detail the calculations required
to establish whether the Company was in compliance with the
requirements of Sections 5.07 to 5.08, inclusive, on the date of
such financial statements and (ii) stating whether any Default
exists on the date of such certificate and, if any Default then
exists, setting forth the details thereof and the action which
the Company is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set
of financial statements referred to in clause (a) above, a
statement of the firm of independent public accountants which
reported on such statements (i) whether anything has come to
their attention to cause them to believe that any Default existed
on the date of such statements relating only to Sections 5.07,
5.08(a), 5.08(c), 5.08(f), 5.08(g)(i), 5.08(g)(ii) and
5.08(h) and (ii) confirming the calculations set forth in the
officer=s certificate delivered simultaneously therewith pursuant
to clause (c) above;
(e) within five Domestic Business Days after any
Principal Officer of the Company obtains knowledge of any
Default, if such Default is then continuing, a certificate of the
chief financial officer or the controller or other chief
accounting officer of the Company setting forth the details
thereof and the action which the Company is taking or proposes to
take with respect thereto;
(f) promptly upon the mailing thereof to the
shareholders of the Company generally, copies of all financial
statements, reports and proxy, statements so mailed;
(g) promptly upon the filing thereof, copies of
all registration statements (other than the exhibits thereto and
any registration statements on Form S-8 or its equivalent) and
reports on Forms 10-K, 10-Q and 8-K (or their equivalents) which
the Company shall have filed with the Securities and Exchange
Commission;
(h) if and when any member of the ERISA Group
(i) gives or is required to give notice to the PBGC of any
"reportable event@ (as defined in Section 4043 of ERISA) with
respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that
the plan administrator of any Plan has given or is required to
give notice of any such reportable event, a copy of the notice of
such reportable event given or required to be given to the PBGC;
(ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is
in reorganization, is insolvent or has been terminated, a copy of
such notice; (iii) receives notice from the PBGC under Title IV
of ERISA of an intent to terminate, impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such notice;
(iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such
application; (v) gives notice of intent to terminate any Plan
under Section 4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of withdrawal
from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any
Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition
of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the controller or
other chief accounting officer of the Company setting forth
details as to such occurrence and action, if any, which the
Company or applicable member of the ERISA Group is required or
proposes to take; and
(i) from time to time such additional information
regarding the financial position or business of the Company and
its Subsidiaries as any Agent, at the request of any Bank, may
reasonably request.
SECTION 5.02. Payment of Obligations. The Company
will pay and discharge, and will cause each Subsidiary to pay and
discharge, at or before maturity (or, in the case of tax
liabilities, if later, before the same become subject to
penalties), all their respective obligations and liabilities
(including, without limitation, tax liabilities, except where the
same may be contested in good faith by appropriate proceedings)
if the failure to so pay and discharge would have a material
adverse effect on the business, financial position or results of
operations of the Company and its Consolidated Subsidiaries
considered as a whole, and will maintain, and will maintain for
each Material Subsidiary or cause each Material Subsidiary to
maintain, in accordance with generally accepted accounting
principles, appropriate reserves for the accrual of any of the
same.
SECTION 5.03. Maintenance of Property; Insurance. The
Company will keep, and will cause each Material 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 Material Subsidiary to
maintain (either in the name of the Company or in such Material
Subsidiary=s own name) with insurance companies which at the time
such insurance is purchased or renewed are financially sound and
reputable, insurance on all their property in at least such
amounts (including self-insurance retentions) and against at
least such risks as are usually insured against (including self-
insurance retentions) in the same general area by companies of
similar size engaged in the same or a similar business; and will
furnish to the Banks, upon written request from the
Administrative Agent, full information as to the insurance
carried.
SECTION 5.04. Conduct of Business and Maintenance of
Existence. The Company and its Material Subsidiaries (on a
consolidated basis) will continue to engage in business of the
same general types as now conducted by the Company and its
Material Subsidiaries, and will preserve, renew and keep in full
force and effect, and will cause each Material Subsidiary to
preserve, renew and keep in full force and effect their
respective corporate existence and their respective rights,
privileges and franchises necessary or desirable in the normal
conduct of business; provided that nothing in this Section 5.04
shall prohibit (i) the merger of a Subsidiary into the Company or
the merger or consolidation of a Subsidiary with or into another
Person if the corporation surviving such consolidation or merger
is a Wholly-Owned Consolidated Subsidiary and if, in each case,
after giving effect thereto, no Default shall have occurred and
be continuing, (ii) the termination of the corporate existence,
rights, privileges or franchises of any Subsidiary (other than
any Subsidiary which is a Borrower) if the Company in good faith
determines that such termination is in the best interest of the
Company and is not materially disadvantageous to the Banks or
(iii) any disposition of assets not prohibited by Section 5.09
hereof.
SECTION 5.05. Compliance with Laws. The Company will
comply, and cause each Subsidiary to comply, in all respects with
all applicable laws, ordinances, rules, regulations, and
requirements of governmental authorities (including, without
limitation, Environmental Laws and ERISA and the rules and
regulations thereunder and all applicable laws, ordinances,
rules, regulations and requirements of governmental authorities
relating to the acquisition referred to in Section 5.10) except
where the necessity of compliance therewith is contested in good
faith by appropriate proceedings or where failure to comply would
not materially adversely affect the business (taken as a whole),
consolidated financial position or consolidated results of
operations of the Company and its Consolidated Subsidiaries.
SECTION 5.06. Inspection of Property, Books and
Records. The Company will keep, and will cause each Subsidiary
to keep, proper books of record and account in which full, true
and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and will
permit, and will cause each Material Subsidiary to permit,
representatives of any Bank at such Bank=s expense to visit and
inspect any of their respective properties, to examine and make
abstracts from any of their respective books and records and to
discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public
accountants, all upon such reasonable notice, at such reasonable
times and as often as may reasonably be desired.
SECTION 5.07. Financial Covenants. (a) The Company
will not permit the Leverage Ratio at any time to exceed 3.50 to
1.00.
(b) The Company will not permit the Interest Coverage
Ratio at any time to be less than 3.00 to 1.00.
SECTION 5.08. Negative Pledge. Neither the Company
nor any Subsidiary will create, assume or suffer to exist any
Lien on any asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement
securing Debt outstanding on the date of this Agreement in an
aggregate principal amount not exceeding $75,000,000 (exclusive
of Liens permitted by clause (h) of this Section);
(b) any Lien existing on any asset of any
corporation at the time such corporation becomes a Subsidiary and
not created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or
assumed for the purpose of financing all or any part of the cost
of acquiring, constructing or improving such asset, provided that
such Lien attaches to such asset concurrently with or within
180 days after the acquisition thereof or completion of the
construction or improvement thereto, as the case may be,
(d) any Lien on any asset of any corporation
existing at the time such corporation is merged or consolidated
with or into the Company or a Subsidiary and not created in
contemplation of such event;
(e) any Lien existing on any asset prior to the
acquisition thereof by the Company or a Subsidiary and not
created in contemplation of such acquisition;
(f) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by any Lien
permitted by any of the foregoing clauses of this Section,
provided that such Debt is not increased and is not secured by
any additional assets;
(g) Liens not otherwise permitted by the foregoing
clauses of this Section arising in the ordinary course of its
business which (i) do not secure Debt, (ii) do not secure
obligations in an amount exceeding $100,000,000 in the aggregate
and (iii) do not materially impair the use of the assets subject
thereto in the operation of the business of the Company and its
Subsidiaries; or
(h) Liens not otherwise permitted by the foregoing
clauses of this Section securing Debt or interest rate and
currency swaps in an aggregate principal amount, notional
principal and final exchange amount at any time outstanding not
to exceed $50,000,000.
SECTION 5.09. Consolidations, Mergers and Sales of
Assets. The Company and its Subsidiaries will not
(i) consolidate or merge with or into any other Person or
(ii) sell, lease or otherwise transfer, directly or indirectly,
any of the assets of the Company and its Subsidiaries, to any
other Person; provided that (A) the Company or a Subsidiary may
merge with another Person if (x) the Company or, in the case of a
merger not involving the Company, a Subsidiary Guarantor is the
corporation surviving such merger and (y) immediately after
giving effect to such merger, no Default shall have occurred and
be continuing, (B) each of the Company and its Subsidiaries may
sell, lease or otherwise transfer any of its inventory in the
ordinary course of business and any of its assets which, in the
judgment of its officers, are obsolete, excess or unserviceable
and (C) the Company and its Subsidiaries may sell, lease or
transfer any of their assets with a market value that does not,
in the aggregate together with all other sales, leases and
transfers pursuant to this clause (C), exceed 25% of the total
assets of the Company and its Subsidiaries as of the date hereof.
SECTION 5.10. Use of Proceeds. Letters of Credit and
the proceeds of the Loans made under this Agreement will be used
by the Borrowers for general corporate purposes. None of such
proceeds will be used, directly or indirectly, for the purpose,
whether immediate, incidental or ultimate, of buying or carrying
any Amargin stock@ within the meaning of Regulation U.
SECTION 5.11. Additional Subsidiaries. The Company
will ensure at all times that Domestic Subsidiaries are (or
become within 10 Domestic Business Days of being formed or
acquired) Subsidiary Guarantors so that (a) the total assets of
the Company and the Subsidiary Guarantors comprise at least 85%
by book value of the total assets of the Company and the Domestic
Subsidiaries and (b) the total revenues of the Company and the
Subsidiary Guarantors, as of the most recently ended fiscal
quarter, comprise at least 85% of the total revenues of the
Company and the Domestic Subsidiaries for such fiscal quarter;
provided, that only Domestic Subsidiaries shall be required to
become Subsidiary Guarantors.
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default. If one or more of
the following events (AEvents of Default@) shall have occurred
and be continuing:
(a) any Borrower shall fail to pay when due any
principal of any Loan or to reimburse when due any LC
Disbursement, or shall fail to pay within three Domestic Business
Days of the due date thereof any interest on any Loan, any fees
or any other amount payable hereunder;
(b) the Company or any other Borrower shall fail to
observe or perform any applicable covenant contained in
Sections 5.07 to 5.10, inclusive;
(c) any Loan Party shall fail to observe or perform
any covenant or agreement contained in any Loan Document (other
than those covered by clause (a) or (b) above) for 30 days after
written notice thereof has been given to the Company by the
Administrative Agent at the request of any Bank;
(d) any representation, warranty, certification or
statement made by any Loan Party in any Loan Document or in any
certificate, financial statement or other document delivered
pursuant to any Loan Document shall prove to have been incorrect
in any material respect when made (or deemed made);
(e) a ADefault@ occurs and is continuing under the
364-Day Credit Agreement or the Company or any Subsidiary shall
fail to make any payment of principal, face amount, interest,
premium, fees or any similar obligation in respect of any
Material Financial Obligations when due or within any applicable
grace period;
(f) any event or condition shall occur which
results in the acceleration of the maturity of any Material Debt
or enables the holder of such Debt or any Person acting on such
holder=s behalf to accelerate the maturity thereof;
(g) the Company, any other Borrower or any Material
Subsidiary shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally
to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall
be commenced against the Company, any other Borrower or any
Material Subsidiary seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part
of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or
an order for relief shall be entered against the Company, any
other Borrower or any Material Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay
when due an amount or amounts aggregating in excess of
$25,000,000 which it shall have become liable to pay under
Title IV of ERISA; or notice of intent to terminate a Material
Plan shall be filed under Title IV of ERISA by any member of the
ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate, to impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan
must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the
ERISA Group to incur a current payment obligation in excess of
$25,000,000;
(j) a judgment or order, or judgments or orders,
for the payment of money in excess, in the aggregate, of
$25,000,000 (in excess of available insurance coverage) shall be
rendered against the Company, any other Borrower or any Material
Subsidiary and such judgment or order, or judgments or orders,
shall continue unsatisfied and unstayed for a period of 30 days;
(k) any person or group of persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act of
1934, as amended) shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the Securities
and Exchange Commission under said Act) of 35% or more of the
outstanding shares of common stock of the Company; or, during any
period of twelve consecutive calendar months commencing after
September 1, 1999, individuals who were directors of the Company
on the first day of such period shall cease to constitute a
majority of the board of directors of the Company; or
(l) the guaranty by the Company in Article 10 or
the Subsidiary Guarantee Agreement shall for any reason be
revoked or invalidated, or otherwise cease to be in full force
and effect, or the Company (or any Person on behalf of the
Company) or any Subsidiary Guarantor shall deny or disaffirm its
obligations under such guaranty;
then, and in every such event, the Administrative Agent shall
(i) if requested by Banks having more than 50% in aggregate
amount of the Commitments, by notice to the Company terminate the
Commitments and they shall thereupon terminate, (ii) if requested
by Banks holding more than 50% of the aggregate amount of the
Loans, by notice to the Company declare the Loans (together with
accrued interest thereon) to be, and the Loans shall thereupon
become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby
waived by each Borrower and (iii) if requested by Banks having
more than 50% in aggregate of the LC Exposures then outstanding,
demand cash collateral be deposited in accordance with Section
2.18(j); provided that in the case of any of the Events of
Default specified in clause (g) or (h) above with respect to any
Borrower, automatically, without any notice to any Borrower or
any other act by the Agents or the Banks, the Commitments shall
thereupon terminate, the Loans (together with accrued interest
thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of
which are hereby waived by each Borrower, and the Company shall
be obligated to deposit cash collateral as provided in Section
2.18(j).
SECTION 6.02. Notice of Default. The Administrative
Agent shall give notice to the Company under Section 6.01(c)
promptly upon being requested to do so by any Bank and shall
thereupon notify all the Banks thereof.
ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes each Agent to take such
action as its agent on its behalf and to exercise such powers
under the Loan Documents and the Notes as are delegated to such
Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
SECTION 7.02. Agents and Affiliates. Each of the Agents
shall have the same rights and powers under this Agreement as any
other Bank and may exercise or refrain from exercising the same
as though it were not an Agent, and each of the Agents and its
affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Company or any Subsidiary
or affiliate of the Company as if it were not an Agent hereunder.
SECTION 7.03. Action by Agents. The obligations of the
Agents hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, none of the
Agents shall be required to take any action with respect to any
Default, except as expressly provided with respect to the
Administrative Agent in Article 6.
SECTION 7.04. Consultation with Experts. Each Agent may
consult with legal counsel (who may be counsel for any Borrower),
independent public accountants and other experts selected by it
and shall not be liable to any Bank for any action taken or
omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agents. None of the Agents
nor any of their respective affiliates or any of their respective
directors, officers, agents or employees shall be liable to any
Bank for any action taken or not taken by it in connection
herewith (i) with the consent or at the request of the Required
Banks or (ii) in the absence of its own gross negligence or
willful misconduct. None of the Agents nor any of their
respective affiliates or any of their respective directors,
officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of the Borrower;
(iii) the satisfaction of any condition specified in Article 3,
except receipt of items required to be delivered to such Agent;
or (iv) the validity, effectiveness or genuineness of any Loan
Document, the Notes or any other instrument or writing furnished
in connection herewith. No Agent shall incur any liability by
acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex,
facsimile transmission or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably
in accordance with its Commitment, indemnify each Agent, its
affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Borrowers) against
any cost, expense (including counsel fees and disbursements),
claim, demand, action, loss or liability (except in the case of
each indemnitee such as result from such indemnitee's gross
negligence or willful misconduct) that such indemnitees may
suffer or incur in connection with any Loan Document or any
action taken or omitted by such indemnitees hereunder or
thereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges
that it has, independently and without reliance upon any Agent or
any other Bank, and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Bank also acknowledges that it
will, independently and without reliance upon any Agent or any
other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking any action under this
Agreement.
SECTION 7.08. Successor Agents. Any Agent may resign at
any time by giving written notice thereof to the Banks and the
Company. Upon any such resignation, the Required Banks shall have
the right to appoint a successor Agent, which successor shall
(unless an Event of Default shall have occurred and be
continuing) be reasonably acceptable to the Company. If no
successor Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within 30 days
after the retiring Agent gives notice of resignation, then the
retiring Agent may, on behalf of the Banks, appoint a successor
Agent, which successor shall (unless an Event of Default shall
have occurred and be continuing) be reasonably acceptable to the
Company, and which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any
State thereof and having a combined capital and surplus of at
least $50,000,000. Upon the acceptance by a successor Agent of
its appointment as Agent hereunder, such successor Agent shall
thereupon succeed to and become vested with all the rights and
duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any
retiring Agent=s resignation hereunder as Agent, the provisions
of this Article shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Agent.
SECTION 7.09. Agents= Fees. The Company shall pay to
each Agent for its own account fees in the amounts and at the
times previously agreed upon between the Company and such Agent.
SECTION 7.10. Co-Documentation Agents. Notwithstanding
anything to the contrary contained herein, none of the Banks
identified on the facing page or signature pages of this
Agreement as "co-documentation agent" shall have any right,
power, obligation, liability, responsibility or duty under any
Loan Document other than those applicable to all Banks as such.
Without limiting the foregoing, none of such Banks shall have or
be deemed to have any fiduciary relationship with any other Bank
in connection herewith. Each Bank acknowledges that it has not
relied, and will not rely, on any of the Banks so identified in
deciding to enter into this Agreement or in taking or not taking
action hereunder.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of any
Interest Period for any CD Loan, Euro-Dollar Loan or Money Market
LIBOR Loan:
(a) the Administrative Agent is advised by the
Reference Banks that deposits in dollars (in the applicable
amounts) are not being offered to the Reference Banks in the
relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks having
50% or more of the amount of the Commitments advise the
Administrative Agent that the Adjusted CD Rate or the Adjusted
London Interbank Offered Rate, as the case may be, to such
Borrower as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Banks of funding
their CD Loans or Euro-Dollar Loans, as the case may be, for such
Interest Period.
(c) the Administrative Agent shall forthwith give
notice thereof to the Company and the Banks, whereupon until the
Administrative Agent notifies the Company that the circumstances
giving rise to such suspension no longer exist, the obligations
of the Banks to make CD Loans or Euro-Dollar Loans, as the case
may be, shall be suspended. Unless the Borrower notifies the
Administrative Agent at least two Domestic Business Days before
the date of any Fixed Rate Borrowing for which a Notice of
Borrowing has previously been given that it elects not to borrow
on such date, (i) if such Fixed Rate Borrowing is a Committed
Borrowing, such Borrowing shall instead be made as a Base Rate
Borrowing in the same aggregate amount as the requested Borrowing
and (ii) if such Fixed Rate Borrowing is a Money Market LIBOR
Borrowing, the Money Market LIBOR Loans comprising such Borrowing
shall be made in the same aggregate amount as the requested
Borrowing and shall bear interest for each day from and including
the first day to but excluding the last day of the Interest
Period applicable thereto at the Base Rate for such day.
SECTION 8.02. Illegality. If, on or after the date of
this Agreement, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any
Bank (or its Euro-Dollar Lending Office) or by the Issuing Bank
with any request or directive promulgated on or after the date
hereof (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it
unlawful or impossible for any Bank (or its Euro-Dollar Lending
Office) to make, maintain or fund its Euro-Dollar Loans to any
Borrower or for the Issuing Bank to issue or maintain any Letter
of Credit and such Bank or the Issuing Bank, as the case may be,
shall so notify the Administrative Agent, the Administrative
Agent shall forthwith give notice thereof to the other Banks and
the Company, whereupon until such Bank or the Issuing Bank, as
the case may be, notifies the Company and the Administrative
Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Dollar
Loans to such Borrower, or of the Issuing Bank to issue Letters
of Credit in favor of such Borrower, shall be suspended. Before
giving any notice to the Administrative Agent pursuant to this
Section, each Bank will use reasonable efforts to designate a
different Euro-Dollar Lending Office if such designation will
avoid the need for giving such notice and will not, in the
judgment 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 Euro-Dollar Loans to
such Borrower to maturity and shall so specify in such notice,
such Borrower shall immediately prepay in full the then
outstanding principal amount of each such Euro-Dollar Loan,
together with accrued interest thereon. Concurrently with
prepaying each such Euro-Dollar Loan, such Borrower shall borrow
a Base Rate Loan in an equal principal amount from such Bank (on
which interest and principal shall be payable contemporaneously
with the related Euro-Dollar Loans of the other Banks), and such
Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If
on or after (x) the date hereof, in the case of any Committed
Loan, any obligation to make Committed Loans, any Letter of
Credit or any commitment to issue or participate in Letters of
Credit or (y) the date of the related Money Market Quote, in the
case of any Money Market Loan, the adoption of any applicable
law, rule or regulation, or any change therein, or any change in
the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the
Issuing Bank or any Bank (or its Applicable Lending Office) with
any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency made or
promulgated after the date hereof 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, but excluding (A) with respect to any CD Loan any
such requirement included in an applicable Domestic Reserve
Percentage and (B) with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve
Percentage), special deposit, insurance assessment (excluding,
with respect to any CD Loan, any such requirement reflected in an
applicable Assessment Rate) or similar requirement against assets
of, deposits with or for the account of, or credit extended by or
Letters of Credit issued by or participated in, the Issuing Bank
or any Bank (or its Applicable Lending Office) or shall impose on
the Issuing Bank or any Bank (or its Applicable Lending
Office) or on the United States market for certificates of
deposit or the London interbank market any other condition
affecting its Fixed Rate Loans, the Letters of Credit or its Note
or its obligation to make Fixed Rate Loans or to issue or
participate in Letters of Credit and the result of any of the
foregoing is to increase the cost to the Issuing Bank or such
Bank (or its Applicable Lending Office) of making or maintaining
any Letter of Credit or Fixed Rate Loan or participation therein,
or to reduce the amount of any sum received or receivable by the
Issuing Bank or such Bank (or its Applicable Lending
Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Bank or the Issuing Bank to
be material, then, within 15 days after demand by such Bank or
the Issuing Bank (with a copy to the Administrative Agent), the
Company shall pay to such Bank or the Issuing Bank such
additional amount or amounts as will compensate such Bank or the
Issuing Bank for such increased cost or reduction.
(b) If any Bank or the Issuing Bank shall have
determined that, after the date hereof, the adoption of any
applicable law, rule or Regulation regarding capital adequacy, or
any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on capital of the
Issuing Bank or such Bank (or the Parent of either) as a
consequence of the Issuing Bank's or such Bank=s obligations
hereunder to a level below that which the Issuing Bank or such
Bank (or the Parent of either) could have achieved but for such
adoption, change, request or directive (taking into consideration
its policies with respect to capital adequacy) by an amount
deemed by the Issuing Bank or such Bank to be material, then from
time to time, within 15 days after demand by the Issuing Bank or
such Bank (with a copy to the Administrative Agent), the Company
shall pay to the Issuing Bank or such Bank such additional amount
or amounts as will compensate the Issuing Bank or such Bank (or
the Parent of either) for such reduction.
(c) Each Bank and the Issuing Bank will promptly notify
the Company and the Administrative Agent of any event of which it
has knowledge, occurring after the date hereof, which will
entitle the Issuing Bank or such Bank to compensation pursuant to
this Section and, in the case of a Bank, will use reasonable
efforts to designate a different Applicable Lending Office if
such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the judgment of such Bank,
be otherwise disadvantageous to such Bank. A certificate of the
Issuing Bank or any Bank claiming compensation under this Section
and setting forth the additional amount or amounts to be paid to
it hereunder shall be conclusive in the absence of manifest
error. In determining such amount, the Issuing Bank or such Bank
may use any reasonable averaging and attribution methods.
SECTION 8.04. Base Rate Loans Substituted for Affected
Fixed Rate Loans. If (i) the obligation of any Bank to make Euro-
Dollar Loans to any Borrower has been suspended pursuant to
Section 8.02 or (ii) any Bank has demanded compensation under
Section 8.03(a) with respect to its CD Loans or Euro-Dollar Loans
and the Borrower shall, by at least five Euro-Dollar Business
Days= prior notice to such Bank through the Administrative Agent,
have elected that the provisions of this Section shall apply to
such Bank, then, unless and until such Bank notifies the Company
that the circumstances giving rise to such suspension or demand
for compensation no longer apply:
(a) all Loans to such Borrower which would otherwise be
made by such Bank as CD Loans or Euro-Dollar Loans, as the case
may be, to such Borrower shall be made instead as Base Rate Loans
(on which interest and principal shall be payable
contemporaneously with the related Fixed Rate Loans of the other
Banks), and
(b) after each of its CD Loans or Euro-Dollar Loans, as
the case may be, to such Borrower has been repaid, all payments
of principal which would otherwise be applied to repay such Fixed
Rate Loans shall be applied to repay its Base Rate Loans instead.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
Each Eligible Subsidiary shall be deemed by the
execution and delivery of its Election to Participate to have
represented and warranted as of the date thereof that:
SECTION 9.01. Corporate Existence and Power. It is a
corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and
is a Wholly-Owned Consolidated Subsidiary.
SECTION 9.02. Corporate and Governmental Authorization;
No Contravention. The execution and delivery by it of its
Election to Participate and its Notes, and the performance by it
of the Loan Documents to which it is a party and its Notes, are
within its corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, agency or official and
do not contravene, or constitute a default under, any provision
of applicable law or Regulation or of its certificate of
incorporation or by-laws or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the
Company or such Eligible Subsidiary or result in the creation or
imposition of any Lien on any asset of the Company or any of its
Subsidiaries.
SECTION 9.03. Binding Effect. Each Loan Document to
which such Eligible Subsidiary is a party constitutes a valid and
binding agreement of it and its Notes, when executed and
delivered in accordance with this Agreement, will constitute
valid and binding obligations of such Eligible Subsidiary.
SECTION 9.04. Taxes. Except as disclosed in such
Election to Participate, there is no income, stamp or other tax
of any country, or any taxing authority thereof or therein,
imposed by or in the nature of withholding or otherwise, which is
imposed on any payment to be made by such Eligible Subsidiary
pursuant hereto or on its Notes, or is imposed on or by virtue of
the execution, delivery or enforcement of its Election to
Participate or of its Notes.
ARTICLE 10
GUARANTY
SECTION 10.01. The Guaranty. The Company hereby
unconditionally guarantees the full and punctual payment (whether
at stated maturity, upon acceleration or otherwise) of the
principal of and interest on each Loan made to any Eligible
Subsidiary pursuant to this Agreement, and the full and punctual
payment of all other amounts (including with respect to LC
Disbursements) payable by any Eligible Subsidiary under this
Agreement. Upon failure by any Eligible Subsidiary to pay
punctually any such amount, the Company shall forthwith on demand
pay the amount not so paid at the place and in the manner
specified in this Agreement.
SECTION 10.02. Guaranty Unconditional. The obligations
of the Company hereunder shall be unconditional and absolute and,
without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected
by:
(a) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of any Eligible
Subsidiary under this Agreement, any other Loan Document or any
Note, by operation of law or otherwise;
(b) any modification or amendment of or supplement to
this Agreement, any other Loan Document or any Note;
(c) any release, impairment, non-perfection or
invalidity of any direct or indirect security for any obligation
of any Eligible Subsidiary under this Agreement, any other Loan
Document or any Note;
(d) any change in the corporate existence, structure or
ownership of any Eligible Subsidiary, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting
any Eligible Subsidiary or its assets or any resulting release or
discharge of any obligation of any Eligible Subsidiary contained
in this Agreement, any other Loan Document or any Note;
(e) the existence of any claim, set-off or other rights
which the Company may have at any time against any Eligible
Subsidiary, any Agent, any Bank or any other Person, 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;
(f) any invalidity or unenforceability relating to or
against any Eligible Subsidiary for any reason of this Agreement,
any other Loan Document or any Note, or any provision of
applicable law or Regulation purporting to prohibit the payment
by any Eligible Subsidiary of the principal of or interest on any
Note or any other amount payable by it under any Loan Document;
or
(g) any other act or omission to act or delay of any
kind by any Eligible Subsidiary, any Agent, any Bank or any other
Person or any other circumstance whatsoever which might, but for
the provisions of this paragraph, constitute a legal or equitable
discharge of the Company=s obligations hereunder.
SECTION 10.03. Discharge Only upon Payment in Full;
Reinstatement in Certain Circumstances. The Company=s obligations
hereunder shall remain in full force and effect until the
Commitments shall have terminated and the principal of and
interest on the Notes and all other amounts payable by the Loan
Parties under the Loan Documents shall have been paid in full. If
at any time any payment of the principal of or interest on any
Note or any other amount payable by any Eligible Subsidiary under
this Agreement or any other Loan Document is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of any Eligible Subsidiary or otherwise, the
Company=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.
SECTION 10.04. Waiver by the Company. The Company
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 Person
against any Eligible Subsidiary or any other Person.
SECTION 10.05. Subrogation. Upon making any payment
with respect to any Eligible Subsidiary hereunder, the Company
shall be subrogated to the rights of the payee against such
Eligible Subsidiary with respect to such payment; provided that
the Company shall not enforce any payment by way of subrogation
until all amounts of principal of and interest on the Loans and
all other amounts payable under this Agreement have been paid in
full.
SECTION 10.06. Stay of Acceleration. In the event that
acceleration of the time for payment of any amount payable by any
Eligible Subsidiary under this Agreement or its Notes is stayed
upon insolvency, bankruptcy or reorganization of such Eligible
Subsidiary, all such amounts otherwise subject to acceleration
under the terms of this Agreement shall nonetheless be payable by
the Company hereunder forthwith on demand by the Administrative
Agent made at the request of the Required Banks.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing
(including bank wire, telex, facsimile transmission or similar
writing) and shall be given to such party: (a) in the case of any
Borrower, at its address, facsimile number or telex number set
forth on the signature pages hereof (or, in the case of an
Eligible Subsidiary, its Election to Participate), (b) in the
case of the Administrative Agent, at its address, facsimile
number or telex number in New York City set forth on the
signature pages hereof, (c) in the case of any Bank, at its
address, facsimile number or telex number set forth in its
Administrative Questionnaire or (d) in the case of any party,
such other address, facsimile number or telex number as such
party may hereafter specify for the purpose by notice to the
Agents and the Company. Each such notice, request or other
communication shall be effective (i) if given by telex, when such
telex is transmitted to the telex number specified in this
Section and the appropriate answer back is received, (ii) if
given by facsimile transmission, when transmitted to the
facsimile number specified in this Section and confirmation of
receipt is received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iv) if given by any other
means, when delivered at the address specified in this Section;
provided that notices under Article 2 or Article 8 shall not be
effective until received.
SECTION 11.02. No Waivers. No failure or delay by
either Agent or any Bank in exercising any right, power or
privilege hereunder or under any Note shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 11.03. Expenses; Indemnification. (a) The
Company shall pay (i) all out-of-pocket expenses of the Agents,
including reasonable fees and disbursements of special counsel
for the Agents, in connection with the preparation and
administration of the Loan Documents, any waiver or consent
hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder, (ii) all out-
of-pocket expenses of the Issuing Bank, including reasonable fees
and disbursements of special counsel for the Issuing Bank, in
connection with the preparation and administration of this
Agreement, any waiver or consent hereunder or any amendment
hereof or any Default or alleged Default hereunder and (iii) if
an Event of Default occurs, all out-of-pocket expenses incurred
by any of the Issuing Bank, the Agents and each Bank, including
fees and disbursements of counsel (which counsel may be an
employee of such Bank or the Issuing Bank), in connection with
such Event of Default and collection, bankruptcy, insolvency and
other enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify the Issuing Bank,
each Agent and Bank, their respective affiliates and the
respective directors, officers, agents and employees of the
foregoing (each, an Aindemnitee@) and hold each indemnitee
harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind, including, without
limitation, the reasonable fees and disbursements of counsel
(which counsel may be an employee of such indemnitee), which may
be incurred by such indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or
not such indemnitee shall be designated a party thereto) brought
or threatened relating to or arising out of any Loan Document or
any actual or proposed use of proceeds of Loans or Letters of
Credit hereunder; provided that no indemnitee shall have the
right to be indemnified hereunder for its own gross negligence or
willful misconduct or breach of its obligations under any Loan
Document as determined by a court of competent jurisdiction.
SECTION 11.04. Sharing of Set-offs. Each Bank agrees
that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest due with respect to
the Loans and participations in LC Disbursement owed to it which
is greater than the proportion received by any other Bank in
respect of the aggregate amount of principal and interest due
with respect to any Loans and participations in LC Disbursements
owed to such other Bank, the Bank receiving such proportionately
greater payment shall purchase participations in such Loans and
participations in LC Disbursements held by the other Banks, and
such other adjustments shall be made, as may be required so that
all such payments of principal and interest with respect to the
Loans and the participations in LC Disbursements held by the
Banks 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 set-off 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 hereunder.
Each Borrower agrees, to the fullest extent it may effectively do
so under applicable law, that any holder of a participation in a
Loan or LC Disbursement, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off 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 11.05. Amendments and Waivers. Any provision of
this Agreement, the other Loan Documents or the Notes may be
amended or waived if, but only if, such amendment or waiver is in
writing and is signed by the Company and the Required Banks (and,
if the rights or duties of the Issuing Bank or any Agent are
affected thereby, by the Issuing Bank or such Agent); provided
that no such amendment or waiver shall, unless signed by all the
Banks, (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 LC Disbursement
or any fees hereunder, (iii) postpone the date fixed for any
payment of principal of or interest on any Loan or LC
Disbursement or any fees hereunder or for any scheduled reduction
or termination of any Commitment, or (iv) change the percentage
of the Commitments or of the aggregate unpaid principal amount of
the Notes, or the number of Banks 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, (v) modify any provision of
Article 10 in any material respect or (vi) release all or any
substantial portion of the Subsidiary Guarantors from their
Guarantees under the Subsidiary Guarantee Agreement, except as
provided therein; provided further that no such amendment, waiver
or modification shall, unless signed by an Eligible Subsidiary,
(w) subject such Eligible Subsidiary to any additional
obligation, (x) increase the principal of or rate of interest on
any outstanding Loan of such Eligible Subsidiary, (y) change the
stated maturity of any outstanding Loan of such Eligible
Subsidiary or (z) change this proviso.
SECTION 11.06. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and assigns, except that no Borrower may assign or otherwise
transfer any of its rights under this Agreement without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks
or other institutions (each a AParticipant@) participating
interests in its Commitment or any or all of its Loans and its
interest in LC Disbursements. In the event of any such grant by a
Bank of a participating interest to a Participant, whether or not
upon notice to the Borrowers and the Agents, such Bank shall
remain responsible for the performance of its obligations
hereunder, and the Borrowers and the Agents shall continue to
deal solely and directly with such Bank in connection with such
Bank=s rights and obligations under this Agreement. Any agreement
pursuant to which any Bank may grant such a participating
interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the obligations of the Borrowers
hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this
Agreement; provided that such participation agreement may provide
that such Bank will not agree to any modification, amendment or
waiver of this Agreement described in clause (i), (ii) or
(iii) of Section 11. 05 without the consent of the Participant.
The Borrowers agree that each Participant shall, to the extent
provided in its participation agreement, be entitled to the
benefits of Article 8 with respect to its participating interest.
An assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be given effect for purposes of
this Agreement only to the extent of a participating interest
granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more
banks or other institutions (each an AAssignee@) all, or a
proportionate part of all, of its rights and obligations under
this Agreement and the Notes, and such Assignee shall assume such
rights and obligations, pursuant to an Assignment and Assumption
Agreement in substantially the form of Exhibit D hereto executed
by such Assignee and such transferor Bank, with (and subject to)
the consent of the Company, the Issuing Bank and the
Administrative Agent, such consents not to be unreasonably
withheld; provided that if an Assignee is an affiliate of a Bank
or was a Bank immediately prior to such assignment, no such
consent shall be required, and if an Event of Default has
occurred and is continuing, the consent of the Company shall not
be required; and provided further that any assignment shall not
be less than $10,000,000, or if less, shall constitute an
assignment of all of such Bank=s rights and obligations under
this Agreement and the Notes. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Bank
of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and
obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to
this subsection (c), the transferor Bank, the Administrative
Agent and the Borrowers shall make appropriate arrangements so
that, if required, new Notes are issued to the Assignee. In
connection with any such assignment, the transferor Bank shall
pay to the Administrative Agent an administrative fee for
processing such assignment in the amount of $2,500. If the
Assignee is not incorporated under the laws of the United States
of America or a state thereof, it shall, prior to the first date
on which interest or fees are payable hereunder for its account,
deliver to the Company and the Administrative Agent certification
as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 2.17.
(d) Any Bank may at any time assign all or any portion
of its rights under this Agreement and its Notes to a Federal
Reserve Bank. No such assignment shall release the transferor
Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any
Bank=s rights shall be entitled to receive any greater payment
under Section 8.03 than such Bank would have been entitled to
receive with respect to the rights transferred, unless such
transfer is made with the Company=s prior written consent or by
reason of the provisions of Section 8.02 or 8.03 requiring such
Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving
rise to such greater payment did not exist.
(f) Notwithstanding anything to the contrary contained
herein, any Bank (a AGranting Bank@) may grant to a special
purpose funding vehicle (an ASPC@) of such Granting Bank,
identified as such in writing from time to time by the Granting
Bank to the Administrative Agent and the Company, the option to
provide to the Borrower all or any part of any Loan that such
Granting Bank would otherwise be obligated to make to the
Borrower pursuant to Section 2.01; provided that (i) nothing
herein shall constitute a commitment to make any Loan by any SPC
and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the
Granting Bank shall be obligated to make such Loan pursuant to
the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Bank to the same extent,
and as if, such Loan were made by the Granting Bank. Each party
hereto hereby agrees that no SPC shall be liable for any payment
under this Agreement for which a Bank would otherwise be liable,
for so long as, and to the extent, the related Granting Bank
makes such payment. In furtherance of the foregoing, each party
hereto hereby agrees that, prior to the date that is one year and
one day after the payment in full of all outstanding senior
indebtedness of any SPC, it will not institute against, or join
any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 11.06 any SPC
may (i) with notice to, but without the prior written consent of,
the Company or the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interest
in any Loans to its Granting Bank or to any financial
institutions providing liquidity and/or credit facilities to or
for the account of such SPC to fund the Loans made by such SPC or
to support the securities (if any) issued by such SPC to fund
such Loans and (ii) disclose on a confidential basis any non-
public information relating to its Loans to any rating agency,
commercial paper dealer or provider of a surety, guarantee or
credit or liquidity enhancement to such SPC. This section may not
be amended with respect to any SPC without the written consent of
such SPC's Granting Bank. Notwithstanding any grant of rights to
an SPC pursuant to this paragraph, the Granting Bank shall retain
the sole right to approve any amendment, modification or waiver
of any provision of this Agreement or the other Loan Documents;
provided that the Granting Bank may enter into and perform any
agreement with the SPC as to the manner in which it will exercise
such right.
SECTION 11.07. Collateral. Each of the Banks represents
to the Agents and each of the other Banks that it in good faith
is not relying upon any Amargin stock@ (as defined in
Regulation U) as collateral in the extension or maintenance of
the credit provided for in this Agreement.
SECTION 11.08. Governing Law; Submission to
Jurisdiction. (a) This Agreement and each Note shall be governed
by and construed in accordance with the laws of the State of New
York.
(b) Each Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in
New York City for purposes of all legal proceedings arising out
of or relating to this Agreement, the other Loan Documents or the
transactions contemplated hereby. Each Borrower irrevocably
waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in
an inconvenient forum.
(c) Each Borrower irrevocably designates and appoints
CT Corporation System, having an office on the date hereof at
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as such Borrower=s
authorized agent, to accept and acknowledge on its behalf service
of any and all process which may be served in any suit, action or
proceeding referred to in subsection (b) above in any federal or
New York State court sitting in New York City. Each Borrower
represents and warrants that such agent has agreed to accept such
appointment. Said designation and appointment shall not be
revocable by any Borrower until all principal, interest and other
amounts payable hereunder shall have been paid in full in
accordance with the provisions hereof or, if earlier, when such
Borrower=s status as a Borrower hereunder is terminated. If such
agent shall cease to act as agent for any Borrower, such Borrower
agrees to designate irrevocably and appoint without delay another
such agent satisfactory to the Agent.
(d) Each Borrower consents to process being served in
any suit, action or proceeding referred to in
subsection (b) above in any federal or New York State court
sitting in New York City by service of process upon its agent
appointed as provided in subsection (c) above; provided that, to
the extent lawful and possible, notice of said service upon such
agent shall be mailed by registered or certified air mail,
postage prepaid, return receipt requested, to such Borrower at
its address specified in or pursuant to Section 11.01. Each
Borrower irrevocably waives, to the fullest extent permitted by
law, all claim of error by reason of service in such manner and
agrees that such service shall be deemed in every respect
effective service of process upon such Borrower in any such suit,
action or proceeding and shall, to the fullest extent permitted
by law, constitute valid and personal service upon and personal
delivery to such Borrower.
(e) Nothing in this Section shall affect the right of
the Administrative Agent or any Bank to serve process in any
other manner permitted by law or limit the right of the
Administrative Agent or any Bank to bring proceedings against any
Borrower in the courts of any jurisdiction or jurisdictions.
SECTION 11.09. Counterparts; Integration. This
Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This
Agreement and the other Loan Documents constitute the entire
agreement and understanding among the parties hereto and
supersedes any and all prior agreements and understandings, oral
or written, relating to the subject matter hereof.
SECTION 11.10. Waiver of Jury Trial. EACH OF THE
COMPANY, THE BORROWERS, THE ISSUING BANK, THE AGENTS AND THE
BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 11.11. Confidentiality. Each Bank agrees to
exercise all reasonable efforts to keep any information delivered
or made available by a Borrower to it which is clearly indicated
to be confidential information, confidential from anyone other
than persons employed or retained by such Bank who are or are
expected to become engaged in evaluating, approving, structuring
or administering the Loans; provided that nothing herein shall
prevent any Bank from disclosing such information (i) to any
other Bank, (ii) to its affiliates and its and their officers,
directors, employees, agents, attorneys and accountants who have
a need to know such information in accordance with customary
banking practices and who receive such information having been
made aware of the restrictions set forth in this Section,
(iii) upon the order of any court or administrative agency,
(iv) upon the request or demand of any regulatory agency or
authority having jurisdiction over such Bank, (v) which has been
publicly disclosed, (vi) to the extent reasonably required in
connection with any litigation to which any Agent, any Bank, or
their respective affiliates may be a party, (vii) to the extent
reasonably required in connection with the exercise of any remedy
hereunder, (viii) to such Bank=s legal counsel and independent
auditors, and (ix) to any actual or proposed participant or
assignee of all or part of its rights hereunder which has agreed
in writing to be bound by the provisions of this Section.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
CK WITCO CORPORATION
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
CK Witco Corporation
Attention:
Facsimile number:
CITIBANK, N.A., individually and
as Administrative Agent,
By /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Citibank, N.A.
Attention:
Facsimile number:
PRICING SCHEDULE
Each of AFacility Fee Rate@, AEuro-Dollar Margin@ and
ACD Margin@ means, for any day, the rate set forth below in the
row opposite such term and in the column corresponding to the
Pricing Level that applies on such day as determined based on the
ratings by ▇▇▇▇▇'▇ and S&P:
Level I Level II Level III ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇-/▇▇ BB+/Baa1 BBB/Baa2 BBB-/Baa3
