EXHIBIT 4
U.S. $250,000,000
364-DAY CREDIT AGREEMENT
Dated as of April 4, 2002
Among
THE BLACK & ▇▇▇▇▇▇ CORPORATION,
and
BLACK & ▇▇▇▇▇▇ HOLDINGS INC.,
as Initial Borrowers,
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
CITIBANK, N.A.,
as Administrative Agent,
and
JPMORGAN CHASE BANK,
as Syndication Agent
and
BANK OF AMERICA, N.A.
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
and
HSBC BANK USA,
as Co-Syndication Agents
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
as Co-Lead Arrangers and Co-Bookrunners
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 22
ARTICLE II 22
SECTION 2.01. The Revolving Credit Advances 22
SECTION 2.02. Making the Revolving Credit Advances
and Purchasing the Discounted Notes 22
SECTION 2.03. Fees 24
SECTION 2.04. Termination or Reduction of the Commitments 25
SECTION 2.05. Repayment of Revolving Credit Advances
and Repurchase of Discounted Notes 25
SECTION 2.06. Interest on Revolving Credit Advances 25
SECTION 2.07. Interest Rate and Discount Determination 27
SECTION 2.08. Optional Conversion of Revolving Credit Advances 28
SECTION 2.09. Optional Prepayments of Revolving Credit Advances
and Repurchases of Discounted Notes 29
SECTION 2.10. Increased Costs 29
SECTION 2.11. Illegality 31
SECTION 2.12. Payments and Computations 31
SECTION 2.13. Taxes 32
SECTION 2.14. Sharing of Payments, Etc. 36
SECTION 2.15. Defaulting Lenders 36
SECTION 2.16. Extension of Termination Date 37
SECTION 2.17. Use of Proceeds 39
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness
of Section 2.01 39
SECTION 3.02. Conditions Precedent to the Initial Borrowing
of Each Designated Subsidiary 41
SECTION 3.03. Conditions Precedent to Each Revolving
Credit Borrowing 43
SECTION 3.04. Conditions Precedent to Each Extension Date 43
SECTION 3.05. Determinations Under Section 3.01 44
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Borrowers 44
ARTICLE V
SECTION 5.01. Affirmative Covenants 48
SECTION 5.02. Negative Covenants 52
SECTION 5.03. Financial Covenants 55
ARTICLE VI
SECTION 6.01. Events of Default 55
ARTICLE VII
SECTION 7.01. Unconditional Guarantee 58
SECTION 7.02. Guarantee Absolute 58
SECTION 7.03. Waivers 59
SECTION 7.04. Subrogation 60
SECTION 7.05. Continuing Guarantee; Assignments 60
ARTICLE VIII
SECTION 8.01. Authorization and Action 61
SECTION 8.02. Administrative Agent's Reliance, Etc. 61
SECTION 8.03. Administrative Agent and Affiliates 62
SECTION 8.04. Lender Credit Decision 62
SECTION 8.05. Indemnification 62
SECTION 8.06. Successor Administrative Agent 63
ARTICLE IX
SECTION 9.01. Amendments, Etc. 63
SECTION 9.02. Notices, Etc. 64
SECTION 9.03. No Waiver; Remedies 65
SECTION 9.04. Costs and Expenses 65
SECTION 9.05. Right of Setoff 67
SECTION 9.06. Binding Effect 67
SECTION 9.07. Assignments and Participations 68
SECTION 9.08. Designated Subsidiaries 73
SECTION 9.09. Confidentiality 73
SECTION 9.10. Governing Law 73
SECTION 9.11. Execution in Counterparts 74
SECTION 9.12. Jurisdiction, Etc. 74
SECTION 9.13. Waiver of Jury Trial 75
SCHEDULES
Schedule I - Applicable Lending Office
Schedule 4.01 - Environmental Compliance
Schedule 5.02(a) - Existing Liens
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Master Discounted Note
Exhibit B - Form of Notice of Revolving Credit Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E-1 - Form of Opinion of Counsel for the Borrowers
Exhibit E-2 - Form of Opinion of Special Counsel
for a Designated Subsidiary
Exhibit F - Form of Designation Letter
Exhibit G - Form of Acceptance of Process Agent
364-DAY CREDIT AGREEMENT
Dated as of April 4, 2002
THE BLACK & ▇▇▇▇▇▇ CORPORATION, a Maryland corporation (the
"Company"), BLACK & ▇▇▇▇▇▇ HOLDINGS INC., a Delaware corporation ("Holdings"
and, together with the Company, the "Initial Borrowers"), the banks, financial
institutions and other institutional lenders (collectively, the "Initial
Lenders") listed on the signature pages hereof, CITIBANK, N.A. ("Citibank"), as
the administrative agent (together with any successor agent appointed pursuant
to Article VIII, the "Administrative Agent") for the Lenders (as hereinafter
defined), JPMORGAN CHASE BANK ("JPMorgan"), as syndication agent (the
"Syndication Agent") and Bank of America, N.A., Commerzbank AG, New York and
Grand Cayman Branches and HSBC Bank USA, as co-syndication agents for the
Lenders, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Accreted Value" means, with respect to each Discounted Note
comprising part of the same Revolving Credit Borrowing at any date of
determination, an amount equal to the sum of (a) the Discounted
Purchase Price of such Discounted Note and (b) the portion of the
Discount applicable to such Discounted Note that shall have accreted
from the date of such Revolving Credit Borrowing until such date.
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account no. ▇▇▇▇▇▇▇▇ and such other
account of the Administrative Agent as is designated in writing from
time to time by the Administrative Agent to the Borrowers and the
Lenders for such purpose.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or
otherwise.
"Agreement" means this 364-Day Credit Agreement, as it may be
amended from time to time in accordance with Section 9.01.
"Agreement Value" means, with respect to any Hedge Agreement
at any date of determination, the amount, if any, that would be payable
to any bank thereunder in respect of the "agreement value" under such
Hedge Agreement if such Hedge Agreement were terminated on such date,
calculated as provided in the International Swap Dealers Association,
Inc. Code of Standard Wording, Assumptions and Provisions for Swaps,
1986 Edition.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Base Rate Lending Office in the case of a Base
Rate Advance or a Discounted Note and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance.
"Applicable Margin" means, at any time and from time to time,
a percentage per annum equal to the applicable percentage set forth
below for the Performance Level set forth below:
------------- --------------------- ----------------------
Performance Applicable Margin Applicable Margin
Level for Eurodollar for Eurodollar
Rate Advances Prior Rate Advances On
to the Term Loan and After the Term
Conversion Date Loan Conversion Date
------------- --------------------- ----------------------
I 0.275% 0.700%
------------- --------------------- ----------------------
II 0.400% 0.875%
------------- --------------------- ----------------------
III 0.500% 1.000%
------------- --------------------- ----------------------
IV 0.725% 1.250%
------------- --------------------- ----------------------
V 1.050% 1.750%
------------- --------------------- ----------------------
The Applicable Margin for (a) each Eurodollar Rate Advance shall be
determined by reference to the Performance Level in effect from time to
time and (b) each Discounted Note shall be determined by reference to
the Performance Level in effect two Business Days before the date such
Discounted Note is purchased by a Lender.
"Applicable Percentage" means, at any time and from time to
time, a percentage per annum equal to the applicable percentage set
forth below for the Performance Level set forth below:
--------------------- ----------------------
Performance
Level Facility Fee
--------------------- ----------------------
I 0.075%
--------------------- ----------------------
II 0.100%
--------------------- ----------------------
III 0.125%
--------------------- ----------------------
IV 0.150%
--------------------- ----------------------
V 0.200%
--------------------- ----------------------
The Applicable Percentage for the Facility Fee shall be determined by
reference to the Performance Level in effect from time to time.
"Applicable Utilization Fee" means, at any time prior to the
Term Loan Conversion Date that the aggregate principal amount of the
Revolving Credit Advances then outstanding plus the aggregate
Discounted Purchase Price of all Discounted Notes then outstanding
exceeds 50% of the aggregate Commitments, a percentage per annum equal
to the applicable percentage set forth below for the Performance Level
set forth below:
--------------------- ----------------------
Performance
Level Utilization Fee
--------------------- ----------------------
I 0.100%
--------------------- ----------------------
II 0.125%
--------------------- ----------------------
III 0.125%
--------------------- ----------------------
IV 0.125%
--------------------- ----------------------
V 0.250%
--------------------- ----------------------
The Applicable Utilization Fee shall be determined by reference to the
Performance Level in effect from time to time.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent and, if applicable, the Company, in substantially
the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section
2.16(c).
"Assumption Agreement" means an assumption agreement entered
into by a Non-Consenting Lender and an Assuming Lender, and accepted by
the Administrative Agent and the Company, in substantially the form of
Exhibit D hereto, pursuant to which such Assuming Lender agrees to
become a Lender hereunder pursuant to Section 2.16.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.06(a)(i).
"Base Rate Lending Office" means, with respect to any Lender,
the office of such Lender or any of its Affiliates specified as its
"Base Rate Lending Office" opposite its name on Schedule I hereto or in
the Assignment and Acceptance or in the Assumption Agreement, as the
case may be, pursuant to which it became a Lender, or such other office
of such Lender or any of its Affiliates as such Lender may from time to
time specify to the Company and the Administrative Agent for such
purpose.
"Borrowers" means, collectively, each Initial Borrower and
each Designated Subsidiary that shall become a party to this Agreement
pursuant to Section 9.08.
"Borrowers' Account" means, in the case of the Company, the
account of the Company, Account Number 4057-7058, in the case of
Holdings, the account of Holdings, Account Number 4076-2552, each at
Citibank at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
and such other account of the Borrowers (or any one of them) as is
agreed in writing from time to time among the Borrowers and the
Administrative Agent for such purpose.
"Borrowing" means a Revolving Credit Borrowing or a
Refinancing Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York, New York, or in
London, England, and, if the applicable Business Day relates to any
Eurodollar Rate Advance or any Discounted Note, on which dealings are
carried on in the London interbank market.
"Capitalized Leases" means all leases that have been or should
be, in accordance with generally accepted accounting principles in
effect from time to time, recorded as capitalized leases.
"Cash Flow Coverage Ratio" means, with respect to the Company
and its Subsidiaries at any date of determination, the ratio of (a)
EBITDA of the Company and its Subsidiaries for the most recently
completed consecutive four fiscal quarter period ending on such date to
(b) Consolidated Net Interest Expense for the most recently completed
consecutive four fiscal quarter period ending on such date less
interest income on cash deposits maintained by Chesapeake Holdings or
its Subsidiaries (to the extent not included in Consolidated Net
Interest Expense) for that period, in each case calculated on the basis
of generally accepted accounting principles consistent with those
applied by the Company in the preparation of the 2000 Audited Financial
Statements. Calculations of the Cash Flow Coverage Ratio shall exclude
all effects of unusual or nonrecurring credits or charges.
"Change of Control" means the occurrence of any of the
following:
(a) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended) becomes the "beneficial owner" (as defined in Rule
13d-3 of the Securities Exchange Act of 1934, as amended),
directly or indirectly, of Voting Stock of the Company (or
securities convertible into or exchangeable for such Voting
Stock) representing more than 30% of the combined voting power
of all Voting Stock of the Company (on a fully diluted basis);
or
(b) a majority of the members of the board of
directors of the Company are not Continuing Directors at any
time.
"Chesapeake Holdings" means Chesapeake Falls Holdings Company,
an unlimited company organized under the laws of the Republic of
Ireland.
"Citibank" has the meaning specified in the recital of parties
to this Agreement.
"Commitment" means, with respect to any Lender, the amount set
forth opposite such Lender's name on the signature pages hereof under
the caption "Commitment" or, if such Lender has entered into an
Assignment and Acceptance or an Assumption Agreement, as the case may
be, the amount set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 9.07(d), in each case as
such amount may be reduced pursuant to Section 2.04 or increased
pursuant to Section 2.16.
"Company" has the meaning specified in the recital of parties
to this Agreement.
"Confidential Information" means information furnished by or
on behalf of any Borrower to the Administrative Agent or any Lender in
connection with this Agreement in a writing designated by such Borrower
as confidential, but does not include any such information that (a) is
or becomes generally available to the public, (b) was available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
its disclosure to the Administrative Agent or such Lender by any
Borrower or any of its Subsidiaries or (c) is or becomes available to
the Administrative Agent or such Lender on a nonconfidential basis from
a source other than any Borrower or any of its Subsidiaries.
"Consenting Lender" has the meaning specified in Section
2.16(b).
"Consolidated Net Interest Expense" means, with respect to the
Company and its Subsidiaries for any period, (a) total interest expense
(including, without limitation, the interest component on all
obligations under Capitalized Leases during such period and all
Discounts accrued during such period) of the Company and its
Subsidiaries for such period plus (b) all dividends declared on
Mandatorily Redeemable Stock during such period less (c) total interest
income of the Company and its Subsidiaries for such period, in each
case determined on a consolidated basis for the Company and its
Subsidiaries and in accordance with generally accepted accounting
principles consistent with those applied by the Company in the
preparation of the 2000 Audited Financial Statements.
"Continuing Director" means an individual who is a member of
the board of directors of the Company on the date of this Agreement or
whose election to the board of directors of the Company is approved by
a majority of the other Continuing Directors.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of another Type or the continuation of Revolving Credit
Advances of the same Type for another Interest Period pursuant to
Section 2.07 or 2.08.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender at any
time, the portion of any Revolving Credit Advance required to be made
by such Lender to any Borrower, or the portion of any Discounted Note
required to be purchased by such Lender from Holdings, pursuant to
Sections 2.01 and 2.02 at or prior to such time that has not been made
or purchased by such Lender or by the Administrative Agent for the
account of such Lender pursuant to Section 2.02(c) as of such time. In
the event that a portion of a Defaulted Advance shall be deemed made
pursuant to Section 2.15, the remaining portion of such Defaulted
Advance shall be considered a Defaulted Advance originally required to
be made pursuant to Sections 2.01 and 2.02 on the same date as the
Defaulted Advance so deemed made in part.
"Defaulting Lender" means, at any time, any Lender that at
such time owes a Defaulted Advance.
"Designated Subsidiary" means any Substantially Owned
Subsidiary designated after the date of this Agreement for borrowing
privileges hereunder pursuant to Section 9.08.
"Designation Letter" means a letter entered into by a
Designated Subsidiary, the Company and the Administrative Agent, in
substantially the form of Exhibit F hereto, pursuant to which such
Designated Subsidiary shall become a Borrower hereunder in accordance
with Section 9.08.
"Discount" means, for each Discounted Note comprising part of
the same Revolving Credit Borrowing, the amount obtained by dividing
(a) the product of (i) the Face Amount of such Discounted Note
multiplied by (ii) the product of (A)(1) the Eurodollar Rate for US
Dollars for such Discounted Note plus (2) the Applicable Margin for
such Discounted Note plus (3) the Applicable Utilization Fee, if any,
multiplied by (B) a fraction the numerator of which is the number of
days in the term to Maturity Date of such Discounted Note and the
denominator of which is 360 days by (b) the sum of (i) one and (ii) the
product of (A)(1) the Eurodollar Rate for US Dollars for such
Discounted Note plus (2) the Applicable Margin in effect for such
Discounted Note plus (3) the Applicable Utilization Fee, if any,
multiplied by (B) a fraction the numerator of which is the number of
days in the term to Maturity Date of such Discounted Note and the
denominator of which is 360 days.
"Discounted Note" means any payment obligation of Holdings
evidenced by the Master Discounted Note and purchased by a Lender
pursuant to Section 2.01(b).
"Discounted Purchase Price" means, with respect to any
Discounted Note purchased by any Lender, the difference between (a) the
Face Amount of such Discounted Note and (b) the Discount applicable to
such Discounted Note.
"EBITDA" means, for any period, (a) earnings before income
taxes for such period as set forth on the consolidated statements of
earnings of the Company and its Subsidiaries for such period less (or
plus) (b) other income (or expense) of the Company and its Subsidiaries
for such period to the extent included in earnings before income taxes
plus (c) Consolidated Net Interest Expense for such period plus (d) all
charges for depreciation and amortization for such period as set forth
in the consolidated statements of cash flows of the Company and its
Subsidiaries for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) a Lender, (b) an Affiliate of a
Lender or (c) any other Person approved by the Administrative Agent and
the Company, such approval not to be unreasonably withheld or delayed;
provided, however, that neither the Company nor an Affiliate of the
Company shall qualify as an Eligible Assignee.
"Environmental Action" means any suit, demand, demand letter,
claim, notice of noncompliance or violation, notice of liability or
potential liability, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, any Environmental Permit
or any Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment, including, without
limitation, (a) by any Governmental Authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any
Governmental Authority or any other third party for damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial determination relating to pollution or to protection
of the environment, health, safety or natural resources, including,
without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Lien" means a Lien in favor of a Governmental
Authority securing (a) any liability under any Environmental Law or any
Environmental Permit or (b) damages arising from, or remediation costs
or injunctive relief imposed by a Governmental Authority in response
to, the release or threatened release of Hazardous Materials.
"Environmental Permit" means any permit, license or other
authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
the rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Company's controlled group, or under
common control with the Company, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means:
(a) (i) the occurrence of a reportable event, within
the meaning of Section 4043(c) of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such
event has been waived by the PBGC or (ii) the requirements of
paragraph (1) of Section 4043(b) of ERISA (without regard to
paragraph (2) of such Section) are met with a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a
Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA could reasonably be
expected to occur with respect to such Plan within the
following 30 days;
(b) the application for a minimum funding waiver with
respect to a Plan;
(c) the provision by the administrator of any Plan of
a notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA in a distress termination under Section
4041(c) of ERISA (including any such notice with respect to a
plan amendment referred to in Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of any
Borrower or any ERISA Affiliate in the circumstances described
in Section 4062(e) of ERISA which could reasonably be expected
to give rise to liability under Section 4062, 4063 or 4063 of
ERISA;
(e) the withdrawal by any Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA;
(f) the conditions for the imposition of a lien under
Section 302(f) of ERISA shall have been met with respect to
any Plan;
(g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307
of ERISA; or
(h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042
of ERISA, that constitutes grounds for the termination of, or
the appointment of a trustee to administer, a Plan.
"Eurocurrency liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender or any of its Affiliates specified as its
"Eurodollar Lending Office" opposite its name on Schedule I hereto or
in the Assignment and Acceptance or the Assumption Agreement, as the
case may be, pursuant to which it became a Lender (or, if no such
office is specified, its Base Rate Lending Office), or such other
office of such Lender or any of its Affiliates as such Lender may from
time to time specify to the Company and the Administrative Agent for
such purpose.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing or for the term to Maturity Date of each Discounted Note
comprising part of the same Revolving Credit Borrowing, as the case may
be, an interest rate per annum equal to:
(a) the rate per annum appearing on Reuters Screen
LIBO Page as the London interbank offered rate for deposits in
U.S. Dollars at or about 11:00 A.M. (London time) two Business
Days before (i) in the case of each such Eurodollar Rate
Advance, the first day of such Interest Period and for a
period equal to such Interest Period and (ii) in the case of
each such Discounted Note, the date that such Discounted Note
is purchased by a Lender and for a period equal to the term to
Maturity Date thereof; or
(b) if such rate does not so appear on the Reuters
Screen LIBO Page at such time, the average (rounded upward to
the nearest whole multiple of 1/100 of 1% per annum, if such
average is not such a multiple) of the rates per annum at
which deposits in US Dollars are offered by the principal
office of each of the Reference Banks in London, England to
prime banks in the London interbank market at or about 11:00
A.M. (London time) two Business Days before (i) in the case of
each such Eurodollar Rate Advance, the first day of such
Interest Period in an amount substantially equal to such
Reference Bank's Eurodollar Rate Advance comprising part of
such Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period
and (ii) in the case of each such Discounted Note, the date
such Discounted Note is purchased by a Lender in an amount
substantially equal to such Reference Bank's Discounted Note
comprising part of such Revolving Credit Borrowing and for a
period equal to the term to Maturity Date thereof; provided
that any determination of the Eurodollar Rate for any Interest
Period pursuant to this clause (b) shall be determined by the
Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from the
Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of
Section 2.07.
"Eurodollar Rate Advance" means a Revolving Credit Advance
denominated in US Dollars that bears interest as provided in Section
2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" means, with respect to
any Lender for any Interest Period for any Eurodollar Rate Advance made
by such Lender from time to time, the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor thereto) for determining the
maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for such
Lender with respect to liabilities or assets consisting of or including
Eurocurrency liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest
rate on Eurodollar Rate Advances is determined) having a term equal to
such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing 364-Day Credit Agreement" means that certain 364-Day
Credit Agreement dated as of April 2, 2001 among the Company, Holdings,
the banks party thereto, Citibank, as Administrative Agent, JPMorgan, a
Division of Chase Securities Inc., as Documentation Agent, and Bank of
America, N.A. and Commerzbank AG, New York and Grand Cayman Branches,
as Co-Syndication Agents, as amended, supplemented or otherwise
modified through the date hereof.
"Extension Date" has the meaning specified in Section 2.16(b).
"Face Amount" means, with respect to any Discounted Note, the
amount payable to the holder of such Discounted Note on the Maturity
Date thereof.
"Facility Fee" has the meaning specified in Section 2.03(a).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"Financial Statements" means, with respect to any Person at
any date of determination:
(a) the financial statements of such Person and its
Subsidiaries included in the quarterly report of such Person
on Form 10-Q or the annual report of such Person on Form 10-K,
as the case may be, for the period ended on such date, in each
case as filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended,
and including all financial statements of such Person and its
Subsidiaries incorporated by reference therein; or
(b) if there is no quarterly report of such Person on
Form 10-Q or annual report of such Person on Form 10-K, as the
case may be, for the period ended on such date, a consolidated
balance sheet of such Person and its Subsidiaries as at such
date and consolidated statements of earnings and cash flow
and, as applicable, changes in financial position of such
Person and its Subsidiaries for the period ended on such date
and for the period commencing at the end of the immediately
preceding fiscal year of such Person and ending on such date,
setting forth in each case in comparative form the
corresponding figures as of the end of and for the
corresponding period in the immediately preceding fiscal year
of such Person and the corresponding figures as of the end of
and for the corresponding year-to-date period in the
immediately preceding fiscal year of such Person, all in
reasonable detail.
"Foreign Borrower" means each Designated Subsidiary organized
under the laws of a jurisdiction outside of the United States that
becomes a Borrower hereunder.
"Governmental Authority" means any nation or government or any
state, province or other political subdivision thereof, or any
governmental, executive, legislative, judicial, administrative or
regulatory agency, department, authority, instrumentality, commission,
board or similar body, whether federal, state, local or foreign.
"Guaranteed Obligations" has the meaning specified in Section
7.01.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Holdings" has the meaning specified in the recital of parties
to this Agreement.
"Home Jurisdiction Withholding Taxes" means in the case of the
Company, withholding for United States income taxes, United States
back-up withholding taxes and United States withholding taxes.
"Indebtedness" means, with respect to any Person (without
duplication):
(a) all indebtedness of such Person for borrowed
money;
(b) all obligations of such Person for the deferred
purchase price of property and assets or services (other than
trade payables incurred in the ordinary course of such
Person's business but only if and for so long as the same
remains payable on customary trade terms);
(c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments;
(d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement
with respect to property or assets acquired by such Person
(even though the rights and remedies of the seller or the
lender under such agreement in the event of default are
limited to repossession or sale of such property or assets);
(e) all obligations of such Person as lessee under
Capitalized Leases;
(f) all obligations, contingent or otherwise, of such
Person in respect of acceptances, letters of credit or similar
extensions of credit;
(g) all obligations of such Person in respect of
Hedge Agreements, valued at the Agreement Value thereof;
(h) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in
respect of any Mandatorily Redeemable Stock, valued at the
greater of (i) its voluntary or involuntary liquidation
preference and (ii) the aggregate amount payable therefor upon
purchase, redemption, defeasance or payment therefor, except
for Senior Preferred Shares issued by Chesapeake Holdings
which will be valued at the amount attributed thereto on the
Company's Financial Statements;
(i) all Indebtedness of other Persons referred to in
clauses (a) through (h) above or clause (j) below guaranteed
directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Indebtedness
or to advance or supply funds for the payment or purchase of
such Indebtedness, (ii) to purchase, sell or lease (as lessee
or lessor) property or assets, or to purchase or sell
services, primarily for the purpose of enabling the debtor to
make payment of such Indebtedness or to assure the holder of
such Indebtedness against loss, (iii) to supply funds to, or
in any other manner to invest in, the debtor (including any
agreement to pay for property, assets or services irrespective
of whether such property or assets are received or such
services are rendered) or (iv) otherwise to assure a creditor
against loss; and
(j) all Indebtedness referred to in clauses (a)
through (i) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property and assets (including,
without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness.
"Indemnified Party" has the meaning specified in Section
9.04(b).
"Initial Borrowers" has the meaning specified in the recital
of parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing, the period
commencing on the date of such Eurodollar Rate Advance or the date of
the Conversion of any Base Rate Advance into such Eurodollar Rate
Advance and ending on the last day of the period selected by the
Borrower requesting such Borrowing or Conversion pursuant to the
provisions below and, thereafter, with respect to any such Eurodollar
Rate Advance, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, and subject to clause (c) of this definition, nine or twelve
months, as the Borrower requesting such Borrowing or Conversion may,
upon notice received by the Administrative Agent in accordance with the
applicable provisions of Section 2.02(a) or 2.08, as the case may be,
select; provided, however, that:
(a) such Borrower may not select any Interest Period
that ends after the scheduled Termination Date except that, if
the Revolving Credit Advances have been converted to term
loans pursuant to Section 2.05 prior to such selection, such
Borrower may not select any Interest Period that ends after
the Term Loan Maturity Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing shall be of the same duration;
(c) in the case of any such Revolving Credit
Borrowing, such Borrower shall not be entitled to select an
Interest Period having a duration of nine or twelve months
unless, by 2:00 P.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period,
each Lender notifies the Administrative Agent that such Lender
will be providing funding for such Revolving Credit Borrowing
with such Interest Period (the failure of any Lender to so
respond by such time being deemed for all purposes of this
Agreement as an objection by such Lender to the requested
duration of such Interest Period); provided that, if any or
all of the Lenders object to the requested duration of such
Interest Period, the duration of the Interest Period for such
Revolving Credit Borrowing shall be one, two, three or six
months, as specified by the Borrower requesting such Revolving
Credit Borrowing in the applicable Notice of Revolving Credit
Borrowing as the desired alternative to an Interest Period of
nine or twelve months;
(d) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day; provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next succeeding calendar month, the
last day of such Interest Period shall occur on the
immediately preceding Business Day; and
(e) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
the rulings issued thereunder.
"JPMorgan" has the meaning specified in the recital of parties
to this Agreement.
"Lenders" means, collectively, each Initial Lender and each
other Person that shall become a party hereto pursuant to Section 2.16
or 9.07(a), (b) and (c).
"Leverage Ratio" means, with respect to the Company and its
Subsidiaries at any date of determination, the ratio of (a) the sum
(without duplication) of (i) all Reported Net Indebtedness at such
date, (ii) all Mandatorily Redeemable Stock of the Company and its
Subsidiaries outstanding at such date (valued at the greater of (A) its
voluntary or involuntary liquidation preference and (B) the aggregate
amount payable therefor upon purchase, redemption, defeasance or
payment therefor, except for Senior Preferred Shares issued by
Chesapeake Holdings which will be valued at the amount attributed
thereto on the Company's Financial Statements), determined on a
consolidated basis less the amount of any cash deposits maintained by
Chesapeake Holdings or its Subsidiaries that secure a redemption
payment obligation thereon (to the extent the deposits are not included
as cash or cash equivalents in Reported Net Indebtedness), (iii) the
aggregate book value of all accounts receivable on the books of the
purchasers thereof sold by the Company or any of its Subsidiaries to
any Person other than the Company or any of its Subsidiaries at such
date and (iv) all outstanding obligations of any Person for borrowed
money (other than any such obligations of employees in an aggregate
amount not to exceed $10,000,000 (or the equivalent thereof in one or
more foreign currencies)) that is guaranteed or in effect guaranteed
by, or secured by a Lien on the property or assets of, the Company or
any of its Subsidiaries at such date to (b) EBITDA of the Company and
its Subsidiaries for the most recently completed consecutive four
fiscal quarters ending on such date, in each case calculated on the
basis of generally accepted accounting principles consistent with those
applied by the Company in the preparation of the 2000 Audited Financial
Statements. Calculations of the Leverage Ratio shall exclude all
effects of unusual or nonrecurring credits or charges after December
31, 2000.
"Lien" means any lien, security or other charge or encumbrance
of any kind, or any other type of preferential arrangement entered into
as security, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of way
or other encumbrance on title to real property, but shall not include
the interest of a third party in receivables sold by any Person to such
third party on a nonrecourse basis.
"Mandatorily Redeemable Stock" means, at any date of
determination, (a) with respect to any Person, any shares of capital
stock of (or other similar ownership interest in) such Person or any
other Person that, at such date, (i) are redeemable, payable or
required to be purchased or otherwise retired or extinguished, or are
convertible into any Indebtedness or other liability of such Person,
whether mandatorily or at the option of the holder thereof (except if
an event must occur to cause or permit the holder thereof to require
redemption or repurchase of such capital stock (or such other ownership
interest) and such event has not occurred at such date), prior to the
then scheduled Termination Date or (ii) are convertible into any shares
of capital stock (or other similar ownership interest) of the types
referred to in subclause (a)(i) above and (b) in addition, with respect
to Chesapeake Holdings, its Senior Preferred Shares of all classes.
"Master Discounted Note" means a promissory note of Holdings
in favor of the Administrative Agent, for the account of the Lenders,
in substantially the form of Exhibit A-2 hereto, evidencing the
aggregate indebtedness of Holdings to the Lenders under or in respect
of Discounted Notes.
"Material Adverse Effect" means any material adverse effect on
(a) the ability of the Company and its Subsidiaries, taken as a whole,
to perform the obligations of the Borrowers under this Agreement and
the Notes or (b) the legality, binding nature, validity or
enforceability of this Agreement or any Note as an obligation of any
Borrower that is intended to be a party thereto.
"Maturity Date" means, for each Discounted Note comprising
part of the same Revolving Credit Borrowing, the date on which the Face
Amount for such Discounted Note becomes due and payable in accordance
with the provisions set forth below, which shall be a day occurring
one, two, three or six months after the date on which such Discounted
Note is purchased by a Lender as part of any Revolving Credit
Borrowing, as Holdings may, upon notice received by the Administrative
Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date on which such Discounted Note is to be
purchased, select; provided, however, that:
(a) Holdings may not select a Maturity Date for any
Discounted Note that occurs after the scheduled Termination
Date except that, if the Revolving Credit Advances have been
converted to term loans pursuant to Section 2.05 prior to such
selection, Holdings may not select a Maturity Date for any
Discounted Note that occurs after the Term Loan Maturity Date;
(b) the Maturity Dates for all Discounted Notes
comprising part of the same Revolving Credit Borrowing shall
occur on the same date;
(c) Discounted Notes may not be Converted;
(d) whenever the Maturity Date for any Discounted
Note would otherwise occur on a day other than a Business Day,
such Maturity Date shall be extended to occur on the next
succeeding Business Day; provided, however, that, if such
extension would cause the Maturity Date for such Discounted
Note to occur in the next succeeding calendar month or to be
more than 183 days after the date that such Discounted Note
was purchased by a Lender, the Maturity Date thereof shall
occur on the immediately preceding Business Day; and
(e) whenever the date that any Discounted Notes was
purchased by a Lender occurs on a day of an initial calendar
month for which there is no numerically corresponding day the
calendar month that succeeds such initial calendar month by
the number of months equal to the number of months selected by
Holdings in its notice to the Administrative Agent for such
Discounted Note, the Maturity Date thereof shall be the last
Business Day of such succeeding calendar month.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any
successor thereto acceptable to the Required Lenders.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Borrower or any ERISA Affiliate and at least one
Person other than the Borrowers and the ERISA Affiliates or (b) was so
maintained and in respect of which any Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Non-Consenting Lender" has the meaning specified in Section
2.16(b).
"Note" means a Revolving Credit Note, a Discounted Note or a
Master Discounted Note, as the context may require.
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"Other Taxes" has the meaning specified in Section 2.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Performance Level" means Performance Level I, Performance
Level II, Performance Level III, Performance Level IV or Performance
Level V, as appropriate.
"Performance Level I" means, at any date of determination, the
non-credit enhanced long-term senior unsecured public debt of the
Company shall have a Public Debt Rating in effect on such date of at
least A- by S&P or at least A3 by ▇▇▇▇▇'▇.
"Performance Level II" means, at any date of determination,
(a) the Performance Level does not meet the requirements of Performance
Level I and (b) the non-credit enhanced long-term senior unsecured
public debt of the Company shall have a Public Debt Rating in effect on
such date of at least BBB+ by S&P or at least Baa1 by ▇▇▇▇▇'▇.
"Performance Level III" means, at any date of determination,
(a) the Performance Level does not meet the requirements of Performance
Level I or Performance Level II and (b) the non-credit enhanced
long-term senior unsecured public debt of the Company shall have a
Public Debt Rating in effect on such date of at least BBB by S&P or at
least Baa2 by ▇▇▇▇▇'▇.
"Performance Level IV" means, at any date of determination,
(a) the Performance Level does not meet the requirements of Performance
Level I, Performance Level II or Performance Level III and (b) the
non-credit enhanced long-term senior unsecured public debt of the
Company shall have a Public Debt Rating in effect on such date of at
least BBB- by S&P or at least Baa3 by ▇▇▇▇▇'▇.
"Performance Level V" means, at any date of determination, the
Performance Level does not meet the requirements of Performance Level
I, Performance Level II, Performance Level III or Performance Level IV.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced and remain unstayed:
(a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under
Section 5.01(b);
(b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and
other similar Liens arising in the ordinary course of business
securing obligations (other than Indebtedness for borrowed
money) that (i) are not overdue for a period of more than 30
days or (ii) are being contested in good faith and by proper
proceedings and as to which appropriate reserves are being
maintained in accordance with generally accepted accounting
principles in effect from time to time;
(c) pledges or deposits to secure obligations under
workers' compensation laws or other similar legislation (other
than in respect of employee benefit plans subject to ERISA) or
to secure public or statutory obligations;
(d) Liens securing the performance of, or payment in
respect of, bids, tenders, government contracts (other than
for the repayment of borrowed money), surety and appeal bonds
and other obligations of a similar nature incurred in the
ordinary course of business;
(e) any interest or title of a lessor or sublessor
and any restriction or encumbrance to which the interest or
title of such lessor or sublessor may be subject that is
incurred in the ordinary course of business and, either
individually or when aggregated with all other Permitted Liens
in effect on any date of determination, could not be
reasonably expected to have a Material Adverse Effect; and
(f) easements, rights of way, zoning restrictions and
other encumbrances on title to real property that do not,
either individually or in the aggregate, render title to the
property encumbered thereby unmarketable or materially and
adversely affect the use of such property for its present
purposes.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pro Rata Share" of any amount means, with respect to any
Lender at any time, the product of (a) a fraction the numerator of
which is the amount of such Lender's Commitment at such time and the
denominator of which is the aggregate Commitments of all Lenders at
such time and (b) such amount.
"Public Debt Rating" means, as of any date of determination,
the rating that has been most recently announced by either S&P or
▇▇▇▇▇'▇, as the case may be, for any class of non-credit enhanced
long-term senior unsecured public debt issued or to be issued by the
Company. For purposes of the foregoing:
(a) if only one of S&P and ▇▇▇▇▇'▇ shall have in
effect a Public Debt Rating, the Applicable Margin, the
Applicable Percentage and the Applicable Utilization Fee shall
be determined by reference to the available rating;
(b) if, at any time, neither S&P nor ▇▇▇▇▇'▇ shall
have in effect a Public Debt Rating, the Applicable Margin,
the Applicable Percentage and the Applicable Utilization Fee
shall be set in accordance with Performance Level V under the
definition of "Applicable Margin", "Applicable Percentage" or
"Applicable Utilization Fee", as the case may be;
(c) if the ratings established by S&P and ▇▇▇▇▇'▇
shall fall within different Performance Levels, the Applicable
Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be based upon the higher rating
therefrom; provided, however, that, if the lower of such
ratings is two Performance Levels below the higher of such
ratings, the Applicable Margin, the Applicable Percentage and
the Applicable Utilization Fee shall be set in accordance with
the Performance Level that is in the middle of such
Performance Levels; and provided further, however, that, if
the lower of such ratings is more than two Performance Levels
below the higher of such ratings, the Applicable Margin, the
Applicable Percentage and the Applicable Utilization Fee shall
be deemed to be the average of the Applicable Margins, the
Applicable Percentages or the Applicable Utilization Fees, as
the case may be, that correspond to such ratings;
(d) if any rating established by S&P or ▇▇▇▇▇'▇ shall
be changed, such change shall be effective as of the first
Business Day after the date on which such change is announced
publicly by the rating agency making such change; and
(e) if S&P or ▇▇▇▇▇'▇ shall change the basis on which
ratings are established by it, each reference to the Public
Debt Rating announced by S&P or ▇▇▇▇▇'▇ shall refer to the
then equivalent rating by S&P or ▇▇▇▇▇'▇, as the case may be.
"Reference Banks" means Citibank, JPMorgan and Bank of
America, N.A. or, in the event that any one of such banks ceases to be
a Lender hereunder at any time, any other commercial bank designated by
the Company and approved by the Required Lenders as constituting a
"Reference Bank" hereunder.
"Refinancing Borrowing" means a Revolving Credit Borrowing
consisting of the purchase of Discounted Notes on such date to the
extent that (a) the Discounted Purchase Price thereof is not greater
than the Face Amount of the Discounted Notes maturing on such date and
(b) the proceeds of such Revolving Credit Borrowing are used to
repurchase the Discounted Notes maturing on such date.
"Register" has the meaning specified in Section 9.07(d).
"Reported Net Indebtedness" means, at any date of
determination, (a) the consolidated liabilities of the Company and its
Subsidiaries at such date that are for money borrowed or that
constitute short-term borrowings or long-term debt less (b) all cash
and cash equivalents of the Company and its Subsidiaries at such date,
determined in accordance with generally accepted accounting principles
consistent with those applied by the Company in the preparation of the
2000 Audited Financial Statements.
"Required Lenders" means, at any time, Lenders owed at least a
majority in interest of the aggregate unpaid principal amount of all
Revolving Credit Advances owing to, and the aggregate Face Amount of
all outstanding Discounted Notes purchased by, Lenders at such time,
or, if no such principal amount or Face Amount is outstanding at such
time, Lenders having at least a majority in interest of the Commitments
at such time.
"Responsible Officer" means the Chief Executive Officer, the
Chief Financial Officer, the Treasurer or the General Counsel of each
Borrower (or other executive officers of any Borrower performing
similar functions) or any other officer of any Borrower or any of its
Subsidiaries responsible for overseeing or reviewing compliance with
this Agreement and the Notes.
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance.
"Revolving Credit Borrowing" means a Borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made, or of the
simultaneous issuance of Discounted Notes by Holdings purchased, by
each of the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of any
Borrower payable to the order of any Lender, in substantially the form
of Exhibit A-1 hereto, evidencing the aggregate indebtedness of such
Borrower to such Lender resulting from the Revolving Credit Advances
made, and the Discounted Notes purchased, by such Lender.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc., or any successor thereto acceptable to the Required
Lenders.
"Significant Subsidiary" means, at any date of determination,
any Subsidiary of the Company that, either individually or together
with its Subsidiaries, taken as a whole, (a) accounted for more than
10% of the consolidated assets of the Company and its Subsidiaries as
of such date or (b) accounted for more than 10% of the consolidated net
income of the Company and its Subsidiaries for any of the three most
recently completed fiscal years of the Company prior to such date, in
each case as reflected on the applicable Financial Statements of the
Company at or prior to such date.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Borrower or any ERISA Affiliate and no Person other
than the Borrowers and the ERISA Affiliates or (b) was so maintained
and in respect of which any Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"SPC" has the meaning specified in Section 9.07(f).
"Subsidiary" means, with respect to any Person, any
corporation, partnership, joint venture, limited liability company,
trust or estate of which (or in which) more than 50% of
(a) the issued and outstanding shares of capital
stock having ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of
whether at the time shares of capital stock of any other class
or classes of such corporation shall or might have voting
power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such
limited liability company, partnership or joint venture, or
(c) the beneficial interest in such trust or estate,
is at the time, directly or indirectly, owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person's other Subsidiaries; provided, however,
that, for all purposes of this Agreement, Chesapeake Holdings shall
constitute a Subsidiary of the Company.
"Substantially Owned Subsidiary" means, at any time, any
Subsidiary of the Company of which (or in which) at least 80% of
(a) the issued and outstanding shares of capital
stock having ordinary voting power to elect a majority of the
board of directors of such Subsidiary (irrespective of whether
at the time shares of capital stock of any other class or
classes of such Subsidiary shall or might have voting power
upon the occurrence of any contingency), and/or
(b) all other ownership interests and rights to
acquire ownership interests in such Subsidiary,
is at such time, directly or indirectly, owned or controlled by the
Company, by the Company and one or more of its wholly owned
Subsidiaries or by one or more wholly owned Subsidiaries of the
Company.
"Syndication Agent" has the meaning specified in the recital
of parties to this Agreement.
"Taxes" has the meaning specified in Section 2.13(a).
"Term Loan Conversion Date" means the Termination Date on
which all Revolving Credit Advances outstanding on such date are
converted into term loans pursuant to Section 2.05.
"Term Loan Election" has the meaning specified in Section
2.05.
"Term Loan Maturity Date" means the earlier of (a) the first
anniversary of the Termination Date and (b) the date of termination in
whole of the aggregate Commitments pursuant to Section 2.04 or 6.01.
"Termination Date" means the earlier of (a) April 3, 2003,
subject to extension thereof pursuant to Section 2.16, and (b) the date
of termination in whole of the Commitments pursuant to Section 2.04 or
6.01; provided, however, that the Termination Date of any Lender that
is a Non-Consenting Lender pursuant to Section 2.16 shall be the
Termination Date in effect immediately prior to the applicable
Extension Date for all purposes of this Agreement.
"2000 Audited Financial Statements" means the Financial
Statements of the Company for the fiscal year of the Company ended
December 31, 2000, as filed with the Securities and Exchange Commission
on Form 10-K for such fiscal year.
"Type" refers to the distinction between Revolving Credit
Advances bearing interest at the Base Rate and at the Eurodollar Rate.
"Unused Commitment" means, with respect to any Lender at any
time, (a) such Lender's Commitment at such time less (b) the aggregate
principal amount of all Revolving Credit Advances made, and the
aggregate Face Amount of all Discounted Notes purchased, by such Lender
(in its capacity as a Lender) and outstanding at such time.
"US Dollars" and the "$" sign each mean the lawful money of
the United States of America.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
ARTICLE II
TERMS OF THE REVOLVING CREDIT ADVANCES AND
THE DISCOUNTED NOTES
SECTION 2.01. The Revolving Credit Advances. (a) The Revolving
Credit Advances. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Revolving Credit Advances to any Borrower from
time to time on any Business Day during the period from the Effective Date until
the Termination Date in an aggregate amount for each such Revolving Credit
Advance not to exceed such Lender's Unused Commitment on such Business Day. Each
Revolving Credit Borrowing comprised of Revolving Credit Advances shall be in an
aggregate amount of not less than $10,000,000 and shall consist of Revolving
Credit Advances of the same Type made on the same day by the Lenders according
to their respective Pro Rata Shares of such Revolving Credit Borrowing. Within
the limits of each Lender's Unused Commitment, any Borrower may borrow under
this Section 2.01(a), prepay pursuant to Section 2.09 and reborrow under this
Section 2.01(a).
(b) The Discounted Notes. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to purchase Discounted Notes
denominated in US Dollars from Holdings from time to time on any Business Day
during the period from the Effective Date until the Termination Date in an
aggregate Face Amount for each such Discounted Note not to exceed such Lender's
Unused Commitment on such Business Day. Each Revolving Credit Borrowing
comprised of Discounted Notes shall be in an aggregate Face Amount of not less
than $10,000,000 and shall consist of Discounted Notes purchased on the same day
by the Lenders according to their respective Pro Rata Shares of such Revolving
Credit Borrowing. Within the limits of each Lender's Unused Commitment, Holdings
may borrow under this Section 2.01(b), repurchase pursuant to Section 2.09 and
reborrow under this Section 2.01(b).
SECTION 2.02. Making the Revolving Credit Advances and
Purchasing the Discounted Notes. (a) Each Revolving Credit Borrowing shall be
made on notice, given not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Revolving Credit Borrowing
in the case of a Revolving Credit Borrowing comprised of Eurodollar Rate
Advances or Discounted Notes, or not later than 9:00 A.M. (New York City time)
on the same Business Day as the date of the proposed Revolving Credit Borrowing
in the case of a Revolving Credit Borrowing comprised of Base Rate Advances, by
any Borrower to the Administrative Agent, which shall give each Lender prompt
notice thereof by telecopier or telex. Each such notice of a Revolving Credit
Borrowing (a "Notice of Revolving Credit Borrowing") shall be by telephone,
confirmed immediately in writing, or by telecopier or telex, in substantially
the form of Exhibit B hereto, specifying therein (i) the requested date of such
Revolving Credit Borrowing (which shall be a Business Day), (ii) whether
Discounted Notes or Revolving Credit Advances are to comprise such proposed
Revolving Credit Borrowing and, if Revolving Credit Advances, the requested Type
of Revolving Credit Advances comprising such proposed Revolving Credit
Borrowing, (iii) the requested aggregate principal amount (or, in the case of
Discounted Notes, the requested aggregate Face Amount) of such Revolving Credit
Borrowing and (iv) in the case of a Revolving Credit Borrowing consisting of (A)
Eurodollar Rate Advances, the requested initial Interest Period for each such
Revolving Credit Advance and (B) Discounted Notes, (1) the requested Maturity
Date of such Discounted Notes and (2) the amount of proceeds thereof, if any,
that are to constitute a Refinancing Borrowing. In the case of a proposed
Revolving Credit Borrowing consisting of Discounted Notes, the Administrative
Agent shall notify Holdings and each Lender not later than 9:00 A.M. (New York
City time) on the second Business Day prior to the date of such proposed
Revolving Credit Borrowing, by telecopier or telex, of the Discount applicable
to, and such Lender's Pro Rata Share of the aggregate Discounted Purchase Price
of, the Discounted Notes comprising such Revolving Credit Borrowing. Each Lender
shall, before 12:00 Noon (New York City time) on the date of such Revolving
Credit Borrowing, make available for the account of its Applicable Lending
Office to the Administrative Agent at the Administrative Agent's Account, in
same day funds, such Lender's Pro Rata Share of such Revolving Credit Borrowing
(other than any Revolving Credit Borrowing to the extent it constitutes a
Refinancing Borrowing), which, in the case of a Revolving Credit Borrowing
comprised of Discounted Notes, shall be equal for each Lender to the Discounted
Purchase Price of the Discounted Note purchased by such Lender as part of such
Revolving Credit Borrowing. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower
requesting such Revolving Credit Borrowing at the applicable Borrowers' Account
or at such other address and account number of such Borrower as is reasonably
acceptable to the Administrative Agent and as such Borrower shall have specified
in the related Notice of Revolving Credit Borrowing. In the case of any
Revolving Credit Borrowing that constitutes in whole or in part a Refinancing
Borrowing, upon fulfillment of the applicable conditions set forth in Article
III, the Discounted Purchase Price of the Discounted Notes comprising such
Refinancing Borrowing shall be applied to redeem all or a portion of the
Discounted Notes maturing on such Business Day, without any further action by,
or any transfer of funds to or from, Holdings, the Administrative Agent or any
Lender (other than the redemption of any portion of the Discounted Notes
maturing on such Business Day that exceeds the amount of such Refinancing
Borrowing).
(b) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower that requested such Borrowing. In the
case of any Revolving Credit Borrowing that the related Notice of Revolving
Credit Borrowing specifies is to be comprised of Eurodollar Rate Advances or
Discounted Notes, the Borrower that requested such Borrowing shall indemnify
each Lender against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified in the Notice
of Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Credit Advance to be made, or the Discounted Note
to be purchased, by such Lender as part of such Revolving Credit Borrowing when
such Revolving Credit Advance or such Discounted Note, as a result of such
failure, is not made or purchased on such date.
(c) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Revolving Credit Borrowing comprised of
Eurodollar Rate Advances, or prior to 12:00 Noon (New York City time) on the
date of any Revolving Credit Borrowing comprised of Base Rate Advances, that
such Lender will not make available to the Administrative Agent such Lender's
Pro Rata Share of such Revolving Credit Borrowing, the Administrative Agent may
assume that such Lender has made such Pro Rata Share available to the
Administrative Agent on the date of such Revolving Credit Borrowing in
accordance with Section 2.02(a) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower requesting such Revolving
Credit Borrowing on such date a corresponding amount. If and to the extent that
such Lender shall not have so made its Pro Rata Share available to the
Administrative Agent, such Lender and such Borrower severally agree to repay to,
or to repurchase from, the Administrative Agent forthwith on demand such amount,
and (except for any Discounted Notes repurchased by Holdings pursuant to clause
(i) of this sentence) to pay interest thereon, for each day from the date such
amount is made available to such Borrower until the date such amount is repaid
to, or repurchased from, the Administrative Agent, at (i) in the case of such
Borrower, the interest rate applicable at the time to the Revolving Credit
Advances, or the Accreted Value at such time of the Discounted Notes, comprising
such Revolving Credit Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to, or repurchase from, the
Administrative Agent such corresponding amount, such amount so repaid or so
repurchased shall constitute such Lender's Revolving Credit Advance or the
purchase by such Lender of its Discounted Note as part of such Revolving Credit
Borrowing for all purposes of this Agreement.
(d) The failure of any Lender to make the Revolving Credit
Advance to be made, or to purchase the Discounted Note to be purchased, by it as
part of any Revolving Credit Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Revolving Credit Advance or to
purchase its Discounted Note, as the case may be, on the date of such Revolving
Credit Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Revolving Credit Advance to be made, or to purchase the
Discounted Note to be purchased, by such other Lender on the date of any
Revolving Credit Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. Each Borrower jointly
and severally agrees to pay to the Administrative Agent, for the account of each
Lender, a facility fee (the "Facility Fee") on the daily amount of such Lender's
Commitment (whether used or unused) from the Effective Date in the case of each
Initial Lender and from the effective date specified in the Assignment and
Acceptance or the Assumption Agreement, as the case may be, pursuant to which it
became a Lender in the case of each other Lender until, in each case, the
Termination Date at a rate per annum equal to the Applicable Percentage in
effect from time to time, payable in arrears quarterly on the last Business Day
of each June, September, December and March, commencing June 28, 2002, and on
the Termination Date.
(b) Agents' Fees. The Company shall pay to each of the
Administrative Agent and the Syndication Agent, for its own account, such fees
as may from time to time be agreed in various fee letters between the Company,
on the one hand, and the Administrative Agent or the Syndication Agent, on the
other hand.
SECTION 2.04. Termination or Reduction of the Commitments. (a)
Optional. The Borrowers shall have the right, upon at least three Business Days'
notice to the Administrative Agent, to irrevocably terminate in whole or reduce
ratably in part the aggregate Unused Commitments of the Lenders; provided that
each partial reduction shall be in the aggregate amount of $25,000,000 or an
integral multiple of $1,000,000 in excess thereof or, if less, the aggregate
amount of the Commitments at such time.
(b) Mandatory. On the Termination Date and, if the Company has
made the Term Loan Election in accordance with Section 2.05 prior to
such date, from time to time thereafter upon each prepayment of the
Revolving Credit Advances and each redemption or repurchase of
Discounted Notes pursuant to Section 2.09, the Commitments of the
Lenders shall be automatically and permanently reduced on a pro rata
basis by an amount equal to the amount by which (i) the aggregate
Commitments immediately prior to such reduction exceeds (ii) the
aggregate unpaid principal amount of all Revolving Credit Advances and
the aggregate Face Amount of all Discounted Notes outstanding at such
time.
SECTION 2.05. Repayment of Revolving Credit Advances and
Repurchase of Discounted Notes. (a) Repayment of Revolving Credit Advances. Each
Borrower shall, subject to the next succeeding sentence, repay to the
Administrative Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Revolving Credit Advances then
outstanding. The Company may, upon not less than 15 days' notice to the
Administrative Agent, elect (the "Term Loan Election") on behalf of all
Borrowers to convert all of the Revolving Credit Advances outstanding on the
Termination Date in effect at such time into term loans which the applicable
Borrower shall repay in full ratably to the Lenders on the Term Loan Maturity
Date; provided that the Term Loan Election may not be exercised if a Default has
occurred and is continuing on the date of notice of the Term Loan Election or on
the date on which the Term Loan Election is to be effected. All Revolving Credit
Advances converted into term loans pursuant to this Section 2.05 shall continue
to constitute Revolving Credit Advances except that no Borrower may reborrow
pursuant to Section 2.01 after all or any portion of such Revolving Credit
Advances have been prepaid pursuant to Section 2.09.
(b) Repurchase of Discounted Notes. Holdings shall redeem or
repurchase all Discounted Notes from the Administrative Agent, for the ratable
account of the Lenders on the Maturity Date specified for such Discounted Notes
at the Face Amount of all such Discounted Notes comprising the same Revolving
Credit Borrowing.
SECTION 2.06. Interest on Revolving Credit Advances. (a)
Scheduled Interest. Each Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance made to such Borrower and owing to each
Lender from the date of such Revolving Credit Advance until such principal
amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (A) the Base Rate in effect from time to time plus
(B) the Applicable Utilization Fee, if any, in effect from time to
time, payable in arrears quarterly on the last Business Day of each
June, September, December and March during such periods and on the date
such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (A) the Eurodollar Rate for such Interest
Period for such Revolving Credit Advance plus (B) the Applicable Margin
in effect from time to time during such Interest Period plus (C) the
Applicable Utilization Fee, if any, in effect from time to time during
such Interest Period, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on
the date such Eurodollar Rate Advance shall be Converted or paid in
full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), each Borrower shall
pay interest on:
(i) the unpaid principal amount of each Revolving Credit
Advance made to such Borrower and owing to each Lender, payable in
arrears on the dates referred to in Section 2.06(a)(i) or 2.06(a)(ii),
at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Revolving Credit Advance pursuant
to Section 2.06(a)(i) or 2.06(a)(ii), as applicable;
(ii) to the fullest extent permitted by applicable law, the
amount of any interest, fees or other amounts (including, without
limitation, any Discounted Note) owing by such Borrower to the
Administrative Agent or any Lender under this Agreement or any Note
that is not paid when due, from the date such amount shall be due until
such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be
paid on Base Rate Advances pursuant to Section 2.06(a)(i).
(c) Additional Interest on Eurodollar Rate Advances. Each
Borrower shall pay to each Lender, so long as and to the extent such Lender
shall be required under regulations of the Board of Governors of the Federal
Reserve System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency liabilities, additional interest on the
unpaid principal amount of each Eurodollar Rate Advance of such Lender, from the
date of such Eurodollar Rate Advance until such principal amount is paid in
full, at an interest rate per annum equal at all times to the remainder obtained
by subtracting (a) the Eurodollar Rate for the applicable Interest Period for
such Eurodollar Rate Advance from (b) the rate obtained by dividing such
Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage of such Lender for such Interest Period, payable on each date on
which interest is otherwise payable on such Eurodollar Rate Advance. Such Lender
shall as soon as practicable provide notice to the Administrative Agent and the
Borrowers of any such additional interest arising in connection with any such
Eurodollar Rate Advance, which notice shall be conclusive and binding, absent
manifest error; provided, however, that no Lender shall be entitled to
additional interest on any Eurodollar Rate Advance pursuant to this Section
2.06(c) for any period occurring more than 90 days prior to the date that notice
of such additional interest is first provided by such Lender to the Borrowers.
SECTION 2.07. Interest Rate and Discount Determination. (a)
Each Reference Bank agrees to furnish to the Administrative Agent timely
information for the purpose of determining each Eurodollar Rate in accordance
with clause (b) of the definition thereof set forth in Section 1.01 and, if
necessary, each Discount. If any one of the Reference Banks shall not furnish
such timely information to the Administrative Agent for the purpose of
determining any such interest rate or Discount, the Administrative Agent shall
determine such interest rate or Discount on the basis of timely information
furnished by the remaining Reference Banks. The Administrative Agent shall give
prompt notice to the Borrowers and the Lenders of the applicable interest rate
determined by the Administrative Agent for purposes of Section 2.06(a)(i) or
2.06(a)(ii) and, if applicable, the rate, if any, furnished by each Reference
Bank for the purpose of determining the interest rate under Section 2.06(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Eurodollar Rate Advances will not adequately
reflect the cost to such Required Lenders of making, funding or maintaining
their respective Eurodollar Rate Advances for such Interest Period, the
Administrative Agent shall forthwith so notify the affected Borrowers and the
Lenders, whereupon (i) such Eurodollar Rate Advances will automatically, on the
last day of the then existing Interest Period therefor, Convert into Base Rate
Advances and (ii) the obligation of the Lenders to make Eurodollar Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrowers and
the Lenders that the circumstances causing such suspension no longer exist. If,
with respect to Discounted Notes having a particular Maturity Date, the Required
Lenders notify the Administrative Agent that the Eurodollar Rate for such
Discounted Notes will not adequately reflect the cost to such Required Lenders
of purchasing, funding or maintaining their respective Discounted Notes, the
Administrative Agent shall forthwith so notify Holdings and the Lenders,
whereupon the obligation of the Lenders to purchase such Discounted Notes or any
other Discounted Notes shall be suspended until the Administrative Agent shall
notify Holdings and the Lenders that the circumstances causing such suspension
no longer exist.
(c) If any Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances made or to be made to such
Borrower in accordance with the provisions contained in the definition of
"Interest Period" set forth in Section 1.01, the Administrative Agent will
forthwith so notify such Borrower and the Lenders and such Eurodollar Rate
Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a), (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make
Eurodollar Rate Advances, and to purchase Discounted Notes from Holdings, shall
be suspended.
(e) If fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the Eurodollar Rate for
any Eurodollar Rate Advances in accordance with clause (b) of the definition
thereof set forth in Section 1.01 or, if necessary, the Discount for any
Discounted Notes:
(i) the Administrative Agent shall forthwith notify the
affected Borrower and the Lenders that the interest rate cannot be
determined for such Eurodollar Rate Advances or that the Discount
cannot be determined for such Discounted Notes, as the case may be;
(ii) each such Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert
into a Base Rate Advance (or, if such Revolving Credit Advance is then
a Base Rate Advance, will continue as a Base Rate Advance); and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances, or to Convert Revolving Credit Advances into Eurodollar Rate
Advances, or to purchase Discounted Notes, shall be suspended until the
Administrative Agent shall notify the Borrowers and the Lenders that
the circumstances causing such suspension no longer exist.
SECTION 2.08. Optional Conversion of Revolving Credit
Advances. Each Borrower may on any Business Day on which no Default has occurred
and is continuing, upon notice given to the Administrative Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion in the case of a Conversion of Base Rate Advances into
Eurodollar Rate Advances or of Eurodollar Rate Advances of one Interest Period
into Eurodollar Rate Advances of another Interest Period, or not later than 1:00
P.M. (New York City time) on the same Business Day as the date of the proposed
Conversion in the case of a Conversion of Eurodollar Rate Advances into Base
Rate Advances, and, in any case, subject to the provisions of Sections 2.07,
2.08 and 2.12, Convert all Revolving Credit Advances comprising one or more
Borrowings into one or more Borrowings comprised of Revolving Credit Advances;
provided, however, that:
(a) No Conversion of Revolving Credit Advances shall result in
(i) any Revolving Credit Borrowing failing to comply with the second
sentence of Section 2.01 or (ii) the aggregate principal amount of all
outstanding Revolving Credit Advances, and the aggregate Face Amount of
all outstanding Discounted Notes, at the time of such Conversion
exceeding the aggregate Commitments of the Lenders at such time; and
(b) In the case of any Conversion of Eurodollar Rate Advances
of one Interest Period into Eurodollar Rate Advances of another
Interest Period or of Eurodollar Rate Advances into Base Rate Advances
other than on the last day of an Interest Period therefor, the Borrower
requesting such Conversion shall be obligated to reimburse the Lenders
in respect thereof pursuant to Section 9.04(c).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion (which shall be a Business Day), (ii)
the Revolving Credit Advances to be Converted and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
each such Revolving Credit Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower requesting such Conversion.
SECTION 2.09. Optional Prepayments of Revolving Credit
Advances and Repurchases of Discounted Notes. Each Borrower may, upon at least
the same Business Day's notice to the Administrative Agent received not later
than 11:00 A.M. (New York City time) in the case of a Revolving Credit Borrowing
consisting of Base Rate Advances, and upon at least three Business Days' notice
to the Administrative Agent received not later than 11:00 A.M. (New York City
time) in the case of a Revolving Credit Borrowing consisting of Eurodollar Rate
Advances or Discounted Notes, stating the proposed date and aggregate principal
amount of the prepayment or, in the case of Discounted Notes, aggregate Face
Amount of the repurchase, and if such notice is given such Borrower shall, (a)
in the case of Revolving Credit Advances, prepay the outstanding principal
amount of the Revolving Credit Advances comprising part of the same Revolving
Credit Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid, and (b) in the case
of Discounted Notes, repurchase, by payment of the Accreted Value to the date of
such repurchase of the outstanding Discounted Notes comprising part of the same
Revolving Credit Borrowing in whole or ratably in part; provided, however, that
(i) each partial prepayment or repurchase, as the case may be, shall be in an
aggregate amount of not less than $10,000,000 and (ii) in the case of any such
prepayment of Eurodollar Rate Advances or any such repurchase of Discounted
Notes, such Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 9.04(c).
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law, rule or regulation or (ii)
the compliance with, or the implementation or administration (or change in the
administration or enforcement) of, any directive, guideline or request from any
central bank or other Governmental Authority, whether or not having the force of
law, there shall be any increase in the cost to any Lender of agreeing to make
or making, to purchase or purchasing, funding or maintaining Eurodollar Rate
Advances or Discounted Notes, or any reduction in the amount owing to, or
effective return earned or realizable by, any Lender under this Agreement or any
Note in respect of any such Revolving Credit Advances or Discounted Notes, as
the case may be (including for purposes of this Section 2.10 any such increased
costs resulting from Taxes or Other Taxes for which the Borrowers are obligated
to reimburse the Administrative Agent or the Lenders under Section 2.13), then
the Borrowers jointly and severally agree to pay from time to time to the
Administrative Agent, for the account of such Lender, additional amounts
sufficient to compensate such Lender for all such increased costs or reduced
amounts or return, such additional compensation to be paid by the Borrowers
within 15 days of the date of demand therefor by such Lender (with a copy of
such demand to the Administrative Agent) for all additional compensation accrued
prior to such demand and on the dates specified by such Lender in such demand
for all such additional compensation owing to such Lender thereafter; provided,
however, that if a Lender fails to deliver a demand for any additional
compensation to which it is entitled under this Section 2.10(a) within 180 days
after such Lender becomes entitled thereto, such Lender shall only be entitled
to additional compensation for any such amounts incurred prior to the date of
such demand that accrued from and after the date that is 180 days prior to the
date such Lender delivers such demand and for all such additional compensation
that shall accrue on and after the date of such demand; and provided further,
however, that before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased cost or reduced amount or return and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such Lender. A
certificate as to the amount of such increased cost or reduced amount or return
in reasonable detail (including the basis of calculation thereof), submitted to
the Borrowers and the Administrative Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law,
rule or regulation or any directive, guideline or request from any central bank
or other Governmental Authority, or any change therein or in the implementation,
administration or enforcement thereof, that is enacted or becomes effective, or
is implemented or is first required or expected to be complied with, after the
date of this Agreement, whether or not having the force of law, affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or is based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then the
Borrowers jointly and severally agree to pay from time to time to the
Administrative Agent, for the account of such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's commitment
to lend hereunder, such additional compensation to be paid by the Borrowers
within 15 days of the date of demand therefor by such Lender (with a copy of
such demand to the Administrative Agent) for all additional compensation accrued
prior to such demand and on the dates specified by such Lender in such demand
for all such additional compensation owing to such Lender thereafter; provided,
however, that if a Lender fails to deliver a demand for any additional
compensation to which it is entitled under this Section 2.10(b) within 180 days
after such Lender becomes entitled thereto, such Lender shall only be entitled
to additional compensation for any such amounts incurred prior to the date of
such demand that accrued from and after the date that is 180 days prior to the
date such Lender delivers such demand and for all such additional compensation
that shall accrue on and after the date of such demand. A certificate as to such
amounts in reasonable detail (including the basis of calculation thereof),
submitted to the Borrowers and the Administrative Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(c) If a Lender demands additional compensation under Section
2.10(a) or 2.10(b) with respect to Eurodollar Rate Advances or Discounted Notes,
the Borrowers may (but shall not be obligated to), upon at least five Business
Days' notice to such Lender (with a copy of such notice to the Administrative
Agent), elect that, until the circumstances causing such demand for additional
compensation no longer apply to such Lender, all Eurodollar Rate Advances that
would otherwise be made, and all Discounted Notes that would otherwise be
purchased, by such Lender as part of any Revolving Credit Borrowing shall be
made instead as Base Rate Advances, and all payments of principal of and
interest on such Base Rate Advances shall be made at the same time as payments
on the Eurodollar Rate Advances or the Discounted Notes, as the case may be,
otherwise comprising part of such Revolving Credit Borrowing.
SECTION 2.11. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law, rule or
regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to purchase Discounted Notes, or to fund or maintain Eurodollar Rate Advances or
Discounted Notes, (a) each Eurodollar Rate Advance of such Lender will
automatically, on the last day of the Interest Period then in effect therefor if
permitted by applicable law or otherwise upon demand, Convert into a Base Rate
Advance and (b) the obligation of such Lender to make Eurodollar Rate Advances,
to Convert Revolving Credit Advances into Eurodollar Rate Advances or to
purchase Discounted Notes shall be suspended until the Administrative Agent
shall notify the Borrowers (promptly following notice from such Lender) that the
circumstances causing such suspension no longer exist; provided, however, that
before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Eurodollar Lending Office if the making of such a
designation would allow such Lender or its Eurodollar Lending Office to continue
to perform its obligations to make Eurodollar Rate Advances, and to purchase
Discounted Notes, or to continue to fund or maintain Eurodollar Rate Advances or
Discounted Notes, and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. If the obligation of a Lender to make
Eurodollar Rate Advances or to purchase Discounted Notes is suspended pursuant
to this Section 2.11, then, until the circumstances causing such suspension no
longer apply to such Lender, all Eurodollar Rate Advances that would otherwise
be made, and all Discounted Notes that would otherwise be purchased, by such
Lender as part of any Revolving Credit Borrowing shall be made instead as Base
Rate Advances, and all payments of principal of and interest on such Base Rate
Advances shall be made at the same time as payments on the Eurodollar Rate
Advances or the Discounted Notes, as the case may be, otherwise comprising part
of such Revolving Credit Borrowing.
SECTION 2.12. Payments and Computations. (a) Each Borrower
shall make each payment required to be made by it hereunder and under the Notes
not later than 11:00 A.M. (New York City time) on the day when due in US Dollars
to the Administrative Agent at the Administrative Agent's Account, in same day
funds. The Administrative Agent will promptly thereafter cause to be distributed
like funds relating to the payment of principal or interest or the Facility Fee
ratably (other than amounts payable pursuant to Section 2.02(c), 2.06(c), 2.10,
2.11, 2.13, 2.14, 2.16 or 9.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves. Upon any Assuming Lender becoming a
Lender hereunder as a result of an extension of the Termination Date pursuant to
Section 2.16, and upon the Administrative Agent's receipt of such Lender's
Assumption Agreement and recording the information contained therein in the
Register pursuant to Section 2.16(d), from and after the applicable Extension
Date, the Administrative Agent shall make all payments hereunder and under the
Notes in respect of the interest assumed thereby to the Assuming Lender.
(b) All computations of interest that are based on clause (a)
of the definition of "Base Rate" set forth in Section 1.01 and of Facility Fees
shall be made by the Administrative Agent on the basis of a year of 365 or 366
days, as the case may be, and all computations of interest that are otherwise
based on the Eurodollar Rate or that are based on the Federal Funds Rate and of
Discount and of the Applicable Utilization Fee shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are payable or such
Discount has accreted. Each determination by the Administrative Agent of an
interest rate or Discount hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or fees, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances, or the payment of the Face
Amount or the Accreted Value of any Discounted Notes, to be made in the next
following calendar month, such payment shall be made on the immediately
preceding Business Day.
(d) Unless the Administrative Agent shall have received notice
from the Borrower required to make any payment hereunder prior to the date on
which such payment is due to the Lenders hereunder that such Borrower will not
make such payment in full, the Administrative Agent may assume that such
Borrower has made such payment in full to the Administrative Agent on such date
and the Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent such Borrower shall not have so made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender,
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Any and all payments by any Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its overall net income and franchise taxes imposed on it
by the jurisdiction under the laws of which such Lender or the Administrative
Agent, as the case may be, is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its overall net income and
franchise taxes imposed on it by the jurisdiction of such Lender's Applicable
Lending Office or any political subdivision thereof (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under any of the Notes being hereinafter referred to as
"Taxes"). If any Borrower shall be required by applicable law to deduct any
Taxes from or in respect of any sum paid or payable hereunder or under any Note
to any Lender or the Administrative Agent, or, if the Administrative Agent shall
be required by law to deduct any Taxes from or in respect of any sum paid or
payable hereunder or under any Note to any Lender, (i) the sum payable by such
Borrower shall be increased by such Borrower as may be necessary so that, after
making all required deductions (including deductions, whether by such Borrower
or the Administrative Agent, applicable to additional sums payable under this
Section 2.13), such Lender and the Administrative Agent each receive an amount
equal to the sum they each would have received had no such deductions been made
(for example, and without limitation, if the sum paid or payable hereunder from
or in respect of which a Borrower or the Administrative Agent shall be required
to deduct any Taxes is interest, the interest payable by such Borrower shall be
increased by such Borrower as may be necessary so that, after making all
required deductions (including deductions applicable to additional interest),
such Lender and the Administrative Agent each receive interest equal to the
interest they each would have received had no such deduction been made), (ii)
such Borrower (or, as the case may be and as required by applicable law, the
Administrative Agent) shall make such deductions and (iii) such Borrower (or, as
the case may be and as required by applicable law, the Administrative Agent)
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performance under, or
otherwise with respect to, this Agreement or any of the Notes (hereinafter
referred to as "Other Taxes").
(c) Each Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any taxes imposed by any jurisdiction on amounts payable
under this Section 2.13) imposed on or paid by such Lender or the Administrative
Agent, as the case may be, and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender or the Administrative Agent, as
the case may be, makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
each Borrower shall furnish to the Administrative Agent, at its address referred
to in Section 9.02, the original or a certified copy of a receipt evidencing
payment thereof. In the case of any payment hereunder or under any of the Notes,
if any Borrower determines that no Taxes are payable in respect thereof, such
Borrower shall within 30 days after any request from the Administrative Agent or
any Lender furnish to the Administrative Agent or such Lender a certificate from
the appropriate taxing authority or an opinion of counsel or of independent
certified public accountants acceptable to the Administrative Agent or such
Lender, as the case may be, stating that such payment is exempt from Taxes.
(e) Each Lender shall (i) promptly after the Effective Date in
the case of each Initial Lender and promptly after the date of the Assignment
and Acceptance or the Assumption Agreement, as the case may be, pursuant to
which it became a Lender in the case of each other Lender and (ii) from time to
time thereafter upon the obsolescence or expiration of any previously delivered
form or certificate (but only so long as such Lender remains lawfully able to do
so), provide the Company and the Administrative Agent with any form or
certificate that is required by any taxing authority (including, if applicable,
two original Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate (or
any successor form or other form prescribed by the Internal Revenue Service), an
original Internal Revenue Service form W-9 (or any successor form), or to the
extent permitted by applicable law, as an alternative to forms W-8BEN or W-8ECI,
two original Internal Revenue Service forms W-8 (or any successor form
prescribed by the Internal Revenue Service), certifying that such Lender is
exempt from United States federal withholding tax pursuant to Section 871(h) or
881(c) of the Internal Revenue Code, together with an annual certificate stating
that such Lender is not a "person" or other entity described in Section
871(h)(3) or 881(c)(3) of the Internal Revenue Code) as shall be appropriate to
establish, subject to the last sentence of this Section 2.13(e) that such Lender
is exempt from Home Jurisdiction Withholding Taxes on payments pursuant to this
Agreement or the Notes (or, in the case of a Lender that becomes a party to this
Agreement pursuant to Section 2.16 or 9.07(a), (b) and (c), exempt from or
entitled to a reduced rate of Home Jurisdiction Withholding Taxes on payments
pursuant to this Agreement or the Notes that is no greater than the rate to
which the Non-Consenting Lender or the assigning Lender, as applicable, was
entitled); provided, however, that such Lender shall have been advised in
writing by each Borrower (including at the time any renewal form is due) of the
form or certificate applicable to it, determined by reference to the
jurisdiction of organization and Applicable Lending Offices of such Lender set
forth on Schedule I hereto, in the case of each Initial Lender, or to the
jurisdiction of organization and Applicable Lending Offices of such Lender set
forth in the Assignment and Acceptance or the Assumption Agreement, as the case
may be, pursuant to which it became a Lender, in the case of each other Lender,
or such other branch or office of such Lender designated by such Lender from
time to time as the branch or office at which any of its Revolving Credit
Advances are to be made or maintained or its Discounted Notes are to be
purchased or maintained. Each Lender shall promptly notify the Company and the
Administrative Agent if, because of any change in the jurisdiction of
organization or an Applicable Lending Office of such Lender, (A) it is required
to withdraw or cancel any form or certificate previously submitted by it or any
form or certificate has otherwise become ineffective or inaccurate or (B)
payments to it are or will be subject to withholding of any Home Jurisdiction
Withholding Tax to a greater or lesser extent than the extent to which payments
to it pursuant to this Agreement or the Notes were previously subject. If any
form or document referred to in this Section 2.13(e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form W-8BEN
or W-8ECI, that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Company and the Administrative Agent and shall
not be obligated to include in such form or document such confidential
information. No Lender shall be required to provide a form or certificate
pursuant to this Section 2.13(e) to establish that such Lender is exempt from
any withholding for income taxes or withholding taxes on payments from Holdings
pursuant to this Agreement or the Notes.
(f) For any period with respect to which a Lender has failed,
within 30 days of such Lender's receipt of written advice to such effect from
any Borrower, to provide the Company and such Borrower with the appropriate form
or certificate described in Section 2.13(e) (other than if such failure is due
to a change in law (including, without limitation, any change in regulation or
change in the interpretation of any statute or regulation or other rule of law)
occurring subsequent to the date on which a form originally was required to be
provided, or if such form otherwise is not required under the first sentence of
Section 2.13(e)), such Lender shall not be entitled to indemnification under
Section 2.13(a) or 2.13(c) with respect to Taxes imposed by the United States by
reason of such failure; provided, however, that should a Lender become subject
to Taxes because of its failure to deliver a form required hereunder, the
Borrowers shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
(g) Each Lender shall promptly upon the request of the
Administrative Agent take all action (including without limitation the
completion of forms and the provision of information to the appropriate taxing
authorities) reasonably requested by the Administrative Agent, and the
Administrative Agent shall, to the extent appropriate and reasonable, take
similar action, to secure the benefit of any exemption from, or relief with
respect to, Taxes or Other Taxes imposed by the United Kingdom in relation to
any amounts payable under this Agreement or any of the Notes.
(h) Notwithstanding the foregoing provisions of this Section
2.13, no Borrower shall be required to pay any additional amount to any Lender
or the Administrative Agent pursuant to Section 2.13(a) or 2.13(c) in respect of
withholding for United States income taxes or United States back-up withholding
taxes, except to the extent such taxes are required to be withheld as a result
of any amendment to the laws (or any regulations thereunder) of the United
States or any amendment to, or change in, any interpretation or application of
any such laws or regulations by any Governmental Authority or to the extent such
taxes are required to be withheld with respect to any Borrowings by Holdings
that are comprised of Revolving Credit Advances.
(i) Any Lender claiming additional amounts payable pursuant to
this Section 2.13 (including, without limitation, any additional amounts that
any Lender would be entitled to claim under this Section 2.13 with respect to
payments from a Designated Subsidiary that becomes a Borrower pursuant to
Section 9.08) shall use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to file any certificate or document
requested by any Borrower or to change the jurisdiction of its Applicable
Lending Office if the making of such filing or change would avoid the need for
or reduce the amount of any such additional amounts which may thereafter accrue
and would not, in the sole judgment of such Lender, be disadvantageous to such
Lender. Each Borrower shall promptly upon request by any Lender or the
Administrative Agent take all actions (including, without limitation, the
completion of forms and the provision of information to the appropriate taxing
authorities) reasonably requested by such Lender or the Administrative Agent to
secure the benefit of any exemption from, or relief with respect to, Taxes or
Other Taxes in relation to any amounts payable under this Agreement.
(j) In the event that an additional payment is made under
Section 2.13(a) or 2.13(c) for the account of any Lender and such Lender, in its
sole opinion, determines that it has received or been granted a credit against
or release or remission for, or repayment of, any tax paid or payable by it in
respect of or calculated with reference to the deduction or withholding giving
rise to such payment, such Lender shall, to the extent that it can do so without
prejudice to the retention of the amount of such credit, relief, remission or
repayment, pay to the Company or to the applicable Borrower such amount as such
Lender shall, in its sole opinion, have determined to be attributable to such
deduction or withholding and as will leave such Lender (after such payment) in
no better or worse position than it would have been in if such Borrower had not
been required to make such deduction or withholding. Nothing contained in this
Section 2.13 shall interfere with the right of a Lender to arrange its tax
affairs in whatever manner it deems proper nor oblige any Lender to claim any
tax credit or to disclose any information relating to its tax affairs or any
computations in respect thereof or require any Lender to do anything that would
prejudice its ability to benefit from any other credits, reliefs, remissions or
repayments to which it may be entitled.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of setoff or otherwise) on account of the Revolving Credit Advances owing
to it or the Discounted Notes purchased by it (other than pursuant to Section
2.02(c), 2.06(c), 2.10, 2.11, 2.13 or 9.04) in excess of its Pro Rata Share of
payments on account of the Revolving Credit Advances or the Discounted Notes
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Revolving Credit Advances owing to them or
the Discounted Notes purchased by them, as the case may be, as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery, together with an
amount equal to such Lender's Pro Rata Share (according to the proportion of (a)
the amount of such Lender's required repayment to (b) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
Each Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.14 may, to the fullest extent permitted by
applicable law, exercise all of its rights of payment (including the right of
setoff) with respect to such participation as fully as if such Lender were the
direct creditor of such Borrower in the amount of such participation.
SECTION 2.15. Defaulting Lenders. If, at any time, (a) any
Lender shall be a Defaulting Lender, (b) such Defaulting Lender shall owe a
Defaulted Advance to any Borrower and (c) such Borrower shall be required to
make any payment under this Agreement or under any Note to or for the account of
such Defaulting Lender, then such Borrower may, so long as no Default under
Section 6.01(a) or 6.01(e) or Event of Default shall have occurred and be
continuing and to the fullest extent permitted by applicable law, set off and
otherwise apply the obligation of such Borrower to make such payment to or for
the account of such Defaulting Lender against the obligation of such Defaulting
Lender to make such Defaulted Advance. If, on any date, any Borrower shall so
set off and otherwise apply its obligation to make any such payment against the
obligation of such Defaulting Lender to make any such Defaulted Advance on or
prior to such date, the amount so set off and otherwise applied by such Borrower
shall constitute for all purposes of this Agreement and the Notes a Revolving
Credit Advance or the purchase of a Discounted Note by such Defaulting Lender on
the date such Defaulted Advance was originally required to have been made
pursuant to Sections 2.01 and 2.02. Such Revolving Credit Advance or such
Discounted Note shall be (i) in the case of a Revolving Credit Borrowing
comprised of Discounted Notes, deemed to be the purchase from Holdings by such
Defaulting Lender of a Discounted Note having the same Maturity Date, and with a
Discount based on the same Eurodollar Rate, as all other outstanding Discounted
Notes comprising part of such Revolving Credit Borrowing and (ii) in all other
cases, a Base Rate Advance, even if the other Revolving Credit Advances
comprising such Borrowing shall be Eurodollar Rate Advances on the date such
Revolving Credit Advance is deemed to be made pursuant to this Section 2.15,
and, in any such case, shall be considered for all purposes of this Agreement to
comprise part of the Borrowing in connection with which such Defaulted Advance
was originally required to have been made pursuant to Sections 2.01 and 2.02.
Each Borrower shall promptly notify the Administrative Agent at any time such
Borrower exercises its right of setoff pursuant to this Section 2.15 and shall
set forth in such notice (A) the name of the Defaulting Lender and the Defaulted
Advance required to be made by such Defaulting Lender and (B) the amount set off
and otherwise applied in respect of such Defaulted Advance pursuant to this
Section 2.15.
SECTION 2.16. Extension of Termination Date. (a) At least 45
days but not more than 60 days prior to the Termination Date, the Company, by
written notice to the Administrative Agent, may request an extension of the
Termination Date in effect at such time by 364 days from its then scheduled
expiration; provided, however, that the Company shall not have made the Term
Loan Election for Revolving Credit Advances outstanding on such Termination Date
prior to such time. The Administrative Agent shall promptly notify each Lender
of such request, and each Lender shall in turn, in its sole discretion, at least
35 days but not more than 45 days prior to such Termination Date, notify the
Administrative Agent in writing as to whether such Lender will consent to such
extension. If any Lender shall fail to notify the Administrative Agent in
writing of its consent to, or refusal of, any such request for extension of the
Termination Date at least 35 days prior to the Termination Date, such Lender
shall be deemed to be a Non-Consenting Lender with respect to such request. The
Administrative Agent shall notify the Company not later than 30 days prior to
such Termination Date of the decision of the Lenders regarding the Company's
request for an extension of the Termination Date. It is understood and agreed
that no Lender shall have any obligation whatsoever to agree to any request made
by the Company for an extension of the Termination Date.
(b) If all of the Lenders consent in writing to any such
request in accordance with subsection (a) of this Section 2.16 and upon
fulfillment of the applicable conditions set forth in Article III, the
Termination Date in effect at such time shall, effective as at such Termination
Date (the "Extension Date"), be extended for 364 days. If less than all of the
Lenders consent in writing to any such request in accordance with subsection (a)
of this Section 2.16, the Termination Date in effect at such time shall, upon
fulfillment of the applicable conditions set forth in Article III, effective as
at the applicable Extension Date, be extended as to those Lenders that so
consented (each, a "Consenting Lender") but shall not be extended as to any
other Lender (each, a "Non-Consenting Lender"); provided that at least a
majority in interest of the aggregate Commitments at such time (after giving
effect to any assumptions of the Commitments of Non-Consenting Lenders in
accordance with subsection (c) of this Section 2.16) consent in writing to any
such request for extension of the Termination Date. To the extent that the
Termination Date is not extended as to any Lender pursuant to this Section 2.16
and the Commitment of such Lender is not assumed in accordance with subsection
(c) of this Section 2.16 on or prior to the applicable Extension Date, the
Commitment of such Non-Consenting Lender shall automatically terminate in whole
on such unextended Termination Date without any further notice or other action
by the Company, such Lender or any other Person; provided that such
Non-Consenting Lender's rights under Sections 2.10, 2.13 and 9.04, and its
obligations under Section 8.05, shall survive the Termination Date for such
Lender as to matters occurring prior to such Extension Date.
(c) If less than all of the Lenders consent to any such
request pursuant to subsection (a) of this Section 2.16, the Company may arrange
for one or more Consenting Lenders or other Eligible Assignees to assume,
effective as of the Extension Date, any Non-Consenting Lender's Commitment and
all of the rights and obligations of such Non-Consenting Lender under this
Agreement thereafter arising (each Eligible Assignee assuming the Commitment of
one or more Non-Consenting Lenders pursuant to this Section 2.16 being an
"Assuming Lender"), without recourse to or warranty by, or expense to, such
Non-Consenting Lender; provided, however, that the amount of the Commitment of
any such Assuming Lender shall in no event be less than $10,000,000 unless the
amount of the Commitment of such Non-Consenting Lender is less than $10,000,000,
in which case such Assuming Lender shall assume all of such lesser amount; and
provided further that:
(i) any such Consenting Lender or Assuming Lender shall have
paid to such Non-Consenting Lender the aggregate principal amount of,
and any interest accrued and unpaid to the effective date of such
assumption on, the outstanding Revolving Credit Advances, if any, of
such Non-Consenting Lender;
(ii) any such Consenting Lender or Assuming Lender shall have
purchased from such Non-Consenting Lender all Discounted Notes owing to
such Non-Consenting Lender, if any, at a purchase price equal to the
aggregate Accreted Value thereof to the effective date of such
assumption;
(iii) any accrued and unpaid Facility Fees owing to such
Non-Consenting Lender as of the effective date of such assumption, and
all other accrued and unpaid amounts owing to such Non-Consenting
Lender under this Agreement and the Notes as of the effective date of
such assumption, shall have been paid to such Non-Consenting Lender by
the Borrower or such Consenting Lender or Assuming Lender; and
(iv) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 9.07(a) shall
have been paid.
At least three Business Days prior to any Extension Date, (A) each such Assuming
Lender, if any, shall have delivered to the Company and the Administrative Agent
an Assumption Agreement, duly executed by such Assuming Lender, such
Non-Consenting Lender, the Company and the Administrative Agent, (B) each such
Consenting Lender, if any, shall have delivered written confirmation
satisfactory to the Company and the Administrative Agent as to any increase in
the amount of its Commitment resulting from its assumption of one or more
Commitments of the Non-Consenting Lenders and (C) each Non-Consenting Lender
being replaced pursuant to this Section 2.16(c) shall have delivered to the
Administrative Agent, to be held in escrow on behalf of such Non-Consenting
Lender until the payment in full of all amounts owing to such Non-Consenting
Lender under clauses (i) through (iii) of this Section 2.16, any Note or Notes
held by such Non-Consenting Lender. Upon the payment or prepayment of all
amounts referred to in clauses (i) through (iv) of this Section 2.16(c), each
such Consenting Lender or Assuming Lender, as of the Extension Date, will be
substituted for the applicable Non-Consenting Lender(s) under this Agreement and
shall be a Lender for all purposes of this Agreement, without any further
acknowledgment by or the consent of any of the other Lenders, and the
obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
(d) If a majority in interest of the Lenders (after giving
effect to any assumptions pursuant to subsection (c) of this Section 2.16)
consent in writing to a requested extension (whether by execution and delivery
of an Assumption Agreement or otherwise) not later than one Business Day prior
to an Extension Date, the Administrative Agent shall so notify the Company, and,
upon fulfillment of the applicable conditions set forth in Article III, the
Termination Date then in effect shall be extended for an additional one-year
period, as described in subsection (a) of this Section 2.16, and all references
in this Agreement and in the Notes to the "Termination Date" shall, with respect
to each Consenting Lender and each Assuming Lender for such Extension Date,
refer to the Termination Date as so extended. Promptly following each Extension
Date, the Administrative Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) of the extension of the scheduled Termination
Date in effect immediately prior thereto and shall thereupon record in the
Register the relevant information with respect to each such Consenting Lender
and each such Assuming Lender.
(e) Within ten Business Days after each Extension Date, each
Borrower shall, at its own expense, execute and deliver to the Administrative
Agent Revolving Credit Notes payable to the order of each Consenting Lender (in
the case of each such Consenting Lender, in exchange for the Revolving Credit
Note surrendered by such Consenting Lender to the Administrative Agent), if any,
and each Assuming Lender, if any, in each case dated such Extension Date and in
substantially the form of Exhibit A-1 hereto and in an amount equal to the
Commitment of such Consenting Lender or Assuming Lender, as the case may be,
after giving effect to such extension of the Termination Date. The
Administrative Agent, upon receipt of such Revolving Credit Notes, shall
promptly deliver such Revolving Credit Notes to the respective Consenting
Lenders and Assuming Lenders.
SECTION 2.17. Use of Proceeds. The proceeds of the Revolving
Credit Advances and the Discounted Notes shall be available (and each Borrower
agrees that it shall use such proceeds) solely for general corporate purposes of
such Borrower and its Subsidiaries not otherwise prohibited under the terms of
this Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 shall become effective on and as of the first date (the
"Effective Date") on which the following conditions precedent have been
satisfied:
(a) No event or development shall have occurred or failed to
occur, and no action shall have been taken or failed to have been
taken, by or on behalf of any Borrower or any of its Subsidiaries that,
either individually or in the aggregate, has had or could reasonably be
expected to have a Material Adverse Effect since December 31, 2001. No
fact or circumstance shall be known by any Borrower that, either
individually or in the aggregate, has had or could reasonably be
expected to have (so far as such Borrower can reasonably foresee) a
Material Adverse Effect since December 31, 2001.
(b) All governmental and other third party consents and
approvals necessary in connection with this Agreement and the Notes and
with the transactions contemplated hereby shall have been obtained
(without the imposition of any conditions that are not reasonably
acceptable to the Lenders) and shall remain in effect; and no law or
regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse
conditions on this Agreement or any Note or upon any of the
transactions contemplated hereby.
(c) The Company shall have notified each Lender and the
Administrative Agent in writing as to the proposed Effective Date.
(d) All accrued fees and, to the extent invoices have been
delivered to the Company on or prior to such date, all accrued expenses
of the Administrative Agent and the Lenders (including, without
limitation, all accrued fees and expenses of counsel for the
Administrative Agent and the Syndication Agent) shall have been paid.
(e) All of the amounts owing by any Borrower or any of its
Subsidiaries under the Existing 364-Day Credit Agreement shall have
been, or concurrently with any initial Borrowing made on the Effective
Date shall be, paid in full, and all commitments of the lenders
thereunder shall have been, or concurrently with any initial Borrowing
made on the Effective Date shall be, terminated in accordance with the
terms of such Agreement and each of the Initial Lenders that is a party
to the Existing 364 Day Credit Agreement hereby waives, upon execution
of this Agreement, the three days' notice required by Section 2.04 of
the Existing 364-Day Credit Agreement relating to the termination of
the commitments under each the Existing 364-Day Credit Agreement.
(f) On the Effective Date, the following statements shall be
true and the Administrative Agent shall have received for the account
of each Lender a certificate of the Company, on behalf of itself and
each other Borrower, signed by a duly authorized officer of the
Company, dated such date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, as
though made on and as of such date;
(ii) No event has occurred and is continuing, or
shall occur as a result of the occurrence of the Effective
Date, that constitutes a Default; and
(iii) All of the amounts owing by any Borrower or any
of its Subsidiaries under the Existing 364-Day Credit
Agreement shall have been, or concurrently with any initial
Borrowing made on the Effective Date shall be, paid in full,
and all commitments of the lenders thereunder shall have been,
or concurrently with any initial Borrowing made on the
Effective Date shall be, terminated in accordance with the
terms of such Agreement.
(g) The Administrative Agent shall have received on or before
the Effective Date each of the following, dated the Effective Date and
in form and substance satisfactory to the Administrative Agent:
(i) The Revolving Credit Notes of each of the
Borrowers to the order of each of the Lenders, respectively.
(ii) A certificate of the Secretary or an Assistant
Secretary (or person performing similar functions) of each of
the Borrowers certifying (A) appropriate resolutions of the
board of directors (or persons performing similar functions)
of such Borrower authorizing Borrowings under this Agreement
and its Notes, and all documents evidencing other necessary
corporate (or equivalent) action and governmental approvals,
if any, with respect to this Agreement and its Notes (copies
of which shall be attached thereto), (B) copies of the by-laws
(or the equivalent thereof) of such Borrower (copies of which
shall be attached thereto) and (C) the names and true
signatures of the officers of such Borrower authorized to sign
this Agreement and its Notes and the other documents to be
delivered by such Borrower hereunder.
(iii) A copy of the charter or articles (or other
similar organizational documents) of each Borrower, certified
(as of a date reasonably near the Effective Date) as being a
true and complete copy thereof by the Secretary of State (or
other appropriate Governmental Authority) of the jurisdiction
of organization of such Borrower or, if such certificate is
not provided in the jurisdiction of organization of any
Borrower, certified (as of a date reasonably near the
Effective Date) as being a true and complete copy thereof by a
duly authorized officer of such Borrower.
(iv) A copy of a certificate of the Secretary of
State (or other appropriate Governmental Authority) of the
jurisdiction of organization of such Borrower, dated
reasonably near the Effective Date, certifying that such
Borrower is duly organized and in good standing (or the
equivalent thereof) under the laws of the jurisdiction of its
organization.
(v) A favorable opinion of Miles & Stockbridge P.C.,
counsel for the Borrowers, in substantially the form of
Exhibit E-1 hereto, and addressing such other matters as the
Administrative Agent may reasonably request.
(vi) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent and the Syndication
Agent.
SECTION 3.02. Conditions Precedent to the Initial Borrowing of
Each Designated Subsidiary. The obligation of each Lender to make an initial
Revolving Credit Advance to each Designated Subsidiary following its designation
as a Borrower hereunder pursuant to Section 9.08 on the occasion of the initial
Borrowing thereby is subject to the Administrative Agent's receipt on or before
the date of such initial Borrowing of each of the following, in form and
substance satisfactory to the Administrative Agent and dated such date:
(a) The Designation Letter of such Designated Subsidiary, in
substantially the form of Exhibit F hereto.
(b) A Revolving Credit Note of such Designated Subsidiary to
the order of each of the Lenders, respectively.
(c) A certificate of the Secretary or an Assistant Secretary
(or person performing similar functions) of such Designated Subsidiary
certifying (A) appropriate resolutions of the board of directors (or
persons performing similar functions) of such Designated Subsidiary
approving this Agreement and its Notes, and all documents evidencing
other necessary corporate (or equivalent) action and governmental
approvals, if any, with respect to this Agreement and its Notes (copies
of which shall be attached thereto), (B) copies of the by-laws (or the
equivalent thereof) of such Designated Subsidiary (copies of which
shall be attached thereto) and (C) the names and true signatures of the
officers of such Designated Subsidiary authorized to sign the
Designation Letter of such Designated Subsidiary and its Notes and the
other documents to be delivered by such Designated Subsidiary
hereunder.
(d) A copy of the charter or articles (or other similar
organizational document) of such Designated Subsidiary, certified (as
of a date reasonably near the date of such Borrowing) as being a true
and complete copy thereof by the Secretary of State (or other
appropriate Governmental Authority) of the jurisdiction of organization
of such Designated Subsidiary or, if such certificate is not provided
in the jurisdiction of organization of such Designated Subsidiary,
certified (as of a date reasonably near the date of such Borrowing) as
being a true and complete copy thereof by a duly authorized officer of
such Designated Subsidiary.
(e) A copy of a certificate of the Secretary of State (or
other appropriate Governmental Authority) of the jurisdiction of
organization of such Designated Subsidiary, dated reasonably near the
date of such Borrowing, certifying that such Designated Subsidiary is
duly organized and in good standing (or the equivalent thereof) under
the laws of the jurisdiction of its organization.
(f) A certificate signed by a duly authorized officer of such
Designated Subsidiary, dated as of the date of such Borrowing,
certifying that such Designated Subsidiary has obtained all
authorizations, consents, approvals (including, without limitation,
exchange control approvals) and licenses of any Governmental Authority
or other third party necessary for such Designated Subsidiary to
execute and deliver its Designation Letter and its Notes and to perform
its obligations under this Agreement or any of its Notes.
(g) Evidence of acceptance by the Company of its appointment
as the process agent of such Designated Subsidiary in accordance with
Section 9.12(a), in substantially the form of Exhibit G hereto.
(h) A favorable opinion of counsel for such Designated
Subsidiary reasonably acceptable to the Administrative Agent, dated the
date of such Borrowing, in substantially the form of Exhibit E-2 hereto
(subject to the assumptions, qualifications and limitations customary
for legal opinions in the jurisdiction for which such opinion is
delivered), and addressing such other matters as any Lender through the
Administrative Agent may reasonably request.
(i) Such other documents, opinions and other information as
any Lender, through the Administrative Agent, may reasonably request.
SECTION 3.03. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance, or
to purchase a Discounted Note, as the case may be, on the occasion of each
Revolving Credit Borrowing shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such Revolving Credit
Borrowing (a) the following statements shall be true (and each of the giving of
the applicable Notice of Revolving Credit Borrowing and the acceptance by the
Borrower that requested such Revolving Credit Borrowing of the proceeds of such
Revolving Credit Borrowing shall constitute a representation and warranty by
such Borrower that on the date of such Revolving Credit Borrowing such
statements are true):
(i) Except in the case of a Refinancing Borrowing, the
representations and warranties contained in Section 4.01 (and, if such
Revolving Credit Borrowing shall have been requested by a Designated
Subsidiary, the representations and warranties of such Designated
Subsidiary contained in its Designation Letter) are correct on and as
of the date of such Revolving Credit Borrowing, before and after giving
effect to such Revolving Credit Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date;
(ii) No event has occurred and is continuing, or would result
from such Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default; and
(iii) In the case of a Revolving Credit Borrowing consisting
of Discounted Notes (including, without limitation, a Refinancing
Borrowing), the Administrative Agent shall have received an
appropriately completed and duly executed Master Discounted Note
evidencing such Revolving Credit Borrowing;
and (b) the Administrative Agent shall have received such other documents,
opinions and other information as any Lender, through the Administrative Agent,
may reasonably request. Nothing in this Section 3.03 shall be construed to
require any Borrower to satisfy the conditions set forth herein solely upon the
Conversion of one or more Borrowings in accordance with the terms of this
Agreement.
SECTION 3.04. Conditions Precedent to Each Extension Date. The
obligation of each Consenting Lender and each Assuming Lender to extend the
Termination Date pursuant to Section 2.16 is subject to the conditions precedent
that (a) the Administrative Agent shall have accepted all of the Assumption
Agreements of the Assuming Lenders and received all of the written confirmations
of increases in the Commitments of the Consenting Lenders for such Extension
Date and all of the Non-Consenting Lenders shall have received all of the
amounts required to have been paid to them under Section 2.16(c) on or prior to
such Extension Date and (b) on such Extension Date, the following statements
shall be true (and a duly authorized officer of the Company shall certify the
completeness and accuracy of such statements to the Administrative Agent and the
Lenders on and as of such Extension Date):
(i) No event or development has occurred or failed to occur,
and no action has been taken or failed to have been taken, by or on
behalf of any Borrower or any of its Subsidiaries that, either
individually or in the aggregate, has had or could reasonably be
expected to have a Material Adverse Effect since December 31, 2001. No
fact or circumstance is known by any Borrower that, either individually
or in the aggregate, has had or could reasonably be expected to have
(so far as such Borrower can reasonably foresee) a Material Adverse
Effect since December 31, 2001;
(ii) The representations and warranties contained in Section
4.01 are correct on and as of such Extension Date, before and after
giving effect to such Extension Date; and
(iii) No event has occurred and is continuing, or would result
from the occurrence of such Extension Date that constitutes a Default.
SECTION 3.05. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the date
that the Company, by notice to the Lenders, designates as the proposed Effective
Date, specifying its objection thereto. The Administrative Agent shall promptly
notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers.
Each Borrower represents and warrants as follows:
(a) Each Borrower and each of its Significant Subsidiaries (i)
are Persons duly organized, validly existing and, to the extent such
concept is applicable in the jurisdiction of organization of such
Borrower or such Subsidiary, in good standing under the laws of the
jurisdictions of their respective organization, (ii) are duly qualified
and, to the extent such concept is applicable in such jurisdiction, in
good standing as foreign corporations (or the equivalent thereof) in
each other jurisdiction in which they own or lease property or in which
the conduct of their respective businesses requires them to so qualify
or be licensed, except where the failure to so qualify or be licensed,
either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, and (iii) have all
requisite power and authority to own or lease and operate their
properties and to carry on their respective businesses as now conducted
and as proposed to be conducted.
(b) The execution, delivery and performance by each Borrower
of this Agreement and its Notes, and the consummation of the
transactions contemplated hereby, are within such Borrower's powers,
have been duly authorized by all necessary action (including, without
limitation, all necessary stockholders' action), and do not contravene
(i) such Borrower's charter or by-laws (or similar organizational
documents), (ii) any law, statute, rule or regulation or any order,
writ, judgment, injunction, decree, determination or award or (iii) any
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument binding on or affecting such Borrower, any of its
Subsidiaries or any of their properties or assets.
(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or any other third
party is required for the due execution, delivery and performance by
any Borrower of this Agreement or any of its Notes, or for the
consummation of any of the transactions contemplated hereby, except as
have been obtained or made and are in full force and effect.
(d) This Agreement has been, and each of the Notes when
delivered hereunder will have been, duly executed and delivered by each
Borrower intended to be a party thereto. This Agreement is, and each of
the Notes when delivered hereunder will be, the legal, valid and
binding obligation of each Borrower intended to be a party thereto,
enforceable against such Borrower in accordance with their respective
terms, except to the extent that the enforceability thereof may be
limited by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect
relating to or affecting creditors' rights generally or by general
principles of equity.
(e) The most recently completed annual Financial Statements of
the Company and its Subsidiaries, copies of which have been furnished
to each Lender, fairly present the consolidated financial condition of
the Company and its Subsidiaries as at the date of such Financial
Statements and the consolidated results of operations of the Company
and its Subsidiaries for the fiscal year of the Company ended on the
date of such Financial Statements, all in accordance with generally
accepted accounting principles in effect at the time such Financial
Statements were prepared.
(f) All information, exhibits and reports (other than
financial statements, analysts' reports, projections and assumptions)
furnished by or on behalf of each Borrower to any Lender in connection
with the negotiation of, or pursuant to the terms of, this Agreement or
any of its Notes do not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
contained therein not misleading, in light of the circumstances under
which any such statements were made.
(g) There is no action, suit, investigation, litigation or
proceeding (including, without limitation, any Environmental Action)
against or in any other way affecting any Borrower or any of its
Subsidiaries or any of its respective properties or businesses pending
or, to the best knowledge of such Borrower or any of its Subsidiaries,
threatened before any court, Governmental Authority or arbitrator that
(i) either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or (ii) purports to
adversely affect the legality, validity or enforceability of this
Agreement or any of its Notes or the consummation of the transactions
contemplated hereby.
(h) None of the Borrowers is engaged in the business of
extending credit for the purpose of purchasing or carrying "margin
stock" (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System), and no proceeds of any Revolving Credit
Advance or any Discounted Note will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of
purchasing or carrying margin stock.
(i) Neither any Borrower nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company" (each as defined
in the Investment Company Act of 1940, as amended). Neither the making
of any Revolving Credit Advances nor the purchase of any Discounted
Notes nor the application of the proceeds or the repayment or
repurchase thereof by any Borrower, nor the consummation of any of the
other transactions contemplated hereby, will violate any provision of
such Act or any rule, regulation or order of the Securities and
Exchange Commission thereunder.
(j) No ERISA Event has occurred or could reasonably be
expected to occur with respect to any Plan that when aggregated with
any and all other ERISA Events that have occurred or could reasonably
be expected to occur with respect to any Plan, has resulted or could
reasonably be expected to result in liability of any Borrower or any
ERISA Affiliate that exceeds $20,000,000 (or the equivalent thereof in
one or more foreign currencies) in the aggregate.
(k) As of the last annual actuarial valuation date, the funded
current liability percentage, as defined in Section 302(d)(8) of ERISA,
of each Plan exceeds 60 percent, and there has been no material adverse
change in the funding status of any such Plan since such date;
provided, however, that no breach of this Section 4.01(k) shall be
deemed to have occurred unless the Insufficiency with respect to any
such Plan exceeds $5,000,000 (or the equivalent thereof in one or more
foreign currencies).
(l) Neither any Borrower nor any ERISA Affiliate (i) has
incurred or could reasonably be expected to incur any Withdrawal
Liability with respect to any Multiemployer Plan or (ii) has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA; and, to the knowledge of any Borrower, no such
Multiemployer Plan could reasonably be expected to be in reorganization
or to be terminated, within the meaning of Title IV of ERISA, that has
resulted or could reasonably be expected to result in a liability of
any Borrower or any ERISA Affiliate that exceeds $20,000,000 (or the
equivalent thereof in one or more foreign currencies) in the aggregate
with respect to clauses (i) and (ii) of this Section 4.01(l).
(m) Except as set forth on Schedule 4.01 hereto, (i) the
operations and properties of each Borrower and each of its Subsidiaries
comply with all applicable Environmental Laws and Environmental
Permits, except to the extent the failure to so comply, either
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect; (ii) all Environmental Actions against
any Borrower or any of its Subsidiaries for noncompliance with such
Environmental Laws and Environmental Permits that have been resolved
have been resolved without any ongoing obligations or costs that,
either individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect; and (iii) to the best knowledge of
any Borrower or any of its Subsidiaries, no circumstances exist that
(A) could form the basis of an Environmental Action against such
Borrower or any of its Subsidiaries that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect or (B) could cause any of their respective properties to be
subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that, either individually
or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
(n) Except as set forth on Schedule 4.01 hereto, there have
been no releases, discharges or disposals of Hazardous Materials on any
property owned or operated by any Borrower or any of its Subsidiaries
or, to the best knowledge of such Borrower or any such Subsidiary, on
any property formerly owned or operated by any Borrower or any of its
Subsidiaries that (taking into account, among other things, the
reasonable likelihood of an adverse determination and the availability
of contributions from other potentially responsible parties), either
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
(o) Except as set forth on Schedule 4.01 hereto, neither any
Borrower nor any of its Subsidiaries is undertaking, and has not
completed, either individually or together with other potentially
responsible parties, any investigation or assessment or remedial or
response action relating to any actual or threatened release, discharge
or disposal of Hazardous Materials at any site, location or operation,
either voluntarily or pursuant to the order of any Governmental
Authority or the requirements of any Environmental Law, that, either
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect; and all Hazardous Materials generated, used,
treated, handled or stored at, or transported to or from, any property
owned or operated by any Borrower or any of its Subsidiaries have been
disposed of in a manner that, either individually or in the aggregate,
could not reasonably be expected (taking into account, among other
things, the reasonably likelihood of an adverse determination and the
availability of contributions from other potentially responsible
parties) to have a Material Adverse Effect.
(p) The Revolving Credit Advances, the Discounted Notes and
all related obligations of each Borrower under this Agreement and its
Notes rank pari passu with all other unsecured obligations of such
Borrower that are not, by their terms, expressly subordinate to such
other obligations of such Borrower.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants. So long as any Revolving
Credit Advance or any Discounted Note shall remain unpaid or any Lender shall
have any Commitment hereunder, each Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations
and orders, such compliance to include, without limitation, compliance
with ERISA and Environmental Laws, except where, and for so long as,
the failure to so comply (i) has been excused or waived under
applicable law or (ii) either individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect. Comply,
and cause each of its Subsidiaries to comply, with the terms of all of
its contracts, loan agreements, indentures, mortgages, deeds of trust,
leases and other agreements and instruments, the violation or breach of
which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property and
assets; provided, however, that neither any Borrower nor any of its
Subsidiaries shall be required to pay or discharge (A) any taxes,
assessments, reassessments, charges, levies or claims that, either
individually or in the aggregate, do not exceed $15,000,000 (or the
equivalent thereof in one or more foreign currencies) at any time or
(B) any such tax, assessment, reassessment, charge, levy or claim that
is being contested in good faith and by proper proceedings and as to
which appropriate reserves are being maintained in accordance with
generally accepted accounting principles in effect from time to time,
unless and until, in any of the foregoing cases, any Lien resulting
therefrom attaches to its property and enforcement, collection, levy or
foreclosure proceedings shall have been commenced and remain unstayed
in respect thereof.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, (i) insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
of similar size and owning similar properties in the same general areas
in which such Borrower or such Subsidiary operates and (ii) additional
insurance to the extent required under applicable law, rule, regulation
or order unless, in either case, the failure to maintain such
insurance, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(d) Preservation of Existence, Etc. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its existence,
rights (charter and statutory), licenses and franchises (whether
arising as a matter of contract or under applicable law or regulation);
provided, however, that any Borrower or any of its Subsidiaries may
consummate any transaction otherwise permitted under Section 5.02(b);
and provided further that neither any Borrower nor any of its
Subsidiaries shall be required to preserve (i) any Subsidiary of the
Company that is not a Borrower or (ii) any right, license or franchise
if management of such Borrower shall determine in good faith that the
preservation thereof is no longer desirable in the conduct of the
business or the continued operations of such Borrower or such
Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to such Borrower, such
Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time, during normal business hours and upon reasonable notice, permit
the Administrative Agent or any of the Lenders or any agents or
representatives thereof to examine and make copies of and abstracts
from the records and books of account, and visit and inspect the
properties, of any Borrower or any of its Subsidiaries, and to discuss
the affairs, finances and accounts of any Borrower or any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of such Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
material properties that are used or useful in the conduct of its
business in good working order and condition, ordinary wear and tear
excepted.
(h) Use of Proceeds. Use all of the proceeds of the Revolving
Credit Advances and the Discounted Notes solely for general corporate
purposes of such Borrower and its Subsidiaries not otherwise prohibited
under the terms of this Agreement.
(i) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
this Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to such Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate, except for transactions between or among the
Company and its Subsidiaries or between or among Subsidiaries of the
Company not otherwise prohibited under this Agreement that, either
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(j) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 50
days after the end of each of the first three fiscal quarters
of each fiscal year of the Company, commencing with the fiscal
quarter of the Company ending March 31, 2002, the Financial
Statements of the Company and its Subsidiaries as of the end
of such fiscal quarter, duly certified by the chief financial
officer or the treasurer of the Company as (A) having been
prepared in accordance with generally accepted accounting
principles in effect at the time such Financial Statements
were prepared and (B) fairly presenting in all material
respects, subject to year-end adjustments, the consolidated
financial condition of the Company and its Subsidiaries as at
the last day of such fiscal quarter and the consolidated
results of operations of the Company and its Subsidiaries for
such period;
(ii) as soon as available and in any event within 95
days after the end of each fiscal year of the Company,
commencing with the fiscal year of the Company ending December
31, 2002, a copy of the annual report, prepared in the manner
required under Form 10-K, for such fiscal year for the Company
and its Subsidiaries containing the Financial Statements of
the Company and its Subsidiaries as of the end of such fiscal
year, in each case accompanied by an opinion of Ernst & Young
LLP or other independent certified public accountants of
nationally recognized standing in the United States and
reasonably acceptable to the Administrative Agent that is
unqualified as to going concern and scope of audit and is
otherwise in scope and substance acceptable to the Required
Lenders, together with a certificate of such accounting firm
addressed to the Administrative Agent and the Lenders stating
that in the course of the regular audit of the business of the
Company and its Subsidiaries, which audit was conducted by
such accounting firm in accordance with generally accepted
auditing standards, nothing has come to the attention of such
accountants that causes them to believe that the Company has
failed to comply with the covenants set forth in Section 5.03;
(iii) as soon as available after the end of each
fiscal year of each Foreign Borrower, a balance sheet of such
Foreign Borrower as of the end of such fiscal year and the
related statement of income of such Foreign Borrower for such
fiscal year and such other statements for such fiscal year as
are required to be included in the statutory report of the
jurisdiction in which such Foreign Borrower resides, in each
case prepared in accordance with historical convention and
with generally accepted accounting principles prevailing in
such jurisdiction at the time such financial statements are
delivered;
(iv) simultaneously with each delivery of the
Financial Statements referred to in clauses (i) and (ii) of
this Section 5.01(j), (A) a certificate of the chief financial
officer or the treasurer of the Company (1) stating that no
Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature
thereof and the action that the Company has taken and/or
proposes to take with respect thereto and (2) setting forth in
reasonable detail the calculations necessary to demonstrate
compliance with each of the covenants set forth in Section
5.03 and (B) in the event of any change in the generally
accepted accounting principles used in the preparation of such
Financial Statements from those used in the preparation of the
2000 Audited Financial Statements, a statement of
reconciliation, if and to the extent necessary for the
determination of compliance with each of the covenants set
forth in Section 5.03, conforming such Financial Statements to
generally accepted accounting principles consistent with those
applied by the Company in the preparation of the 2000 Audited
Financial Statements;
(v) as soon as possible and in any event within five
days after any Responsible Officer knows or has reason to know
of the occurrence of each Default, or the occurrence or
nonoccurrence of any event, development or circumstance that,
either individually or in the aggregate, has had or could
reasonably be expected to have a Material Adverse Effect, a
statement of such Responsible Officer setting forth the
details of such Default or such event, development or
circumstance, as the case may be, and the action that such
Borrower has taken and/or proposes to take with respect
thereto;
(vi) promptly upon receipt thereof, copies of any
report on material weaknesses in the financial controls of the
Company and its Subsidiaries, taken as a whole, prepared by
any independent certified public accountants of the Company in
connection with their annual audit;
(vii) promptly after the sending or filing thereof,
copies of all reports that the Company sends to its
securityholders, and copies of all reports and registration
statements (other than registration statements filed on Form
S-8 or otherwise relating to securities being offered and sold
under, or interests in, employee benefit plans), if any, that
any Borrower or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange;
(viii) promptly after the commencement thereof,
notice of all actions, suits, investigations, litigations and
proceedings before any court, Governmental Authority or
arbitrator against or in any other way affecting any Borrower
or any of its Subsidiaries or any of their respective
properties or businesses of the type described in Section
4.01(g);
(ix) promptly and in any event within five Business
Days after becoming aware thereof, notice of any change in the
rating assigned by any nationally recognized rating agency to
any securities issued by any Borrower or any of its
Subsidiaries and the effective date of such change, together
with a copy of such notice if available at such time;
(x) promptly after the assertion or occurrence
thereof, notice of any Environmental Action against any
Borrower or any of its Subsidiaries, or of any noncompliance
by any Borrower or any of its Subsidiaries with any
Environmental Law or any Environmental Permit, that (A) either
individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect or (B) could cause any
property of such Borrower or such Subsidiary to be subject to
any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that, either
individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect; and
(xi) such other information respecting the
businesses, assets, liabilities, financial condition, results
of operations or business prospects of any Borrower or any of
its Subsidiaries as any Lender, through the Administrative
Agent, may from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Revolving
Credit Advance or any Discounted Note shall remain unpaid or any Lender shall
have any Commitment hereunder, each of the Borrowers will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties and assets, whether now owned or
hereafter acquired, or assign as security, or permit any of its
Subsidiaries to assign as security, any right to receive income
therefrom, other than:
(i) Permitted Liens;
(ii) Liens existing or contemplated on the date of
this Agreement and described on Schedule 5.02(a) hereto;
(iii) purchase money Liens upon or in one or more
tangible assets acquired or held by any Borrower or any of its
Subsidiaries in the ordinary course of business to secure the
purchase price of such tangible assets or to secure
Indebtedness incurred solely for the purpose of financing the
acquisition, construction or improvement of such tangible
assets so long as such Liens are incurred within 90 days of
the date of acquisition of such tangible assets, or Liens
existing on any such tangible asset at the time of its
acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to
finance the acquisition of such tangible assets); provided,
however, that no such Lien shall extend to or cover any
property or assets of any character other than the tangible
assets being acquired, constructed or improved; and provided
further that any Indebtedness secured by such Liens shall
otherwise be permitted under the terms of this Agreement;
(iv) Liens on property and assets of a Person
existing at the time such Person is merged into or
consolidated with any Borrower or any of its Subsidiaries or
becomes a Subsidiary of any Borrower; provided that any such
Liens were not created in contemplation of such merger,
consolidation or acquisition and do not extend to or cover (A)
any property or assets other than the property and assets of
the Person being merged into or consolidated with such
Borrower or such Subsidiary or being acquired by such Borrower
or such Subsidiary, as the case may be, or (B) any obligations
of any Person other than those obligations that were secured
by such property and assets at the time of such merger,
consolidation or acquisition; and provided further that any
Indebtedness secured by such Liens shall otherwise be
permitted under the terms of this Agreement;
(v) Liens on any property or assets of any Subsidiary
of the Company securing Indebtedness owed to the Company or
any of its other Subsidiaries;
(vi) Liens securing reimbursement obligations under
commercial letters of credit incurred in the ordinary course
of business; provided that any such Liens shall cover only the
goods, or documents of title evidencing goods, that are
purchased in the transaction for which such letter of credit
was issued and the products and proceeds thereof;
(vii) Liens arising out of judgments or awards that
do not constitute an Event of Default under Section 6.01(f) or
6.01(g) and in respect of which any Borrower or any of its
Subsidiaries subject thereto shall be prosecuting an appeal or
proceedings for review in good faith and, pending such appeal
or proceedings, shall have secured a subsisting stay of
execution within 30 days of such judgment or award and shall
be maintaining appropriate reserves, in accordance with
generally accepted accounting principles in effect from time
to time, with respect to any such judgment or award;
(viii) Liens on cash, certificates of deposit or
other similar bank obligations securing Indebtedness (which
Indebtedness may be in a different currency from such cash,
certificates of deposit or other bank obligations) in an
amount substantially equal in value (determined at the time
such Lien is created) to such cash, certificates of deposit or
other bank obligations, as the case may be;
(ix) Environmental Liens securing damages and
liabilities not to exceed an aggregate amount of $40,000,000
(or the equivalent thereof in one or more foreign currencies)
for the Company and its Subsidiaries at any time;
(x) Liens not otherwise permitted under this Section
5.02(a) securing obligations in an aggregate amount not to
exceed $150,000,000 (or the equivalent thereof in one or more
foreign currencies) for the Company and its Subsidiaries at
any time; and
(xi) the extension, renewal, replacement or
refinancing of any Lien otherwise permitted under any of
clauses (ii) through (iv) of this Section 5.02(a) upon or in
the same property and assets theretofore subject thereto;
provided that no such extension, renewal, replacement or
refinancing shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed,
replaced or refinanced; and provided further that (A) any
obligation secured by such Liens shall otherwise be permitted
under the terms of this Agreement and (B) both immediately
before and immediately after giving effect to such Lien, no
Default shall have occurred and be continuing.
(b) 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 property and assets (whether now owned or hereafter acquired) to,
any Person, or permit any of its Subsidiaries to do so, except that:
(i) any Subsidiary of the Company that is not a
Borrower may merge into or consolidate with or into, or
convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets to, any other
Person so long as, if such Person is a Borrower, such Person
is the surviving entity; and
(ii) any Borrower may merge with any other Person
(including, without limitation, any other Borrower or any of
its Subsidiaries) so long as (A) if the Company is a party to
such merger or consolidation, the Company is the surviving
entity or (B) if any other Borrower is a party to such merger
or consolidation, either (1) the surviving entity shall be
such Borrower or (2) the surviving entity (w) shall be a
Substantially Owned Subsidiary of the Company, (x) shall
succeed, by an agreement or operation of law, to all of the
businesses and operations of such Borrower and shall assume,
in an assumption agreement in form and substance satisfactory
to the Administrative Agent, all of the rights and obligations
of such Borrower under this Agreement and the Notes, (y) shall
deliver to the Administrative Agent all of the certificates,
opinions and other documents described in clauses (b) through
(h) of Section 3.02 with respect to such surviving entity, in
each case in form and substance satisfactory to the
Administrative Agent, and such other documents, opinions and
other information as any Lender, through the Administrative
Agent, may reasonably request and (z) shall cause the Company
to deliver to the Administrative Agent written confirmation of
its obligations under Section 7.01 with respect to such
surviving entity;
provided, in each of the foregoing cases, that no Default shall have
occurred and be continuing at the time of such merger, consolidation,
conveyance, transfer, lease or disposition, or shall occur as a result
thereof. Notwithstanding any of the foregoing provisions of this
Section 5.02(b), neither any Borrower nor any of its Subsidiaries shall
sell, convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions and whether through the
disposition of shares of capital stock or other property or assets) all
or substantially all of the power tool business engaged in by the
Company and its Subsidiaries on the date of this Agreement.
(c) Change in Nature of Business. Engage in any business other
than the businesses engaged in by the Company and its Subsidiaries on
the date of this Agreement and other businesses and activities that are
substantially similar, related or incidental thereto.
(d) Fiscal Year. Make or permit any change in the fiscal year
of the Company.
(e) Substance Storage and Disposal. Permit any Hazardous
Materials to be generated, used, treated, handled or stored at, or
transported to or from, any property owned or operated by any Borrower
or any of its Subsidiaries in any manner that could result in the
incurrence by any Borrower or any of its Subsidiaries of remedial
obligations or liabilities under any applicable Environmental Law,
except (a) as set forth on Schedule 4.01 hereto and (b) for substances
(i) to be used in the business of such Borrower or such Subsidiary
pending and during such use and (ii) that are generated or used in the
business of such Borrower or such Subsidiary pending their disposal.
SECTION 5.03. Financial Covenants. So long as any Revolving
Credit Advance or any Discounted Note shall remain unpaid or any Lender shall
have any Commitment hereunder, the Company will:
(a) Leverage Ratio. Maintain a Leverage Ratio as of the last
day of each of its fiscal quarters of not greater than 3.5 to 1.
(b) Cash Flow Coverage Ratio. Maintain a Cash Flow Coverage
Ratio as of the last day of each of its fiscal quarters of not less
than 3.25 to 1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail (i) to pay any principal of any
Revolving Credit Advance, or any portion of the Face Amount of any
Discounted Note, when the same becomes due and payable or (ii) to pay
any interest on any Revolving Credit Advance or to make any payment of
fees or other amounts payable under this Agreement or any Note within
three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Borrower herein
or by any Borrower (or any of its officers) in connection with this
Agreement (including, without limitation, in the Designation Letter of
any Borrower) shall prove to have been incorrect or misleading in any
material respect when made; or
(c) Any Borrower shall fail to perform or observe (i) any
term, covenant or agreement contained in Section 5.01(a), (d), (h), (i)
or (j)(v), or 5.02(a), (b) or (d), or 5.03 to be performed or observed
by such Borrower or (ii) any other term, covenant or agreement
contained in this Agreement to be performed or observed by such
Borrower if such failure shall remain unremedied for 30 days after the
earlier of (A) the first date on which a Responsible Officer of any
Borrower knows or has reason to know of such failure and (B) the date
on which written notice thereof shall have been given to the Company or
the applicable Borrower by the Administrative Agent or any Lender; or
(d) Any Borrower or any of its Subsidiaries shall fail to pay
any principal of or any premium or interest on any Indebtedness that is
outstanding in a principal amount of or, in the case of any Hedge
Agreement, having an Agreement Value of, at least $20,000,000 (or the
equivalent thereof in one or more foreign currencies), either
individually or in the aggregate (but excluding Indebtedness
outstanding hereunder), of such Borrower or such Subsidiary, as the
case may be, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Indebtedness; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such
Indebtedness and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Indebtedness; or any such Indebtedness shall be
declared to be due and payable, or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Indebtedness shall be required to be made, in
each case prior to the stated maturity thereof; provided, however, that
the required redemption or repurchase of any such Indebtedness
comprised of Mandatorily Redeemable Stock of Chesapeake Holdings shall
not constitute an Event of Default under this Section 6.01(d) if, and
only if, Chesapeake Holdings makes timely payment of any redemption
price or repurchase price required to be paid by it; or
(e) Any Borrower or any Significant Subsidiary shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Borrower or any Significant Subsidiary
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or any substantial part of its property and assets) shall
occur; or any Borrower or any Significant Subsidiary shall take any
action to authorize any of the actions set forth above in this Section
6.01(e); or
(f) One or more judgments or orders for the payment of money
in excess of $20,000,000 (or the equivalent thereof in one or more
foreign currencies) shall be rendered against one or more of the
Borrowers and their Subsidiaries and shall remain unsatisfied and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period
of 30 consecutive days during which a stay of enforcement of any such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(g) One or more nonmonetary judgments or orders shall be
rendered against one or more of the Borrowers and their Subsidiaries
and shall remain unsatisfied that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect, and there shall be any period of 30 consecutive days during
which a stay of enforcement of any such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(h) Any material provision of this Agreement or any Note after
delivery thereof pursuant to Article III shall for any reason cease to
be valid and binding on or enforceable against any Borrower intended to
be a party thereto, or any Borrower or any of its Subsidiaries or other
Affiliates shall so state in writing; or
(i) (i) Any ERISA Event with respect to a Plan shall have
occurred and be continuing and the sum (determined as of the date of
occurrence of such ERISA Event) of the Insufficiency of such Plan and
the Insufficiency of any and all other Plans with respect to which an
ERISA Event shall have occurred and be continuing (or the liability of
the Borrowers and the ERISA Affiliates related to such ERISA Events)
exceeds $20,000,000 (or the equivalent thereof in one or more foreign
currencies); or
(ii) Any Borrower or any ERISA Affiliate (A) shall engage in
any transaction involving any Plan or any Multiemployer Plan that
is prohibited under Section 4975 of the Internal Revenue Code or
Section 406 of ERISA and not exempt under Section 4975 of the
Internal Revenue Code or Section 408 of ERISA or other applicable
law or (B) shall fail to pay when due an amount that is payable by
it to the PBGC or to any Plan or any Multiemployer Plan under
Title IV of ERISA, unless the liability of such Person or Persons
with respect to subclauses (ii)(A) and (ii)(B) of this Section
6.01(i) does not exceed $20,000,000 (or the equivalent thereof in
one or more foreign currencies) in the aggregate; or
(iii) (A) Any Borrower or any ERISA Affiliate shall be in
default, as defined in Section 4219(c)(5) of ERISA, with respect
to any payment of Withdrawal Liability or (B) a proceeding shall
be instituted by a fiduciary of a Multiemployer Plan against any
Borrower or any ERISA Affiliate to enforce Section 515 of ERISA
and such proceeding shall not have been stayed or dismissed within
60 days thereafter, unless the liability of such Person or Persons
with respect to subclauses (iii)(A) and (iii)(B) of this Section
6.01(i) does not exceed $20,000,000 (or the equivalent thereof in
one or more foreign currencies) in the aggregate; or
(j) Any Borrower (other than the Company) shall cease to be a
Substantially Owned Subsidiary; or
(k) A Change of Control shall occur;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrowers,
declare the obligation of each Lender to make Revolving Credit Advances and to
purchase Discounted Notes to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrowers, declare the Notes, all interest
thereon and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by each of
the Borrowers; provided, however, that in the event of an actual or deemed entry
of an order for relief with respect to any Borrower under the U.S. Federal
Bankruptcy Code or any similar bankruptcy or insolvency law of any other
jurisdiction, (A) the obligation of each Lender to make Revolving Credit
Advances and to purchase Discounted Notes shall automatically be terminated and
(B) the Notes, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by each of the Borrowers.
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee. For valuable
consideration, receipt whereof is hereby acknowledged, and to induce each Lender
to make Revolving Credit Advances from time to time to, and to purchase
Discounted Notes from time to time from, the Borrowers and to induce the
Administrative Agent to act in such capacity hereunder, the Company hereby
unconditionally and irrevocably guarantees the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all obligations of
each of the other Borrowers now or hereafter existing under this Agreement and
the Notes of such other Borrowers, whether for principal, Face Amount, interest,
fees, expenses or otherwise (such obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any Lender in enforcing its rights under this Article
VII. Without limiting the generality of the foregoing, the Company's liability
shall extend to all amounts that constitute part of the Guaranteed Obligations
and would be owed by any other Borrower to the Administrative Agent or any
Lender under this Agreement or any Note of such other Borrower but for the fact
that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving such other Borrower.
SECTION 7.02. Guarantee Absolute. The Company guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the applicable Notes, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of the Administrative Agent or any Lender with respect thereto.
The obligations of the Company under this Article VII are independent of the
Guaranteed Obligations, and a separate action or actions may be brought and
prosecuted against the Company to enforce this Article VII, irrespective of
whether any action is brought against any other Borrower or whether any other
Borrower is joined in any such action or actions. The liability of the Company
under this Article VII shall be irrevocable, absolute and unconditional
irrespective of, and the Company hereby irrevocably waives any defenses it may
now or hereafter have in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement
or any Note, or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any
other obligations of any other Borrower under this Agreement or any
Note, or any other amendment or waiver of or any consent to departure
from this Agreement or any Note (including, without limitation, any
increase in the Guaranteed Obligations resulting from extensions of
additional credit to any other Borrower or otherwise);
(c) any taking, exchange, release or nonperfection of any
collateral or any taking, release or amendment or waiver of or consent
to departure from any other guarantee, for all or any of the Guaranteed
Obligations;
(d) any change, restructuring or termination of the structure
or existence of any other Borrower or any of its Subsidiaries;
(e) any failure of the Administrative Agent or any Lender to
disclose to the Company any information relating to the financial
condition, operations, properties or prospects of any other Borrower
now or hereafter known by the Administrative Agent or such Lender, as
the case may be; or
(f) any other circumstance (including, without limitation, any
statute of limitations to the fullest extent permitted by applicable
law or any existence of or reliance on any representation by the
Administrative Agent or any Lender) that might otherwise constitute a
defense available to, or a discharge of, the Company, any other
Borrower or any other guarantor or surety.
The guarantee of the Company set forth in this Article VII shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Guaranteed Obligations is rescinded or must otherwise be returned by
the Administrative Agent or any of the Lenders upon the insolvency, bankruptcy
or reorganization of any other Borrower or otherwise, all as though such payment
had not been made.
SECTION 7.03. Waivers. (a) The Company hereby unconditionally
and irrevocably waives promptness, diligence, presentment, demand for payment,
protest, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and the guarantee of the Company set forth in this
Article VII, and any requirement that any right or power be exhausted or any
action be taken against any other Borrower or against any other guarantor of all
or any portion of the Revolving Credit Advances or the Discounted Notes.
(b) The Company hereby unconditionally and irrevocably waives
any right to revoke its guarantee set forth in this Article VII, and
acknowledges that such guarantee is continuing in nature and applies to all of
the Guaranteed Obligations, whether existing now or in the future.
(c) The Company hereby unconditionally and irrevocably waives
any duty on the part of the Administrative Agent or any Lender to disclose to
the Company any matter, fact or thing relating to the business, properties,
operation or condition of any other Borrower or any of its Subsidiaries now or
hereafter known by the Administrative Agent or such Lender, as the case may be.
(d) The Company acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated under
this Agreement and the Notes and that the waivers set forth in this Section 7.03
are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. The Company hereby unconditionally
and irrevocably agrees not to exercise any rights that it may now have or may
hereafter acquire against any other Borrower or any other insider guarantor that
arise from the existence, payment, performance or enforcement of the obligations
of the Company under this Article VII or otherwise under this Agreement and its
Notes, including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of the Administrative Agent or any Lender against another
Borrower or any other insider guarantor or any collateral, whether or not such
claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from another
Borrower or any other insider guarantor, directly or indirectly, in cash or
other property or by setoff or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Article VII shall have been
paid in full in cash and all of the Commitments shall have expired or
terminated. If any amount shall be paid to the Company in violation of the
immediately preceding sentence at any time prior to the later of (a) the payment
in full in cash of all of the Guaranteed Obligations and all of the other
amounts payable under this Article VII and (b) the Termination Date, such amount
shall be held in trust for the benefit of the Administrative Agent and the
Lenders and shall forthwith be paid to the Administrative Agent to be credited
and applied to the Guaranteed Obligations and all other amounts payable under
this Article VII, whether matured or unmatured, in accordance with the terms of
this Agreement, or to be held as collateral for any Guaranteed Obligations or
any other amounts payable under this Article VII thereafter arising. If (i) the
Company shall make payment to the Administrative Agent or any Lender of all or
any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations
and all of the other amounts payable under this Article VII shall be paid in
full in cash and (iii) the Termination Date shall have occurred, the
Administrative Agent and the Lenders will, at the Company's request and expense,
execute and deliver to the Company appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer by
subrogation to the Company of an interest in the Guaranteed Obligations
resulting from such payment by the Company.
SECTION 7.05. Continuing Guarantee; Assignments. The guarantee
of the Company set forth in Section 7.01 is a continuing guarantee and shall (a)
remain in full force and effect until the later of (i) the payment in full in
cash of all of the Guaranteed Obligations and all other amounts payable under
this Article VII and (ii) the Termination Date, (b) be binding upon the Company,
its successors and assigns, (c) inure to the benefit of and be enforceable by
each Lender and the Administrative Agent and their respective successors,
transferees and assigns and (d) be reinstated if at any time any payment to a
Lender or the Administrative Agent hereunder is required to be returned by such
Lender or the Administrative Agent, as the case may be. Without limiting the
generality of clause (c) of the immediately preceding sentence, each Lender may
assign or otherwise transfer all or a portion of its rights and obligations
under this Agreement (including, without limitation, the Revolving Credit
Advances owing to it, the Discounted Notes purchased by it and any other Notes
held by it) to any other Person, and such other Person shall thereupon become
vested with all of the benefits in respect thereof granted to such Lender under
this Article VII or otherwise, in each case as provided in Section 9.07.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action. (a) Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Administrative Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lenders and all holders of
Notes; provided, however, that the Administrative Agent shall not be required to
take any action that exposes the Administrative Agent to personal liability or
that is contrary to this Agreement or to applicable law. The Administrative
Agent agrees to give to each Lender prompt notice of each notice given to it by
any Borrower pursuant to the terms of this Agreement.
(b) None of the Syndication Agent, Bank or America, N.A., as
co-syndication agent, Commerzbank AG, New York and Grand Cayman Branches, as
co-syndication agent, or HSBC Bank USA, as co-syndication agent, shall have any
powers or discretion under this Agreement or any Note other than those afforded
to it in its capacity as a Lender, and each Lender hereby acknowledges that none
of the Syndication Agent, Bank or America, N.A., as co-syndication agent,
Commerzbank AG, New York and Grand Cayman Branches, as co-syndication agent, or
HSBC Bank USA, as co-syndication agent, have any liabilities under this
Agreement or any Note other than those assumed by it in its capacity as Lender.
SECTION 8.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its officers, directors, employees, agents
or advisors shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent:
(i) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and
Acceptance or an Assumption Agreement, as the case may be, entered into
by the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 9.07 or 2.16,
respectively;
(ii) may consult with legal counsel (including counsel for the
Company), independent certified public accountants and other experts
selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts;
(iii) makes no warranty or representation to any Lender and
shall not be responsible to any Lender for any statements, warranties
or representations (whether written or oral) made in or in connection
with this Agreement or any Note;
(iv) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or
conditions of this Agreement or any Note on the part of any Borrower or
to inspect the property (including the books and records) of any
Borrower;
(v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any Note, or any other instrument or
document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 8.03. Administrative Agent and Affiliates. With
respect to its Commitment, the Revolving Credit Advances made by it, the
Discounted Notes purchased by it and any other Note or Notes issued to it,
Citibank (or any successor Administrative Agent appointed pursuant to Section
8.06) shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the Administrative Agent;
and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated,
include Citibank (or any such successor) in its individual capacity. Citibank
(or any such successor) and its Affiliates may accept deposits from, lend money
to, act as trustee under indentures of, accept investment banking engagements
from, and generally engage in any kind of business with, any Borrower, any of
its Subsidiaries and any Person who may do business with or own securities of
any Borrower or any such Subsidiary, all as if Citibank (or any such successor)
were not the Administrative Agent and without any duty to account therefor to
the Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent,
the Syndication Agent or any other Lender and based on the financial statements
referred to in Section 4.01(e) and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent, the Syndication Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to indemnify
the Administrative Agent (to the extent required to be paid and not reimbursed
by the Borrowers), according to their respective Pro Rata Shares of principal
amounts of the Revolving Credit Notes held by each of them (or if no Revolving
Credit Notes are outstanding at such date or if any Revolving Credit Notes or
any Discounted Notes are held by Persons that are not Lenders at such date,
according to their respective Pro Rata Shares of the aggregate Commitments at
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and disbursements
of any kind or nature whatsoever that may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement or any Note or any action taken or omitted by the Administrative Agent
under this Agreement or any Note; provided that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for its Pro Rata Share of any out-of-pocket costs and
expenses (including reasonable counsel fees and expenses) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement or any Note to the extent that
the Administrative Agent is not reimbursed for such expenses by the Borrowers.
SECTION 8.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Company and may be removed at any time with or without cause
by the Required Lenders. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint a successor Administrative Agent;
provided that, so long as no Default shall have occurred and be continuing, the
Company shall have the right to propose a successor Administrative Agent to the
Lenders and shall have the right to consent to any such successor Administrative
Agent, such consent not to be unreasonably withheld and to be deemed to have
been given if the Company does not object to the proposed successor
Administrative Agent within five Business Days after notice thereof. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders (and, if so required under the immediately preceding sentence, consented
to by the Company), and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any state thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VIII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, the Revolving Credit Notes, the Master Discounted
Note or the Discounted Notes, nor consent to any departure by any Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders, do any of the following:
(a) waive any of the conditions specified in Section 3.01 or
3.02 or, with respect to all Consenting Lenders and all Assuming
Lenders, Section 3.04;
(b) increase the aggregate Commitments of the Lenders or
subject the Lenders to any additional obligations;
(c) reduce the principal of, or interest on, the Revolving
Credit Advances, or the Face Amount of, or Discount on, the Discounted
Notes, or any fees (other than any fees referred to in Section 2.03(b))
or other amounts payable hereunder;
(d) postpone any date fixed for any payment of principal of,
or interest on, the Revolving Credit Advances, or Face Amount of, or
Discount on, the Discounted Notes, or any fees (other than any fees
referred to in Section 2.03(b)) or other amounts payable hereunder,
except pursuant to Section 2.16 as in effect on the date of this
Agreement;
(e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Revolving Credit Advances and
the aggregate unpaid Face Amount of the Discounted Notes, or the number
of Lenders, that shall be required for the Lenders or any of them to
take any action hereunder;
(f) release or limit the obligations of the Company under any
provision of Article VII; or
(g) amend this Section 9.01;
and provided further, however, that (x) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note and (y) no amendment,
waiver or consent of Section 9.07(f) shall, unless in writing and signed by each
Lender that has granted a funding option to an SPC in addition to the Lenders
required above to take such action, affect the rights or duties of such Lender
or SPC under this Agreement or any Note.
SECTION 9.02. Notices, Etc. (a) All notices and other
communications provided for hereunder, unless otherwise expressly stated herein,
shall be in writing (including telecopier, telegraphic or telex communication)
and mailed, telecopied, telegraphed, telexed or delivered, if to any Initial
Borrower, at its address set forth below its name on the signature pages hereof;
if to any Designated Subsidiary that becomes a Borrower hereunder, at its
address set forth below its name on the signature page to its Designation
Letter; if to any Initial Lender, at its Base Rate Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its Base Rate
Lending Office specified in the Assignment and Acceptance or the Assumption
Agreement, as the case may be, pursuant to which it became a Lender; if to the
Administrative Agent, at its address at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Bank Loan Syndications Department; or, as to any Borrower or
the Administrative Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Company and the Administrative Agent. All such notices and communications
shall, when mailed, telecopied, telegraphed or telexed, be effective when
deposited in the mails, telecopied, delivered to the telegraph company or
confirmed by telex answerback, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VIII
shall not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or any of the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
(b) If any notice required under this Agreement is permitted
to be made, and is made, by telephone, actions taken or omitted to be taken in
reliance thereon by the Administrative Agent or any Lender shall be binding upon
the Borrower delivering such notice notwithstanding any inconsistency between
the notice provided by telephone and any subsequent writing in confirmation
thereof provided to the Administrative Agent or such Lender; provided that any
such action taken or omitted to be taken by the Administrative Agent or such
Lender shall have been in good faith and in accordance with the terms of this
Agreement.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any Note, (i) any notice to the Borrowers or to any one of them
required under this Agreement or any such Note that is delivered to the Company
shall constitute effective notice to the Borrowers or to any such Borrower,
including the Company and (ii) any Notice of Borrowing or any notice of
Conversion delivered pursuant to Section 2.08 may be delivered by any Borrower
or by the Company, on behalf of any other Borrower. Each Initial Borrower (other
than the Company) and each Designated Subsidiary hereby irrevocably appoints the
Company as its authorized agent to receive and deliver notices in accordance
with this Section 9.02, and hereby irrevocably agrees that (A) in the case of
clause (i) of the immediately preceding sentence, the failure of the Company to
give any notice referred to therein to any such Initial Borrower or any such
Designated Subsidiary, as the case may be, to which such notice applies shall
not impair or affect the validity of such notice with respect thereto and (B) in
the case of clause (ii) of the immediately preceding sentence, the delivery of
any such notice by the Company, on behalf of any other Borrower, shall be
binding on such other Borrower to the same extent as if such notice had been
executed and delivered directly by such Borrower.
SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof or
consent thereto; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by applicable law.
SECTION 9.04. Costs and Expenses. (a) Each of the Borrowers
jointly and severally agrees to pay, or to reimburse the Administrative Agent
from time to time upon demand for, all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without limitation, (A)
all syndication (including printing and distribution) costs and expenses and,
with the approval of the Company, consultant costs and expenses and (B) the
reasonable fees and expenses of counsel for the Administrative Agent with
respect thereto and with respect to advising the Administrative Agent as to its
rights and responsibilities under this Agreement, the Notes and the other
documents to be delivered hereunder. Each of the Borrowers jointly and severally
further agrees to pay, or to reimburse the Administrative Agent and the Lenders
from time to time upon demand for, all reasonable costs and expenses of the
Administrative Agent and the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses, but without duplication for any costs and
expenses for which the Borrowers are otherwise obligated to indemnify the
Administrative Agent and the Lenders under Section 9.04(b)), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Administrative Agent and each Lender.
(b) Each of the Borrowers jointly and severally agrees to
indemnify and hold harmless the Administrative Agent, the Syndication Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against,
and to reimburse each Indemnified Party from time to time upon demand for, any
and all claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of, or in connection with the preparation for
a defense of, any investigation, litigation or proceeding arising out of,
related to or in connection with (i) the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Revolving Credit Advances or the Discounted Notes or (ii) the actual or
alleged presence of Hazardous Materials on any property of any Borrower or any
of its Subsidiaries or any Environmental Action relating in any way to any
Borrower or any of its Subsidiaries, in each case whether or not such
investigation, litigation or proceeding is brought by any Borrower, its
directors, shareholders or creditors or any Indemnified Party or any other
Person or an Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated, except (A) to the extent
such claim, damage, loss, liability or expense is found by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct or (B) those resulting solely from claims of a Lender solely
against one or more other Lenders (and not from claims of one or more Lenders
against the Administrative Agent or the Syndication Agent) not attributable to
the actions of any Borrower or any of its Subsidiaries or other Affiliates and
for which none of the Borrowers, any of their Subsidiaries or any of their other
Affiliates otherwise has liability. Each Borrower also agrees not to assert any
claim against the Administrative Agent, the Syndication Agent, any Lender or any
of their Affiliates, or any of their respective officers, directors, employees,
attorneys, agents and advisors, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or otherwise relating
to this Agreement, any Note, any of the transactions contemplated hereby or the
actual or proposed use of the proceeds of the Revolving Credit Advances or the
Discounted Notes. No Indemnified Party shall settle or otherwise pay or agree to
pay any claim for which the Borrowers are obligated to provide indemnification
under this Section 9.04(b) without the prior written consent of the Company,
which consent shall not be unreasonably withheld.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance, or any repurchase of any Discounted Note, is made by
any Borrower to or for the account of a Lender other than on the last day of the
Interest Period for such Eurodollar Rate Advance or the Maturity Date of such
Discounted Note, as the case may be, as a result of a payment or Conversion
pursuant to Section 2.08, 2.09 or 2.11, acceleration of the maturity of the
Notes pursuant to Section 6.01 or by an Eligible Assignee to any Lender other
than on the last day of the Interest Period or on the Maturity Date therefor, as
the case may be, upon an assignment of the rights and obligations of such Lender
under this Agreement pursuant to Section 9.07 as a result of a demand by the
Company pursuant to Section 9.07(a), or for any other reason, the Borrowers
jointly and severally agree to pay, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), to the Administrative Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion, including, without limitation, any loss (excluding
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund or maintain such Eurodollar Rate Advance or such Discounted Note.
(d) Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in Sections 2.10, 2.13 and 9.04 shall survive the payment in full of
principal, Face Amount, interest and all other amounts payable hereunder and
under the Notes.
SECTION 9.05. Right of Setoff. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and any and all other
indebtedness at any time owing by such Lender or such Affiliate to or for the
credit or the account of any Borrower against any and all of the obligations of
such Borrower now or hereafter existing under this Agreement and the Note or
Notes held by such Lender, whether or not such Lender shall have made any demand
under this Agreement or any such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify each Borrower after any such
setoff and application; provided that the failure to give such notice shall not
affect the validity of such setoff and application. The rights of each Lender
and its Affiliates under this Section 9.05 are in addition to any other rights
and remedies (including, without limitation, other rights of setoff) that such
Lender and its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become
effective (other than Section 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by each Initial Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Initial
Lender that such Initial Lender has executed it and, thereafter, shall be
binding upon and inure to the benefit of each Borrower, the Administrative
Agent, the Syndication Agent and each Lender and their respective successors and
assigns, except that no Borrower shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender
may, and, if demanded by the Company (following (i) a demand by such Lender for
the payment of, or the incurrence by a Borrower of any obligation to pay,
additional compensation pursuant to Section 2.06(c), 2.10 or 2.13 or (ii) an
assertion by such Lender pursuant to Section 2.11 that it is impracticable or
unlawful for such Lender to make Eurodollar Rate Advances or to purchase
Discounted Notes), upon at least 30 Business Days' notice to such Lender and the
Administrative Agent, each Lender will, assign to one or more Persons all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Revolving Credit Advances
owing to it, the Discounted Notes purchased by it and the Revolving Credit Note
or Notes held by it); provided, however, that:
(A) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this Agreement;
(B) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of
all of a Lender's rights and obligations under this Agreement, the
amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall be
$5,000,000 or an integral multiple of $1,000,000 in excess thereof;
(C) each such assignment shall be to an Eligible Assignee;
(D) each such assignment made as a result of a demand by the
Company pursuant to this Section 9.07(a) shall be arranged by the
Company with the approval of the Administrative Agent, which approval
shall not be unreasonably withheld or delayed, and shall be either an
assignment of all of the rights and obligations of the assigning Lender
under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other
such assignments that, in the aggregate, cover all of the rights and
obligations of the assigning Lender under this Agreement;
(E) no Lender shall be obligated to make any assignment as a
result of a demand by the Company pursuant to this Section 9.07(a)
unless and until such Lender shall have received one or more payments
from (1) one or more Eligible Assignees in an aggregate amount at least
equal to the aggregate outstanding principal amount of all Revolving
Credit Advances owing to, and the aggregate Accreted Value to the date
of such assignment of all outstanding Discounted Notes purchased by,
such Lender, together with accrued interest on such Advances to the
date of payment of such principal amount, and (2) the Company and/or
one or more Eligible Assignees in an aggregate amount equal to all
other amounts payable to such Lender under this Agreement and the Notes
(including, without limitation, any amounts owing under Sections
2.06(c), 2.10 and 2.13); and
(F) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance, together with any
Revolving Credit Note subject to such assignment, and each Eligible
Assignee party to such assignment shall pay a processing and
recordation fee of $3,500;
provided further, however, that no Person to which an assignment is being made
in accordance with this Section 9.07(a) shall be entitled to any additional
compensation under Sections 2.10, 2.11 and 2.13 in excess of the aggregate
amounts payable under such Sections to the Lender making such assignment prior
to the effective date of such Assignment and Acceptance, unless such additional
compensation is payable to such Person as a result of the adoption or enactment
of, or changes in or in the applicability, the interpretation or the
implementation of, any law, rule, regulation, directive, guideline or request
after such effective date. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (1) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (2) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto) provided that such assigning Lender's rights under Sections 2.10, 2.13
and 9.04, and its obligations under Section 8.05, shall survive the effective
date of such Assignment and Acceptance for such Lender as to matters occurring
prior to such effective date.
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance,
such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any Note, or any other instrument or
document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of any Borrower or the performance or observance by any Borrower of any
of its obligations under this Agreement or any Note, or any other
instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements
referred to in Section 4.01(e) and such other documents and information
as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance
upon the Administrative Agent, the Syndication Agent, such assigning
Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such
powers and discretion under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Revolving Credit Note or Notes subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit C hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Company.
Within ten Business Days after receipt of such notice by the Company, each
Borrower shall, at its own expense, execute and deliver to the Administrative
Agent in exchange for the surrendered Revolving Credit Note a new Revolving
Credit Note from such Borrower to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment hereunder, a
new Revolving Credit Note to the order of the assigning Lender in an amount
equal to the Commitment retained by it hereunder. Such new Revolving Credit Note
or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Revolving Credit Note or Notes, shall be
dated the effective date of such Assignment and Acceptance and shall otherwise
be in substantially the form of Exhibit A-1 hereto. Upon the Administrative
Agent's receipt of notice from the assigning Lender that such assigning Lender
is satisfied with the form and substance of such new Revolving Credit Notes, the
Administrative Agent shall, at the expense of the Borrowers, cancel the
surrendered Revolving Credit Notes of such assigning Lender and deliver to the
Company such cancelled Revolving Credit Notes.
(d) The Administrative Agent shall maintain at its address
referred to in Section 9.02(a) a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Commitment of, and the principal amount of
the Revolving Credit Advances owing to, and the Face Amount of the Discounted
Notes purchased by, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by any Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks
or other entities (other than any Borrower or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Revolving Credit
Advances owing to it, the Discounted Notes purchased by it and the other Note or
Notes held by it); provided, however, that:
(i) such Lender's obligations under this Agreement (including,
without limitation, its Commitment hereunder) shall remain unchanged;
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(iii) such Lender shall remain the holder of any such Notes
for all purposes of this Agreement;
(iv) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement; and
(v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this
Agreement or any Note, or any consent to any departure by any Borrower
therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Revolving Credit
Advances, the Face Amount of, or Discount on, the Discounted Notes, or
any fees or other amounts payable hereunder, in each case to the extent
subject to such participation, or postpone any date fixed for any
payment of principal of, or interest on, the Revolving Credit Advances,
any Face Amount of the Discounted Notes, or any fees or other amounts
payable hereunder, in each case to the extent subject to such
participation, except pursuant to Section 2.16;
and provided further that the Borrowers shall not be required to pay any
additional amounts under this Agreement to compensate a participant (or such
Lender, on behalf of a participant) in respect of the rights and obligations of
such participant relating to this Agreement in excess of what the Borrowers
would otherwise be required to pay to such Lender if the participation had not
been sold.
(f) Each Lender may grant to a special purpose funding vehicle
(an "SPC") that is an Affiliate of such Lender the option to fund all or any
part of any Advance or purchase of a Discounted Note that such Lender is
obligated to fund or purchase under this Agreement (and upon the exercise by
such SPC of such option to fund or purchase, such Lender's obligations with
respect to such Advance or Discounted Note shall be deemed satisfied to the
extent of any amounts funded by such SPC); provided, however, that:
(i) such Lender's obligations under this Agreement (including,
without limitation, its Commitment to the Borrowers hereunder) shall
remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement,
(iv) any such option granted to an SPC shall not constitute a
commitment by such SPC to fund any Advance,
(v) neither the grant to nor the exercise of such option by an
SPC shall increase the costs or expenses or otherwise increase or
change the obligations of the Borrowers under this Agreement
(including, without limitation, its obligations under Sections 2.10,
2.11 and 2.13),
(vi) the SPC shall be bound by the provisions of Section 9.09
and
(vii) no SPC shall have any right under such grant to approve
any amendment or waiver of any provision of this Agreement or any Note,
nor any consent to any departure by the Borrower therefrom, except to
the extent that such amendment, waiver or consent would reduce the
principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such grant of
funding option, or postpone any date fixed for any payment of principal
of, or interest on, the Revolving Credit Advances, the Face Amount of,
or Discount on, the Discounted Notes, or any fees or other amounts
payable hereunder, in each case to the extent subject to such grant of
funding option.
Each party to this Agreement hereby agrees that no SPC shall be liable for any
indemnity or payment under this Agreement for which a Lender would otherwise be
liable. Subject to the foregoing provisions of this clause (f), an SPC shall
have all the rights of the granting Lender. An SPC may assign or participate all
or a portion of its interest in any Advances to the granting Lender or to any
financial institution providing liquidity or credit support to or for the
account of such SPC without paying any processing fee therefor and, in
connection therewith may disclose on a confidential basis any information
relating to the Borrowers to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancements to such
SPC. In furtherance of the foregoing, each party hereto agrees (which agreements
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or
join any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof.
(g) Any Lender may, in connection with any assignment,
participation or grant of a funding option or proposed assignment, participation
or grant of a funding option pursuant to this Section 9.07, disclose to the
assignee, participant or SPC or proposed assignee, participant or SPC, any
information relating to any Borrower or any of its Subsidiaries furnished to
such Lender by or on behalf of any Borrower; provided that, prior to any such
disclosure, the assignee, participant or SPC or proposed assignee, participant
or SPC shall agree to preserve the confidentiality of any Confidential
Information received by it from such Lender in accordance with the terms of
Section 9.09.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Revolving Credit Advances owing to it, the Discounted Notes purchased by it and
the other Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 9.08. Designated Subsidiaries. (a) Designation. The
Company may at any time and from time to time by delivery to the Administrative
Agent of a Designation Letter, duly executed by the Company and a Substantially
Owned Subsidiary and in substantially the form of Exhibit F hereto, designate
such Subsidiary as a "Designated Subsidiary" for all purposes of this Agreement,
and, upon fulfillment of the applicable conditions set forth in Article III and
after such Designation Letter is accepted by the Administrative Agent, such
Subsidiary shall thereupon become a Designated Subsidiary for all purposes of
this Agreement and, as such, shall have all of the rights and obligations of a
Borrower hereunder. The Administrative Agent shall promptly notify each Lender
of each such designation by the Company and the identity of each such Designated
Subsidiary.
(b) Termination. Upon the payment and performance in full of
all of the indebtedness, liabilities and obligations of any Designated
Subsidiary or any Initial Borrower (other than the Company) under this Agreement
and the Notes issued by it, then, so long as at such time such Designated
Subsidiary or such Initial Borrower, as the case may be, has not submitted a
Notice of Revolving Credit Borrowing, such Designated Subsidiary's or such
Initial Borrower's status as a Borrower and, if applicable, as a Designated
Subsidiary shall terminate upon notice to such effect from the Administrative
Agent to the Lenders (which notice the Administrative Agent shall promptly
deliver to the Lenders following its receipt of such a request from the
Company). Thereafter, the Lenders shall be under no further obligation to make
any Revolving Credit Advances to, or to purchase any Discounted Notes from, such
Designated Subsidiary or such Initial Borrower, as the case may be.
SECTION 9.09. Confidentiality. Neither the Administrative
Agent nor any Lender or SPC shall disclose any Confidential Information to any
Person, without the prior written consent of the Company, other than (a) to the
Administrative Agent's or such Lender's Affiliates and their officers,
directors, employees, agents and advisors and, as contemplated by Section
9.07(f), to actual or prospective assignees and participants, and, in each such
case, then only on a confidential basis, (b) as required by any law, rule or
regulation or by judicial process, (c) to any rating agency when required by it
to do so; provided that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Confidential Information
relating to any Borrower received by it from such Lender, (d) as requested or
required by any state, federal or foreign authority or examiner regulating banks
or banking, (e) to protect, preserve, exercise or enforce the Administrative
Agent's or such Lender's rights under or pursuant to this Agreement or any Note
and (f) to perform any of the Administrative Agent's or such Lender's
obligations under or pursuant to this Agreement or any Note.
SECTION 9.10. Governing Law. This Agreement and each of the
Notes shall be governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 9.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York state court or
federal court of the United States of America sitting in New York City, New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or the Notes, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York state court or, to
the extent permitted by applicable law, in such federal court. Each Borrower
hereby further irrevocably consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any parties hereto by
registered or certified mail, postage prepaid, to such Borrower at its address
specified pursuant to Section 9.02. Each Initial Borrower (other than the
Company) and each Designated Subsidiary hereby further agrees that service of
process in any such action or proceeding brought in any such New York state
court or in any such federal court may be made upon the Company at its address
referred to in Section 9.02, and each Initial Borrower (other than the Company)
and each Designated Subsidiary hereby irrevocably appoints the Company as its
authorized agent to accept such service of process, and hereby irrevocably
agrees that the failure of the Company to give any notice of any such service to
such Initial Borrower or such Designated Subsidiary, as the case may be, shall
not impair or affect the validity of such service or of any judgment rendered in
any action or proceeding based thereon. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by applicable law. Nothing in this Agreement shall affect any right
that any party may otherwise have to serve legal process in any other manner
permitted by applicable law or to bring any action or proceeding relating to
this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York state or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) To the extent that any Borrower has or hereafter may
acquire any immunity from the jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, such Borrower hereby irrevocably waives such immunity in
respect of its obligations under this Agreement and the Notes.
SECTION 9.13. Waiver of Jury Trial. Each of the Borrowers, the
Administrative Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Administrative Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
THE BLACK & ▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President-Investor Relations and
Treasurer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
BLACK & ▇▇▇▇▇▇ HOLDINGS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice Chairman
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ England
Telephone: ▇▇-▇▇▇-▇▇▇▇▇▇
Telecopier: ▇▇-▇▇▇-▇▇▇▇▇▇
With a copy to the Company