Exhibit 4.1
CONFORMED COPY
AMENDED AND RESTATED
FIVE-YEAR REVOLVING CREDIT AGREEMENT
Dated as of August 13, 2002
among
THE GOODYEAR TIRE & RUBBER COMPANY,
THE LENDERS NAMED HEREIN,
and
JPMORGAN CHASE BANK
as Agent
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
acted as Advisor, Lead
Arranger and Bookrunner
[CS&M Ref. No. 6701-174]
TABLE OF CONTENTS
Article Section Page
------- ------- ----
I. DEFINITIONS 1
1.01. Defined Terms 1
1.02. Terms Generally 16
II. THE CREDITS 16
2.01. Commitments 16
2.02. Loans 17
2.03. Competitive Bid Procedure 18
2.04. Standard Borrowing Procedure 20
2.05. Letters of Credit 20
2.06. Refinancings 24
2.07. Fees 24
2.08. Repayment of Loans; Evidence of Debt 25
2.09. Interest on Loans 26
2.10. Default Interest 26
2.11. Unavailability of LIBO Rate and CD Rate Quotations 26
2.12. Termination, Reduction and Addition of Commitments 27
2.13. Prepayment 27
2.14. Reserve Requirements; Change in Circumstances 28
2.15. Change in Legality 30
2.16. Pro Rata Treatment 31
2.17. Reimbursement of LC Disbursements-Pro Rata Treatment 31
2.18. Payments 31
2.19. Taxes 32
2.20. Termination or Assignment of Commitments 33
III. REPRESENTATIONS AND WARRANTIES 33
IV. CONDITIONS OF EXTENSIONS OF CREDIT 35
4.01. All Extensions of Credit 35
4.02. At Closing 35
V. AFFIRMATIVE COVENANTS 36
VI. NEGATIVE COVENANTS 38
VII. EVENTS OF DEFAULT 40
VIII. THE AGENT 42
IX. MISCELLANEOUS
9.01. Notices 44
9.02. Survival of Agreement 44
9.03. Binding Effect; Successors and Assigns 44
9.04. Applicable Law 45
9.05. Waivers; Amendment 45
9.06. Expenses; Indemnity 46
9.07. Interest Rate Limitation 47
9.08. Entire Agreement 47
9.09. Information; Access and Confidentiality 47
9.10. Severability 48
9.11. Counterparts 48
9.12. Headings 48
9.13. Jurisdiction; Consent to Service of Process 48
9.14. Stamp Taxes 48
9.15. WAIVER OF JURY TRIAL 49
9.16. Change of Control Option 49
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Standard Borrowing Request
Exhibit B Form of Opinion of Counsel
Exhibit C Form of Schedule of Compliance
Exhibit D Form of Agreement Providing for Additional Lender
Exhibit E Form of Promissory Note to Facilitate Assignments to Federal
Reserve Banks
Schedule 2.01 Commitments; Addresses for Notices, Reserve Percentages and
Assessment Rates
Schedule 2.05 Existing Letters of Credit
Schedule III Certain Litigation
AMENDED AND RESTATED FIVE-YEAR
REVOLVING CREDIT AGREEMENT dated as of August 13, 2002,
among THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio
corporation (the "Borrower"), the lenders listed in
Schedule 2.01 (together with their successors and
permitted assigns, the "Lenders") and JPMORGAN CHASE
BANK, a New York banking corporation, as administrative
agent for the Lenders (in such capacity, the "Agent").
The Borrower, certain Lenders and the Agent are parties to an
Amended and Restated Five-Year Revolving Credit Agreement dated as of August 14,
2001, as amended by Amendment No. 1 dated as of November 8, 2001 (the "Existing
Credit Agreement"). The Borrower has requested that the Existing Credit
Agreement be amended and restated in the form of this Agreement. Lenders
representing at least the Majority Lenders (as herein defined) under the
Existing Credit Agreement and the Agent are willing to amend and restate the
Existing Credit Agreement in the form of this Agreement.
The Borrower has requested the Lenders, and the Lenders are willing,
to extend credit to the Borrower in order to enable it (a) to borrow on a
standby revolving credit basis on and after the date hereof and at any time and
from time to time prior to the Maturity Date (as herein defined) a principal
amount not in excess of $750,000,000 at any time outstanding, (b) to obtain
Letters of Credit in an aggregate stated amount not in excess of $200,000,000 at
any time and (c) to provide a procedure pursuant to which the Borrower may
invite the Lenders to bid on an uncommitted basis on borrowings by the Borrower.
The Lenders are willing to extend such credit to the Borrower on the terms and
subject to the conditions herein set forth.
Accordingly, the Borrower, the Lenders and the Agent agree as
follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standard Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Adjusted CD Rate" shall mean, with respect to any CD Loan, the rate
per annum (rounded upward, if necessary, to the nearest 1/1000th of 1%)
equivalent to the sum of (i) the quotient of (x) the CD Rate with respect to the
Interest Period in respect of such CD Loan, divided by (y) one minus the CD
Reserve Requirement of the applicable Lender, if any, plus (ii) the Assessment
Rate of the applicable Lender, if any. The Adjusted CD Rate shall be determined
as of the first day of, and shall remain constant throughout, the applicable
Interest Period.
2
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Loan, the rate per annum (expressed as a percentage rounded upward, if
necessary, to the nearest 1/1000th of 1%) equivalent to the sum of (i) the
quotient of (x) the LIBO Rate for the Interest Period in respect of such
Eurodollar Loan, divided by (y) one minus the Eurodollar Reserve Requirement, if
any. The Adjusted LIBO Rate shall be the rate appropriately determined to be in
effect on the first day of, and shall remain constant throughout, such Interest
Period. The Eurodollar Reserve Requirement shall be determined as at the first
day of, and shall remain constant throughout, such Interest Period.
"Administrative Fees" shall have the meaning assigned to such term
in Section 2.07(d).
"Affiliate" shall mean, 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.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by the Agent as its prime rate in effect at its principal office in New York
City; each change in the Prime Rate shall be effective on the date such change
is publicly announced as effective. "Federal Funds Effective Rate" shall mean,
for any day, the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for the day of such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it. If for any reason the Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Agent to obtain sufficient quotations
in accordance with the terms thereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the first sentence of this definition
until the circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Annual Period" shall mean a period of four complete, consecutive
fiscal quarters of the Borrower, taken together and constituting one accounting
period.
"Applicable Percentage" shall mean, with respect to any Lender, the
percentage of the Total Commitments represented by such Lender's Commitment.
"Applicable Spread" shall mean, for any day, (a) with respect to any
Eurodollar Standard Loan or CD Loan, the applicable rate per annum set forth
below under the caption "Eurodollar Spread" or "CD Spread", as the case may be,
based upon the ratings by S&P and ▇▇▇▇▇'▇, respectively, applicable on such day
to the Index Debt; and (b) with respect to any ABR Loan, the applicable rate per
annum set forth below
3
under the caption "Eurodollar Spread" (as such rate may be increased pursuant to
this definition), minus 1.00% per annum (but in no event less than zero):
Eurodollar
Ratings Spread Per CD Spread Per
Category (S&P/▇▇▇▇▇'▇) Annum Annum
-------- ------------- ---------- -------------
1 BBB/Baa2 or 0.800% 0.925%
higher
2 BBB-/Baa3 1.000% 1.125%
3 BB+/Ba1 1.400% 1.525%
4 lower than 1.500% 1.625%
BB+/ba1 or
unrated
For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P shall not have in
effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the second following sentence of this definition), then such
rating agency shall be deemed to have established a rating in Category 4; (ii)
if the ratings established or deemed to have been established by ▇▇▇▇▇'▇ and S&P
for the Index Debt shall fall within different Categories, the Applicable Spread
shall be based on the lower of the ratings; and (iii) if the ratings established
or deemed to have been established by ▇▇▇▇▇'▇ and S&P for the Index Debt shall
be changed (other than as a result of a change in the rating system of ▇▇▇▇▇'▇
or S&P), such change shall be effective as of the date on which it is first
announced by the applicable rating agency. Each change in the Applicable Spread
shall apply during the period commencing on the effective date of such change
and ending on the date immediately preceding the effective date of the next such
change. If the rating system of ▇▇▇▇▇'▇ or S&P shall change, or if either such
rating agency shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in good faith to amend
this definition to reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Spread shall be determined by reference to the rating
most recently in effect prior to such change or cessation. Notwithstanding the
foregoing, (a) if the Borrower's Leverage Ratio as of the last day of the fiscal
quarter most recently ended is greater than 55%, then the Eurodollar Spread
shall be increased as necessary so that the sum of the Eurodollar Spread and the
Facility Fee Percentage shall not be less than 1.500% per annum and (b) if the
Borrower's Leverage Ratio as of the last day of the fiscal quarter most recently
ended is equal to or less than 55% but greater than 40%, then the Eurodollar
Spread shall be increased as necessary so that the sum of the Eurodollar Spread
and the Facility Fee Percentage shall not be less than 1.250% per annum. In the
event that the Eurodollar Spread shall be increased as above, the CD Spread
shall be increased accordingly and shall at all times equal the Eurodollar
Spread plus 0.125% per annum. Each change in the Applicable Spread resulting
from a change in the Leverage Ratio as of the end of any fiscal quarter will be
effective as of the date of delivery by the Borrower of a certificate setting
forth the calculation of the Leverage Ratio as at the end of such fiscal
quarter, which certificate shall be delivered with the annual and/or quarterly
financial statements required to be delivered under paragraph (c) of Article V.
Notwithstanding the foregoing, at any time that the Borrower shall fail to
deliver to the Agent such certificate by the time required under such paragraph
(c), the Leverage Ratio
4
shall be deemed to be greater than 55% until such time as the Borrower shall so
deliver such certificate.
"Assessment Rate" shall mean, at any date as of which any
determination thereof is being or to be made and with respect to any CD Loan and
the applicable Interest Period in respect of which any determination thereof is
being or to be made, the aggregate of the net annual assessment rates or similar
fees or charges (expressed on a per annum percentage basis, rounded upward, if
necessary, to the nearest 1/1000th of 1%), if any, paid by the Lender making
such Loan on its Dollar time deposits in the United States of America insured by
the Federal Deposit Insurance Corporation (or any successor agency) or any other
Governmental Body which has general jurisdiction over such Lender; such rates,
fees or charges, if any, shall be determined by annualizing the then most recent
assessment rates or similar fees or charges levied on such Lender by said
Corporation or other Governmental Body with respect to such Dollar time deposits
evidenced by certificates of deposit or equivalent instruments in amounts and
for periods substantially equal to the applicable Interest Period.
"Attributable Debt" means, with respect to any Sale-Leaseback
Transaction, the present value (discounted at a rate equal to the prevailing
yield at the date such Sale-Leaseback Transaction is entered into on United
States Treasury obligations having a maturity substantially equal to the term of
the lease included in such Sale-Leaseback Transaction plus 3% per annum) of the
total obligations of the lessee for rental payments (other than amounts required
to be paid on account of taxes, maintenance, repairs, insurance, assessments,
utilities, operating and labor costs and other items which do not constitute
payments for property rights or amounts related to contingent rents (such as
those based on sales)) during the remaining term of the lease included in such
Sale-Leaseback Transaction (including any period for which such lease has been
extended). In the case of any lease which is terminable by the lessee upon
payment of a penalty, the Attributable Debt shall be the lesser of the
Attributable Debt determined assuming termination upon the first date such lease
may be terminated (in which case the Attributable Debt shall also include the
amount of the penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated) or the Attributable Debt determined assuming no such termination.
"Authorized Officer" shall mean (i) any of the Chairman of the
Board, any Vice Chairman of the Board, any President, any Executive Vice
President, any Senior Vice President, any Vice President and the Treasurer of
the Borrower, and (ii) in respect of all matters relating to this Agreement
other than the execution and delivery of this Agreement, the Secretary, any
Assistant Treasurer or any Assistant Secretary of the Borrower and any other
person designated in writing by any officer specified in clause (i) above as
duly authorized to act on behalf of the Borrower hereunder.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders
whose Competitive Bids have been accepted pursuant to Section 2.03) on a single
date and as to which a single Interest Period is in effect.
5
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in Dollar deposits in the
London interbank market.
"CD Borrowing" shall mean a Borrowing comprised of CD Loans.
"CD Loan" shall mean any Standard Loan bearing interest at a rate
determined by reference to the Adjusted CD Rate in accordance with the
provisions of Article II.
"CD Rate" shall mean with respect to any CD Borrowing for any
Interest Period, the rate of interest (expressed as an annual rate) equal to the
rate specified in respect of certificates of deposit or similar instruments
having a maturity which is equal or substantially equal to such Interest Period,
which rate appears on the display designated as page "FEDM" on the ▇▇▇▇▇▇ System
(or on such other display on the ▇▇▇▇▇▇ System as shall then display rates for
the purchase at face value of certificates of deposit or equivalent instruments)
at 10:00 a.m., New York City time, on the first day of such Interest Period;
provided, that, if no rates can be obtained from page "FEDM" of the ▇▇▇▇▇▇
System (or such other display), CD Rate shall be equal to the rate set forth
under the caption "Certificates of Deposit" in the daily statistical release
published by the Federal Reserve Bank of New York entitled "Composite 3:30 p.m.
Quotations for U.S. Government Securities", or any successor publication (the
"Composite Quotations"), for the first day of such Interest Period in respect of
certificates of deposit having a maturity substantially equal to such Interest
Period; provided, further, that if no rates are available from the ▇▇▇▇▇▇ System
or the Composite Quotations, or the Agent or the Borrower shall in good faith
reasonably determine (and promptly give notice to the other party of such
determination) that the CD Rate in respect of such Interest Period determined as
aforesaid is materially higher (as reasonably determined by the Borrower) or
lower (as reasonably determined by the Agent) than the prevailing rate of
interest the Agent is required to pay to acquire funds evidenced by
non-negotiable certificates of deposit in amounts of $1,000,000 or more for a
period substantially equal to such Interest Period, then, in any such event, CD
Rate shall mean, with respect to such Interest Period and to the applicable CD
Borrowing, the arithmetic average (expressed as a percentage rounded upward, if
necessary, to the nearest 1/1000th of 1%) of the offered rates (each expressed
as a per annum rate) offered by leading New York City dealers in negotiable
certificates of deposit at 10:30 a.m., New York City time, on the first day of
such Interest Period for the purchase at face value from the Agent of negotiable
certificates of deposit or equivalent instruments in amounts of $1,000,000 or
more for the period of, or for a period comparable or substantially equal to,
such Interest Period.
"CD Reserve Requirement" shall mean, at any date as of which any
determination thereof is being or to be made and with respect to any CD Loan and
the applicable Interest Period in respect of which any determination thereof is
being or to be made, the amount (expressed as a decimal, rounded upward, if
necessary, to six decimal places) equal to the sum of (i) the aggregate of all
reserve requirements (including, without duplication, all basic, supplemental,
marginal and other reserves) in effect on such date (as established under
Regulation D of the Board, or any other regulation of the Board which prescribes
reserve requirements applicable to Dollar non-personal time deposits then in
effect and applicable to the Lender making such Loan), on Dollar
6
non-personal time deposits in the United States of the type used as a reference
in determining the CD Rate and having a maturity equal or comparable to the
applicable Interest Period, as and to the extent that such Lender is subject to
such requirements, and (ii) the aggregate of all reserve or similar requirements
of any other Governmental Body having jurisdiction over such Lender in respect
of such Dollar non-personal time deposits in the United States having a maturity
equal or comparable to the applicable Interest Period.
"Closing Date" shall mean August 13, 2002.
"Code" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
"Commitment" shall mean, with respect to each Lender, the commitment
of such Lender hereunder as set forth in Schedule 2.01 hereto, as such Lender's
Commitment may be permanently terminated or reduced from time to time pursuant
to Section 2.12. Schedule 2.01 will be deemed to have been appropriately amended
to reflect any addition of a Commitment pursuant to Section 2.12(d), assignment
pursuant to Section 9.03 or termination or reduction of any Commitment.
"Competitive Bid" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification
made by the Borrower pursuant to Section 2.03(d) in the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by
a Lender pursuant to Section 2.03(b), (i) in the case of a Eurodollar Loan, the
Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of interest
offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to
Section 2.03 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such Borrowing have been accepted by the Borrower
under the bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan from a Lender to the Borrower
pursuant to the bidding procedure described in Section 2.03. Each Competitive
Loan shall be a Eurodollar Competitive Loan or a Fixed Rate Loan.
"Consolidated" shall refer to the consolidation of the accounts of
the Borrower and the Subsidiaries in accordance with generally accepted
accounting principles, including principles of consolidation.
"Consolidated Debt" shall mean, as at the date as of which any
determination thereof is being or to be made, Debt of the Borrower and the
Subsidiaries, without duplication, determined on a Consolidated basis in
accordance with generally accepted accounting principles.
7
"Consolidated Financial Statements of the Borrower" shall mean the
Consolidated balance sheet of the Borrower and Subsidiaries as at December 31,
2001 and 2000 and the Consolidated statements of income, shareholders' equity
and cash flows for each of the three years in the period ended December 31,
2001, and the Notes to Financial Statements in respect thereof, together with
the Report of PricewaterhouseCoopers LLP, independent accountants, in respect
thereof, all as set forth at pages 52 through 80, inclusive, of the Annual
Report on Form 10-K for the Borrower for the year ended December 31, 2001, a
copy of which has heretofore been delivered to each of the Lenders.
"Consolidated Interest Expense" shall mean, with respect to any
Annual Period in respect of which a determination thereof is being or to be
made, without duplication and excluding intercorporate transactions among the
Borrower and the Subsidiaries, the sum of (i) Consolidated interest accrued in
respect of all Consolidated Debt of the Borrower and the Subsidiaries during
such Annual Period, whether or not paid and whether expensed or capitalized,
calculated and determined after giving effect, as and to the extent permitted by
generally accepted accounting principles, to any amounts paid or received by the
Borrower or the Subsidiaries under interest rate exchange and similar agreements
and arrangements which are intended to hedge or limit interest rates and
expenses, plus (ii) amortization of debt expense and discount or premium
relating to any such Debt (including and giving effect to any similar amounts
paid or received by the Borrower and the Subsidiaries under any such interest
rate exchange or similar agreement or arrangement) during such period, whether
or not paid and whether expensed or capitalized, plus (iii) the portion of
rental expense payable during such period pursuant to all capital lease
obligations (which are recorded as Debt) representing imputed interest recorded
in accordance with generally accepted accounting principles.
"Consolidated Net Worth" shall mean, as at the end of any fiscal
quarter in respect of which a determination thereof is being or to be made, the
Consolidated stated capital, surplus and retained earnings of the Borrower and
the Subsidiaries, before (i) foreign currency translation adjustment and (ii)
the effect (on such retained earnings) of the recognition of the one time charge
for the "transition obligation" of the Borrower and the Subsidiaries upon the
Borrower's adoption of, and under and in accordance with the applicable
provisions of, Statement of Financial Accounting Standards No. 106, "Employers'
Accounting for Postretirement Benefits other than Pensions" in 1992.
"Consolidated Operating Income" shall mean, with respect to any
Annual Period in respect of which a determination thereof is being or to be
made, the Consolidated net sales of the Borrower and the Subsidiaries for such
Annual Period, plus other income, depreciation and amortization, minus cost of
goods sold and selling, administrative and general expense properly attributable
to continuing operations of the Borrower and the Subsidiaries for such Annual
Period.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Debt" shall mean and shall include, as at the date as of which any
determination thereof is being or is to be made and in respect of any Person,
without duplication and excluding in the case of the Borrower and the
Subsidiaries intercorporate
8
debt and other intercorporate obligations solely among the Borrower and the
Subsidiaries, all (i) indebtedness of such Person for borrowed money, (ii)
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) obligations of such Person to pay the deferred
purchase price of property or services under conditional sales or other similar
agreements which provide for the deferral of the payment of the purchase price
for a period in excess of one year following the date of such Person's receipt
and acceptance of the complete delivery of such property and/or services, (iv)
obligations of such Person as lessee under leases which obligations are, in
accordance with generally accepted accounting principles, recorded as capital
lease obligations, and (v) obligations of such Person under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) of such
Person to purchase or otherwise acquire, indebtedness or obligations of others
of the kinds referred to in clauses (i) through (iv) above. Whenever any
determination of the amount of Debt (or of Consolidated Debt or Funded Debt) is
required or permitted to be, or is otherwise being or to be, made for any
purpose under this Agreement, the amount of any such Debt denominated in any
currency other than Dollars shall be calculated at the Dollar Equivalent of such
Debt as at the date as of which such determination of the amount of Debt is
being or to be made, except that, if all or any portion of the principal amount
of any such Debt which is payable in a currency other than Dollars is hedged
into Dollars, the principal amount of such hedged Debt, or the hedged portion
thereof, shall be deemed to be equal to the amount of Dollars specified in, or
determined pursuant to, the applicable hedging contract.
"Dollar Equivalent" shall mean, in respect of any amount of any
currency, and as at the date and time as of which any determination thereof is
being or to be made, that number of Dollars into which such amount of currency
may be converted on such date, which shall be equal to the product of (a) the
principal amount of such currency (expressed in standard units of such currency)
multiplied by (b) the prevailing spot rate for exchanging such currency into
Dollars as quoted on page "Spot" of the ▇▇▇▇▇▇ System as at such date and time
as of which the determination of Dollar Equivalent is being or to be made, or,
if no rate is quoted in respect of such currency on the ▇▇▇▇▇▇ System display
designated page "Spot" as at such date and time, the prevailing spot rate for
exchanging such currency into Dollars in the New York City foreign currency
exchange market (or, if a more substantial and liquid market for the exchange of
such currency, the London currency exchange market or the currency exchange
market in the principal financial center of such currency) as at such date and
time.
"Dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiary" shall mean any Subsidiary incorporated or
organized in, or engaged (directly or through its subsidiaries) primarily in
business in, the United States of America, any state, territory or possession
thereof or the District of Columbia.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time, and the regulations
promulgated and the rulings issued thereunder.
"ERISA Liabilities" shall mean, as at the date as of which any
determination in respect thereof is being or to be made, the minimum liability
with respect to Plans which would be required to be reflected at such time as a
liability on the Consolidated balance sheet of the Borrower and the Subsidiaries
under paragraphs 36 and
9
70 of Statement of Financial Accounting Standards No. 87 as such statement may
from time to time be amended, modified or supplemented, or under any successor
statement issued in replacement thereof.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Competitive Loan" shall mean any Competitive Loan
bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Competitive Loan or
Eurodollar Standard Loan.
"Eurodollar Reserve Requirement" shall mean, at any date as of which
any determination thereof is being or to be made and with respect to any
Eurodollar Loan and the applicable Interest Period in respect of which any
determination thereof is being or to be made, the amount (expressed as a
decimal, rounded upward, if necessary, to six decimal places) of the applicable
statutory reserve or similar requirements (including, without duplication, all
basic, supplemental, marginal, emergency, special and other reserves), if any,
on Eurodollar deposits applicable to and imposed upon the applicable Lender from
time to time under regulations issued from time to time by the Board (or any
successor) for determining the minimum reserve requirement (including, without
limitation, any such reserve requirements under Regulation D of the Board and
any emergency, supplemental or other marginal reserve requirements), or by any
other Governmental Body having jurisdiction over such Lender, applicable to such
Lender with respect to liabilities or assets consisting of or including
Eurocurrency liabilities (as defined in Regulation D of the Board, as in effect
from time to time) having a term substantially equal to such Interest Period.
"Eurodollar Standard Loan" shall mean any Standard Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and any successor Federal statute.
"Excluded Taxes" shall mean, with respect to any Lender, (a) income
or franchise taxes imposed on (or measured by) its net income by the United
States of America (or any political subdivision thereof), or by the jurisdiction
under which such Lender is organized or in which its principal office or any
lending office from which it makes Loans hereunder is located, (b) any branch
profit taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above, (c) any withholding tax
that is imposed by the United States of America (or any political subdivision
thereof) on payments to such Lender by the Borrower from an office within such
jurisdiction to the extent such tax is in effect and would apply as of the date
such Lender becomes a party to this Agreement or relates to payments received by
a new lending office designated by such Lender and is in effect and would apply
at the time such
10
lending office is designated or (e) any withholding tax that is attributable to
such Lender's failure to comply with Section 2.19(e), except, in the case of
clause (c) above, to the extent that (i) such Lender (or its assignor, if any)
was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 2.19(a) or (ii) such withholding tax
shall have resulted from the making of any payment to a location other than the
office designated by the Agent for the receipt of payments of the applicable
type from the Borrower.
"Existing Issuing Banks" means the banks listed on Schedule 2.05 in
their capacity as issuing banks in respect of Existing Letters of Credit.
"Existing Letters of Credit" means the outstanding letters of credit
set forth on Schedule 2.05.
"Facility Fee" shall have the meaning assigned to such term in
Section 2.07(a).
"Facility Fee Percentage" shall mean, for any day, the applicable
rate per annum set forth below under the caption "Facility Fee Percentage",
based upon the ratings by S&P and Moody's, respectively, applicable on such day
to the Index Debt:
Ratings
Category (S&P/Moody's) Facility Fee Percentage
-------- ------------- -----------------------
1 BBB/Baa2 or higher 0.200%
2 BBB-/Baa3 0.250%
3 BB+/Ba1 0.350%
4 lower than BB+/Ba1 or 0.500%
unrated
For purposes of the foregoing, (i) if either Moody's or S&P shall not have in
effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the second following sentence of this definition), then such
rating agency shall be deemed to have established a rating in Category 4; (ii)
if the ratings established or deemed to have been established by Moody's and S&P
for the Index Debt shall fall within different Categories, the Facility Fee
Percentage shall be based on the lower of the ratings; and (iii) if the ratings
established or deemed to have been established by Moody's and S&P for the Index
Debt shall be changed (other than as a result of a change in the rating system
of Moody's or S&P), such change shall be effective as of the date on which it is
first announced by the applicable rating agency. Each change in the Facility Fee
Percentage shall apply during the period commencing on the effective date of
such change and ending on the date immediately preceding the effective date of
the next such change. If the rating system of Moody's or S&P shall change, or if
either such rating agency shall cease to be in the business of rating corporate
debt obligations, the Borrower and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed
11
rating system or the unavailability of ratings from such rating agency and,
pending the effectiveness of any such amendment, the Facility Fee Percentage
shall be determined by reference to the rating most recently in effect prior to
such change or cessation. Notwithstanding the foregoing, if the Borrower's
Leverage Ratio as of the last day of the fiscal quarter most recently ended is
greater than 55%, then the Facility Fee Percentage shall not be less than 0.250%
per annum. Each change in the Facility Fee Percentage resulting from a change in
the Leverage Ratio as of the end of any fiscal quarter will be effective as of
the date of delivery by the Borrower of a certificate setting forth the
calculation of the Leverage Ratio as at the end of such fiscal quarter, which
certificate shall be delivered with the annual and/or quarterly financial
statements required to be delivered under paragraph (c) of Article V.
Notwithstanding the foregoing, at any time that the Borrower shall fail to
deliver to the Agent such certificate by the time required under such paragraph
(c), the Leverage Ratio shall be deemed to be greater than 55% until such time
as the Borrower shall so deliver such certificate.
"Fees" shall mean the Facility Fee, the Utilization Fee, the
Administrative Fees, any Participation Fees and any Fronting Fees.
"Fixed Rate" shall mean with respect to any Fixed Rate Loan, the
fixed rate of interest per annum specified by the Lender making such Loan in its
related Competitive Bid.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed
Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing interest
at a fixed percentage rate per annum (expressed in the form of a decimal to no
more than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"Fronting Fee" shall have the meaning assigned to such term in
Section 2.07(b).
"Funded Debt" shall mean and include, as at any date as of which any
determination thereof is being or to be made, any Debt of the Borrower which by
its terms (i) matures more than one year after the date on which it was issued,
incurred, assumed or guaranteed by the Borrower, or (ii) matures one year or
less after the date it was issued, incurred, guaranteed or assumed which at such
date may be renewed at the sole election or option of the Borrower so as to
mature more than one year after such date.
"Governmental Body" shall mean the United States of America, any
State thereof, any other country or any political subdivision of such other
country, or any department, agency, commission, board, bureau or instrumentality
of the United States of America, any State thereof, any other country or
political subdivision of such other country or any subdivision of any of them,
and, to the extent the term is used in respect of the Agent or any Lender, any
quasi-governmental body, agency or authority (including any central bank)
exercising regulatory authority over the Agent or any Lender pursuant to
applicable law in respect of the transactions contemplated by this Agreement.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
12
"Interest Payment Date" shall mean, with respect to any Loan, the last day of
the Interest Period applicable thereto and the Maturity Date and, in the case of
a Eurodollar Loan or a CD Loan with an Interest Period of more than three
months' duration or a Fixed Rate Loan with an Interest Period of more than 90
days' duration, each day that would have been an Interest Payment Date for such
Loan had successive Interest Periods of three months' duration or 90 days'
duration, as the case may be, been applicable to such Loan and, in addition, the
date of any refinancing or conversion of such Loan with or to a Loan of a
different Type; provided that with respect to any ABR Loan, Interest Payment
Date shall mean the last day of each fiscal quarter.
"Index Debt" shall mean the Borrower's senior, unsecured,
non-credit-enhanced long-term Debt for borrowed money.
"Information Memorandum" means the Confidential Information
Memorandum dated July 2002 relating to the Borrower and this Agreement.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3, 6 or 12 months thereafter (or, in the case of a Eurodollar Competitive
Borrowing, on any day that is 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 or 12 months
thereafter), as the Borrower may elect, (b) as to any CD Borrowing, a period of
30, 90 or 180 days' duration, as the Borrower may elect, commencing on the date
of such Borrowing or on the last day of the immediately preceding Interest
Period applicable to such Borrowing, as the case may be, (c) as to any ABR
Borrowing, the period commencing on the date of such Borrowing and ending on the
date 90 days thereafter or, if earlier, on the Maturity Date or the date of
prepayment of such Borrowing and (d) as to any Fixed Rate Borrowing, the period
commencing on the date of such Borrowing and ending on the date specified in the
Competitive Bids in which the offers to make the Fixed Rate Loans comprising
such Borrowing were extended, which shall not be earlier than seven days after
the date of such Borrowing or later than the Maturity Date; provided, however,
that if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless, in
the case of Eurodollar Loans only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest Period.
"Issuing Bank" shall mean JPMorgan Chase Bank and any one or more
other Lenders designated in writing by the Borrower in a notice delivered to the
Agent, and their respective successors in such capacity; provided that such
other Lenders shall have consented to such designation. The term "Issuing Bank"
shall also mean each of the Existing Issuing Banks solely as such term is used
in reference to the Existing Letters of Credit. The Issuing Banks may, in their
respective discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of such Issuing Banks, in which case the term "Issuing Bank" shall
include any such Affiliates with respect to Letters of Credit issued by such
Affiliates.
"LC Disbursement" shall mean a payment made by any Issuing Bank
pursuant to a Letter of Credit.
13
"LC Exposure" shall mean, 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 Borrower at such time. The LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Letter of Credit" shall mean any letter of credit issued pursuant
to this Agreement.
"Leverage Ratio" shall mean, as at the end of any fiscal quarter in
respect of which a determination thereof is being or to be made, the quotient
(expressed as a percentage) of (a) the sum of (i) "notes payable to banks and
overdrafts", plus (ii) "long term debt due within one year", plus (iii) "long
term debt and capital leases" (as each such item is reported on the Consolidated
balance sheet of the Borrower and the Subsidiaries as at the end of such fiscal
quarter), plus (iv) the net proceeds from the sale of domestic accounts
receivable outstanding at the end of such fiscal quarter (determined in a manner
consistent with that used in preparing the Borrower's 2001 Annual Report on Form
10-K), divided by (b) the sum of (i) Consolidated Net Worth (without giving
effect to the exclusion contained in clause (ii) of the definition of the term
"Consolidated Net Worth" and without giving effect to the $499.3 million
after-tax writedown of the Borrower's Oil Transportation Segment Assets in
December of 1996), plus (ii) the sum obtained pursuant to clause (a) above.
"LIBO Rate" shall mean, with respect to any Interest Period relating
to a Eurodollar Loan, the rate of interest (expressed as an annual rate) equal
to the British Bankers Association (the "BBA") interest settlement rate for
United States Dollars (the "BBA Interest Settlement Rate for USD") for a period
substantially equal to such Interest Period as quoted at page 3750 of the
Telerate Service ("Telerate 3750"), or at such page or display as may replace
Telerate 3750 or on such other service as may be nominated by the BBA as the
information vendor for the purpose of displaying the BBA Interest Settlement
Rate for USD ("BBA Interest Settlement Rate Screen"), for delivery on the first
day of such Interest Period, such rate to be established from the quote on
Telerate 3750 at 11:00 a.m. (or as near as practicable thereto), London time,
two Business Days prior to the first day of such Interest Period (which shall be
a Business Day); provided, that, if no rate for the relevant Interest Period is
quoted on Telerate 3750, or any successor or substitute BBA Interest Settlement
Rate Screen, then the LIBO Rate shall be the rate of interest equal to the
arithmetic average (expressed as a percentage rounded upward, if necessary, to
the nearest 1/1000th of 1%) of the rates (expressed as annual rates) at which
deposits in Dollars in amounts of $5,000,000 or more for a period substantially
equal to such Interest Period are offered by the LIBOR Reference Banks to prime
banks in the London interbank market for delivery on the first day of such
Interest Period, such rates to be established from quotes obtained at (or as
near as practicable to) 12:00 noon (London time) two Business Days prior to the
first day of such Interest Period (which shall be a Business Day); provided
further, that, if with respect to any such Interest Period fewer than two LIBOR
Reference Banks are offering quotations, then the LIBO Rate shall be equal to
the arithmetic average (rounded upward, if necessary, to the nearest 1/1000th of
1%) of the rates (expressed as annual rates) at which the Reference Banks are
offered deposits in Dollars in New York in amounts of $5,000,000 or more for
delivery on the first day of such Interest Period for a period substantially
equal to the Interest Period by leading banks in the New York interbank market
as of 11:00 a.m. (New York time) on the first day of such Interest Period (which
shall be a business day). As used herein, the term
14
"LIBOR Reference Banks" shall mean JPMorgan Chase Bank, BNP Paribas, London, and
Credit Suisse, London, Limited, and the term "Reference Banks" shall mean Bank
of America, N.A., Citibank, N.A., and Commerzbank Aktiengesellschaft.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset or (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset.
"Loan" shall mean a Competitive Loan or a Standard Loan, whether
made as a Eurodollar Loan, a CD Loan, an ABR Loan or a Fixed Rate Loan, as
permitted hereby.
"Majority Lenders" shall mean, at any time, Lenders having
Commitments representing at least a majority of the Total Commitment.
"Manufacturing Facility" shall mean any plant, other facility or
equipment owned by the Borrower or a Subsidiary which is used primarily to
manufacture automotive or other products, but shall not include (i) retread
plants, facilities or equipment, (ii) plants, facilities or equipment which, in
the opinion of the Board of Directors of the Borrower, are not of material
importance to the total business conducted by the Borrower and the Subsidiaries,
or (iii) plants, facilities or equipment which, in the opinion of the Board of
Directors of the Borrower, are used primarily for transportation, marketing or
warehousing.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the
margin (expressed as a percentage rate per annum in the form of a decimal to no
more than four decimal places) to be added to or subtracted from the LIBO Rate
in order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"Maturity Date" shall mean August 15, 2005.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Income" shall mean, with respect to any period in respect of
which a determination is being made or to be made, consolidated net income of
the Borrower and the Subsidiaries for such period determined in accordance with
generally accepted accounting principles in the United States, as in effect on
the Closing Date.
"Participation Fee" shall have the meaning assigned to such term in
Section 2.07(b).
"Person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or Governmental Body.
"Plan" shall mean an employee benefit plan, other than a
Multiemployer Plan (as defined in Section 4001(a)(3) of ERISA), which (i) is
(or, in the event that any such plan has been terminated within five years of a
transaction described in Section 4069 of ERISA, was) maintained for employees of
the Borrower (or any trade or business which would be considered as under common
control with the Borrower within the
15
meaning of Section 4001(b) of ERISA) and subject to Title IV of ERISA, and (ii)
has assets having an aggregate market value in excess of $100,000,000.
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" shall mean, at any time, Lenders having
Commitments representing at least two-thirds of the Total Commitment or, for
purposes of acceleration pursuant to clause (ii) of Article VII, Lenders holding
Loans representing at least two-thirds of the aggregate principal amount of the
Loans outstanding.
"▇▇▇▇▇▇ System" shall mean the ▇▇▇▇▇▇ Monitor Money Rates Service.
"Sale-Leaseback Transaction" shall mean any arrangement whereby the
Borrower or a Domestic Subsidiary shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred.
"Schedule of Compliance" shall mean a Schedule of Compliance,
substantially in the form of Exhibit C, prepared by the Borrower and delivered
to the Lenders pursuant to subsection (c) of Article V.
"S&P" shall mean Standard and Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"Standard Borrowing" shall mean a borrowing consisting of
simultaneous Standard Loans from each of the Lenders.
"Standard Borrowing Request" shall mean a request made pursuant to
Section 2.04 in the form of Exhibit A-5.
"Standard Loans" shall mean the revolving loans made by the Lenders
to the Borrower pursuant to Sections 2.01 and 2.04. Each Standard Loan shall be
a Eurodollar Standard Loan, a CD Loan or an ABR Loan.
"Subsidiary" shall mean any corporation, partnership, limited
liability company, joint venture, trust or estate of which (or in which) more
than 50% of
(i) the outstanding capital stock having ordinary voting power to
elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency),
(ii) the interest in the capital or profits of such partnership,
limited liability company or joint venture, or
(iii) the beneficial interest of such trust or estate,
is at the time directly or indirectly owned by the Borrower, by the Borrower and
one or more other Subsidiaries, or by one or more other Subsidiaries.
16
"Supplemental Amount" shall mean, as at the end of any fiscal
quarter of the Borrower in respect of which a determination thereof is being or
to be made, the Dollar amount (if a positive number), if any, which is equal to
the product of (x) the remainder obtained by subtracting Consolidated Net Worth
of Borrower at June 30, 2002 from the Consolidated Net Worth of Borrower as at
the end of such fiscal quarter, multiplied by (y) .50.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Body.
"Term Loan Agreement" shall mean the Borrower's Three-Year Term Loan
Agreement dated as of March 30, 2001, as amended.
"Term Loan Agreement Amendment" shall mean the amendment dated as of
the date hereof to the Borrower's Term Loan Agreement.
"364-Day Amendment and Restatement" shall mean the amendment and
restatement dated as of the date hereof of the Borrower's Amended and Restated
364-Day Revolving Credit Agreement dated as of August 14, 2001, as amended.
"Total Commitment" shall mean at any time the aggregate amount of
the Lenders' Commitments, as in effect at such time.
"Type", when used in respect of any Loan or Borrowing, shall refer
to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall
include the LIBO Rate, the CD Rate, the Alternate Base Rate and the Fixed Rate.
"Utilization Fee" shall have the meaning assigned to such term in
Section 2.07(c).
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with generally accepted accounting principles in the
United States, as in effect on the Closing Date.
ARTICLE II. THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Standard Loans to the Borrower, at
any time and from time to time on and after the date hereof and until the
earlier of the Maturity Date or the termination of the Commitment of such
Lender, in an aggregate principal amount at any time outstanding not to exceed
such Lender's Commitment minus the sum of such Lender's LC Exposure and the
amount by which the Competitive Loans outstanding at such time shall be deemed
to have used such Commitment pursuant to Section 2.16, subject, however, to the
conditions that (a) at no time shall (i) the sum of (x) the
17
outstanding aggregate principal amount of all Standard Loans made by all Lenders
plus (y) the outstanding aggregate principal amount of all Competitive Loans
made by all Lenders plus (z) the aggregate LC Exposure exceed (ii) the Total
Commitment and (b) at all times the outstanding aggregate principal amount of
all Standard Loans made by each Lender shall equal the product of (i) the
percentage which its Commitment represents of the Total Commitment times (ii)
the outstanding aggregate principal amount of all Standard Loans made pursuant
to Section 2.04. Each Lender's Commitment is set forth opposite its respective
name in Schedule 2.01. Such Commitments may be terminated, reduced or extended
from time to time pursuant to Section 2.12.
Within the foregoing limits, the Borrower may borrow, pay or prepay
and reborrow hereunder, on and after the Closing Date and prior to the Maturity
Date, subject to the terms, conditions and limitations set forth herein.
SECTION 2.02. Loans. (a) Each Standard Loan shall be made as part of
a Borrowing consisting of Loans made by the Lenders ratably in accordance with
their Commitments; provided, however, that the failure of any Lender to make any
Standard Loan shall not in itself relieve any other Lender of its obligation to
lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender). Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.03. The Standard Loans or Competitive
Loans comprising any Borrowing shall be in an aggregate principal amount which
is an integral multiple of $1,000,000 and not less than $25,000,000 in the case
of Standard Loans and $5,000,000 in the case of Competitive Loans (or an
aggregate principal amount equal to the remaining balance of the available Total
Commitment); provided that any ABR Loan made to finance any reimbursement of an
LC Disbursement as contemplated in Section 2.05(e) may be in an amount equal to
the amount of such reimbursement payment).
(b) Each Competitive Borrowing shall be comprised entirely of
Eurodollar Competitive Loans or Fixed Rate Loans, and each Standard Borrowing
shall be comprised entirely of Eurodollar Standard Loans, CD Loans or ABR Loans,
as the Borrower may request pursuant to Section 2.03 or 2.04, as applicable.
Borrowings of more than one Type or of the same Type and having different
Interest Periods may be outstanding at the same time. For purposes of the
foregoing, Loans of different Types and Loans having different Interest Periods,
regardless of whether they commence on the same date, shall be considered
separate Loans and separate Borrowings.
(c) Subject to Section 2.06, each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Agent in New York, New York, not later than
11:30 a.m., New York City time, and the Agent shall transfer the entire amount
received to the Borrower in Dollars in immediately available funds at the bank
and to the account designated by the Borrower as promptly as practicable and in
any event by such a time that such funds will be available for retransfer,
investment or other use by the Borrower on the borrowing date or, if a Borrowing
shall not occur on such date because any condition precedent herein specified
shall not have been met, return the amounts so received to the respective
Lenders; provided that ABR Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e) shall be remitted by the Agent to
the applicable Issuing Bank. Competitive Loans shall be made by the Lender or
Lenders whose Competitive Bids therefor are accepted pursuant to Section 2.03 in
the amounts so accepted and Standard Loans shall be made by the Lenders pro rata
in accordance with Section 2.16. Unless the Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Agent such Lender's portion of such
18
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Borrowing in accordance with this paragraph (c)
and the Agent may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have made such portion available to the Agent, such Lender and
the Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent at the Federal Funds Effective Rate; provided that if such
Lender does not pay such principal amount to the Agent within five Business Days
and the Borrower repays such principal amount on the sixth Business Day, such
Lender shall be responsible for interest during such six Business Day period,
provided that the Agent, if it shall first have made demand on such Lender and
shall not have received payment, may recover such interest from the Borrower. If
such Lender shall pay to the Agent such corresponding amount within five
Business Days, such amount shall constitute such Lender's Loan as part of such
Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
SECTION 2.03. Competitive Bid Procedure. (a) In order to request
Competitive Bids, the Borrower shall hand deliver or telecopy to the Agent a
duly completed Competitive Bid Request in the form of Exhibit A-1 hereto, to be
received by the Agent (i) in the case of a Eurodollar Competitive Borrowing, not
later than 10:00 a.m., New York City time, four Business Days before a proposed
Competitive Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, one Business Day before a proposed
Competitive Borrowing. No CD Loan or ABR Loan shall be requested in, or made
pursuant to, a Competitive Bid Request. A Competitive Bid Request that does not
conform substantially to the format of Exhibit A-1 may be rejected in the
Agent's sole discretion, and the Agent shall promptly notify the Borrower of
such rejection by telecopier. Such request shall in each case refer to this
Agreement and specify (x) whether the Borrowing then being requested is to be a
Eurodollar Borrowing or a Fixed Rate Borrowing, (y) the date of such Borrowing
(which shall be a Business Day) and the aggregate principal amount thereof which
shall be in a minimum principal amount of $25,000,000 and in an integral
multiple of $1,000,000, and (z) the Interest Period with respect thereto (which
may not end after the Maturity Date). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the Agent shall
invite by telecopier (in the form set forth in Exhibit A-2 hereto) the Lenders
to bid, on the terms and conditions of this Agreement, to make Competitive Loans
pursuant to the Competitive Bid Request.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to a Competitive Bid Request. Each
Competitive Bid by a Lender must be received by the Agent via telecopier, in the
form of Exhibit A-3 hereto, (i) in the case of a Eurodollar Competitive
Borrowing, not later than 9:30 a.m., New York City time, three Business Days
before a proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m., New York City time, on the day of a
proposed Competitive Borrowing. Multiple bids will be accepted by the Agent.
Competitive Bids that do not conform substantially to the format of Exhibit A-3
may be rejected by the Agent after conferring with, and upon the instruction of,
the Borrower, and the Agent shall notify the Lender making such nonconforming
bid of such rejection as soon as practicable. Each Competitive Bid shall refer
to this Agreement and specify (x) the principal amount (which shall be in a
minimum principal amount of $5,000,000 and in an integral multiple of $1,000,000
and
19
which may equal the entire principal amount of the Competitive Borrowing
requested by the Borrower) of the Competitive Loan or Loans that the Lender is
willing to make to the Borrower, (y) the Competitive Bid Rate or Rates at which
the Lender is prepared to make the Competitive Loan or Loans and (z) the
Interest Period and the last day thereof. If any Lender shall elect not to make
a Competitive Bid, such Lender shall so notify the Agent via telecopier (I) in
the case of Eurodollar Competitive Loans, not later than 9:30 a.m., New York
City time, three Business Days before a proposed Competitive Borrowing, and (II)
in the case of Fixed Rate Loans, not later than 9:30 a.m., New York City time,
on the day of a proposed Competitive Borrowing; provided, however, that failure
by any Lender to give such notice shall not cause such Lender to be obligated to
make any Competitive Loan as part of such Competitive Borrowing. A Competitive
Bid submitted by a Lender pursuant to this paragraph (b) shall be irrevocable.
(c) The Agent shall promptly notify the Borrower by telecopier of
all the Competitive Bids made, the Competitive Bid Rate and the principal amount
of each Competitive Loan in respect of which a Competitive Bid was made and the
identity of the Lender that made each bid. The Agent shall send a copy of all
Competitive Bids to the Borrower for its records as soon as practicable after
completion of the bidding process set forth in this Section 2.03.
(d) The Borrower may in its sole and absolute discretion, subject
only to the provisions of this paragraph (d), accept or reject any Competitive
Bid referred to in paragraph (c) above (and the Competitive Bids accepted need
not be in any minimum aggregate amount except as provided below in this
paragraph). The Borrower shall notify the Agent by telephone, confirmed by
telecopier in the form of a Competitive Bid Accept/Reject Letter in the format
of Exhibit A-4, whether and to what extent it has decided to accept or reject
any of or all the bids referred to in paragraph (c) above, (x) in the case of a
Eurodollar Competitive Borrowing, not later than 10:30 a.m., New York City time,
three Business Days before a proposed Competitive Borrowing, and (y) in the case
of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the
day of a proposed Competitive Borrowing; provided, however, that (i) the failure
by the Borrower to give such notice shall be deemed to be a rejection of all the
bids referred to in paragraph (c) above, (ii) the Borrower shall not accept a
bid made at a particular Competitive Bid Rate if the Borrower has decided to
reject a bid made at a lower Competitive Bid Rate, (iii) if the Borrower shall
accept a bid or bids made at a particular Competitive Bid Rate but the amount of
such bid or bids shall cause the total amount of bids to be accepted by the
Borrower to exceed the amount that the Borrower desires to borrow, then the
Borrower shall accept a portion of such bid or bids in an amount equal to the
amount that the Borrower desires to borrow less the amount of all other
Competitive Bids accepted with respect to such Competitive Bid Request, which
acceptance, in the case of multiple bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such bid at such Competitive
Bid Rate, and (iv) except pursuant to clause (iii) above, no bid shall be
accepted for a Competitive Loan unless such Competitive Loan is in a minimum
principal amount of $5,000,000 and an integral multiple of $1,000,000; provided
further, however, that if a Competitive Loan must be in an amount less than
$5,000,000 because of the provisions of clause (iii) above, such Competitive
Loan may be for a minimum of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of multiple bids
at a particular Competitive Bid Rate pursuant to clause (iv) the amounts shall
be rounded to integral multiples of $1,000,000 in a manner which shall be in the
discretion of the Borrower. The Borrower may accept Competitive Bids in an
aggregate principal amount in excess of the principal amount specified in the
relevant Competitive Bid Request. A notice given by the Borrower in the form of
a Competitive Bid Accept/Reject Letter pursuant to this paragraph (d) shall be
irrevocable.
20
(e) The Agent shall promptly notify each bidding Lender whether or
not its Competitive Bid has been accepted (and if so, in what amount and at what
Competitive Bid Rate or Rates) by telecopy sent by the Agent, and each
successful bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loans in respect of which its
Competitive Bid has been accepted.
(f) A Competitive Bid Request shall not be made within five Business
Days after the date of any previous Competitive Bid Request.
(g) If the Agent shall elect to submit a Competitive Bid in its
capacity as a Lender, it shall submit such bid directly to the Borrower one
quarter of an hour earlier than the latest time at which the other Lenders are
required to submit their Competitive Bids to the Agent pursuant to paragraph (b)
above.
(h) All notices required by this Section 2.03 shall be given in
accordance with Section 9.01.
SECTION 2.04. Standard Borrowing Procedure. In order to request a
Standard Borrowing, the Borrower shall hand deliver or telecopy to the Agent
notice thereof in the form of Exhibit A-5 (a) in the case of a Eurodollar
Standard Borrowing or a CD Borrowing, not later than 3:00 p.m., New York City
time, three Business Days before a proposed Borrowing and (b) in the case of an
ABR Borrowing, not later than 10:30 a.m., New York City time, on the day of a
proposed Borrowing; provided that any such notice of an ABR Borrowing to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(e) may
be given not later than 10:00 a.m., New York City time, on the date of the
proposed Borrowing. No Fixed Rate Loan shall be requested or made pursuant to a
Standard Borrowing Request. Such notice shall be irrevocable and shall in each
case specify (i) whether the Borrowing then being requested is to be a
Eurodollar Standard Borrowing, a CD Borrowing or an ABR Borrowing; (ii) the date
of such Standard Borrowing (which shall be a Business Day) and the amount
thereof; and (iii) if such Borrowing is to be a Eurodollar Standard Borrowing or
CD Borrowing, the Interest Period with respect thereto. If no Interest Period
with respect to any Eurodollar Standard Borrowing or CD Borrowing is specified
in any such notice, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration, in the case of a Eurodollar Standard
Borrowing, or 30 day's duration, in the case of a CD Borrowing. If the Borrower
shall not have given notice in accordance with this Section 2.04 of its election
to refinance a Standard Borrowing prior to the end of the Interest Period in
effect for such Borrowing, then the Borrower shall (unless such Borrowing is
repaid at the end of such Interest Period) be deemed to have given notice of an
election to refinance such Borrowing with an ABR Borrowing and the Agent will
advise the Borrower that such notice has not been received (but shall not be
liable to the Borrower for any unintentional omission to do so). The Agent shall
promptly advise the Lenders of any notice given or deemed to have been given
pursuant to this Section 2.04 and of each Lender's portion of the requested
Borrowing.
SECTION 2.05. Letters of Credit. (a) Subject to the terms and
conditions set forth herein, the Borrower may request the issuance (or the
amendment, renewal or extension) of Letters of Credit for its own account, in a
form reasonably acceptable to the Agent and the applicable Issuing Bank, at any
time and from time to time prior to the date that is five Business Days prior to
the Maturity Date. 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 the Borrower to, or
entered into by the Borrower with, any Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control (it being
agreed, however, that any
21
provisions of a letter of credit application limiting the liability of the
applicable Issuing Bank to a greater extent than the provisions of this
Agreement will not be deemed to be inconsistent with the terms and conditions of
this Agreement). The Existing Letters of Credit will, for all purposes of this
Agreement, be deemed to have been issued hereunder on the Closing Date and will,
for all purposes of this Agreement, constitute Letters of Credit.
(b) To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
an Issuing Bank and the Agent (in any case 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, the date of issuance, amendment,
renewal or extension (which shall be a 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 enable
the applicable Issuing Bank to prepare, amend, renew or extend such Letter of
Credit. If requested by the applicable Issuing Bank, the Borrower also shall
submit a letter of credit application on such 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 (and upon issuance, amendment,
renewal or extension of each Letter of Credit the 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 $200,000,000 and (ii)
the sum of the outstanding aggregate principal amount of all Standard Loans, the
LC Exposure and the outstanding aggregate principal amount of all Competitive
Loans will not exceed the Total Commitment.
(c) 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,
renewal or extension of such Letter of Credit and (ii) the date that is five
Business Days prior to the Maturity Date; provided that a Letter of Credit may
provide for automatic renewals for additional periods of up to one year, subject
to a right on the part of the applicable Issuing Bank to prevent any such
renewal from occurring by giving notice to the beneficiary during a period
satisfactory to the Agent in advance of any such renewal and provided that in no
event shall any Letter of Credit or renewal thereof expire after the date that
is five Business Days prior to the Maturity Date.
(d) 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 applicable Issuing Bank or the Lenders, such Issuing Bank
hereby grants to each Lender, and each Lender hereby acquires from such Issuing
Bank, a participation in such Letter of Credit equal to such Lender'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 Lender hereby
absolutely and unconditionally agrees to pay to the Agent, for the account of
the applicable Issuing Bank, such Lender's Applicable Percentage of each LC
Disbursement made by such 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 the Borrower for any reason. Each Lender
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 or the occurrence and
continuance of an Event of
22
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) If any 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 Agent an amount equal to such LC Disbursement, not later than 1:30 p.m.,
New York City time, on the date that 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 date, or, if such notice has not been received by
the Borrower prior to such time on such date, then not later than 1:30 p.m., New
York City time, on (i) the 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 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 the Borrower may, subject to the conditions
to borrowing set forth herein, request in accordance with Section 2.04 that such
payment be financed with an ABR 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 ABR Borrowing. If the Borrower fails to
make such payment when due, then the Agent shall notify each Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender's Applicable Percentage thereof. Promptly following
receipt of such notice, each Lender shall pay to the Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.02 with respect to Standard Borrowings made by such Lender
(and Section 2.02 shall apply, mutatis mutandis, to the payment obligations of
the Lenders), and the Agent shall promptly pay to the applicable Issuing Bank
the amounts so received by it from the Lenders. Promptly following receipt by
the Agent of any payment from the Borrower pursuant to this paragraph, the Agent
shall distribute such payment to the applicable Issuing Bank or, to the extent
that Lenders have made payments pursuant to this paragraph to reimburse any
Issuing Bank, then to such Lenders and such Issuing Bank as their interests may
appear. Any payment made by a Lender pursuant to this paragraph to reimburse any
Issuing Bank for any LC Disbursement (other than the funding of ABR Loans as
contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f) 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 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 any 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. None of the Agent, the Lenders, any of the
Issuing Banks or 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 in the interpretation of the terms of any Letter of
Credit or any consequence arising from causes beyond the control of the
applicable Issuing Bank; provided that the foregoing shall not be construed to
excuse any Issuing Bank from liability to the Borrower or any Lender to the
extent of any damages suffered by the Borrower or any Lender that are caused by
such
23
Issuing Bank's gross negligence or wilful misconduct. 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 applicable
Issuing Bank may, acting in good faith, either accept and make payment upon such
documents without responsibility for further investigation 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) The applicable Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The applicable Issuing Bank shall promptly
notify the Agent and the Borrower by telephone (confirmed by telecopy) of such
demand for payment and whether such 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 such
Issuing Bank and the Lenders with respect to such LC Disbursement.
(h) If an 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 ABR Loans; provided that, at all times after the
Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph
(e) of this Section, Section 2.10 shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the applicable Issuing Bank, except that
interest accrued on and after the date of payment by any Lender pursuant to
paragraph (e) of this Section to reimburse the applicable Issuing Bank shall be
for the account of such Lender to the extent of such payment.
(i) If any Event of Default shall occur and be continuing, on the
Business Day that the Borrower receives notice from the Agent or the Required
Lenders demanding the deposit of cash collateral pursuant to this paragraph, the
Borrower shall deposit in an account with the Agent, in the name of the Agent
and for the benefit of the Lenders, 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 (j) of Article VII. Each such
deposit shall be held by the Agent as collateral for the payment and performance
of the obligations of the Borrower under this Agreement. The 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 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 Agent to reimburse
the applicable 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, 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.
24
SECTION 2.06. Refinancings. The Borrower may refinance all or any
part of any Borrowing with a Borrowing of the same or a different Type made
pursuant to Section 2.03 or Section 2.04, subject to the conditions and
limitations set forth herein and elsewhere in this Agreement, including
refinancings of Competitive Borrowings with Standard Borrowings and Standard
Borrowings with Competitive Borrowings. Any Borrowing or part thereof so
refinanced shall be deemed to be repaid in accordance with Section 2.08 with the
proceeds of a new Borrowing hereunder and the proceeds of the new Borrowing, to
the extent they do not exceed the principal amount of the Borrowing being
refinanced, shall not be paid by the Lenders to the Agent or by the Agent to the
Borrower pursuant to Section 2.02(c); provided, however, that (i) if the
principal amount extended by a Lender in a refinancing is greater than the
principal amount extended by such Lender in the Borrowing being refinanced, then
such Lender shall pay such difference to the Agent for distribution to the
Lenders described in (ii) below, (ii) if the principal amount extended by a
Lender in the Borrowing being refinanced is greater than the principal amount
being extended by such Lender in the refinancing, the Agent shall return the
difference to such Lender out of amounts received pursuant to (i) above, and
(iii) to the extent any Lender fails to pay the Agent amounts due from it
pursuant to (i) above, any Loan or portion thereof being refinanced with such
amounts shall not be deemed repaid in accordance with Section 2.07 and shall be
payable by the Borrower.
SECTION 2.07. Fees. (a) The Borrower agrees to pay to each Lender,
through the Agent, on each March 31, June 30, September 30 and December 31, and
on the Maturity Date or on any earlier date on which the Commitment of such
Lender shall have been terminated and its outstanding Loans repaid, a facility
fee (a "Facility Fee") equal to the applicable Facility Fee Percentage per annum
on the amount of the Commitment of such Lender, whether used or unused (or,
after the termination of such Commitment, the outstanding Loans and LC Exposure
of such Lender), during the preceding quarter (or shorter period commencing with
the date hereof or ending with the Maturity Date or the date of such termination
and repayment). All Facility Fees shall be computed on the basis of the actual
number of days elapsed in a year of 365 or 366 days, as the case may be. The
Facility Fee due to each Lender shall commence to accrue on the date hereof and
shall cease to accrue on the Maturity Date or any earlier date on which the
Commitment of such Lender shall have terminated (but shall in any event accrue
until all Loans made by such Lender have been repaid).
(b) The Borrower agrees to pay (i) to the Agent for the account of
each Lender a participation fee (a "Participation Fee") with respect to its
participations in Letters of Credit, which shall accrue at the Applicable Spread
used to determine interest on Eurodollar Loans on the average daily amount of
such Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the Closing
Date to but excluding the later of the date on which such Lender's Commitment
terminates and the date on which such Lender ceases to have any LC Exposure, and
(ii) to the applicable Issuing Bank a fronting fee (a "Fronting Fee"), which
shall accrue at the rate or rates per annum separately agreed upon between the
Borrower and the applicable Issuing Bank (on the date hereof or such later date
as the applicable Lender shall become an Issuing Bank) 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 Closing
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
applicable 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 accrued through and including
the last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day, commencing on the
first such
25
date to occur after the Closing Date; 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 applicable 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) The Borrower agrees to pay to each Lender, through the Agent, on
each March 31, June 30, September 30 and December 31 and on each date on which
the Commitment of such Lender shall be terminated or reduced as provided herein,
a utilization fee of 0.250% per annum (a "Utilization Fee") (i) on such Lender's
pro rata portion (based on the ratio of such Lender's Commitment to the Total
Commitment) of the aggregate principal amount of all of the outstanding Loans
for each day during the preceding quarter (or other period commencing on the
date hereof or ending with the Maturity Date or any date on which the Commitment
of such Lender shall be terminated and its outstanding Loans repaid in full) on
which the sum of the outstanding Loans, including Competitive Loans, and the
aggregate LC Exposure exceeds 50% of the Total Commitment and (ii) after the
termination of such Lender's Commitment (other than as a result of the
termination of the Commitments due to the occurrence of an Event of Default
under clause (a) or (b) of Article VII), on the principal amount of such
Lender's outstanding Loans and such Lender's LC Exposure. The Utilization Fee
shall be computed on the basis of the actual number of days elapsed in a year of
360 days. The Utilization Fee due to each Lender shall be payable in arrears and
shall commence to accrue on the date hereof and cease to accrue on the earlier
of the Maturity Date and the date on which the Commitment of such Lender is
terminated and its outstanding Loans repaid in full as provided herein.
(d) The Borrower agrees to pay the Agent, for its own account, agent
and administrative fees (the "Administrative Fees") at the times and in the
amounts agreed upon in the letter agreement dated July 11, 2002, between the
Borrower and the Agent.
(e) All Fees shall be paid on the dates due, in immediately
available funds, to the Agent for distribution (or to the applicable Issuing
Bank, in the case of fees payable to it), if and as appropriate, among the
Lenders. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The
outstanding principal balance of each Competitive Loan and Standard Loan shall
be payable on the last day of the Interest Period applicable to such Loan and on
the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid such Lender from time to time under this
Agreement.
(c) The Agent shall maintain accounts in which it will record (i)
the amount of each Loan made hereunder, the Type of each Loan made and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Agent hereunder from
the Borrower and each Lender's share thereof.
26
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) of this Section 2.08 shall, to the extent permitted by
applicable law, be rebuttable evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender
or the Agent to maintain such accounts or any error therein shall not in any
manner affect the obligations of the Borrower to repay the Loans in accordance
with their terms.
SECTION 2.09. Interest on Loans. (a) Subject to the provisions of
Section 2.10, the Loans comprising each Eurodollar Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to (i) in the case of each Eurodollar Standard
Loan, the LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Spread, and (ii) in the case of each Eurodollar Competitive Loan,
the LIBO Rate for the Interest Period in effect for such Borrowing plus (or
minus) the Margin offered by the Lender making such Loan and accepted by the
Borrower pursuant to Section 2.03.
(b) Subject to the provisions of Section 2.10, the CD Loans
comprising each CD Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the CD Rate for the Interest Period in effect for such Borrowing plus the
Applicable Spread.
(c) Subject to the provisions of Section 2.10, the ABR Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be, when determined by reference to the Prime Rate and over a year of 360 days
at all other times) at a rate per annum equal to the Alternate Base Rate in
effect from time to time during the Interest Period applicable to such ABR
Borrowing plus the Applicable Spread.
(d) Subject to the provisions of Section 2.10, each Fixed Rate Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the fixed rate of
interest offered by the Lender making such Loan and accepted by the Borrower
pursuant to Section 2.03.
(e) Subject to the provisions of Section 2.10, interest on each Loan
shall be payable on each Interest Payment Date applicable to such Loan. The LIBO
Rate and Adjusted LIBO Rate, the CD Rate and Adjusted CD Rate or the Alternate
Base Rate for each Interest Period or day within an Interest Period shall be
determined by the Agent in accordance with the terms and conditions of this
Agreement, and such determination shall be conclusive absent manifest error.
SECTION 2.10. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, whether by scheduled maturity, notice of prepayment, acceleration
or otherwise, the Borrower shall on demand from time to time from the Agent or
the Majority Lenders pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment (after as
well as before judgment) at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the Alternate
Base Rate plus 1%.
SECTION 2.11. Unavailability of LIBO Rate and CD Rate Quotations.
(a) In the event that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Borrowing the Agent shall have determined
that it is not possible to ascertain a LIBO Rate for such Interest Period as
contemplated in the definition of LIBO Rate in Section 1.01, the Agent shall, as
soon as practicable thereafter,
27
give written or telecopy notice of such event to the Borrower and the Lenders,
in which event any request by the Borrower for a Eurodollar Borrowing for such
Interest Period shall be deemed to be a request for a CD Borrowing.
(b) In the event, and on each occasion, that on the day on which the
Interest Period for any CD Borrowing commences the Agent shall have determined
that it is not possible to ascertain a CD Rate for such Interest Period as
contemplated in the definition of CD Rate in Section 1.01, the Agent shall, as
soon as practicable thereafter, give written or telecopy notice of such
determination to the Borrower and the Lenders, in which event any request by the
Borrower for a CD Loan for such Interest Period shall be of no force or effect
and no Borrowing shall be made pursuant to such request.
SECTION 2.12. Termination, Reduction and Addition of Commitments.
(a) The Commitments shall be automatically terminated on the Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment; provided, however, that each partial reduction of the Total
Commitment shall be in an integral multiple of $1,000,000 and in a minimum
amount of $5,000,000.
(c) Each reduction in the Total Commitment hereunder shall be made
ratably among the Lenders in accordance with their respective Commitments. The
Borrower shall pay to the Agent for the account of the Lenders, on the date of
each termination or reduction, the Facility Fees on the amount of the
Commitments so terminated or reduced accrued to the date of such termination or
reduction.
(d) The Borrower may from time to time request that one or more
additional financial institutions be added as Lenders under this Agreement with
Commitments agreed upon by the Borrower and such financial institutions. In the
event of any such request, such financial institutions shall become parties to
and Lenders under this Agreement upon the execution of one or more agreements to
that effect in the form (appropriately completed) of Exhibit D (and without any
action being required on the part of any other Lender), and upon the
effectiveness of any such agreement, Schedule 2.01 shall be automatically
amended to reflect the Commitment of each new Lender. Notwithstanding the
foregoing, no increase in the aggregate Commitments shall become effective under
this Section unless, on the date of such increase, the Agent shall have received
a certificate dated as of the effective date of such increase and executed by an
Authorized Officer, confirming compliance with the conditions set forth in
paragraphs (b) and (c) of Section 4.01 (with all references in such paragraphs
to a Borrowing being deemed to be references to such increase). Following any
extension of a new Commitment pursuant to this paragraph, any Standard Loans
outstanding prior to the effectiveness of such extension shall continue to be
outstanding until the ends of the respective Interest Periods applicable thereto
and shall then be repaid and, if the Borrower shall so elect, refinanced with
new Standard Loans made pursuant to Section 2.01 ratably in accordance with the
Commitments in effect following such extension.
SECTION 2.13. Prepayment. (a) The Borrower shall have the right at
any time and from time to time to prepay without premium or penalty any
Borrowing (including a Competitive Borrowing), in whole or in part, upon giving
written or telecopy notice (or telephone notice promptly confirmed by written or
telecopy notice) to the Agent: (i) before 5:00 p.m., New York City time, three
Business Days prior to prepayment, in the case of Eurodollar Loans, (ii) before
5:00 p.m., New York City time, two Business Days prior to prepayment, in the
case of CD Loans or Fixed Rate Loans,
28
and (iii) before 10:00 a.m., New York City time, one Business Day prior to
prepayment, in the case of ABR Loans; provided, however, that each partial
prepayment of a Borrowing shall be in an amount which is an integral multiple of
$1,000,000 and not less than $5,000,000.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.12(b), the Borrower shall pay or prepay so much of the
outstanding Borrowings, selected at the Borrower's sole option, as shall be
necessary in order that the sum of the aggregate principal amount of the
Competitive Loans and Standard Loans outstanding plus the aggregate LC Exposure
will not exceed the Total Commitment after giving effect to such termination or
reduction.
(c) Each notice of prepayment shall specify the prepayment date and
the principal amount of each Borrowing (or portion thereof) to be prepaid, shall
be irrevocable and shall commit the Borrower to prepay such Borrowing (or
portion thereof) by the amount stated therein on the date stated therein. All
prepayments under this Section 2.13 shall be accompanied by accrued interest on
the principal amount being prepaid to the date of payment.
(d) In the event any prepayment is made in respect of any Loan (or
in the event any Lender is required to transfer a Loan), other than (i) any ABR
Loan and (ii) any Loan the prepayment, payment or transfer of which is made by
Borrower pursuant to its right to prepay, repay or require the transfer of such
Loan under Sections 2.14, 2.15; 2.19 or 9.05 or upon the Lender's exercise of
its option pursuant to Section 9.14, or in the event the Borrower shall fail to
make any Borrowing after notice of such Borrowing shall have been given
hereunder, the Borrower shall pay to such Lender, promptly upon the written
request of such Lender (which request shall be accompanied by a certificate as
described below), such amount as shall be necessary to reimburse such Lender for
the loss, if any, reasonably incurred by such Lender as a result of such
prepayment or transfer or failure to borrow arising from inability due to
general market conditions to recover the cost of deposits or other funds
acquired by such Lender to fund such Loan, in the liquidation of such deposits
or other funds so acquired (or from the reemployment thereof if such
reemployment would result in less of a funding loss to such Lender); provided,
that any such funding loss shall not in any event exceed the cost incurred by
such Lender to obtain such deposit or other funds, minus the fair market value
thereof realizable by such Lender in the liquidation thereof. Such Lender shall
use reasonable efforts to avoid or minimize any such loss. Such Lender's claim,
if any, shall be accompanied by a certificate setting forth in reasonable detail
(including the calculations made in determining) the reason for and the amount
of such loss, which certificate shall be conclusive in the absence of manifest
error. Prepayments of ABR Borrowings shall be without penalty, premium or other
cost of any kind.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a) In
the event that at any time or from time to time during the term of this
Agreement any Eurodollar Reserve Requirement shall be applicable to deposits
acquired in respect of any Eurodollar Loan the Lender making such Eurodollar
Loan shall promptly notify the Borrower in writing of any imposition of or
change in or prospective imposition of or change in any Eurodollar Reserve
Requirement, whether in respect of an outstanding Eurodollar Loan or any
possible future Eurodollar Loan, and, for as long as such Eurodollar Reserve
Requirement shall be effective, the Borrower shall, upon written request from
such Lender (with a copy of such request to the Agent), pay to such Lender at
the end of each Interest Period for such Eurodollar Loan, an additional amount
equal to the difference between the interest accrued based upon the LIBO Rate
and the interest that would have accrued had the Adjusted LIBO Rate been
applicable to the Eurodollar
29
Loan of such Lender. Each Lender represents that on the date it becomes a Lender
hereunder it is not subject to (and does not incur) any Eurodollar Reserve
Requirement.
(b) In the event that at any time or from time to time during the
term of this Agreement any CD Reserve Requirement or Assessment Rate shall be
applicable to deposits acquired in respect of any CD Loan the Lender making such
CD Loan shall promptly notify the Borrower in writing of any imposition of or
change in or prospective imposition of or change in any CD Reserve Requirement
or Assessment Rate, whether in respect of an outstanding CD Loan or any possible
future CD Loan, and, for as long as such CD Reserve Requirement or Assessment
Rate shall be effective, the Borrower shall, upon written request from such
Lender (with a copy of such request to the Agent), pay to such Lender at the end
of the Interest Period for such CD Loan, an additional amount equal to the
difference between the interest accrued based upon the CD Rate and the interest
that would have accrued had the Adjusted CD Rate been applicable to the CD Loan
of such Lender. Each Lender represents that its current CD Reserve Requirement
and Assessment Rate are as set forth on Schedule 2.01.
(c) Notwithstanding any other provision herein, if after the date of
this Agreement, either (i) the introduction of, or any change in or in the
interpretation of, any law or regulation or (ii) compliance by any Lender or
Issuing Bank or its holding company with any directive, guideline or request of
any Governmental Body (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or Issuing Bank or its holding company, so as to increase the minimum
amount of capital required to be maintained by such Lender or Issuing Bank or
its holding company based upon the existence of this Agreement, the Commitment
of such Lender and/or any Loans made or Letters of Credit issued hereunder and
such requirement applies equally to other corporate borrowers similarly situated
in the United States of America, then the Borrower shall pay to such Lender or
Issuing Bank or its holding company amounts sufficient to compensate such Lender
or Issuing Bank or its holding company, in light of such circumstances, to the
extent that such Lender or Issuing Bank or its holding company reasonably and
equitably determines such increase in required capital over the capital of such
Lender or Issuing Bank or its holding company in place on the date hereof or on
the date the Lender becomes a Lender (by assignment) or an Issuing Bank becomes
an Issuing Bank to be allocable to this Agreement, to the Commitment of such
Lender or such Issuing Bank (or the unused portion thereof), or to any Loans
made by such Lender or Letters of Credit issued by such Issuing Bank hereunder
and such requirement applies equally to other corporate borrowers similarly
situated in the United States of America, it being understood that in no event
shall the cost allocable, and/or amount charged, to the Borrower under this
paragraph (c) exceed the cost allocable, and/or amount charged, with respect to
any similar agreement between such Lender or such Issuing Bank and corporate
borrowers located in the United States generally, in each instance determined
ratably with respect to the relative transactional amounts. Each Issuing Bank
and Lender represents that, to its best knowledge on the date hereof or on the
date the Lender becomes a Lender (by assignment) or an Issuing Bank becomes an
Issuing Bank it would not be required to increase its capital or to otherwise
incur any increased capital costs in respect of this Agreement under existing
laws, rules, regulations, directives or guidelines (whether or not currently in
effect) of any Governmental Body.
(d) A certificate of a Lender or an Issuing Bank setting forth such
amount or amounts as shall be necessary to compensate such Lender or such
Issuing Bank or its holding company, as the case may be, as specified in
paragraph (c) above shall be delivered to the Borrower (with a copy to the
Agent) and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or such Issuing Bank the amount
30
shown as due on any such certificate delivered by it within 10 days after the
receipt of the same. No Lender or Issuing Bank shall be entitled to any
compensation for any additional costs under this Section 2.14 requested by such
Lender or Issuing Bank unless such Lender or Issuing Bank shall have notified
the Borrower that it will request compensation for such additional costs not
more than 30 days after the date such additional costs were incurred.
(e) The Borrower may at any time following its receipt from any
Lender or Issuing Bank of a notice of the occurrence or prospective occurrence
of any imposition of or increase in the Eurodollar Reserve Requirement, the CD
Reserve Requirement, the Assessment Rate or capital requirements or costs of
such Lender or such Issuing Bank terminate the Commitment of such Lender and
repay any outstanding Loans of such Lender (together with all accrued interest
and Facility Fee and Utilization Fee, if any) on the effective date of such
termination, which repayments, if any, shall be without premium, penalty or
other cost of any kind and shall not be subject to the requirements of Sections
2.16 and 2.13(d).
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Body charged with the administration
or interpretation thereof shall make it unlawful for any Lender to make or
maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written or
telecopy notice to the Borrower and to the Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by
such Lender hereunder, whereupon such Lender shall not submit a
Competitive Bid in response to a request for Eurodollar Competitive
Loans and any request by the Borrower for a Eurodollar Standard
Borrowing shall, as to such Lender only, be without effect and void
unless such declaration shall be subsequently withdrawn; and
(ii) require (if required by law to do so) that all outstanding
Eurodollar Loans made by it be converted to CD Loans, in which event
all such Eurodollar Loans shall be automatically converted to CD
Loans with an Interest Period agreed upon by the Borrower and such
Lender as of the effective date of such notice as provided in
paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
Loans of such Lender resulting from the conversion of such Eurodollar Loans. The
Borrower may in any event prepay any Loan resulting from the conversion of any
Eurodollar Loan under this Section within five Business Days after such
conversion.
(b) For purposes of this Section 2.14, a notice to the Borrower by
any Lender shall be effective as to each Eurodollar Loan, if lawful, on the last
day of the Interest Period currently applicable to such Eurodollar Loan; in all
other cases such notice shall be effective on the date of receipt by the
Borrower.
(c) In the event that any Lender shall (i) give Borrower any notice
contemplated by, or exercise its rights under, this Section 2.14 or (ii) unless
Borrower shall fail to meet the conditions set forth at Section 4.01, any Lender
for any reason fails to fund any Loan, the Borrower may at any time terminate
the Commitment of the Lender
31
and repay any outstanding Loans of such Lender (together with all accrued
interest and Facility Fee and Utilization Fee, if any) on the effective date of
such termination, which repayment, if any, shall be without premium, penalty or
other cost of any kind and shall not be subject to the requirements of Sections
2.16 and 2.13(d).
SECTION 2.16. Pro Rata Treatment. Except as required or permitted
under Section 2.12(d), 2.13, 2.14, 2.15, 2.19, 2.20, 9.05 or 9.14, each Standard
Borrowing, each payment or prepayment of principal of any Standard Borrowing,
each payment of interest on the Standard Loans, each payment of the Utilization
Fee, each reduction of the Commitments and each refinancing of any Borrowing
with a Standard Borrowing of any Type, shall be allocated pro rata among the
Lenders in accordance with their respective Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Standard Loans). Each payment of
principal of any Competitive Borrowing shall be allocated pro rata among the
Lenders participating in such Borrowing in accordance with the respective
principal amounts of their outstanding Competitive Loans comprising such
Borrowing. Each payment of interest on any Competitive Borrowing shall be
allocated pro rata among the Lenders participating in such Borrowing in
accordance with the respective amounts of accrued and unpaid interest on their
outstanding Competitive Loans comprising such Borrowing. For purposes of
determining the available Commitments of the Lenders at any time, each
outstanding Competitive Borrowing shall be deemed to have utilized the
Commitments of the Lenders (including those Lenders which shall not have made
Loans as part of such Competitive Borrowing) pro rata in accordance with such
respective Commitments. Each Lender agrees that in computing such Lender's
portion of any Borrowing to be made hereunder, the Agent may, in its discretion,
round each Lender's percentage of such Borrowing to the next higher or lower
whole dollar amount.
SECTION 2.17. Reimbursement of LC Disbursements-Pro Rata Treatment.
Each reimbursement of LC Disbursements shall be allocated pro rata among the
Lenders in accordance with the amounts of such unreimbursed LC Disbursements
then due to them.
SECTION 2.18. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder not later than 3:00 p.m., New York City time, on the date
when due in Dollars to the Agent (except as otherwise provided herein) at its
offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, in immediately available funds,
except payments to be made directly to any Issuing Bank as expressly provided
herein. Any payment required to be made to the Lenders shall be deemed made when
made to the Agent and shall, insofar as the obligations of the Borrower are
concerned, be deemed to have been received by the Lenders at the time of receipt
by the Agent (which shall promptly forward such payment to the Lenders). In the
event the Lenders shall receive payments in an amount less than the amounts at
the time due hereunder, the amounts received shall be applied first against the
principal of Loans and unreimbursed LC Disbursements then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
and unreimbursed LC Disbursements then due to such parties, second against
accrued interest, third against accrued Fees, fourth against amounts due under
Section 2.14 or 2.19, and fifth against any other amounts due hereunder.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next
32
succeeding Business Day, and such extension of time shall in the case of a
payment of principal be included in the computation of interest.
SECTION 2.19. Taxes. (a) All payments by the Borrower hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes,
and if the Borrower shall be required to deduct any Indemnified Taxes from any
such payment, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Agent or the applicable Lender
or 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) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Body in accordance with applicable law.
(b) The Borrower shall indemnify the Agent and each Lender and each
Issuing Bank for the full amount of any Indemnified Taxes paid by such Agent or
Lender or such Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes imposed or asserted on or attributable to amounts payable
under this Section). A certificate as to the amount of such payment or liability
setting forth in reasonable detail the circumstances giving rise thereto and the
calculations used to determine in good faith such amount delivered to the
Borrower by the Agent or Lender or Issuing Bank shall be conclusive absent
manifest error.
(c) As soon as practicable after any payment of Indemnified Taxes by
the Borrower to a Governmental Body, the Borrower shall deliver to the Agent the
original or a certified copy of a receipt issued by such Governmental Body
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Agent.
(d) Any Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the United States of America or any treaty to
which the United States of America is a party, with respect to payments made to
it under this Agreement shall deliver to the Borrower (with a copy to the
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate. Notwithstanding anything to the contrary
contained in this Section 2.19, any Lender that has not provided to the Borrower
the executed documentation required to be provided to the Borrower pursuant to
this Section 2.19 shall not be entitled to any payment of additional amounts
pursuant to Section 2.19(a) or indemnification pursuant to Section 2.19(b) with
respect to any deduction or withholding that would not have been required if
such Lender had provided such documentation.
(e) Each Lender, on the date it becomes a Lender hereunder, will
designate lending offices for the Loans to be made by it such that, on such
date, it will not be liable for any withholding tax that is imposed by the
United States of America (or any political subdivision thereof) on payments to
it by the Borrower from an office within such jurisdiction.
(f) Each Lender represents and warrants unto, and covenants and
agrees with, the Borrower that (i) on the date it becomes a Lender hereunder
such Lender is exempt from United States Federal withholding tax (including
backup withholding, as such term is defined in the Code), and from any other
withholding tax, assessment, charge or other Taxes (other than Excluded Taxes)
imposed by any Governmental Body, on any
33
amount payable to it under this Agreement, and has heretofore delivered to the
Borrower such evidence as may be required by law to claim or substantiate any
such exemption (stating the provisions of law and/or treaty under which such
exemption is claimed); (ii) such Lender will notify the Borrower promptly, so
long as any amount is due under this Agreement, upon its becoming aware of the
occurrence or of any prospective occurrence of any event which would result in
any such withholding tax exemption not being available to such Lender; and (iii)
such Lender will indemnify and hold the Borrower harmless from and against any
loss, cost or liability imposed by a Governmental Body or incurred by the
Borrower in defense of any claim by a Governmental Body, including all
reasonable out-of-pocket expenses the Borrower may incur as a direct result of
its reliance on the foregoing representations, or the failure of such Lender to
give prompt notice of any event resulting in any said withholding tax exemption
not being available to such Lender.
(g) In no event shall the Borrower have any obligation to "gross up"
amounts due under this Agreement in respect of Excluded Taxes.
(h) The representations, warranties and agreements contained in this
Section 2.19 shall survive the termination of this Agreement and the payment in
full of the Loans.
SECTION 2.20. Termination or Assignment of Commitments. The Borrower
shall have the right (in addition to its rights pursuant to Sections 2.12(b),
2.14, 2.15, 2.19 and 9.05), at its own expense, at any time upon notice to any
Lender and the Agent, (i) to terminate the Commitment of such Lender (provided
that such termination shall be effective only if the Borrower has obtained a new
Commitment of an existing Lender or a new Lender in an amount such that the
Total Commitment shall equal or exceed the lesser of (1) the Total Commitment in
effect on the date hereof and (2) the Total Commitment (excluding the new
Commitment) in existence immediately preceding the termination of such Lender's
Commitment pursuant to this Section 2.20(i)) or (ii) to require such Lender to
transfer and assign without recourse all its interests, rights and obligations
under this Agreement to another financial institution reasonably acceptable to
the Agent which shall assume such obligations (and such Lender shall be
simultaneously released therefrom); provided that (x) no such assignment shall
conflict with any law, rule or regulation or order of any Governmental Body
applicable to such affected Lender and (y) the Borrower or the assignee, as the
case may be, shall (i) pay to the affected Lender in immediately available funds
on the effective date of such termination of assignment the principal of and
interest accrued to the date of payment on the Loans made by it hereunder then
outstanding and accrued and unpaid Facility Fees, Participation Fees and
Utilization Fees and any amounts which Borrower had theretofore been notified
were accruing in respect of such Loans under Section 2.14, which payments shall
not be subject to the provisions of Section 2.16 and (ii) arrange for the
termination and replacement on the effective date of such assignment of any
Letter of Credit issued by such Lender in its capacity as an Issuing Bank.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Lenders that:
(a) The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Ohio.
34
(b) The execution, delivery and performance of this Agreement by the
Borrower are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, will not violate any provision of any
existing law or regulation or order or decree of any court or Governmental Body
or of the Amended Articles of Incorporation or Code of Regulations of the
Borrower, as each is amended to date, or of the unwaived terms of any mortgage,
indenture, agreement or other instrument to which the Borrower is a party or
which is binding upon it or its assets, and will not result in the creation or
imposition of any security interest, lien, charge or encumbrance on any of its
assets pursuant to the provisions of any of the foregoing.
(c) No authorization or approval or other action by, and no notice
to or filing with, any Governmental Body or court is required to be made or
effected by the Borrower for the due execution and delivery of this Agreement by
the Borrower and for the performance by the Borrower of the obligations on its
part to be performed under this Agreement.
(d) This Agreement constitutes the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and subject, as
to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(e) The Consolidated Financial Statements of the Borrower and its
Subsidiaries present fairly, in all material respects, the financial position of
the Borrower and its Consolidated Subsidiaries at December 31, 2001 and 2000 and
the Consolidated results of their operations and their Consolidated cash flows
for each of the three years in the period ended December 31, 2001, in conformity
with generally accepted accounting principles.
(f) The Borrower is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
(g) Neither the Borrower nor any Subsidiary is a "holding company",
or a "subsidiary company" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(h) The Borrower is not engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying margin stock, within the meaning of Regulation U of the
Board.
(i) Neither (i) the Information Memorandum nor (ii) any of the other
reports, financial statements, certificates or other information furnished by
the Borrower to the Agent or any Lender in accordance with the terms of this
Agreement (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to any
projected financial information or other forward-looking information, the
Borrower represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.
35
ARTICLE IV. CONDITIONS OF EXTENSIONS OF CREDIT
The obligation of each Lender to make Loans, and of the Issuing
Banks to issue, amend, renew or extend any Letter of Credit hereunder is subject
to the satisfaction of the following conditions:
SECTION 4.01. All Extensions of Credit. On the date of each
Borrowing, including each Borrowing in which Loans are refinanced with new Loans
as contemplated by Section 2.06 and on the date that any Issuing Bank is
obligated to issue, amend, renew or extend any Letter of Credit:
(a) The Agent shall have received a notice of such Borrowing or a
request for such issuance, amendment, renewal or extension of any Letter
of Credit as required by Section 2.03, Section 2.04 or Section 2.05(b), as
applicable.
(b) The representations and warranties set forth in Article III
hereof shall be true and correct in all material respects on and as of the
date of such Borrowing or on the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, with the same effect as
though made on and as of such date.
(c) No event shall have occurred and be continuing on and as of the
date of such Borrowing or on the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, or would result from
such Borrowing or issuance, amendment, renewal or extension of such Letter
of Credit, as applicable or from (after giving effect to) the application
of the proceeds of such Borrowing or issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, which constitutes an
Event of Default.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (b) and
(c) of this Section 4.01.
SECTION 4.02. At Closing. On the Closing Date,
(a) the Agent shall have received the following (in the case of (i),
(ii), (iii), (iv) and (v), each dated the Closing Date):
(i) from the Borrower, the Agent and Lenders representing at least
the Majority Lenders under the Existing Credit Agreement, either (i)
a counterpart of this Agreement signed on behalf of such party or
(ii) written evidence satisfactory to the Agent (which may include
telecopy transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement;
(ii) an opinion of the General Counsel, the Associate General
Counsel or an Assistant General Counsel of the Borrower addressed to
the Lenders, the Issuing Banks and the Agent in substantially the
form of Exhibit B hereto;
(iii) a certified copy of the resolutions of the Board of Directors
of the Borrower authorizing the execution and delivery of this
Agreement;
(iv) a certificate of the Secretary or an Assistant Secretary of the
Borrower certifying the names and true signatures of the Authorized
Officers;
36
(v) a certificate signed by an Authorized Officer, confirming
compliance with the conditions set forth in paragraphs (b) and (c)
of Section 4.01 and paragraph (b) of this Section and certifying
that except for the legal proceedings identified or referred to on
Schedule III (with respect to which such Authorized Officer makes no
representation or warranty), there is no pending or, to the
knowledge of such Authorized Officer, threatened action or
proceeding affecting the Borrower or any of its Subsidiaries before
any court, Governmental Body or arbitrator, which could reasonably
be expected to have a material adverse effect on the business,
assets or condition of the Borrower and its Subsidiaries taken as a
whole; and
(vi) all Fees and other amounts due and payable on or prior to the
Closing Date;
(b) there shall not have occurred any material adverse change in the
business, assets or condition of the Borrower and its Subsidiaries taken as a
whole since December 31, 2001;
(c) the 364-Day Amendment and Restatement shall have been entered
into by the Borrower, the Agent and the Lenders under and as defined in the
Borrower's 364- Day Credit Agreement; and
(d) the Term Loan Agreement Amendment shall have been entered into
by the Borrower, the Agent and the Majority Lenders under and as defined in the
Borrower's Term Loan Agreement.
ARTICLE V. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Lender and the Agent
that, so long as the Commitment of such Lender shall remain in effect or the
principal of or interest on any Loan by such Lender shall be unpaid, and until
all Letters of Credit shall have expired or terminated and all LC Disbursements
shall have been reimbursed, unless the Majority Lenders shall otherwise consent
in writing, the Borrower will:
(a) Interest Coverage Ratio. Maintain, as at the end of each fiscal
quarter of the Borrower, a ratio of Consolidated Operating Income
for the Annual Period then ended to Consolidated Interest Expense
for such Annual Period then ended of not less than the ratio set
forth below opposite such period:
Period Ending Minimum Ratio
------------- -------------
September 30, 2002 and
December 31, 2002 2.75 to 1.00
March 31, 2003 3.00 to 1.00
June 30, 2003 3.25 to 1.00
September 30, 2003 and each
Annual Period ending thereafter 3.50 to 1.00
(b) Net Worth. Maintain, as at the end of each fiscal quarter of the
Borrower, Consolidated Net Worth at an amount not less than
$3,800,000,000 plus 50% of the cumulative amount of Net Income for
each fiscal quarter ended after December 31, 2000 and excluding any
such fiscal quarter for which Net Income shall have been negative.
37
(c) Reporting Requirements. Furnish to the Agent, together with
sufficient number of copies for each of the Lenders:
(i) as soon as available and in any event not later than 60 days
after the end of each of the first three quarters of each fiscal
year of the Borrower, a conformed copy of the Borrower's Quarterly
Report on Form 10-Q for such quarter as filed with the Securities
and Exchange Commission, together with (1) a Schedule of Compliance,
signed by an Authorized Officer setting forth computations used by
the Borrower in determining compliance with the covenants contained
in paragraphs (a) and (b) of this Article V and in paragraphs (a),
(b), (c) and (d) of Article VI and (2) a certificate of an
Authorized Officer stating that no Event of Default has occurred and
is continuing or, if an Event of Default has occurred and is
continuing, a statement as to the nature thereof and the action
which the Borrower has taken and proposes to take with respect
thereto; and
(ii) as soon as available and in any event not later than 120 days
after the end of each fiscal year of the Borrower, a conformed copy
of the Borrower's Annual Report on Form 10-K for such year as filed
with the Securities and Exchange Commission, together with (1) a
Schedule of Compliance, signed by an Authorized Officer setting
forth computations used by the Borrower in determining compliance
with the covenants contained in paragraphs (a) and (b) of Article V,
and in paragraphs (a), (b), (c) and (d) of Article VI, and (2) a
certificate of an Authorized Officer stating that no Event of
Default has occurred and is continuing or, if an Event of Default
has occurred and is continuing, a statement as to the nature thereof
and the action which the Borrower has taken and proposes to take
with respect thereto; and
(iii) as soon as practicable and in any event within ten Business
Days after any Authorized Officer of the Borrower obtains actual
knowledge of the occurrence of any Event of Default, a statement of
an Authorized Officer setting forth details of such Event of Default
and the action which the Borrower has taken and proposes to take
with respect thereto; and
(iv) promptly after the filing thereof, copies of all reports (in
addition to Forms 10-K and 10-Q) filed by the Borrower with the
Securities and Exchange Commission (other than annual reports on
Form 11-K) pursuant to the Exchange Act; and
(v) such other publicly available information relating to the
financial condition or business operations of the Borrower as the
Agent or any Lender may from time to time reasonably request.
(d) Preservation of Corporate Existence. Preserve and maintain its
corporate existence; provided, that the Borrower may merge or transfer its
assets in a transaction permitted by paragraph (e) of Article VI.
(e) Pari Passu with Certain Existing Credit Agreements. Ensure that
the Lenders remain pari passu with the lenders under the 364-Day Amendment and
Restatement and the lenders under the Borrower's Term Loan Agreement.
38
ARTICLE VI. NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender and the Agent
that, so long as the Commitment of such Lender shall remain in effect or the
principal of or interest on any Loan by such Lender shall be unpaid, and until
all Letters of Credit shall have expired or terminated and all LC Disbursements
shall have been reimbursed, unless the Majority Lenders shall otherwise consent
in writing, the Borrower will not:
(a) Limitation on Liens. Issue, assume or guarantee, or permit any
Subsidiary to issue, assume or guarantee, Debt if such Debt is secured by a Lien
upon any Manufacturing Facility without providing (concurrently with the
issuance, assumption or guarantee of any such Debt) that the Loans shall be
secured equally and ratably with such Debt; provided, however, that the
foregoing restriction shall not apply to:
(i) any Lien on property if such Lien is in existence at the time of
the acquisition of such property by the Borrower or a Subsidiary;
(ii) any Lien on property to secure the payment of all or any part
of the purchase price of such property or to secure any Debt
incurred (prior to, at the time of, or within 360 days after, the
acquisition by the Borrower or a Subsidiary of such property) for
the purpose of, or in connection with, financing all or any part of
the purchase price thereof;
(iii) any Lien on property of a corporation or other entity if such
Lien was in existence prior to the time such corporation or other
entity is merged into or consolidated with the Borrower or a
Subsidiary or prior to the time of a sale, lease or other
disposition of the properties of an entity as an entirety or
substantially as an entirety to the Borrower or a Subsidiary;
(iv) any Lien on property in favor of the United States of America,
any State thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any State
thereof, in favor of any other country or any political subdivision
thereof, or in favor of any other Governmental Body, to secure
partial, progress, advance or other payments, or performance of any
other obligations, pursuant to any contract or statute or to secure
any indebtedness incurred for the purpose of financing all or any
part of the purchase price or the cost of construction of the
property subject to such Lien; or
(v) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred
to in the foregoing clauses (i) to (iv), inclusive; provided,
however, that the principal amount of Debt secured thereby shall not
exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension, renewal,
or replacement Lien shall be limited to all or a part of the
property which secured the Lien so extended, renewed or replaced
(plus improvements on such property).
Notwithstanding the foregoing, (A) the Borrower or any Subsidiary
may issue, assume or guarantee Debt secured by a Lien on a Manufacturing
Facility of the Borrower which would otherwise be subject to the foregoing
restrictions in an aggregate amount which, together with the aggregate principal
amount of all other such Debt of the Borrower and the Subsidiaries secured by
Liens on Manufacturing Facilities of the Borrower outstanding at the time of
such issuance, assumption or guarantee (but excluding Debt permitted by the
foregoing clauses (i) to (v), inclusive), does not at such
39
time exceed fifteen percent (15%) of the Consolidated Net Worth of the Borrower
as at the end of the then most recently completed fiscal year of the Borrower,
and (B) the Borrower or any Subsidiary may issue, assume or guarantee Debt
secured by a Lien on a Manufacturing Facility of a Subsidiary which would
otherwise be subject to the foregoing restrictions in an aggregate amount which,
together with the aggregate principal amount of all other such Debt of the
Borrower and the Subsidiaries secured by Liens on Manufacturing Facilities of
Subsidiaries outstanding at the time of such issuance, assumption or guarantee
(but excluding Debt permitted by the foregoing clauses (i) to (v), inclusive),
does not at such time exceed fifteen percent (15%) of the Consolidated Net Worth
of the Borrower as at the end of the then most recently completed fiscal year of
the Borrower.
(b) Limitation on Debt. Issue, incur, assume or guarantee, or permit
any Subsidiary to issue, incur, assume or guarantee, any Debt if, immediately
after giving effect to the issuance, incurrence, assumption or guarantee of such
Debt and after giving effect to the receipt and application of any and all
proceeds thereof, the aggregate principal amount of the Consolidated Debt of the
Borrower and the Subsidiaries would, at the end of any fiscal quarter of the
Borrower, exceed the sum of (x) $5,000,000,000 plus (y) the Supplemental Amount,
if any, at such date. For the purpose of this paragraph (b), if any such Debt is
payable in a currency other than Dollars and all or any portion of the principal
amount of such Debt is hedged into Dollars, then the principal amount thereof,
or such portion thereof, shall be the amount of Dollars specified in, or
determined pursuant to, the applicable hedging contract.
(c) Limitation on Secured Debt of Borrower and Domestic
Subsidiaries. Issue, incur, assume or guarantee, or permit any Domestic
Subsidiary to issue, incur, assume or guarantee, Debt secured by a Lien or Liens
upon any assets other than property or other assets constituting Manufacturing
Facilities or accounts receivable (and related rights including, without
limitation, rights to return merchandise) ("Designated Secured Debt") if,
immediately after giving effect to the issuance, incurrence, assumption or
guarantee of such Debt and after giving effect to the receipt and application of
any and all proceeds thereof, the aggregate principal amount of the Designated
Secured Debt of the Borrower and the Domestic Subsidiaries would exceed
$100,000,000.
(d) Limitation on Sale-Leaseback Transactions and Debt of Domestic
Subsidiaries. Permit the sum of (i) the aggregate principal amount of the Debt
of Domestic Subsidiaries, other than Debt secured by a Lien or Liens upon
property or assets constituting Manufacturing Facilities or accounts receivable
(and related rights, including, without limitation, rights to returned
merchandise) and (ii) the aggregate Attributable Debt in connection with all
Sale-Leaseback Transactions of the Borrower and the Domestic Subsidiaries to
exceed $400,000,000 at any time.
(e) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, or acquire all or substantially all of the
assets of, any Person; except that (i) any Subsidiary may merge into or transfer
assets to or obtain assets from the Borrower, and (ii) the Borrower may merge
with or acquire all or substantially all of the assets of any Person, provided
in any such case that, immediately after giving effect to such proposed
transaction, no Event of Default would exist and, in the case of any such merger
to which the Borrower is a party, the Borrower is the surviving corporation.
(f) ERISA Liabilities. Create or suffer to exist, as at the end of
any fiscal quarter of Borrower, any ERISA Liabilities of the Borrower in an
aggregate amount in excess of $750,000,000.
40
(g) Negative Pledge. Enter into, or permit any Subsidiary organized
under the laws of the United States or any state, territory or possession
thereof to enter into, any covenant or other agreement that by its terms limits
the ability of the Borrower or any such Subsidiary to pledge its accounts
receivable or inventory or proceeds thereof to secure indebtedness.
ARTICLE VII. EVENTS OF DEFAULT
So long as any Commitment shall be in effect or any amount of the
principal of or accrued interest on any Borrowing shall be unpaid, and until all
Letters of Credit shall have expired or terminated and all LC Disbursements
shall have been reimbursed, in case of the occurrence and continuance of any of
the following events ("Events of Default"):
(a) The Borrower shall fail to pay the principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when due and any such
failure shall remain unremedied for more than two Business Days after the
earlier of (i) the day on which an Authorized Officer first obtains actual
knowledge of such failure or (ii) written notice of such failure shall have been
given to the Borrower by the Agent, any Lender or any Issuing Bank; or
(b) The Borrower shall fail to pay any Fees when due and such
failure shall remain unremedied for more than ten Business Days after the
earlier of (i) the day on which an Authorized Officer first obtains actual
knowledge of such failure or (ii) written notice of such failure shall have been
given to the Borrower by the Agent, any Lender or any Issuing Bank; or
(c) The Borrower shall fail to pay interest on any Loan when due,
and such failure shall remain unremedied for more than five Business Days after
the earlier of (i) the day on which an Authorized Officer first obtains actual
knowledge of such failure or (ii) written notice of such failure shall have been
given to the Borrower by the Agent or any Lender; or
(d) Any representation or warranty made by the Borrower in this
Agreement or by the Borrower (or any of its Authorized Officers) in any
certificate delivered pursuant to this Agreement, or deemed to have been made
pursuant to and in accordance with Section 4.01 of this Agreement, shall prove
to have been incorrect in any material respect when made; provided, that if any
such representation or warranty is capable of being rendered true and correct in
all material respects, such event shall not constitute an Event of Default
unless such incorrect representation or warranty is not rendered true and
correct in all material respects within thirty days after the earlier of (i) the
day on which an Authorized Officer first obtains actual knowledge of such event
or (ii) the day written notice thereof shall have been given to the Borrower by
the Agent or any Lender; or
(e) The Borrower shall fail to perform or observe any covenant or
agreement set forth in paragraph (a) or (b) of Article V or in paragraph (b),
(c) or (d) of Article VI; or
(f) The Borrower shall fail to perform or observe any other covenant
or agreement set forth in this Agreement on its part to be performed or observed
and such failure shall remain unremedied for more than thirty days after the
earlier of (i) the day on which an Authorized Officer first obtains actual
knowledge of such
41
failure or (ii) written notice thereof shall have been given to the Borrower by
the Agent or any Lender; or
(g) The Borrower shall fail to pay any principal of Funded Debt of
the Borrower which is then outstanding in a principal amount in excess of
$25,000,000 at the scheduled maturity thereof, such failure shall continue after
the applicable grace period, if any, specified in the agreement or instrument
relating to such Funded Debt, and such Funded Debt is not paid within ten
Business Days after the earlier of (i) the day on which an Authorized Officer
first obtains actual knowledge of such failure or (ii) written notice of such
failure shall have been given to the Borrower by the holder or holders of such
Funded Debt; or Funded Debt of the Borrower which is then outstanding in a
principal amount in excess of $25,000,000 shall become due and payable prior to
the scheduled maturity thereof as a result of the lawful acceleration thereof
due to the occurrence of an event of default thereunder (other than an event of
default resulting from a pledge or transfer of any margin stock, as defined in
Regulation U of the Board) and such Funded Debt is not paid, or such
acceleration thereof is not rescinded or annulled, within ten Business Days
following such lawful acceleration thereof; or
(h) Any event shall occur that shall constitute an event of default
under any cross-default or cross-acceleration provision contained in any
agreement or instrument governing or evidencing Funded Debt of the Borrower
which is then outstanding in a principal amount in excess of $25,000,000 if such
provision permits the lawful acceleration of such Funded Debt under
circumstances that would not constitute an Event of Default pursuant to clause
(g) above; or
(i) The Borrower shall sell or otherwise dispose of all or
substantially all of its assets; or
(j) The Borrower shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally,
or shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Borrower seeking to adjudicate
it a debtor or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial part
of its property, and, if instituted against the Borrower, is consented to by it
or remains undismissed or unstayed for a period of 90 consecutive days; or the
Borrower shall take any corporate action to authorize any of the actions set
forth above in this clause (j);
then, and in every such event (other than the entry of an order for relief with
respect to the Borrower as a debtor under the Federal Bankruptcy Code), and at
any time thereafter during the continuance of such event, the Agent, at the
request of the Required Lenders, shall, by notice to the Borrower, take either
or both of the following actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare the Loans then outstanding to be
forthwith due and payable in whole or in part, whereupon the principal of the
Loans so declared to be due and payable, together with accrued interest thereon
and any unpaid accrued Fees and all other liabilities of the Borrower accrued
hereunder, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrower, anything contained herein to the contrary
notwithstanding; provided, that in the event of the entry of an order for relief
with respect to Borrower as a debtor under the
42
Federal Bankruptcy Code, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and any unpaid accrued Fees and all other liabilities of the Borrower accrued
hereunder, shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein to the contrary
notwithstanding.
ARTICLE VIII. THE AGENT
In order to expedite the transactions contemplated by this
Agreement, JPMorgan Chase Bank is hereby appointed to act as Agent on behalf of
the Lenders and, where applicable, any Issuing Banks. Each of the Lenders and
each of the Issuing Banks hereby irrevocably authorizes the Agent to take such
actions on behalf of such Lender and such Issuing Bank, as the case may be, and
to exercise such powers as are specifically delegated to the Agent by the terms
and provisions hereof, together with such actions and powers as are reasonably
incidental thereto. The Agent is hereby expressly authorized by the Lenders and
the Issuing Banks, without hereby limiting any implied authority, (a) to receive
on behalf of the Lenders and any Issuing Banks all payments of principal of and
interest on the Loans and all other amounts due to the Lenders hereunder, and
promptly to distribute to each Lender or any Issuing Bank its proper share of
each payment so received; (b) to give notice on behalf of each of the Lenders to
the Borrower of any Event of Default specified in this Agreement of which the
Agent has actual knowledge acquired in connection with its agency hereunder; and
(c) to distribute to each Lender copies of all notices, financial statements and
other materials delivered by the Borrower pursuant to this Agreement as received
by the Agent.
Neither the Agent nor any of its directors, officers, employees or
agents shall be liable to any Lender or Issuing Bank as such for any action
taken or omitted by any of them except for its or his own gross negligence or
wilful misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document delivered in connection
herewith, or be required to ascertain or to make any inquiry concerning the
performance or observance by the Borrower of any of the terms, conditions
(except delivery to the Agent of the items required by Section 4.02 to be
delivered to it), covenants or agreements contained in this Agreement. The Agent
shall not be responsible to the Lenders or the Issuing Banks for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement or other instruments or agreements. The Agent shall in all cases be
fully protected in acting, or refraining from acting, in accordance with written
instructions signed by the Majority Lenders or the Required Lenders, as the case
may be, and, except as otherwise specifically provided herein, such instructions
and any action or inaction pursuant thereto shall be binding on all the Lenders.
The Agent shall, in the absence of knowledge to the contrary, be entitled to
rely on any instrument or document believed by it in good faith to be genuine
and correct and to have been signed or sent by the proper Person or Persons.
Neither the Agent nor any of its directors, officers, employees or agents shall
have any responsibility to the Borrower on account of the failure of or delay in
performance or breach by any Lender or Issuing Bank of any of its obligations
hereunder or to any Lender or Issuing Bank on account of the failure of or delay
in performance or breach by any other Lender, Issuing Bank or the Borrower of
any of its respective obligations hereunder or in connection herewith. The Agent
may execute any and all duties hereunder by or through agents or employees and
shall be entitled to rely upon the advice of legal counsel selected by it with
respect to all matters arising hereunder and shall not be liable for any action
taken or suffered in good faith by it in accordance with the advice of such
counsel.
43
The Lenders and the Issuing Banks hereby acknowledge that the Agent
shall be under no duty to take any discretionary action permitted to be taken by
it pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by notifying the Lenders, any
Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint
a successor Agent which shall be a bank with an office in New York, New York,
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations hereunder. After the Agent's
resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Agent.
With respect to the Loans made and the Letters of Credit issued or
participated in by it hereunder, the Agent in its individual capacity and not as
Agent shall have the same rights and powers as any other Lender or Issuing Bank
and may exercise the same as though it were not the Agent, and the Agent may
accept deposits from, lend money to and generally engage in any kind of business
with the Borrower as if it were not the Agent.
Each Lender agrees (i) to reimburse the Agent, on demand, in the
amount of its pro rata share (based on its Commitment, or, after the Commitments
have expired or been terminated, the amount of its outstanding Loans and LC
Exposure hereunder) of any expenses incurred for the benefit of the Lenders by
the Agent, including reasonable counsel fees and compensation of agents and
employees paid for services rendered on behalf of the Lenders, which shall not
have been reimbursed by the Borrower and (ii) to indemnify and hold harmless the
Agent and any of its directors, officers, employees or agents, on demand, in the
amount of such pro rata share, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against it in its capacity as the Agent or any of
them in any way relating to or arising out of this Agreement or any action taken
or omitted by it or any of them under this Agreement, to the extent the same
shall not have been reimbursed by the Borrower; provided that no Lender shall be
liable to the Agent or any other indemnitee for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Agent or any of its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
44
Notwithstanding any other provision herein, each Lender and each
Issuing Bank acknowledges that the Agent is not acting as an agent of the
Borrower and that the Borrower will not be responsible for any acts or failures
to act on the part of the Agent.
ARTICLE IX. MISCELLANEOUS
SECTION 9.01. Notices. Except as otherwise expressly provided
herein, notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, priority mail,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of the Treasurer (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇ or
▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Agent, to JPMorgan Chase Bank, Loan and Agency
Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. 212-552-5658), with a copy to JPMorgan
Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇.
▇▇▇▇ (Telecopy No. 212-270-5127);
(c) if to any Issuing Bank, to it at the address most recently
specified by it in a notice delivered to the Agent and the Borrower; and
(d) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy (as evidenced by machine transmission report), or on the date five
Business Days after dispatch by certified or registered mail, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this
Section 9.01 or in accordance with the latest unrevoked direction from such
party given in accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and the Issuing Banks and shall survive the making by the Lenders of the
Loans and the issuance by any Issuing Bank of any Letters of Credit, regardless
of any investigation made by the Lenders or the Issuing Bank or on their behalf,
and shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any Fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not been
terminated and so long as any Letter of Credit remains outstanding.
SECTION 9.03. Binding Effect; Successors and Assigns. (a) This
Agreement shall become effective on August 13, 2002, subject to the satisfaction
of conditions precedent set forth in Section 4.02, and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Agent, any Issuing
Bank and each Lender and their respective successors and assigns, except that
(i) the Borrower shall not have the right to assign its rights hereunder or any
interest herein or to delegate any of its duties hereunder without the prior
written consent of all the Lenders and (ii) no Lender shall
45
have the right to assign or participate its rights hereunder or any interest
herein or to delegate any of its duties hereunder without the prior written
consent of the Borrower and each Issuing Bank (which consent shall not be
unreasonably withheld; provided that such consent shall not be required (a) in
the case of an assignment or participation to a Lender or (b) in the case of the
Borrower's consent, if an Event of Default shall have occurred and be
continuing) and the giving of written notice (also signed by the Borrower where
the Borrower's consent is required) to the Agent.
(b) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include any successors and permitted
assigns of such party; and all covenants, promises and agreements by or on
behalf of the Borrower, the Agent, any Issuing Bank or the Lenders that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and permitted assigns.
(c) Notwithstanding the limitations set forth in this Section 9.03,
any Lender may at any time assign all or any portion of its rights under this
Agreement to a Federal Reserve Bank without the prior written consent of the
Borrower or the Agent; provided that no such assignment shall release a Lender
from any of its obligations hereunder or substitute any such Bank for such
Lender as a party hereto. In order to facilitate such an assignment to a Federal
Reserve Bank, the Borrower shall, at the request of the assigning Lender, duly
execute and deliver to the assigning Lender a promissory note or notes in the
form of Exhibit E hereto evidencing the Loans made to the Borrower by the
assigning Lender hereunder.
SECTION 9.04. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.05. Waivers; Amendment. (a) No failure or delay of the
Agent, any Issuing Bank or any Lender in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power or preclude any other or further exercise thereof
or the exercise of any other right or power. The rights and remedies of the
Agent, the Issuing Banks and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies provided by law. No waiver of any provision
of this Agreement or consent to any departure by the Borrower therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Majority Lenders; provided, however, that
no such agreement shall (i) amend, modify or otherwise affect the rights or
duties of the Agent hereunder without the prior written consent of the Agent,
(ii) decrease the principal amount of, or extend the maturity of or any
scheduled principal payment date or date for the payment of any interest on any
Loan or any Facility Fees or Utilization Fee, or waive or excuse any such
payment or any part thereof, or decrease the rate of interest on any Loan or any
Facility Fees or Utilization Fee, without the prior written consent of each
Lender affected thereby, (iii) change or extend the Commitment or decrease the
Facility Fees or the Utilization Fee of any Lender without the prior written
consent of such Lender, or (iv) amend or modify the provisions of Section 2.16,
the provisions of this Section 9.05(b) or the definition of "Majority Lenders"
or "Required Lenders", without the prior written consent of each Lender;
provided that the provisions referred to in the
46
preceding clauses (ii), (iii) and (iv) may be amended by the Majority Lenders;
but any Lender which declines to approve any such amendment shall have the right
at any time, on 10 Business Days' notice to the Borrower, to terminate its
Commitment and require the Borrower to pay the principal of and interest on its
outstanding Loans and Facility Fees and Utilization Fee, and the amount of the
principal and interest so paid shall be determined without giving effect to such
amendment. All prepayments made pursuant to this Section 9.05(b) shall be
without premium, penalty or other cost of any kind and shall not be subject to
the requirements of Sections 2.16 and 2.13(d).
(c) Following the expiration or termination of Commitments
hereunder, all amendments shall require, in addition to any approval required
under paragraph (b) above, the approval of Lenders representing at least a
majority of the aggregate principal amount of the Loans outstanding (or, in the
case of amendments to the provisions referred to in clauses (ii), (iii) and (iv)
of Section 9.05(b) above, all Lenders affected thereby).
(d) No agreement shall decrease the Participation Fees or the rate
of interest on such Participation Fees, or extend the scheduled payment date for
the payment of or of any interest on Participation Fees, or waive or excuse any
such payment, or any part thereof without the prior written consent of each
Lender affected thereby; provided, that the proviso in Section 9.05(b) above
shall be applicable to this paragraph (d), and all references in such proviso in
paragraph (b) to Facility Fees and Utilization Fees shall be deemed to include
in addition, such Participation Fees.
(e) No agreement shall (i) waive, modify or amend the rights or
duties hereunder of any Issuing Bank in its capacity as an Issuing Bank, (ii)
decrease the amount of any Fronting Fees or (ii) extend the scheduled date for
the payment of any Fronting Fees without the prior written consent of each
Issuing Bank affected thereby.
SECTION 9.06. Expenses; Indemnity. (a) The Borrower agrees to pay
(i) all reasonable out-of-pocket expenses incurred by the Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Agent, in connection with the syndication of the credit facilities
provided for herein, the preparation and administration of this Agreement or any
amendments, modifications or waivers (requested by or for the benefit of the
Borrower) of the provisions hereof, (ii) all reasonable out-of-pocket expenses
incurred by any Issuing Bank in connection with the issuance, amendment, renewal
or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all reasonable out-of-pocket expenses incurred by the Agent, any Issuing
Bank or any Lender in connection with the enforcement of its rights under this
Agreement.
(b) The Borrower agrees to indemnify the Agent, each Issuing Bank,
the Lenders, their Affiliates, and the respective directors, officers, employees
and agents of such Persons (each such Person being called an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees and
expenses, arising out of any claim, litigation, investigation or proceeding
relating to (i) the execution or delivery of this Agreement or the consummation
of the transactions contemplated hereby or (ii) the use by the Borrower of the
proceeds of the Loans or any Letter of Credit (including any refusal by any
Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit); provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses have resulted from the gross negligence or
willful misconduct of such
47
Indemnitee or from the breach of any obligations of such Indemnitee set forth in
this Agreement.
SECTION 9.07. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the applicable interest rate, together
with all fees and charges which are treated as interest under applicable law
(collectively the "Charges"), as provided for herein, or otherwise contracted
for, charged, received, taken or reserved by any Lender, shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by such Lender in accordance with applicable law,
the rate of interest payable hereunder to such Lender, together with all Charges
payable to such Lender, shall be limited to the Maximum Rate.
SECTION 9.08. Entire Agreement. This Agreement and the letter
agreement referred to in Section 2.07(d) constitute the entire contract between
the parties relative to the subject matter hereof. Any previous agreement among
the parties with respect to the subject matter hereof is superseded by this
Agreement. Nothing in this Agreement, expressed or implied, is intended to
confer upon any party other than the parties hereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
SECTION 9.09. Information; Access and Confidentiality. So long as
any Commitments shall be in effect, any Letter of Credit shall be outstanding or
any Loans or reimbursement obligations in respect of LC Disbursements shall
remain unpaid: (i) the Lenders and any Issuing Bank, acting through their
officers and other duly designated employees, shall have the right to discuss
the affairs, finances and accounts of the Borrower and the Subsidiaries with
senior financial officers and employees of the Borrower at such reasonable times
and intervals as the Lenders and any Issuing Bank shall reasonably request; and
(ii) the Borrower will make available to the Lenders and any Issuing Bank such
other information relating to the financial condition or business operations of
the Borrower and the Subsidiaries as the Lenders shall from time to time
reasonably request. Notwithstanding anything herein to the contrary, in no event
shall the Borrower be required to furnish to the Lenders any information
pursuant to this Section 9.09 if the Borrower shall reasonably determine that
the furnishing of such requested information would be in violation of any
applicable law, regulation or order of any Governmental Body or if such
information relates to the Borrower's strategic planning, research, development,
testing, manufacturing or marketing activities and the furnishing thereof would,
in the sole judgment of the Borrower reasonably exercised, adversely affect the
competitive position of the Borrower. Each Lender and Issuing Bank agrees that
all such information provided to such Lender or such Issuing Bank (or any
officer or employee of such Lender or such Issuing Bank) is confidential and
proprietary to the Borrower and that such Lender or such Issuing Bank will not
disclose (other than to the directors, officers and employees of such Lender or
such Issuing Bank who require such information in connection with such Lender's
or such Issuing Bank's administration of this Agreement and who have been
directed to treat such information as confidential and proprietary to the
Borrower and other than to bank examiners with jurisdiction over such Lender or
such Issuing Bank who request such information) any such information (excluding
information which becomes (i) generally available to the public other than as a
result of the disclosure thereof by such Lender or such Issuing Bank or its
representatives in breach of this Section 9.09 or (ii) available to such Lender
or such Issuing Bank on a non-confidential basis from a source other than the
Borrower or the Subsidiaries or any of their respective directors, officers,
employees, agents or representatives, provided such source is not known to such
Lender or such Issuing Bank to be bound by a confidentiality agreement with the
Borrower), except to the extent such Lender or such Issuing Bank is, in the
opinion of legal counsel to such Lender or such Issuing Bank, required by law to
48
disclose such information and then only after such Lender or such Issuing Bank
shall have given the Borrower at least five (5) days' prior written notice of
such required disclosure or, if such prior notice period is not available to
such Lender under applicable law, such shorter notice period, if any, as shall
in fact be available to such Lender or such Issuing Bank under applicable law.
SECTION 9.10. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the legal and economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.11. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
SECTION 9.12. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.13. Jurisdiction; Consent to Service of Process. (a) Each
party to this Agreement irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment
related hereto, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Nothing in this Agreement shall affect
any right that any party may otherwise have to bring any action or proceeding
relating to this Agreement in the courts of any jurisdiction.
(b) Each party to this Agreement irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any New
York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.14. Stamp Taxes. The Borrower agrees to pay, and to save
the Agent and each Lender harmless from all liability for, any stamp, transfer,
documentary or similar taxes, assessments or charges (herein "Stamp Taxes"), and
any penalties or interest with respect thereto, which may be assessed, levied,
collected or imposed, or otherwise become payable, in connection with the
execution and delivery of this Agreement. The Agent and each Lender represents
and warrants unto the Borrower that, at the date of this Agreement, there are
not Stamp Taxes in effect which are
49
applicable to this Agreement or any Loans which may be made hereunder and the
Agent and each Lender agrees that it will promptly notify the Borrower upon
becoming aware of the imposition or prospective imposition of any Stamp Taxes in
respect of this Agreement or any Loan made pursuant to this Agreement. The
obligations of the Borrower, the Agent and each Lender under this Section 9.14
shall survive the payment of the Loans.
SECTION 9.15. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.16. Change of Control Option. (a) In the event there shall
occur any Change of Control (as defined below) each Lender shall have the right,
at its option exercisable at any time within six months following the Change
Date (as defined below), to require the Borrower (i) to purchase the Loans of
such Lender on the Purchase Date (as defined below) at a purchase price which
shall be equal to the sum of (i) the principal amount of such Loans then
outstanding, plus (ii) any and all accrued and unpaid interest on such Loans and
Fees to the Purchase Date (the "Purchase Price") and (ii) to deposit in an
account with the Agent, in the name and for the benefit of such Lender, an
amount in cash equal to the LC Exposure of such Lender as of such date plus any
accrued and unpaid interest thereon. Each such deposit shall be held by the
Agent as collateral for the payment of amounts due to such Lender in connection
with LC Disbursements. The 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 of the Agent and with the approval of the Borrower (but with
the consent of such Lender) 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 Agent to reimburse the applicable Issuing Bank for such Lender's
share of LC Disbursements for which it has not been reimbursed. Any remaining
amounts held by the Agent under this paragraph for the account of any Lender
shall be returned to the Borrower within three Business Days after all Letters
of Credit have expired or been drawn in full and all related LC Disbursements
have been repaid.
(b) The Borrower shall give the Lenders, through the Agent, written
notice of the occurrence of a Change of Control within five Business Days
following the Change Date. No failure of the Borrower to give notice of a Change
of Control shall limit the right of any Lender to require the purchase of its
Loans pursuant to this Section 9.16.
(c) Any Lender may exercise its right to require the purchase of its
Loans under this Section 9.16 by delivering to the Borrower at any time within
six months after the Change Date written notice thereof, specifying the Purchase
Date. The Commitment of any Lender exercising its right to require the purchase
of its Loans under this Section 9.16 shall automatically terminate immediately
upon the Borrower's receipt of such Lender's written notice of such exercise of
its option in accordance with this Section 9.16; provided that such Lender shall
continue to be liable to purchase
50
participations in Letters of Credit outstanding on the date of such notice (but
not any subsequently issued Letters of Credit) as provided in Section 2.05(d).
(d) In the event of the exercise by any Lender of its option under
this Section 9.16 in the manner provided herein, the Borrower shall pay or cause
to be paid to such Lender on the Purchase Date the Purchase Price (determined in
accordance with paragraph (a) above), and shall deposit with the Agent the
amount referred to in clause (ii) of paragraph (a) above, in each case in
immediately available funds. No exercise of the option granted in this Section
9.16 shall be subject to the requirements of Sections 2.16 and 2.13(d).
(e) As used in this Section 9.16, the term:
(1) "Change Date" means the date on which any Change of Control
shall be deemed to have occurred; provided, that, if the Borrower shall
fail to give timely notice of the occurrence of a Change of Control to the
Lenders as provided in paragraph (b) above, for the purpose of determining
the duration of the Lenders' rights to require prepayment under this
Section 9.16, "Change Date" shall mean the earlier of (i) the date on
which notice of a Change of Control is duly given by the Borrower to the
Agent or (ii) with respect to any Lender, the date on which such Lender
obtains actual knowledge of the Change of Control.
(2) "Change of Control" means when, and shall be deemed to have
occurred at such time as, a "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange Act) becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act) of more than 50%
of the then outstanding Voting Stock of the Borrower; provided, that fifty
percent shall become 70% with respect to any "employee benefit plan" (as
defined in Section 3(3) of ERISA) maintained by the Borrower or any
Subsidiary or any trust or funding vehicle maintained for or pursuant to
such "employee benefit plan".
(3) "Purchase Date" means, with respect to any Lender, the date on
which the Borrower shall purchase the Loans of such Lender pursuant to the
exercise by such Lender of its option under this Section 9.16, pursuant to
a notice given to the Borrower in accordance with paragraph (c) of this
Section 9.16, which date shall be a Business Day not less than 90 nor more
than 120 days after the date such Lender gives the Borrower written notice
of such exercise.
(4) "Voting Stock" shall mean capital stock of the Borrower of any
class or classes (however designated) the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of the
Board of Directors of the Borrower, it being understood that, at the date
hereof, the Common Stock, without par value, of the Borrower is the only
outstanding class of capital stock of the Borrower which constitutes
"Voting Stock".
51
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have
caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
THE GOODYEAR TIRE & RUBBER
COMPANY,
by
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
JPMORGAN CHASE BANK, individually
and as Agent,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
52
SIGNATURE PAGE TO THE AMENDED AND
RESTATED FIVE-YEAR REVOLVING CREDIT
AGREEMENT DATED AS OF AUGUST 13, 2002,
among THE GOODYEAR TIRE & RUBBER
COMPANY, THE LENDERS AND JPMORGAN CHASE
BANK, as Agent.
Name of Institution: BANK ONE, NA
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Associate
BANK OF AMERICA, N.A.
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BNP PARIBAS
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Central Region Manager
CIBC INC.
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Director
CIBC World Markets Corp.,
as Agent
53
CITICORP USA, INC.
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Director
COMMERZBANK
AKTIENGESELLSCHAFT NEW YORK
AND GRAND CAYMAN BRANCHES
by
/s/ ▇▇▇▇▇▇ ▇. Warning
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. Warning
Title: Assistant Treasurer
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
ROYAL BANK OF CANADA
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Manager
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
by
/s/ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title: Vice President
54
CREDIT SUISSE FIRST BOSTON
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Associate
DEUTSCHE BANK SECURITIES INC.
by
/s/ ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
SUMITOMO MITSUI BANKING
CORPORATION
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Joint General Manager
55
ABN AMRO BANK N.V.
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Group Vice President
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Group Vice President
BANCA NAZIONALE DEL LAVORO
S.P.A., NEW YORK BRANCH
by
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
BARCLAYS BANK PLC
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director
CREDIT LYONNAIS NEW YORK
BRANCH
by
/s/ ▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
56
KEYBANK NATIONAL ASSOCIATION
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Portfolio Manager
NATIONAL CITY BANK
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
THE NORTHERN TRUST COMPANY
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SOCIETE GENERALE
by
/s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
57
STANDARD CHARTERED BANK
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Asst. Vice President
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
MIZUHO CORPORATE BANK, LTD.
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Deputy General Manager and Group
Head