EXHIBIT 10
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FIVE-YEAR CREDIT AGREEMENT
Dated as of November 23, 2005
Among
HARSCO CORPORATION,
THE LENDERS NAMED HEREIN
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
----------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Lead Arranger and Sole Bookrunner
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, CITIBANK, N.A., MIZUHO
CORPORATE BANK, LTD. and THE ROYAL BANK OF SCOTLAND PLC,
as Syndication Agents
BANCO BILBAO VIZCAYA ARGENTARIA S.A., ING CAPITAL LLC
and LLOYDS TSB BANK PLC,
as Co-Syndication Agents
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
Section 1.01. Defined Terms...................................................1
Section 1.02. Terms Generally................................................16
Section 1.03. Redenomination of Certain Alternative Currencies...............16
ARTICLE II
The Credits
Section 2.01. Commitments....................................................17
Section 2.02. Loans..........................................................17
Section 2.03. Competitive Bid Procedure......................................19
Section 2.04. Standby Borrowing Procedure....................................22
Section 2.05. Refinancings...................................................22
Section 2.06. Fees...........................................................23
Section 2.07. Repayment of Loans.............................................24
Section 2.08. Interest on Loans..............................................24
Section 2.09. Default Interest...............................................25
Section 2.10. Alternate Rate of Interest.....................................25
Section 2.11. Termination and Reduction of Commitments.......................25
Section 2.12. Prepayment.....................................................26
Section 2.13. Reserve Requirements; Change in Circumstances..................26
Section 2.14. Change in Legality.............................................28
Section 2.15. Indemnity......................................................29
Section 2.16. Pro Rata Treatment.............................................30
Section 2.17. Sharing of Setoffs.............................................30
Section 2.18. Payments.......................................................31
Section 2.19. Taxes..........................................................31
Section 2.20. Assignment of Commitments Under Certain Circumstances..........34
Section 2.21. Borrowings by Approved Borrowers...............................34
Section 2.22. Increase in Commitments........................................35
Section 2.23. Additional Costs...............................................36
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ARTICLE III
Representations and Warranties
Section 3.01. Corporate Existence............................................37
Section 3.02. Financial Condition............................................37
Section 3.03. Litigation.....................................................37
Section 3.04. No Breach......................................................38
Section 3.05. Action.........................................................38
Section 3.06. Approvals......................................................38
Section 3.07. Use of Credit..................................................38
Section 3.08. ERISA..........................................................38
Section 3.09. Taxes..........................................................38
Section 3.10. Investment Company Act.........................................39
Section 3.11. Public Utility Holding Company Act.............................39
Section 3.12. Material Agreements and Liens..................................39
Section 3.13. Environmental Matters..........................................39
Section 3.14. Subsidiaries, etc..............................................40
Section 3.15. True and Complete Disclosure...................................40
Section 3.16. Corporate Existence of Approved Borrower.......................40
Section 3.17. No Breach......................................................41
Section 3.18. Action.........................................................41
Section 3.19. Approvals......................................................41
Section 3.20. Taxes on Payments of Approved Borrowers........................41
ARTICLE IV
Conditions of Effectiveness and Lending
Section 4.01. Effective Date.................................................42
Section 4.02. First Borrowing by Each Approved Borrower......................43
Section 4.03. All Borrowings.................................................44
ARTICLE V
Affirmative Covenants
Section 5.01. Existence; Businesses and Properties...........................45
Section 5.02. Insurance......................................................46
Section 5.03. Obligations and Taxes..........................................46
Section 5.04. Financial Statements, Reports, etc.............................46
Section 5.05. Litigation and Other Notices...................................47
Section 5.06. ERISA..........................................................47
Section 5.07. Maintaining Records............................................48
Section 5.08. Use of Proceeds................................................48
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ARTICLE VI
Negative Covenants
Section 6.01. Liens..........................................................48
Section 6.02. Sale and Lease-Back Transactions...............................49
Section 6.03. Mergers, Sales of Assets, etc..................................50
Section 6.04. Lines of Business; Fiscal Year.................................51
Section 6.05. Transactions with Affiliates...................................51
Section 6.06. Total Debt to Total Capital Ratio..............................51
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Guarantee
Section 9.01. Guarantee......................................................57
Section 9.02. Obligations Unconditional......................................57
Section 9.03. Reinstatement..................................................58
Section 9.04. Subrogation....................................................58
Section 9.05. Remedies.......................................................58
Section 9.06. Continuing Guarantee...........................................58
ARTICLE X
Miscellaneous
Section 10.01. Notices.......................................................59
Section 10.02. Survival of Agreement.........................................59
Section 10.03. Binding Effect................................................59
Section 10.04. Successors and Assigns........................................60
Section 10.05. Expenses; Indemnity...........................................62
Section 10.06. Right of Setoff...............................................63
Section 10.07. Applicable Law................................................64
Section 10.08. Waivers; Amendment............................................64
Section 10.09. Interest Rate Limitation......................................64
Section 10.10. Entire Agreement..............................................65
Section 10.11. Waiver of Jury Trial..........................................65
Section 10.12. Severability..................................................65
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Section 10.13. Judgment Currency.............................................65
Section 10.14. Counterparts..................................................66
Section 10.15. Headings......................................................66
Section 10.16. Jurisdiction; Consent to Service of Process...................66
Section 10.17. USA Patriot Act...............................................67
Schedules and Exhibits
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Schedule 2.01 Lenders; Commitments
Schedule 2.21 Approved Borrowers
Schedule 3.12(a) Material Agreements
Schedule 3.12(b) Liens
Schedule 3.14 Subsidiaries
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid/Accept Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Form of Administrative Questionnaire
Exhibit C Form of Assignment and Acceptance
Exhibit D Mandatory Costs Rate
Exhibit E-1 Form of Opinion of General Counsel
Exhibit E-2 Form of Opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the
Company
Exhibit F-1 Form of Designation Letter
Exhibit F-2 Form of Termination Letter
Exhibit G Form of Accession Agreement
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FIVE-YEAR CREDIT AGREEMENT dated as of November 23, 2005 (as
amended, restated, supplemented, extended, replaced or otherwise
modified from time to time, the "Agreement") among HARSCO
CORPORATION, a Delaware corporation (the "Company"), the lenders
listed in Schedule 2.01 (the "Lenders"), and JPMORGAN CHASE BANK,
N.A., as administrative agent for the Lenders (in such capacity,
the "Administrative Agent").
The Company has requested that the Lenders extend credit to the Company in
order to enable it to borrow Standby Loans (such term and all other capitalized
terms not otherwise defined have the meanings assigned to them in Article I
hereof) on a standby revolving credit basis from time to time during the
Availability Period in an aggregate principal amount at any time outstanding not
in excess of $450,000,000 (less the aggregate principal amount of all
outstanding Competitive Loans at such time). The Company has also requested the
Lenders to provide a procedure pursuant to which the Company may invite the
Lenders to bid on an uncommitted basis on short-term borrowings by the Company.
The proceeds of all such borrowings are to be used for general corporate
purposes, including commercial paper backup. The Lenders are willing to extend
such credit to the Company on the terms and subject to the conditions herein set
forth.
Accordingly, the Company, the Lenders and the Administrative Agent agree as
follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Accession Agreement" shall mean an Accession Agreement substantially in
the form of Exhibit G among a Prospective Lender, the Company and the
Administrative Agent.
"Adjusted LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period
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multiplied by (b) the Statutory Reserve Rate; provided that, with respect to any
Eurocurrency Borrowing denominated in an Alternative Currency for any Interest
Period, Adjusted LIBO Rate shall mean an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the LIBO Rate for such
Interest Period.
"Administrative Fees" shall have the meaning assigned to such term in
Section 2.06(b).
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit B hereto.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Agent Designee" shall have the meaning assigned to such term in Article
VIII.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by the
Administrative Agent as its prime rate in effect at its principal office in New
York City; each change in the Prime Rate shall be effective on the date such
change is publicly announced as effective. "Federal Funds Effective Rate" shall
mean, for any day, the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist.
"Alternative Currency" shall mean (a) Euros and Sterling and (b) any other
freely available currency which is freely transferable and freely convertible
into Dollars and in which dealings in deposits are carried on in the London or
other interbank market, which shall be requested by a Borrower in respect of an
Alternative Currency Borrowing and approved by each Lender making an Alternative
Currency Loan comprising a part of such Borrowing.
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"Alternative Currency Borrowing" shall mean a Borrowing comprised of
Alternative Currency Loans. All Alternative Currency Borrowings shall be
Eurocurrency Borrowings.
"Alternative Currency Equivalent" shall mean, with respect to any amount of
Dollars on any date in relation to any specified Alternative Currency, the
amount of such specified Alternative Currency that may be purchased with such
amount of Dollars at the Spot Exchange Rate with respect to Dollars on such
date. The term "Alternative Currency Equivalent" may be preceded by a reference
to an Alternative Currency (e.g., "EUR Alternative Currency Equivalent"), in
which case the Alternative Currency so referenced shall be the "specified"
Alternative Currency.
"Alternative Currency Loan" shall mean any Loan denominated in an
Alternative Currency.
"Applicable Margin" shall mean on any date, (A) with respect to ABR Loans,
0% and (B) with respect to Eurocurrency Loans, the applicable spreads set forth
below based upon the ratings applicable on such date to senior, unsecured,
non-credit enhanced, long-term indebtedness of the Company for borrowed money
("Index Debt"):
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Eurocurrency
Loan Spread
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Category 1 .190%
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A+ or higher by S&P;
A1 or higher by ▇▇▇▇▇'▇
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Category 2
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A by S&P; .230%
A2 by ▇▇▇▇▇'▇
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Category 3
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A- by S&P; .270%
A3 by ▇▇▇▇▇'▇
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Category 4
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BBB+ by S&P; .360%
Baa1 by ▇▇▇▇▇'▇
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Category 5
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BBB or lower by S&P; .500%
Baa2 or lower by ▇▇▇▇▇'▇
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For purposes of determining the Applicable Margin for Eurocurrency Loans, (a) if
either ▇▇▇▇▇'▇ or S&P shall not have in effect a rating for Index Debt (other
than because such rating agency shall no longer be in the business of rating
corporate debt obligations), then
4
such rating agency will be deemed to have established a rating for Index Debt in
Category 5; (b) if the ratings established or deemed to have been established by
▇▇▇▇▇'▇ and S&P shall fall within different Categories, the Applicable Margin
shall be determined by reference to the higher (or numerically lower) Category
unless one of the ratings is two or more Categories lower (or numerically
higher) than the other, in which case the Applicable Margin shall be determined
by reference to the Category next below that of the higher of the two ratings;
and (c) if any rating established or deemed to have been established by ▇▇▇▇▇'▇
or S&P shall be changed (other than as a result of a change in the rating system
of either ▇▇▇▇▇'▇ or S&P), such change shall be effective as of the date on
which such change is first announced by the rating agency making such change.
Each change in the Applicable Margin shall apply to all Eurocurrency Loans and
ABR Loans that are outstanding at any time during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of either ▇▇▇▇▇'▇
or S&P shall change, or if either such rating agency shall cease to be in the
business of rating corporate debt obligations, the Company and the Lenders shall
negotiate in good faith to amend the references to specific ratings in this
definition to reflect such changed rating system or the nonavailability of
ratings from such rating agency.
"Applicable Percentage" shall mean, with respect to any Lender at any time,
the percentage of the Total Commitment represented by such Lender's Commitment
at such time.
"Approved Borrower" shall mean any wholly owned Subsidiary of the Company
as to which a Designation Letter shall have been delivered to the Administrative
Agent in accordance with Section 2.21 hereof and as to which a Termination
Letter shall not have been delivered to the Administrative Agent.
"Assigned Dollar Value" shall mean, in respect of any Borrowing denominated
in an Alternative Currency, the Dollar Equivalent thereof determined based upon
the applicable Spot Exchange Rate as of the Denomination Date for such
Borrowing.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee, and accepted by the
Administrative Agent, in the form of Exhibit C or such other form as shall be
approved by the Administrative Agent.
"Availability Period" shall mean the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States.
"Borrowers" shall mean the Company and each Approved Borrower.
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"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders
whose Competitive Bids have been accepted pursuant to Section 2.03).
"Borrowing Minimum" shall mean (a) in the case of a Borrowing denominated
in Dollars, $5,000,000 and (b) in the case of a Borrowing denominated in any
Alternative Currency, 5,000,000 units (or, in the case of Sterling, 2,500,000
units) of such currency.
"Borrowing Multiple" shall mean (a) in the case of a Borrowing denominated
in Dollars, $1,000,000 and (b) in the case of a Borrowing denominated in any
Alternative Currency, 1,000,000 units (or, in the case of Sterling, 500,000
units) of such currency.
"Business Day" shall mean any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York City; provided, however, that (a) when used in connection
with a Eurocurrency Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in deposits in the applicable currency in
the London interbank market, (b) when used in connection with a Loan denominated
in Euro, the term "Business Day" shall also exclude any day on which the TARGET
payment system is not open for the settlement of payments in Euro.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if (a) any person or
group (within the meaning of Rule 13d-5 of the Securities and Exchange
Commission as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing more than 20% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Company; or (b) a majority of the seats (other than vacant seats) on the
board of directors of the Company shall at any time have been occupied by
persons who were neither (i) nominated by the board of directors of the Company,
nor (ii) appointed by directors so nominated; or (c) any person or group shall
otherwise directly or indirectly Control the Company.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Committed Credit Exposure" shall mean, with respect to any Lender at any
time, the sum of (a) the aggregate principal amount at such time of all
outstanding Standby Loans of such Lender denominated in Dollars, plus (b) the
Assigned Dollar
6
Value at such time of the aggregate principal amount at such time of all
outstanding Standby Loans of such Lender that are Alternative Currency Loans.
"Commitment" shall mean, with respect to each Lender, the commitment of
such Lender hereunder as set forth in Schedule 2.01 hereto, as such Lender's
Commitment may be permanently terminated, reduced or increased from time to time
pursuant to Section 2.11 or Section 2.22.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification made by a
Borrower pursuant to Section 2.03(d) in the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a
Lender pursuant to Section 2.03(b), (i) in the case of a Eurocurrency Loan, the
Competitive Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to Section
2.03 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a borrowing consisting of a Competitive
Loan or concurrent Competitive Loans from the Lender or Lenders whose
Competitive Bids for such Borrowing have been accepted by a Borrower under the
bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a loan from a Lender to a Borrower pursuant
to the bidding procedure described in Section 2.03. Each Competitive Loan shall
be a Eurocurrency Competitive Loan or a Fixed Rate Loan.
"Competitive Margin" shall mean, as to any Eurocurrency Competitive Loan,
the margin (expressed as a percentage rate per annum in the form of a decimal to
no more than four decimal places) to be added to or subtracted from the LIBO
Rate in order to determine the interest rate applicable to such Loan, as
specified in the Competitive Bid relating to such Loan.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and "Controlling" and "Controlled" shall have meanings correlative thereto.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Denomination Date" shall mean, in relation to any Alternative Currency
Borrowing, the date that is three Business Days before the date such Borrowing
is made.
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"Designation Letter" shall have the meaning assigned to such term in
Section 2.21.
"Dollar Equivalent" shall mean, with respect to an amount of any
Alternative Currency on any date, the amount of Dollars that may be purchased
with such amount of such Alternative Currency at the Spot Exchange Rate with
respect to such Alternative Currency on such date.
"Dollars" or "$" shall mean lawful money of the United States of America.
"Domestic Subsidiaries" shall mean any Subsidiary organized or incorporated
under the laws of one of the States of the United States of America, the laws of
the District of Columbia or the Federal laws of the United States of America.
"Effective Date" shall mean the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 10.08).
"EMU Legislation" means the legislative measures of the European Union for
the introduction of, changeover to or operation of the Euro in one or more
member states.
"Environmental Laws" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
presence, management or release of Hazardous Materials or to health and safety
matters.
"Environmental Liability" means all liabilities, obligations, damages,
losses, claims, actions, suits, judgments, orders, fines, penalties, fees,
expenses and costs, (including administrative oversight costs, natural resource
damages and remediation costs), whether contingent or otherwise, arising out of
or relating to: (a) compliance or non-compliance with any Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release of any Hazardous Materials or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which the Company is a member and
which is treated as a single employer under Section 414 of the Code.
"Euro" means the single currency of the European Union as constituted by
the treaty on European Union.
8
"Eurocurrency Borrowing" shall mean a Borrowing comprised of Eurocurrency
Loans.
"Eurocurrency Competitive Borrowing" shall mean a Competitive Borrowing
comprised of Eurocurrency Competitive Loans.
"Eurocurrency Competitive Loan" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Eurocurrency Loan" shall mean any Eurocurrency Competitive Loan or
Eurocurrency Standby Loan.
"Eurocurrency Standby Borrowing" shall mean a Standby Borrowing comprised
of Eurocurrency Standby Loans.
"Eurocurrency Standby Loan" shall mean any Standby Loan bearing interest at
a rate determined by reference to the LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in Article
VII.
"Existing Three-Year Credit Agreement" shall mean the Three-Year Credit
Agreement dated as of August 12, 2004 (as amended, restated, supplemented,
extended, replaced or otherwise modified from time to time) among the Company,
the lenders thereunder and the Administrative Agent.
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a).
"Facility Fee Percentage" shall mean on any date, the applicable percentage
set forth below based upon the ratings applicable on such date to the Company's
Index Debt:
--------------------------------------------------------------------------------
Facility
Fee
Percentage
----------
--------------------------------------------------------------------------------
Category 1
----------
A+ or higher by S&P; .060%
A1 or higher by ▇▇▇▇▇'▇
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Category 2
----------
A by S&P; .070%
A2 by Moody's
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Category 3
----------
A- by S&P; .080%
A3 by Moody's
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Category 4
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BBB+ by S&P; .090%
Baa1 by Moody's
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Category 5
----------
BBB or lower by S&P; .125%
Baa2 or lower by Moody's
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For purposes of the foregoing, (a) if either Moody's or S&P shall not have in
effect a rating for Index Debt (other than because such rating agency shall no
longer be in the business of rating corporate debt obligations), then such
rating agency will be deemed to have established a rating for Index Debt in
Category 5; (b) if the ratings established or deemed to have been established by
Moody's and S&P shall fall within different Categories, the Facility Fee
Percentage shall be determined by reference to the higher (or numerically lower)
Category unless one of the ratings is two or more categories lower (or
numerically higher) than the other, in which case the Facility Fee Percentage
shall be determined by reference to the Category next below that of the higher
of the two ratings; and (c) if any rating established or deemed to have been
established by Moody's or S&P shall be changed (other than as a result of a
change in the rating system of either Moody's or S&P), such change shall be
effective as of the date on which such change is first announced by the rating
agency making such change. Each change in the Facility Fee Percentage shall
apply during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change. If the rating system of either Moody's or S&P shall change, or if either
such rating agency shall cease to be in the business of rating corporate debt
obligations, the Company and the Lenders shall negotiate in good faith to amend
the references to specific ratings in this definition to reflect such changed
rating system or the non-availability of ratings from such rating agency.
"Fees" shall mean the Administrative Fees, the Facility Fee and the
Utilization Fee.
"Financial Officer" of any corporation shall mean the Chief Financial
Officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed Rate
Loans.
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"Fixed Rate Loan" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"GAAP" shall mean United States generally accepted accounting principles,
applied on a basis consistent with the financial statements referred to in
Section 3.02.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" of or by any person shall mean any obligation, contingent or
otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase property, securities or services for the purpose
of assuring the owner of such Indebtedness of the payment of such Indebtedness
or (c) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that the term Guarantee
shall not include endorsements for collection or deposit, in either case in the
ordinary course of business.
"Guarantor" shall mean the Company in its capacity as the guarantor under
Section 9.01.
"Hazardous Materials" shall mean (A) petroleum products and byproducts,
asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, radon
gas, chlorofluorocarbons and all other ozone-depleting substances; or (B) any
chemical, material, substance, waste, pollutant or contaminant that is
prohibited, limited or regulated by or pursuant to any Environmental Law.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (e) all obligations of such person
issued or assumed as the deferred purchase price of property or services, (f)
all Indebtedness of others 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 owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (g) all Guarantees by such person
of Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange
rate hedging arrangements and (j) all obligations of such
11
person as an account party in respect of letters of credit and bankers'
acceptances; provided, however, that Indebtedness shall not include trade
accounts payable in the ordinary course of business. The Indebtedness of any
person shall include the Indebtedness of any partnership in which such person is
a general partner.
"Index Debt" shall have the meaning given such term under Applicable
Margin.
"Interest Payment Date" shall mean, with respect to any Loan, the last day
of each Interest Period applicable thereto and, in the case of a Eurocurrency
Loan with an Interest Period of more than three months' duration or a Fixed Rate
Loan with an Interest Period of more than 90 days' duration, each day that would
have been an Interest Payment Date for such Loan had successive Interest Periods
of three months' duration or 90 days duration, as the case may be, been
applicable to such Loan and, in addition, the date of any refinancing of such
Loan with a Loan of a different Type.
"Interest Period" shall mean (a) as to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
applicable Borrower may elect, (b) as to any ABR Borrowing, the period
commencing on the date of such Borrowing and ending on the earlier of (i) the
next succeeding day which shall be the last day of any March, June, September or
December and (ii) the Maturity Date and (c) as to any Fixed Rate Borrowing, the
period commencing on the date of such Borrowing and ending on the date specified
in the Competitive Bids in which the offer to make the Fixed Rate Loans
comprising such Borrowing were extended, which shall not be earlier than seven
days after the date of such Borrowing or later than 360 days after the date of
such Borrowing; provided, however, that if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of Eurocurrency Loans only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing for any
Interest Period, (i) the interest rate per annum for deposits for a maturity
most nearly comparable to such Interest Period in the currency in which such
Borrowing is denominated which appears on the Bloomberg's British Banker's
Association rate page as of 11:00 a.m., London time, on the Quotation Day for
such Interest Period or, if such a rate does not appear on the Bloomberg's
British Banker's Association rate page, (ii) an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the rate at which
deposits in the currency in which such Borrowing is denominated approximately
equal in principal amount to the Loan of the Administrative Agent, in its
capacity as a Lender (or, if the Administrative Agent is not a Lender in respect
of such Borrowing, then the Loan of the Lender in respect of such Borrowing with
the greatest Loan amount), included in such Eurocurrency Borrowing and for a
maturity comparable to such Interest Period are offered to the principal London
office of the Administrative
12
Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, on Quotation Day for such Interest
Period.
"Lien" shall mean with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"Loan" shall mean any Competitive Loan or Standby Loan.
"Loan Documents" shall mean this Agreement and the Fee Letter dated October
6, 2005, among the Administrative Agent, ▇.▇. ▇▇▇▇▇▇ Securities Inc. and the
Company.
"Margin Stock" shall have the meaning given such term under Regulation U.
"Material Adverse Change" or "Material Adverse Effect" shall mean (a) a
materially adverse change in, or a materially adverse effect on, the business,
assets, operations, performance or condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole or (b) a material impairment of
the ability of the Company or any Approved Borrower to perform any of its
respective obligations under any Loan Document to which it is or becomes a
party.
"Maturity Date" shall mean November 23, 2010.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA to which the Company or any ERISA Affiliate (other than one
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code
Section 414) 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.
"Net Worth" shall mean, as at any date, the sum for the Company and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) of the following:
(a) the amount of common stock; plus
(b) the amount of any preferred stock that does not have any requirement
for the Company to purchase, redeem, retire or otherwise acquire the same;
plus
(c) the amount of additional paid-in capital and retained earnings (or, in
the case of an additional paid-in capital or retained earnings deficit, minus
the amount of such deficit); plus
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(d) cumulative translation adjustments (or, in the case of negative
adjustments, minus the amount of such adjustments); plus
(e) cumulative pension liability adjustments (or, in the case of negative
adjustments, minus the amount of such adjustments); minus
(f) the cost of treasury stock.
"Obligation Currency" shall have the meaning assigned to such term in
Section 10.13.
"Other Taxes" shall have the meaning assigned to such term in Section
2.19(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code which is maintained for current or former employees, or any
beneficiary thereof, of the Company or any ERISA Affiliate.
"Prospective Lender" shall have the meaning assigned to such term in
Section 2.22.
"Quotation Day" means, with respect to any Eurocurrency Borrowing and any
Interest Period, the day on which it is market practice in the relevant
interbank market for prime banks to give quotations for deposits in the currency
of such Borrowing for delivery on the first day of such Interest Period. If such
quotations would normally be given by prime banks on more than one day, the
Quotation Day will be the last of such days.
"Register" shall have the meaning given such term in Section 10.04(d).
"Regulation D" shall mean Regulation D of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Reportable Event" shall mean any reportable event as defined in Section
4043(b) of ERISA or the regulations issued thereunder with respect to a Plan
(other than a Plan maintained by an ERISA Affiliate that is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
14
"Required Lenders" shall mean, at any time, Lenders having Commitments
representing a majority of the Total Commitment or, for purposes of acceleration
pursuant to clause (ii) of Article VII or after the termination of the
Commitments, Lenders holding Loans representing a majority of the aggregate
principal amount of the Loans outstanding. For purposes of determining the
Required Lenders, any Loans denominated in an Alternative Currency shall be
translated into Dollars at the Spot Exchange Rate in effect on the applicable
Denomination Date.
"Responsible Officer" of any corporation shall mean any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement.
"S&P" shall mean Standard & Poor's Ratings Services, a Division of the
▇▇▇▇▇▇-▇▇▇▇ Companies Inc.
"Spot Exchange Rate" shall mean, on any day, (a) with respect to any
Alternative Currency, the spot rate at which Dollars are offered on such day by
JPMorgan Chase Bank, N.A. in London for such Alternative Currency at
approximately 11:00 a.m. (London time), and (b) with respect to Dollars in
relation to any specified Alternative Currency, the spot rate at which such
specified Alternative Currency is offered on such day by JPMorgan Chase Bank,
N.A. in London for Dollars at approximately 11:00 a.m. (London time). For
purposes of determining the Spot Exchange Rate in connection with an Alternative
Currency Borrowing, such Spot Exchange Rate shall be determined as of the
Denomination Date for such Borrowing with respect to transactions in the
applicable Alternative Currency that will settle on the date of such Borrowing.
"Standby Borrowing" shall mean a borrowing consisting of simultaneous
Standby Loans from each of the Lenders.
"Standby Borrowing Request" shall mean a request made pursuant to Section
2.04 in the form of Exhibit A-5.
"Standby Loan" shall mean a revolving loan made by a Lender pursuant to
Section 2.04. Each Standby Loan shall be a Eurocurrency Standby Loan or an ABR
Loan.
"Statutory Reserve Rate" shall mean, with respect to any currency, a
fraction (expressed as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to Regulation D. Eurocurrency
Loans shall be deemed to be subject to such reserve requirements without benefit
of or credit for proration, exemptions or offsets that may be available from
time to time to any Lender under Regulation D or any other
15
applicable law, rule or regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Sterling" or "GBP" shall mean lawful money of the United Kingdom.
"subsidiary" shall mean, with respect to any person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, Controlled or held, or (b) which is, at the time any
determination is made, otherwise Controlled by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of the Company.
"Taxes" shall have the meaning assigned to such term in Section 2.19(a).
"Total Capital" shall mean, at any time, Net Worth plus Total Debt.
"Total Commitment" shall mean, at any time, the aggregate amount of the
Commitments, as in effect at such time.
"Total Debt" shall mean, at any time, the aggregate outstanding principal
amount of all Indebtedness of the Company and its Subsidiaries at such time
(other than Indebtedness described in clause (i) or (j) of the definition of the
term "Indebtedness") determined on a consolidated basis (without duplication) in
accordance with GAAP; provided that the term "Total Debt" shall include any
preferred stock that provides for the mandatory purchase, retirement, redemption
or other acquisition of the same by the Company or any Subsidiary (other than
preferred stock held by the Company or any Subsidiary).
"Transferee" shall have the meaning assigned to such term in Section
2.19(a).
"Transactions" shall mean the execution, delivery and performance by the
Company of this Agreement, the execution and delivery by the Company and the
Approved Borrowers of each Designation Letter, the borrowing of Loans and the
use of the proceeds thereof.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined and the currency in which such Loan or the Loans
comprising such Borrowings are denominated. For purposes hereof, "rate" shall
include the LIBO Rate, the Alternate Base Rate and the Fixed Rate, and
"currency" shall include Dollars and any Alternative Currency permitted
hereunder.
16
"Utilization Fee" shall have the meaning assigned to such term in Section
2.06(c).
"Utilization Fee Percentage" shall mean 0.100%.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that if the Company notifies the Administrative Agent that the Company
wishes to amend any covenant in Article VI or any related definition to
eliminate the effect of any change in GAAP occurring after the date of this
Agreement on the operation of such covenant (or if the Administrative Agent
notifies the Company that the Required Lenders wish to amend Article VI or any
related definition for such purpose), then the Company's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Company
and the Required Lenders.
SECTION 1.03. Redenomination of Certain Alternative Currencies. (a) Each
obligation of any party to this Agreement to make a payment denominated in the
national currency unit of any member state of the European Union that adopts the
Euro as its lawful currency after the date hereof shall be redenominated into
Euro at the time of such adoption (in accordance with the EMU Legislation). If,
in relation to the currency of any such member state, the basis of accrual of
interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London interbank market for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided that if
any Borrowing in the currency of such member state is outstanding immediately
prior to such date, such replacement shall take effect, with respect to such
Borrowing, at the end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent in consultation with the
Company may from time to time specify to be appropriate to reflect the adoption
of the Euro by any member state of the European Union and any relevant market
conventions or practices relating to the Euro.
17
ARTICLE II
The Credits
-----------
SECTION 2.01. Commitments. (a) Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Standby Loans to the Borrowers from
time to time during the Availability Period, in Dollars or one or more
Alternative Currencies (as specified in the Borrowing Requests with respect
thereto), in an aggregate principal amount at any time outstanding that will not
result in such Lender's Committed Credit Exposure exceeding such Lender's
Commitment, subject, however, to the conditions that (i) at no time shall (A)
the sum of (I) the aggregate Committed Credit Exposure of all the Lenders, plus
(II) the outstanding aggregate principal amount or Assigned Dollar Value of all
Competitive Loans made by all Lenders, exceed (B) the Total Commitment and (ii)
at all times the outstanding aggregate principal amount of all Standby Loans
made by each Lender shall equal such Lender's Applicable Percentage of the
outstanding aggregate principal amount of all Standby Loans made pursuant to
Section 2.04. Each Lender's Commitment is set forth opposite its name in
Schedule 2.01. Such Commitments may be terminated, reduced or increased from
time to time pursuant to Section 2.11 or Section 2.22. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrowers
may borrow, pay or prepay and reborrow Standby Loans.
(b) For purposes of paragraph (a) above, if the Dollar Equivalent of an
outstanding Borrowing denominated in an Alternative Currency, determined by the
Administrative Agent based upon the applicable Spot Exchange Rate as of the date
that is three Business Days before the end of the Interest Period with respect
to such Borrowing, does not exceed by more than 5% the Assigned Dollar Value of
such Borrowing, and if the entire amount of such Borrowing is to be refinanced
with a new Borrowing of equivalent amount in the same currency and by the same
Borrower, then such Borrowing shall continue to have the same Assigned Dollar
Value as in effect prior to such refinancing. The Administrative Agent shall
determine the applicable Spot Exchange Rate as of the date three Business Days
before the end of an Interest Period with respect to a Borrowing denominated in
an Alternative Currency and shall promptly notify the Company and the Lenders
whether the Dollar Equivalent of such Borrowing exceeds by more than 5% the
Assigned Dollar Value thereof.
(c) In the event that any Borrower wishes to make a Borrowing in any
Alternative Currency other than Euros or Sterling, such Borrowing shall be made
as a Competitive Borrowing.
SECTION 2.02. Loans. (a) Each Standby Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their applicable Commitments; provided, however, that the failure of any Lender
to make any Standby Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender shall
be responsible for the failure of any other Lender to make any Loan required to
be made by such other Lender).
18
Each Competitive Loan shall be made in accordance with the procedures set forth
in Section 2.03. The Competitive Loans and Standby Loans comprising any
Borrowing shall be in (i) an aggregate principal amount which is not less than
the Borrowing Minimum and an integral multiple of the Borrowing Multiple or (ii)
an aggregate principal amount equal to the remaining balance of the available
applicable Commitments.
(b) Each Competitive Borrowing shall be comprised entirely of Eurocurrency
Competitive Loans or Fixed Rate Loans, and each Standby Borrowing shall be
comprised entirely of Eurocurrency Standby Loans or ABR Loans, as the Borrowers
may request pursuant to Section 2.03 or 2.04, as applicable. Each Lender may at
its option make any Loan by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of the applicable Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that none of the
Borrowers shall be entitled to request any Borrowing which, if made, would
result in an aggregate of more than ten separate Standby Loans of any Lender
being outstanding hereunder at any one time. For purposes of the foregoing,
Borrowings having different Interest Periods or denominated in different
currencies, regardless of whether they commence on the same date, shall be
considered separate Borrowings.
(c) Subject to Section 2.05, each Lender shall make each Loan to be made by
it hereunder on the proposed date thereof by wire transfer to such account as
the Administrative Agent may designate in federal funds (in the case of any Loan
denominated in Dollars) or such other immediately available funds as may then be
customary for the settlement of international transactions in the relevant
currency not later than 11:00 a.m., New York City time, in the case of fundings
to an account in New York City, or 11:00 a.m., local time, in the case of
fundings to an account(s) in another jurisdiction, and the Administrative Agent
shall by 12:00 (noon), New York City time, in the case of fundings to (an)
account(s) in New York City, or 12:00 (noon), local time, in the case of
fundings to an account(s) in another jurisdiction, credit the amounts so
received to an account(s) designated by the applicable Borrower in the
applicable Borrowing Request, which account(s) must be in the country of the
currency of the Loan (it being understood that the funding may be for the credit
of an account outside such country) or in a country that is a member of the
European Union, in the case of Borrowings denominated in Euros, or, if a
Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, return the amounts so received to the
respective Lenders. Competitive Loans shall be made by the Lender or Lenders
whose Competitive Bids therefor are accepted pursuant to Section 2.03 in the
amounts so accepted and Standby Loans shall be made by the Lenders pro rata in
accordance with Section 2.16. Unless the Administrative Agent shall have
received notice from a Lender prior to the date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender's portion
of such Borrowing, the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the date of such Borrowing
in accordance with this paragraph (c) and the Administrative Agent may, in
reliance upon
19
such assumption, make available to the applicable Borrower on such date a
corresponding amount in the required currency. If the Administrative Agent shall
have so made funds available then to the extent that such Lender shall not have
made such portion available to the Administrative Agent, such Lender and the
applicable Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon in
such currency, for each day from the date such amount is made available to the
applicable Borrower until the date such amount is repaid to the Administrative
Agent at (i) in the case of the Borrower, the interest rate applicable at the
time to the Loans comprising such Borrowing and (ii) in the case of such Lender,
a rate determined by the Administrative Agent to represent its cost of overnight
or short-term funds in the relevant currency (which determination shall be
conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, none of the
Borrowers shall be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
SECTION 2.03. Competitive Bid Procedure. (a) In order to request
Competitive Bids, a Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Competitive Bid Request in the form of
Exhibit A-1 hereto, to be received by the Administrative Agent (i) in the case
of a Eurocurrency Competitive Borrowing, not later than 11:00 a.m., New York
City time (or, if the Bid Request is delivered or telecopied to the
Administrative Agent in London, 10:00 a.m., London time), four Business Days
before a proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before a proposed Competitive Borrowing. No ABR Loan shall be requested in, or
made pursuant to, a Competitive Bid Request. A Competitive Bid Request that does
not conform substantially to the format of Exhibit A-1 may be rejected in the
Administrative Agent's sole discretion, and the Administrative Agent shall
promptly notify the applicable Borrower of such rejection by telecopier. Such
request shall in each case refer to this Agreement and specify (A) whether the
Borrowing then being requested is to be a Eurocurrency Borrowing or a Fixed Rate
Borrowing, (B) the date of such Borrowing (which shall be a Business Day), (C)
the aggregate principal amount of such Borrowing, (D) the currency of such
Borrowing and (E) the Interest Period with respect thereto (which may not end
after the Maturity Date). If no election as to the currency of Borrowing is
specified in any Competitive Bid Request, then the applicable Borrower shall be
deemed to have requested Borrowings in Dollars. Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the Administrative
Agent shall invite by telecopier (in the form set forth in Exhibit A-2 hereto)
the Lenders to bid, on the terms and conditions of this Agreement, to make
Competitive Loans pursuant to the Competitive Bid Request.
(b) Each Lender may, in its sole discretion, make one or more Competitive
Bids to a Borrower responsive to a Competitive Bid Request. Each Competitive Bid
by a Lender must be received by the Administrative Agent via
20
telecopier, in the form of Exhibit A-3 hereto, (i) in the case of a Eurocurrency
Competitive Borrowing not later than 11:00 a.m., New York City time (or, if the
Competitive Bid is delivered or telecopied to the Administrative Agent in
London, 10:00 a.m., London time), three Business Days before a proposed
Competitive Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later
than 11:00 a.m., New York City time, on the day of a proposed Competitive
Borrowing. Multiple bids will be accepted by the Administrative Agent.
Competitive Bids that do not conform substantially to the format of Exhibit A-3
may be rejected by the Administrative Agent after conferring with, and upon the
instruction of, the applicable Borrower, and the Administrative Agent shall
notify the Lender making such nonconforming bid of such rejection as soon as
practicable. Each Competitive Bid shall refer to this Agreement and specify (A)
the principal amount (which (x) shall be in a minimum principal amount of the
Borrowing Minimum and in an integral multiple of the Borrowing Multiple, (y)
shall be expressed in Dollars or, in the case of an Alternative Currency
Borrowing, in both the Alternative Currency and the Assigned Dollar Value
thereof and (z) may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Loans that the
Lender is willing to make to the applicable Borrower, (B) the Competitive Bid
Rate or Rates at which the Lender is prepared to make the Competitive Loan or
Loans and (C) the Interest Period and the last day thereof. If any Lender shall
elect not to make a Competitive Bid, such Lender shall so notify the
Administrative Agent by telecopier (I) in the case of Eurocurrency Competitive
Loans, not later than 11:00 a.m., New York City time (or, if the notice is
delivered or telecopied to the Administrative Agent in London, 10:00 a.m.,
London time), three Business Days before a proposed Competitive Borrowing, and
(II) in the case of Fixed Rate Loans, not later than 11:00 a.m., New York City
time, on the day of a proposed Competitive Borrowing; provided, however, that
failure by any Lender to give such notice shall not cause such Lender to be
obligated to make any Competitive Loan as part of such Competitive Borrowing. A
Competitive Bid submitted by a Lender pursuant to this paragraph (b) shall be
irrevocable.
(c) The Administrative Agent shall promptly notify the applicable Borrower
by telecopier of all the Competitive Bids made, the Competitive Bid Rate and the
principal amount of each Competitive Loan in respect of which a Competitive Bid
was made and the identity of the Lender that made each bid. The Administrative
Agent shall send a copy of all Competitive Bids to the applicable Borrower for
its records as soon as practicable after completion of the bidding process set
forth in this Section 2.03.
(d) The applicable Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The Borrower shall notify
the Administrative Agent by telephone, confirmed by telecopier in the form of a
Competitive Bid Accept/Reject Letter, whether and to what extent it has decided
to accept or reject any of or all the bids referred to in paragraph (c) above,
(x) in the case of a Eurocurrency Competitive Borrowing, not later than 11:30
a.m., New York City time (or, if the notice is delivered or telecopied to the
Administrative Agent in London, 10:30 a.m., London time), three Business Days
before a proposed Competitive Borrowing, and (y) in the case of a Fixed Rate
Borrowing, not later than 11:30 a.m., New York City time, on the day of a
proposed
21
Competitive Borrowing; provided, however, that (i) the failure by the applicable
Borrower to give such notice shall be deemed to be a rejection of all the bids
referred to in paragraph (c) above, (ii) such Borrower shall not accept a bid
made at a particular Competitive Bid Rate if the Borrower has decided to reject
a bid made at a lower Competitive Bid Rate, (iii) the aggregate amount of the
Competitive Bids accepted by such Borrower shall not exceed the principal amount
specified in the Competitive Bid Request, (iv) if such Borrower shall accept a
bid or bids made at a particular Competitive Bid Rate but the amount of such bid
or bids shall cause the total amount of bids to be accepted by the Borrower to
exceed the amount specified in the Competitive Bid Request, then such Borrower
shall accept a portion of such bid or bids in an amount equal to the amount
specified in the Competitive Bid Request less the amount of all other
Competitive Bids accepted with respect to such Competitive Bid Request, which
acceptance, in the case of multiple bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such bid at such Competitive
Bid Rate, and (v) except pursuant to clause (iv) above, no bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in (x) a minimum
principal amount of the Borrowing Minimum and an integral multiple of the
Borrowing Multiple or (y) an aggregate principal amount equal to the remaining
balance of the available applicable Commitments; provided further, however, that
if a Competitive Loan must be in an amount less than the Borrowing Minimum
because of the provisions of clause (iv) above, such Competitive Loan may be for
a minimum of 1,000,000 units (or, in the case of Sterling, 500,000 units) of the
applicable currency or any integral multiple thereof, and in calculating the pro
rata allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv) the amounts shall be rounded to
integral multiples of 1,000,000 units (or, in the case of Sterling, 500,000
units) of the applicable currency in a manner which shall be in the discretion
of the applicable Borrower. A notice given by the applicable Borrower pursuant
to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid has been accepted (and if so, in what amount
and at what Competitive Bid Rate) by telecopy sent by the Administrative Agent,
and each successful bidder will thereupon become bound, subject to the other
applicable conditions hereof, to make the Competitive Loan in respect of which
its bid has been accepted.
(f) A Competitive Bid Request shall not be made within five Business Days
after the date of any previous Competitive Bid Request.
(g) If the Administrative Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such bid directly to the applicable
Borrower one quarter of an hour earlier than the latest time at which the other
Lenders are required to submit their bids to the Administrative Agent pursuant
to paragraph (b) above.
(h) All notices required by this Section 2.03 shall be given in accordance
with Section 10.01.
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SECTION 2.04. Standby Borrowing Procedure. In order to request a Standby
Borrowing, a Borrower shall hand deliver or telecopy to the Administrative Agent
a duly completed Standby Borrowing Request in the form of Exhibit A-5 hereto, to
be received by the Administrative Agent (a) in the case of a Eurocurrency
Standby Borrowing, not later than 11:00 a.m., New York City time (or, if the
Borrowing Request is delivered or telecopied to the Administrative Agent in
London, 10:00 a.m., London time), three Business Days before a proposed
borrowing and (b) in the case of an ABR Borrowing, not later than 10:00 a.m.,
New York City time, on the date of the proposed borrowing. No Fixed Rate Loan
shall be requested or made pursuant to a Standby Borrowing Request. Such notice
shall be irrevocable and shall in each case specify (i) whether the Borrowing
then being requested is to be a Eurocurrency Borrowing or an ABR Borrowing; (ii)
the date of such Borrowing (which shall be a Business Day), (iii) the aggregate
principal amount of the Borrowing (which shall be in a minimum principal amount
of the Borrowing Minimum and in an integral multiple of the Borrowing Multiple),
(iv) the currency of such Borrowing (which, in the case of an ABR Borrowing,
shall be Dollars) and (v) if such Borrowing is to be a Eurocurrency Borrowing,
the Interest Period with respect thereto. If no election as to the currency of
Borrowing is specified in any Standby Borrowing Request, then the applicable
Borrower shall be deemed to have requested Borrowings in Dollars. If no election
as to the Type of Borrowing is specified, then the requested Borrowing shall be
an ABR Borrowing if denominated in Dollars or a Eurocurrency Borrowing if
denominated in an Alternative Currency. If no Interest Period with respect to
any Eurocurrency Borrowing is specified, then the applicable Borrower shall be
deemed to have selected an Interest Period of one month's duration. If the
applicable Borrower shall not have given notice in accordance with this Section
2.04 of its election to refinance a Standby Borrowing prior to the end of the
Interest Period in effect for such Borrowing, then such Borrower shall (unless
such Borrowing is repaid at the end of such Interest Period) be deemed to have
given notice of an election to refinance such Borrowing with an ABR Borrowing if
denominated in Dollars or a Eurocurrency Borrowing in the same currency and with
an Interest Period of one month if denominated in an Alternative Currency. The
Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.04 (and the contents thereof), of each Lender's
portion of the requested Borrowing and, in the case of an Alternative Currency
Borrowing, of the Dollar Equivalent of the Alternative Currency amount specified
in the applicable Standby Borrowing Request and the Spot Exchange Rate utilized
to determine such Dollar Equivalent. Subject to Section 2.01(b), if the Dollar
Equivalent of a Lender's portion of any such Borrowing would exceed such
Lender's remaining available applicable Commitment, then such Lender's portion
of such Borrowing shall be reduced to the Alternative Currency Equivalent of
such Lender's remaining available Commitment.
SECTION 2.05. Refinancings. A Borrower may refinance all or any part of any
Competitive Borrowing or Standby Borrowing with a Competitive Borrowing or a
Standby Borrowing of the same or a different Type made pursuant to Section 2.03
or Section 2.04, subject to the conditions and limitations set forth herein and
elsewhere in this Agreement, including refinancings of Competitive Borrowings
with Standby Borrowings and Standby Borrowings with Competitive Borrowings. Any
Borrowing or part thereof so refinanced shall be deemed to be repaid in
accordance with Section 2.07
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with the proceeds of a new Borrowing hereunder and the proceeds of the new
Borrowing, to the extent they do not exceed the principal amount of the
Borrowing being refinanced, shall not be paid by the Lenders to the
Administrative Agent or by the Administrative Agent to the applicable Borrower
pursuant to Section 2.02(c); provided, however, that in the case of any
refinancing of a Borrowing with another Borrowing in the same currency, (i) if
the principal amount extended by a Lender in a refinancing is greater than the
principal amount extended by such Lender in the Borrowing being refinanced, then
such Lender shall pay such difference to the Administrative Agent for
distribution to the Lenders described in (ii) below, (ii) if the principal
amount extended by a Lender in the Borrowing being refinanced is greater than
the principal amount being extended by such Lender in the refinancing, the
Administrative Agent shall return the difference to such Lender out of amounts
received pursuant to (i) above, and (iii) to the extent any Lender fails to pay
the Administrative Agent amounts due from it pursuant to (i) above, any Loan or
portion thereof being refinanced with such amounts shall not be deemed repaid in
accordance with Section 2.07 and shall be payable by the applicable Borrower.
SECTION 2.06. Fees. (a) The Company agrees to pay to each Lender, through
the Administrative Agent, on each March 31, June 30, September 30 and December
31 and on the Maturity Date and any subsequent date on which the Loans of such
Lender shall be repaid (or on the date of termination of such Lender's
Commitment if such Lender has no Standby Loans outstanding after such date), a
facility fee (a "Facility Fee") equal to the Facility Fee Percentage of the
daily average amount of the Commitment of such Lender, whether used or unused
(and whether or not the conditions set forth in Section 4.01 shall have been
satisfied), during the preceding quarter (or shorter period commencing with the
date hereof or ending with the date on which the Commitment of such Lender shall
be terminated and all outstanding Loans of such Lender repaid). All Facility
Fees shall be computed on the basis of the actual number of days elapsed in a
year of 365 days (or 366 days in a leap year). The Facility Fee due to each
Lender shall commence to accrue on the date hereof and shall cease to accrue on
the date on which the Commitment of such Lender is terminated and the Loans of
such Lender have been repaid.
(b) The Company agrees to pay the Administrative Agent, for its own
account, the fees set forth in the letter agreement dated October 6, 2005, among
the Administrative Agent, ▇.▇. ▇▇▇▇▇▇ Securities Inc. and the Company (the
"Administrative Fees") at the times and in the amounts set forth therein.
(c) The Company agrees to pay to each Lender, through the Administrative
Agent, on each March 31, June 30, September 30 and December 31, on each date on
which the Commitment of such Lender shall be terminated or reduced as provided
herein and on any date after the termination of such Lender's Commitment on
which all the Loans of such Lender shall be repaid, a utilization fee (a
"Utilization Fee") equal to the Utilization Fee Percentage per annum of the sum
of (i) the Committed Credit Exposure of such Lender plus (ii) the outstanding
principal amount (or Assigned Dollar Value, in the case of Loans denominated in
Alternative Currencies) of the Competitive Loans of such Lender for each day on
which the outstanding aggregate principal amount (or Assigned Dollar Value) of
Loans exceeds 50% of the Total Commitment (including
24
each day after the termination of the Commitments). All Utilization Fees shall
be computed on the basis of the actual number of days elapsed in a year of 360
days.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.07. Repayment of Loans. (a) Each Borrower agrees to pay the
outstanding principal balance of each Loan on the last day of the Interest
Period applicable to such Loan and on the Maturity Date. Each Loan shall bear
interest from the date of the Borrowing of which such Loan is a part on the
outstanding principal balance thereof as set forth in Section 2.08.
(b) Each Lender shall, and is hereby authorized by the Borrowers to,
maintain, in accordance with its usual practice, records evidencing the
indebtedness of each Borrower to such Lender hereunder from time to time,
including the date, amount, currency and Type of and the Interest Period
applicable to each Loan made by such Lender from time to time and the amounts of
principal and interest paid to such Lender from time to time in respect of each
such Loan.
(c) The entries made in the records maintained pursuant to paragraph (b) of
this Section 2.07 and in the Register maintained by the Administrative Agent
pursuant to Section 10.04(d) shall be prima facie evidence of the existence and
amounts of the obligations of each Borrower to which such entries relate;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain or to make any entry in such records or the Register, as applicable, or
any error therein shall not in any manner affect the obligation of any Borrower
to repay any Loans in accordance with the terms of this Agreement.
SECTION 2.08. Interest on Loans. (a) Subject to the provisions of Section
2.09, the Loans comprising each Eurocurrency Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days (or, in the case of Loans denominated in (A) Sterling, over a year of 365
or 366 days, or (B) any Alternative Currency other than Sterling or Euros, on
the basis customarily used for borrowings between banks in the principal market
for such Alternative Currency)), at a rate per annum equal to (i) in the case of
each Eurocurrency Standby Loan, the Adjusted LIBO Rate for the Interest Period
in effect for the Borrowing of which such Loan is part plus the Applicable
Margin from time to time in effect and (ii) in the case of each Eurocurrency
Competitive Loan, the LIBO Rate for the Interest Period in effect for the
Borrowing of which such Loan is a part plus the Competitive Margin offered by
the Lender making such Loan and accepted by the Borrower pursuant to Section
2.03.
(b) Subject to the provisions of Section 2.09, the Loans comprising each
ABR Borrowing shall bear interest (computed on the basis of the actual number of
days elapsed over a year of 365 or 366 days, as appropriate, when determined by
reference to the Prime Rate and over a year of 360 days at all other times) at a
rate per annum equal to the Alternate Base Rate.
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(c) Subject to the provisions of Section 2.09, each Fixed Rate Loan shall
bear interest at a rate per annum (computed on the basis of the actual number of
days elapsed over a year of 360 days) equal to the fixed rate of interest
offered by the Lender making such Loan and accepted by the Borrower pursuant to
Section 2.03.
(d) Interest on each Loan shall be payable in arrears on each Interest Payment
Date applicable to such Loan except as otherwise provided in this Agreement. The
applicable LIBO Rate or Alternate Base Rate for each Interest Period or day
within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.09. Default Interest. If any Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, whether by scheduled maturity, notice of prepayment, acceleration
or otherwise, such Borrower shall on demand from time to time from the
Administrative Agent pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment (after as
well as before judgment) at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the Alternate
Base Rate plus 2% per annum (or, in the case of the principal of any Loan, if
higher, the rate of interest otherwise applicable, or most recently applicable,
to such Loan hereunder plus 2% per annum).
SECTION 2.10. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurocurrency Borrowing of any Type the Administrative
Agent shall have determined that Dollar deposits or deposits in the Alternative
Currency in which such Borrowing is to be denominated in the principal amounts
of the Loans comprising such Borrowing are not generally available in the London
interbank market, or that the rates at which such deposits are being offered
will not adequately and fairly reflect the cost to any Lender of making or
maintaining its Eurocurrency Loan during such Interest Period, or that
reasonable means do not exist for ascertaining the LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or telecopy notice
of such determination to the applicable Borrower and the Lenders. In the event
of any such determination, until the Administrative Agent shall have advised the
applicable Borrower and the Lenders that the circumstances giving rise to such
notice no longer exist, (i) any request by a Borrower for a Eurocurrency
Competitive Borrowing pursuant to Section 2.03 shall be of no force or effect
and shall be denied by the Administrative Agent and (ii) any request by a
Borrower for a Eurocurrency Standby Borrowing of the affected Type or in the
affected currency shall be deemed to be a request for an ABR Borrowing
denominated in Dollars. Each determination by the Administrative Agent hereunder
shall be conclusive absent manifest error.
SECTION 2.11. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
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(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Company (on behalf of all the
Borrowers) may at any time in whole permanently terminate, or from time to time
in part permanently reduce, the Total Commitment; provided, however, that (i)
each partial reduction of the Total Commitment shall be in an integral multiple
of $1,000,000 and in a minimum principal amount of $5,000,000 and (ii) no such
termination or reduction shall be made which would reduce the Total Commitment
to an amount less than the aggregate outstanding principal amount (or Assigned
Dollar Value, in the case of Loans denominated in Alternative Currencies) of the
Competitive Loans and Standby Loans.
(c) Each reduction in the Total Commitment hereunder shall be made ratably
among the Lenders in accordance with their respective Commitments. The Company
shall pay to the Administrative Agent for the account of the Lenders, on the
date of each termination or reduction, the Facility Fees on the amount of the
Commitments so terminated or reduced accrued to but not including the date of
such termination or reduction.
SECTION 2.12. Prepayment. (a) Each Borrower shall have the right at any
time and from time to time to prepay any Standby Borrowing, in whole or in part,
upon giving written or telecopy notice (or telephone notice promptly confirmed
by written or telecopy notice) to the Administrative Agent: (i) in the case of
Eurocurrency Loans before 11:00 a.m., New York City time (or, if such notice is
delivered or telecopied to the Administrative Agent in London, 10:00 a.m.,
London time), three Business Days prior to prepayment and (ii) in the case of
ABR Loans, before 11:00 a.m., New York City time, one Business Day prior to
prepayment; provided, however, that each partial prepayment shall be in an
amount which is an integral multiple of $1,000,000 and not less than $5,000,000.
The Borrowers shall not have the right to prepay any Competitive Borrowing.
(b) On the date of any termination or reduction of the Commitments pursuant
to Section 2.11(b), the Company shall (or shall cause each responsible Borrower
to) pay or prepay so much of the Standby Borrowings as shall be necessary in
order that the aggregate outstanding principal amount of all Loans will not
exceed the Total Commitment after giving effect to such termination or
reduction.
(c) Each notice of prepayment under this Section 2.12 shall specify the
prepayment date and the principal amount of each Borrowing (or portion thereof)
to be prepaid, shall be irrevocable and shall commit the applicable Borrower to
prepay such Borrowing (or portion thereof) by the amount stated therein on the
date stated therein. All prepayments under this Section 2.12 shall be subject to
Section 2.15 but otherwise without premium or penalty.
SECTION 2.13. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of
27
taxation of payments to any Lender (or any lending office of any Lender) of the
principal of or interest on any Eurocurrency Loan or Fixed Rate Loan made by
such Lender or any Fees or other amounts payable hereunder (other than changes
in respect of taxes imposed on the overall net income of such Lender by the
jurisdiction in which such Lender has its principal office or by any political
subdivision or taxing authority therein), or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by such Lender (or
any lending office of such Lender), or shall impose on such Lender or the London
interbank market any other condition affecting this Agreement or any
Eurocurrency Loan or Fixed Rate Loan made by such Lender, and the result of any
of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan or Fixed Rate Loan or to reduce the amount of
any sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise) by an amount deemed by such Lender to be material, then
the Company shall (or shall cause the Borrowers to) pay to such Lender upon
demand such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered. Notwithstanding the foregoing,
no Lender shall be entitled to request compensation under this paragraph with
respect to any Competitive Loan if it shall have been aware of the change giving
rise to such request at the time of submission of the Competitive Bid pursuant
to which such Competitive Loan shall have been made.
(b) If any Lender shall have determined that any change after the date
hereof in the applicability of any law, rule, regulation or guideline adopted
pursuant to or arising out of the July 1988 report of the Basel Committee on
Banking Regulations and Supervisory Practices entitled "International
Convergence of Capital Measurement and Capital Standards", or the adoption after
the date hereof of any other law, rule, regulation or guideline regarding
capital adequacy, or any change in any of the foregoing or in the interpretation
or administration of any of the foregoing by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any lending office of such Lender) or
any Lender's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by such
Lender pursuant hereto to a level below that which such Lender or such Lender's
holding company could have achieved but for such applicability, adoption, change
or compliance (taking into consideration such Lender's policies and the policies
of such Lender's holding company with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time the Company shall
(or shall cause the responsible Borrower to) pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender's holding
company for any such reduction suffered.
(c) A certificate of a Lender setting forth such amount or amounts as shall
be necessary to compensate such Lender as specified in paragraph (a) or (b)
above, as the case may be, shall be delivered to the Company and shall be
conclusive absent manifest error. The Company shall (or shall cause the
responsible Borrower to) pay each Lender
28
the amount shown as due on any such certificate delivered by it within 10 days
after the receipt of the same.
(d) Except as provided below in this paragraph (d), failure on the part of
any Lender to demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on capital with respect to
any period shall not constitute a waiver of such Lender's right to demand
compensation with respect to such period or any other period. The protection of
this Section shall be available to each Lender regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed. No Lender shall be entitled to compensation under this Section 2.13 for
any costs incurred or reductions suffered with respect to any date unless it
shall have notified the Company that it will demand compensation for such costs
or reductions not more than 60 days after the later of (i) such date and (ii)
the date on which it shall have, or should have, become aware of such costs or
reductions.
SECTION 2.14. Change in Legality. (a) Notwithstanding any other provision
herein, if, after the date hereof, (i) any change in any law or regulation or in
the interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurocurrency Loan or Alternative Currency Loan or to
give effect to its obligations as contemplated hereby with respect to any
Eurocurrency Loan or Alternative Currency Loan, or (ii) there shall have
occurred any change in national or international financial, political or
economic conditions (including the imposition of or any change in exchange
controls) or currency exchange rates which would make it impracticable for any
Lender to make Loans denominated in such Alternative Currency or to any
Borrower, then, by written notice to the Company and to the Administrative
Agent, such Lender may:
(i) declare that Eurocurrency Loans or Alternative Currency Loans (in the
affected currency or currencies or to the affected Borrower), as the case may
be, will not thereafter (for the duration of such unlawfulness or
impracticability) be made by such Lender hereunder, whereupon such Lender
shall not submit a Competitive Bid in response to a request for such
Alternative Currency Loans or Eurocurrency Competitive Loans and any request
by a Borrower for a Eurocurrency Standby Borrowing or Alternative Currency
Borrowing (in the affected currency or currencies or to the affected
Borrower), as the case may be, shall, as to such Lender only, be deemed a
request for an ABR Loan or a Loan denominated in Dollars, as the case may be,
unless such declaration shall be subsequently withdrawn (or, if a Loan to the
requesting Borrower cannot be made for the reasons specified above, such
request shall be deemed to have been withdrawn); and
(ii) require that all outstanding Eurocurrency Loans or Alternative
Currency Loans (in the affected currency or currencies or to the affected
Borrower), as the case may be, made by it be converted to ABR Loans
denominated in Dollars in which event all such Eurocurrency Loans or
Alternative Currency Loans (in the affected currency or currencies or to the
29
affected Borrower) shall be automatically converted to ABR Loans denominated
in Dollars as of the effective date of such notice as provided in paragraph
(b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurocurrency Loans or Alternative Currency Loans, as the case may be,
that would have been made by such Lender or the converted Eurocurrency Loans or
Alternative Currency Loans, as the case may be, of such Lender shall instead be
applied to repay the ABR Loans or Loans denominated in Dollars, as the case may
be, made by such Lender in lieu of, or resulting from the conversion of, such
Eurocurrency Loans or Loans denominated in Dollars, as the case may be. In the
event any Alternative Currency Loan is converted into a Loan denominated in
Dollars pursuant to this Section, (A) the principal amount of such Loan shall be
deemed to be an amount equal to the Assigned Dollar Value of such Alternative
Currency Loan determined based upon the applicable Spot Exchange Rate as of the
Denomination Date for the Borrowing which includes such Alternative Currency
Loan and (B) the applicable Borrower shall indemnify the Lender of such
converted Alternative Currency Loan against any loss it sustains as a result of
such conversion.
(b) For purposes of this Section 2.14, a notice to the Company by any
Lender shall be effective as to each Eurocurrency Loan, if lawful, on the last
day of the Interest Period currently applicable to such Eurocurrency Loan; in
all other cases such notice shall be effective on the date of receipt by the
Company.
SECTION 2.15. Indemnity. Each Borrower shall indemnify each Lender against
any loss or expense which such Lender may sustain or incur as a consequence of
(a) any failure by such Borrower to fulfill on the date of any borrowing
hereunder the applicable conditions set forth in Article IV, (b) any failure by
such Borrower to borrow or to refinance or continue any Loan hereunder after
irrevocable notice of such borrowing, refinancing or continuation has been given
pursuant to Section 2.03 or 2.04, (c) any payment, prepayment, conversion or
transfer of a Eurocurrency Loan or Fixed Rate Loan required by any other
provision of this Agreement or otherwise made or deemed made on a date other
than the last day of the Interest Period applicable thereto, (d) any default in
payment or prepayment of the principal amount of any Loan or any part thereof or
interest accrued thereon, as and when due and payable (at the due date thereof,
whether by scheduled maturity, acceleration, irrevocable notice of prepayment or
otherwise) or (e) the occurrence of any other Event of Default, including, in
each such case, any loss or reasonable expense sustained or incurred or to be
sustained or incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Loan or any part thereof as a Eurocurrency
Loan or Fixed Rate Loan. Such loss or reasonable expense shall include an amount
equal to the excess, if any, as reasonably determined by such Lender, of (i) its
cost of obtaining the funds for the Loan being paid, prepaid, converted,
transferred or not borrowed (assumed to be the LIBO Rate or, in the case of a
Fixed Rate Loan, the fixed rate of interest applicable thereto) for the period
from the date of such payment, prepayment, conversion, transfer or failure to
borrow to the last day of the Interest Period for such Loan (or, in the case of
a failure to borrow, the Interest Period for such Loan which would have
commenced on the date of such failure)
30
over (ii) the amount of interest (as reasonably determined by such Lender) that
would be realized by such Lender in reemploying the funds so paid, prepaid,
converted, transferred or not borrowed for such period or Interest Period, as
the case may be. A certificate of any Lender setting forth any amount or amounts
which such Lender is entitled to receive pursuant to this Section shall be
delivered to the Company and shall be conclusive absent manifest error.
SECTION 2.16. Pro Rata Treatment. Except as required under Section 2.14,
each Standby Borrowing, each payment or prepayment of principal of any Standby
Borrowing, each payment of interest on the Standby Loans, each payment of the
Facility Fees and Utilization Fees, each reduction of the Commitments and each
refinancing of any Borrowing with a Standby Borrowing of any Type, shall be
allocated pro rata among the Lenders in accordance with their respective
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Standby
Loans). Each payment of principal of any Competitive Borrowing shall be
allocated pro rata among the Lenders participating in such Borrowing in
accordance with the respective principal amounts of their outstanding
Competitive Loans comprising such Borrowing. Each payment of interest on any
Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective amounts of
accrued and unpaid interest on their outstanding Competitive Loans comprising
such Borrowing. For purposes of determining (i) the aggregate available
Commitments of the Lenders at any time and (ii) the available Commitment of each
Lender, each outstanding Competitive Borrowing shall be deemed to have utilized
the Commitments of the Lenders (including those Lenders which shall not have
made Loans as part of such Competitive Borrowing) pro rata in accordance with
such respective Commitments. Each Lender agrees that in computing such Lender's
portion of any Borrowing to be made hereunder, the Administrative Agent may, in
its discretion, round each Lender's percentage of such Borrowing to the next
higher or lower whole Dollar (or comparable unit of any applicable Alternative
Currency) amount.
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
any Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Standby Loan or Standby
Loans as a result of which the unpaid principal portion of its Standby Loans
shall be proportionately less than the unpaid principal portion of the Standby
Loans of any other Lender, it shall be deemed simultaneously to have purchased
from such other Lender at face value, and shall promptly pay to such other
Lender the purchase price for, a participation in the Standby Loans of such
other Lender, so that the aggregate unpaid principal amount of the Standby Loans
and participations in the Standby Loans held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Standby Loans then
outstanding as the principal amount of its Standby Loans prior to such exercise
of banker's lien, setoff or counterclaim or other event was to the principal
amount of all Standby Loans outstanding
31
prior to such exercise of banker's lien, setoff or counterclaim or other event;
provided, however, that, if any such purchase or purchases or adjustments shall
be made pursuant to this Section 2.17 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. Each Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in a
Standby Loan deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by such Borrower to such Lender by reason thereof as fully as if such Lender had
made a Standby Loan directly to such Borrower in the amount of such
participation.
SECTION 2.18. Payments. (a) The Borrower shall make each payment (including
principal of or interest on any Borrowing or any Fees or other amounts)
hereunder and under each other Loan Document not later than 12:00 noon, local
time at the place of payment, on the date when due in immediately available
funds. Each such payment shall be made to the Administrative Agent at its
offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Each such payment (other than
principal of and interest on Alternative Currency Loans, which shall be made in
the applicable Alternative Currency) shall be made in Dollars.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.19. Taxes. (a) Any and all payments by or on account of any
obligation of each Borrower hereunder shall be made, in accordance with Section
2.18, free and clear of and without deduction for any and all current or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding (i) income taxes imposed on the net income of
the Administrative Agent or any Lender (or any transferee or assignee thereof,
including a participation holder (any such individual or entity, a
"Transferee")), and (ii) franchise taxes imposed on the net income of the
Administrative Agent or any Lender (or Transferee), in each case by the
jurisdiction under the laws of which the Administrative Agent or such Lender (or
Transferee) is organized, domiciled, resident or doing business or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities, collectively or individually, "Taxes").
If any Borrower shall be required to deduct any Taxes from or in respect of any
sum payable hereunder to any Lender (or any Transferee) or the Administrative
Agent, (i) the sum payable shall be increased by the amount (an "additional
amount") necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.19) such
Lender (or Transferee) or the Administrative Agent (as the case may be) shall
receive an amount equal to the sum it would have received had no such deductions
been made, (ii) each Borrower shall make such deductions and (iii) each Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
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(b) In addition, each Borrower agrees to bear and to pay to the relevant
Governmental Authority in accordance with applicable law any current or future
recording, stamp, documentary, excise, transfer, sales, property or similar
taxes, charges or levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document ("Other Taxes").
(c) The Borrowers will indemnify each Lender (or Transferee) and the
Administrative Agent, within 10 days after written demand therefor, for the full
amount of Taxes and Other Taxes paid by such Lender (or Transferee) or the
Administrative Agent, as the case may be, on or with respect to any payment by
or on account of any obligation of any Borrower hereunder or under any other
Loan Document (including Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any liability and any
penalties, interest and expenses (including reasonable attorney's fees and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability prepared
by a Lender, or the Administrative Agent on its behalf, absent manifest error,
shall be final, conclusive and binding for all purposes.
(d) If a Lender (or Transferee) or the Administrative Agent shall become
aware that it is entitled to claim a refund from a Governmental Authority in
respect of Taxes or Other Taxes as to which it has been indemnified by a
Borrower, or with respect to which any Borrower has paid additional amounts,
pursuant to this Section 2.19, it shall promptly notify the Company of the
availability of such refund claim and shall, within 30 days after receipt of a
request by the Company, make a claim to such Governmental Authority for such
refund at the Company's expense. If a Lender (or Transferee) or the
Administrative Agent receives a refund (including pursuant to a claim for refund
made pursuant to the preceding sentence) in respect of any Taxes or Other Taxes
as to which it has been indemnified by a Borrower or with respect to which any
Borrower has paid additional amounts pursuant to this Section 2.19, it shall
within 30 days from the date of such receipt pay over such refund to the Company
(but only to the extent of indemnity payments made, or additional amounts paid,
by such Borrower under this Section 2.19 with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of such
Lender (or Transferee) or the Administrative Agent and without interest (other
than interest paid by the relevant Governmental Authority with respect to such
refund); provided, however, that the Company, upon the request of such Lender
(or Transferee) or the Administrative Agent, agrees to (or to cause the
responsible Borrower to) repay the amount paid over to the Company (plus
penalties, interest or other charges) to such Lender (or Transferee) or the
Administrative Agent in the event such Lender (or Transferee) or the
Administrative Agent is required to repay such refund to such Governmental
Authority.
(e) As soon as practicable after the date of any payment of Taxes or Other
Taxes by any Borrower to the relevant Governmental Authority, the Company will
deliver to the Administrative Agent, at its address referred to in Section
10.01, the
33
original or a certified copy of a receipt issued by such Governmental Authority
evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.19 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(g) Each Lender (or Transferee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "Non-U.S. Lender") shall deliver to the Company and the
Administrative Agent two copies of either United States Internal Revenue Service
Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Lender
delivers a Form W-8, a certificate representing that such Non-U.S. Lender is not
a bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Company and is not a controlled foreign corporation related to the Company
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or
reduced rate of, U.S. Federal withholding tax on payments by the Borrowers under
this Agreement and the other Loan Documents. Such forms shall be delivered by
each Non-U.S. Lender on or before the date it becomes a party to this Agreement
(or, in the case of a Transferee that is a participation holder, on or before
the date such participation holder becomes a Transferee hereunder) and on or
before the date, if any, such Non-U.S. Lender changes its applicable lending
office by designating a different lending office (a "New Lending Office"). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Notwithstanding any other provision of this Section 2.19(g), a Non-U.S.
Lender shall not be required to deliver any form pursuant to this Section
2.19(g) that such Non-U.S. Lender is not legally able to deliver.
(h) None of the Borrowers shall be required to indemnify any Non-U.S.
Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of
United States Federal withholding tax pursuant to paragraph (a) or (c) above to
the extent that (i) the obligation to withhold amounts with respect to United
States Federal withholding tax existed on the date such Non-U.S. Lender became a
party to this Agreement (or, in the case of a Transferee that is a participation
holder, on the date such participation holder became a Transferee hereunder) or,
with respect to payments to a New Lending Office, the date such Non-U.S. Lender
designated such New Lending Office with respect to a Loan; provided, however,
that this clause (i) shall not apply to any Transferee or New Lending Office
that becomes a Transferee or New Lending Office as a result of an assignment,
participation, transfer or designation made at the request of the Company; and
provided further, however, that this clause (i) shall not apply to the extent
the indemnity payment or additional amounts any Transferee, or Lender (or
Transferee) through a New Lending Office, would be entitled to receive (without
regard to this clause (i)) do not exceed the indemnity payment or additional
amounts that the person
34
making the assignment, participation or transfer to such Transferee, or Lender
(or Transferee) making the designation of such New Lending Office, would have
been entitled to receive in the absence of such assignment, participation,
transfer or designation or (ii) the obligation to pay such additional amounts
would not have arisen but for a failure by such Non-U.S. Lender to comply with
the provisions of paragraph (g) above.
(i) Any Lender (or Transferee) claiming any indemnity payment or additional
amounts payable pursuant to this Section 2.19 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document reasonably requested in writing by the Company or to change the
jurisdiction of its applicable lending office if the making of such a filing or
change would avoid the need for or reduce the amount of any such indemnity
payment or additional amounts that may thereafter accrue and would not, in the
sole determination of such Lender (or Transferee), be otherwise disadvantageous
to such Lender (or Transferee).
(j) Nothing contained in this Section 2.19 shall require any Lender (or
Transferee) or the Administrative Agent to make available any of its tax returns
(or any other information that it deems to be confidential or proprietary).
SECTION 2.20. Assignment of Commitments Under Certain Circumstances. (a)
Any Lender (or Transferee) claiming any additional amounts payable pursuant to
Section 2.13 or Section 2.19 shall use reasonable efforts (consistent with legal
and regulatory restrictions) to file any certificate or document requested by
the Company or to change the jurisdiction of its applicable lending office if
the making of such a 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 judgment of such Lender, be otherwise disadvantageous to such Lender (or
Transferee).
(b) In the event that any Lender shall have delivered a notice or
certificate pursuant to Section 2.13 or 2.14, or the Borrowers shall be required
to make additional payments to any Lender under Section 2.19, the Company shall
have the right, at its own expense, upon notice to such Lender and the
Administrative Agent, to require such Lender to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04) all its interests, rights and obligations under this Agreement to
another financial institution acceptable to the Administrative Agent which shall
assume such obligations; provided that (i) no such assignment shall conflict
with any law, rule or regulation or order of any Governmental Authority (ii) no
Event of Default shall have occurred and be continuing and (iii) the Company or
the assignee, as the case may be, shall pay to the affected Lender in
immediately available funds on the date of such assignment the principal of and
interest accrued to the date of payment on the Loans made by it hereunder and
all other amounts accrued for its account or owed to it hereunder.
SECTION 2.21. Borrowings by Approved Borrowers. The Company may, at any
time or from time to time, designate one or more wholly owned Subsidiaries as
Borrowers hereunder by furnishing to the Administrative Agent a letter (a
35
"Designation Letter") substantially in the form of Exhibit F-1 hereto, duly
completed and executed by the Company and such Subsidiary, whereupon each
Subsidiary so designated shall become an Approved Borrower. As soon as
practicable upon receipt of any such Designation Letter, the Administrative
Agent shall send a copy thereof to each Lender. There may be no more than ten
Approved Borrowers at any one time. So long as all principal and interest on all
Loans of any Approved Borrower have been paid in full, the Company may terminate
an Approved Borrower's status as an Approved Borrower by furnishing to the
Administrative Agent a letter (a "Termination Letter"), substantially in the
form of Exhibit F-2 hereto, duly completed and executed by the Company and such
Approved Borrower. Any Termination Letter furnished in accordance with this
Section 2.21 shall be effective upon receipt by the Administrative Agent.
Notwithstanding the foregoing, the delivery of a Termination Letter with respect
to any Approved Borrower shall not affect any obligation of such Approved
Borrower theretofore incurred. Each Subsidiary set forth in Schedule 2.21 shall
be deemed an Approved Borrower until delivery of a Termination Letter with
respect to such Subsidiary. Notwithstanding any other provision herein, no
Lender shall be required to make any Loan to an Approved Borrower if any
applicable law or regulation shall make it unlawful for any such Lender to make
or maintain any such Loan.
SECTION 2.22. Increase in Commitments. After the Effective Date, the
Company may, by written notice to the Administrative Agent, executed by the
Company and one or more financial institutions (any such financial institution
referred to in this Section being called a "Prospective Lender"), which may
include any Lender, cause the Commitments of the Prospective Lenders to be
increased (or cause Commitments to be extended by the Prospective Lenders, as
the case may be) in an amount for each Prospective Lender set forth in such
notice, provided, however, that (a) the aggregate amount of the Lenders'
Commitments after giving effect to such increase shall in no event exceed
$600,000,000, (b) each Prospective Lender, if not already a Lender hereunder,
shall be subject to the approval of the Administrative Agent (which approval
shall not be unreasonably withheld) and (c) each Prospective Lender, if not
already a Lender hereunder, shall become a party to this Agreement by completing
and delivering to the Administrative Agent a duly executed Accession Agreement.
Increases and new Commitments created pursuant to this Section shall become
effective (A) in the case of Prospective Lenders already parties hereunder, on
the date specified in the notice delivered pursuant to this Section and (B) in
the case of Prospective Lenders not already parties hereunder, on the effective
date of the Accession Agreement. Upon the effectiveness of any Accession
Agreement to which any Prospective Lender is a party, (i) such Prospective
Lender shall thereafter be deemed to be a party to this Agreement and shall be
entitled to all rights, benefits and privileges accorded a Lender hereunder and
subject to all obligations of a Lender hereunder and (ii) Schedule 2.01 shall be
deemed to have been amended to reflect the Commitment of the additional Lender
as provided in such Accession Agreement. Upon the effectiveness of any increase
pursuant to this Section in the Commitment of a Lender already a party
hereunder, Schedule 2.01 shall be deemed to have been amended to reflect the
increased Commitment of such Lender. Notwithstanding the foregoing, no increase
in the aggregate Commitments (or in the Commitment of any Lender) shall become
effective under this Section unless, on the date of such increase, the
conditions set forth in paragraphs (b) and (c) of Section 4.03 shall be
36
satisfied (with all references in such paragraphs to a Borrowing being deemed to
be references to such increase) and the Administrative Agent shall have received
a certificate to that effect dated such date and executed by a Financial Officer
of the Company. Following any increase of a Lender's Commitment or any extension
of a new Commitment pursuant to this paragraph, any Standby Loans outstanding
prior to the effectiveness of such increase or extension shall continue
outstanding until the ends of the respective Interests Periods applicable
thereto, and shall then be repaid or refinanced with new Standby Loans made
pursuant to Sections 2.01 and 2.05.
SECTION 2.23. Additional Costs. (a) If and so long as any Lender is
required to make special deposits with the Bank of England, to maintain reserve
asset ratios or to pay fees, in each case in respect of such Lender's
Eurocurrency Loans in any Alternative Currency, such Lender may require the
relevant Borrower to pay, contemporaneously with each payment of interest on
each of such Loans, additional interest on such Loan at a rate per annum equal
to the Mandatory Costs Rate calculated in accordance with the formula and in the
manner set forth in Exhibit D hereto.
(b) If and so long as any Lender is required to comply with reserve assets,
liquidity, cash margin or other requirements of any monetary or other authority
(including any such requirement imposed by the European Central Bank or the
European System of Central Banks, but excluding requirements reflected in the
Statutory Reserve Rate or the Mandatory Costs Rate) in respect of any of such
Lender's Eurocurrency Loans in any Alternative Currency, such Lender may require
the relevant Borrower to pay, contemporaneously with each payment of interest on
each of such Lender's Eurocurrency Loans subject to such requirements,
additional interest on such Loan at a rate per annum specified by such Lender to
be the cost to such Lender of complying with such requirements in relation to
such Loan.
(c) Any additional interest owed pursuant to paragraph (a) or (b) above
shall be determined by the relevant Lender, which determination shall be
conclusive absent manifest error, and notified to the relevant Borrower (with a
copy to the Administrative Agent) at least five Business Days before each date
on which interest is payable for the relevant Loan, and such additional interest
so notified to the relevant Borrower by such Lender shall be payable to the
Administrative Agent for the account of such Lender on each date on which
interest is payable for such Loan.
(d) If the cost to any Lender of making or maintaining any Loan to any
Borrower is increased (or the amount of any sum received or receivable by any
Lender (or its applicable lending office) is reduced) by an amount deemed in
good faith by such Lender to be material, by reason of the fact that such
Borrower is incorporated in, or conducts business in, a jurisdiction outside the
United States of America, such Borrower shall indemnify such Lender for such
increased cost or reduction within 15 days after demand by such Lender (with a
copy to the Administrative Agent). A certificate of such Lender claiming
compensation under this paragraph and setting forth the additional amount or
amounts to be paid to it hereunder (and the basis for the calculation of such
amount or amounts) shall be conclusive in the absence of manifest error.
37
ARTICLE III
Representations and Warranties
------------------------------
Part A. Representations and Warranties of the Company. The Company
represents and warrants as of the date hereof and the date of each Borrowing in
accordance with Section 4.03(b) to each of the Lenders that:
SECTION 3.01. Corporate Existence. Each of the Company and its
Subsidiaries: (a) is a corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could (either
individually or in the aggregate) have a Material Adverse Effect.
SECTION 3.02. Financial Condition. The Company has heretofore furnished to
each of the Lenders a consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 2004, and the related consolidated statements of
income, cash flows and changes in shareholders' equity of the Company and its
Subsidiaries for the fiscal year ended on such date, with the opinion thereon of
PricewaterhouseCoopers LLP, and the unaudited consolidated balance sheet of the
Company and its Subsidiaries as at September 30, 2005, and the related
consolidated statements of income and cash flows of the Company and its
Subsidiaries for the nine-month period ended on such date. All such financial
statements present fairly, in all material respects, the consolidated financial
condition of the Company and its Subsidiaries as at such dates and the
consolidated results of their operations for the fiscal year and nine-month
period ended on such dates (subject, in the case of the financial statements as
at September 30, 2005, to normal year-end audit adjustments), all in accordance
with generally accepted accounting principles and practices applied on a
consistent basis. None of the Company nor any of its Subsidiaries has on the
date hereof any material contingent liabilities, liabilities for taxes, unusual
forward or long-term commitments or unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
the balance sheets as at such dates or the notes thereto. Since December 31,
2004, there has been no Material Adverse Change.
SECTION 3.03. Litigation. Except as disclosed in note 10 of the audited
annual consolidated financial statements of the Company included in the
Company's Form 10-K for the fiscal year ended December 31, 2004, and in the
notes to the unaudited quarterly consolidated financial statements of the
Company included in the Company's Form 10-Q for the fiscal quarter ended
September 30, 2005, filed with the Securities and Exchange Commission, there are
no legal or arbitral proceedings, or any proceedings by or before any
Governmental Authority, now pending or (to the knowledge of the Company)
threatened against the Company or any of its Subsidiaries that is materially
38
likely to be adversely determined and which, if adversely determined could
(either individually or in the aggregate) have a Material Adverse Effect.
SECTION 3.04. No Breach. None of the execution and delivery of this
Agreement, the consummation of the transactions herein contemplated or
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or by-laws of the
Company, or any applicable law or regulation, or any order, writ, injunction or
decree of any court or Governmental Authority, or any material agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which any of them or any of their assets or properties is bound or to which any
of them is subject, or constitute a default under any such agreement or
instrument.
SECTION 3.05. Action. The Company has all necessary corporate power,
authority and legal right to execute, deliver and perform its obligations under
this Agreement; the execution, delivery and performance by the Company of this
Agreement has been duly authorized by all necessary corporate action on its part
(including, without limitation, any required shareholder approvals); and this
Agreement has been duly and validly executed and delivered by the Company and
constitutes its legal, valid and binding obligation, enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar
laws of general applicability affecting the enforcement of creditors' rights and
(b) the application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 3.06. Approvals. No authorizations, approvals or consents of, and
no filings or registrations with, any Governmental Authority, or any securities
exchange, are necessary for the execution, delivery or performance by the
Company of this Agreement or for the legality, validity or enforceability
hereof.
SECTION 3.07. Use of Credit. None of the Company nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
the Loans hereunder will be used to buy or carry any Margin Stock.
SECTION 3.08. ERISA. Each Plan, and, to the knowledge of the Company, each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or state law, and no event
or condition has occurred and is continuing as to which the Company would be
under an obligation to furnish a report to the Lenders under Section 5.06
hereof.
SECTION 3.09. Taxes. As of the date hereof, the Company and its Domestic
Subsidiaries are members of an affiliated group of corporations filing a
consolidated return for Federal income tax purposes, of which the Company is the
"common parent" (within the meaning of Section 1504 of the Code) of such group.
The
39
Company and its Subsidiaries have filed all Federal income tax returns and all
other material tax returns that are required to be filed by them and have paid,
accrued or reserved all taxes due pursuant to such returns or pursuant to any
assessment received by the Company or any of its Subsidiaries. The charges,
accruals and reserves on the books of the Company and its Subsidiaries in
respect of taxes and other governmental charges are, in the opinion of the
Company, adequate. The Company has in the ordinary course of business given
extensions or waivers of the statutes of limitations relating to payment of U.S.
Federal taxes and relating to various state, local and foreign taxes or
impositions, none of which might reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.10. Investment Company Act. Neither the Company nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 3.11. Public Utility Holding Company Act. Neither the Company nor
any of its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
SECTION 3.12. Material Agreements and Liens. (a) Part A of Schedule 3.12
hereto is a complete and correct list, as of the date hereof, of each credit
agreement, loan agreement, indenture, guarantee, letter of credit or other
arrangement providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit) to, or
guaranteed by, the Company or any of its Subsidiaries, the aggregate principal
or face amount of which equals or exceeds (or may equal or exceed) $5,000,000,
and the aggregate principal or face amount outstanding or that may become
outstanding under each such arrangement is correctly described in Part A of such
Schedule 3.12.
(b) Part B of Schedule 3.12 hereto is a complete and correct list, as of
the date hereof, of each Lien securing Indebtedness of any person, the aggregate
principal or face amount of which equals or exceeds (or may equal or exceed)
$5,000,000 and covering any property of the Company or any of its Subsidiaries,
and the aggregate Indebtedness secured (or that may be secured) by each such
Lien and the property covered by each such Lien is correctly described in Part B
of such Schedule 3.12.
SECTION 3.13. Environmental Matters. (a) Except as disclosed in the notes
to the unaudited quarterly consolidated financial statements of the Company
included in the Company's Form 10-Q for the fiscal quarter ended September 30,
2005, filed with the Securities and Exchange Commission and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Company nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
40
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(b) There has been no change in the status of the matters disclosed in the
notes to the unaudited quarterly consolidated financial statements of the
Company included in the Company's Form 10-Q for the fiscal quarter ended
September 30, 2005, filed with the Securities and Exchange Commission that,
individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.
SECTION 3.14. Subsidiaries, etc. Set forth in Schedule 3.14 hereto is a
complete and correct list, as of the date hereof, of all of the Subsidiaries of
the Company, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each person holding ownership interests in
such Subsidiary and (iii) the nature of the ownership interests held by each
such person and the percentage of ownership of such Subsidiary represented by
such ownership interests.
SECTION 3.15. True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Company to the Administrative Agent or any Lender in connection
with the negotiation, preparation or delivery of this Agreement or included
herein or delivered pursuant hereto, when taken as a whole, do not contain any
untrue statement of material fact or omit to state any material fact necessary
to make the statements herein or therein, in light of the circumstances under
which they were made, not misleading. All written information furnished after
the date hereof by the Company and its Subsidiaries to the Administrative Agent
and the Lenders in connection with this Agreement and the transactions
contemplated hereby will be true, complete and accurate in every material
respect, or (in the case of projections) based on reasonable estimates, on the
date as of which such information is stated or certified. There is no fact known
to the Company that could have a Material Adverse Effect that has not been
disclosed herein or in a report, financial statement, exhibit, schedule,
disclosure letter or other writing furnished to the Lenders for use in
connection with the transactions contemplated hereby.
Part B. Representations and Warranties of the Approved Borrowers. Each
Approved Borrower represents and warrants as of the Effective Date and the date
of each Borrowing in accordance with Section 4.03(b) to each of the Lenders
that:
SECTION 3.16. Corporate Existence of Approved Borrower. It and each of its
Subsidiaries: (a) is a corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify would have a Material
Adverse Effect.
41
SECTION 3.17. No Breach. None of the execution and delivery of its
Designation Letter and this Agreement, the consummation of the transactions
therein and herein contemplated and compliance with the terms and provisions
thereof and hereof will conflict with or result in a breach of, or require any
consent under, the charter or by-laws or other organizational documents of such
Approved Borrower, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or Governmental Authority or agency, or any
material agreement or instrument to which such Approved Borrower or any of its
Subsidiaries is a party or by which any of them or their assets or properties is
bound or to which any of them is subject, or constitute a default under any such
agreement or instrument.
SECTION 3.18. Action. Such Approved Borrower has all necessary corporate or
other power and authority to execute, deliver and perform its obligations under
its Designation Letter and this Agreement, and to perform its obligations
hereunder and thereunder; the execution and delivery by such Approved Borrower
of its Designation Letter and the performance by such Approved Borrower hereof
and thereof have been duly authorized by all necessary corporate or other action
on its part (including, without limitation, any required shareholder approvals);
and its Designation Letter, when executed and delivered by such Approved
Borrower, will constitute the legal, valid and binding obligation of such
Approved Borrower, enforceable against such Approved Borrower in accordance with
its terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
SECTION 3.19. Approvals. No authorizations, approvals or consents of, and
no filings or registrations with, any Governmental Authority are necessary for
the execution, delivery or performance by such Approved Borrower of its
Designation Letter or this Agreement or for the validity or enforceability
thereof.
SECTION 3.20. Taxes on Payments of Approved Borrowers. Except as disclosed
to the Lenders in writing prior to the delivery of such Approved Borrower's
Designation Letter, there is no income, stamp or other tax of any country, or of
any taxing authority thereof or therein, imposed by or in the nature of
withholding or otherwise, which is imposed on any payment to be made by such
Approved Borrower pursuant hereto, or is imposed on or by virtue of the
execution, delivery or enforcement of its Designation Letter or this Agreement.
42
ARTICLE IV
Conditions of Effectiveness and Lending
---------------------------------------
SECTION 4.01. Effective Date. The obligations of the Lenders under this
Agreement shall not become effective until the date on which each of the
following conditions shall have been satisfied (or waived in accordance with
Section 10.08):
(a) The Administrative Agent (or its counsel) shall have received from each
party hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received favorable written opinions
(each dated as of the Effective Date and addressed to the Administrative
Agent and the Lenders) of (i) the general counsel of the Company,
substantially in the form of Exhibit E-1 hereto and (ii) ▇▇▇▇▇, Day, ▇▇▇▇▇▇ &
▇▇▇▇▇, counsel for the Company, substantially in the form of Exhibit E-2
hereto, covering such other matters relating to the Company, this Agreement
and the Transactions as the Administrative Agent or its counsel shall
reasonably request. The Company hereby requests such counsel to deliver such
opinions.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation (or such other analogous documents),
including all amendments thereto, of the Company, certified as of a recent
date by the Secretary of State of Delaware, and a certificate as to the good
standing of the Company as of a recent date, from the Secretary of State of
Delaware; (ii) a certificate of the Secretary or Assistant Secretary of the
Company dated the Effective Date certifying (A) that attached thereto is a
true and complete copy of the by-laws of the Company as in effect on the
Effective Date and at all times since a date prior to the date of the
resolutions of the Company described in item (B) below, (B) that attached
thereto is a true and complete copy of resolutions adopted by the Board of
Directors of the Company authorizing the execution, delivery and performance
of this Agreement and the borrowings hereunder by the Company, and that such
resolutions have not been modified, rescinded or amended and are in full
force and effect, (C) that the certificate or articles of incorporation of
the Company have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to
clause (i) above, and (D) as to the incumbency and specimen signature of each
officer of the Company executing this Agreement or any other document
delivered in connection herewith; (iii) a certificate of another officer of
the Company as to the incumbency and signature of the Secretary or such
Assistant Secretary of the Company executing the certificate pursuant to (ii)
above; and (iv) such other documents as the Lenders or counsel for the
Administrative Agent may reasonably request.
43
(d) The Administrative Agent shall have received a certificate of the
Company, dated the Effective Date and signed by a Financial Officer of the
Company, confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.03.
(e) The Administrative Agent shall have received all fees and other amounts
due and payable on or prior to such date.
(f) All principal, interest, fees and other amounts outstanding, accrued or
owing under the Existing Three-Year Credit Agreement shall have been repaid
and all commitments under the Existing Three-Year Credit Agreement shall have
been terminated (or shall be terminated as of the Effective Date).
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing and any other provision herein to the contrary, the obligations of
the Lenders to make Loans to any Borrower hereunder shall not become effective
unless each of the foregoing conditions is satisfied (or waived pursuant to
Section 10.08) at or prior to 2:00 p.m., New York City time, on December 15,
2005 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.02. First Borrowing by Each Approved Borrower. On the date of any
Approved Borrower's initial Borrowing hereunder, the obligations of the Lenders
to make Loans to such Approved Borrower are subject to the satisfaction of (or
waiver in accordance with Section 10.08 of) each of the conditions set forth in
Section 4.01 and the following further conditions:
(a) The Administrative Agent shall have received a favorable written
opinion of the general counsel of such Approved Borrower dated as of a recent
date and addressed to the Lenders, to the effect set forth in Exhibit E-1
hereto, subject to necessary changes to reflect local law.
(b) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation (or such other analogous documents),
including all amendments thereto, of such Approved Borrower, certified as of
a recent date by the Secretary of State (or other appropriate Governmental
Authority) of the state (or country) of its organization or such other
evidence as is reasonably satisfactory to the Administrative Agent, and a
certificate as to the good standing (or other analogous certification to the
extent available) of such Approved Borrower as of a recent date, from such
Secretary of State (or other appropriate Governmental Authority) or such
other evidence reasonably acceptable to the Administrative Agent; (ii) a
certificate of the Secretary or Assistant Secretary of such Approved Borrower
dated the date on which such Loans are to be made and certifying (A) that
attached thereto is a true and complete copy of the by-laws (or such other
analogous documents to the extent available) of such Approved Borrower as in
effect on the date of such certificate and at all times since a date prior to
the date of the resolution of such Approved
44
Borrower described in item (B) below, (B) that attached thereto is a true and
complete copy of resolutions adopted by the Board of Directors of such
Approved Borrower authorizing the execution, delivery and performance of the
Designation Letter delivered by such Approved Borrower and the borrowings
hereunder by such Approved Borrower, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C) that the
certificate or articles of incorporation (or other analogous documents) of
such Approved Borrower have not been amended since the date of the last
amendment thereto shown on the certificate of good standing (or other
analogous certification or such other evidence reasonably acceptable to the
Administrative Agent) furnished pursuant to clause (i) above, and (D) as to
the incumbency and specimen signature of each officer of such Approved
Borrower executing the Designation Letter delivered by such Approved Borrower
or any other document delivered in connection herewith or therewith; (iii) a
certificate of another officer of such Approved Borrower as to the incumbency
and signature of the Secretary or such Assistant Secretary of such Approved
Borrower executing the certificate pursuant to (ii) above; and (iv) such
other documents as the Lenders or counsel for the Administrative Agent, may
reasonably request.
(c) The Administrative Agent shall have received (with sufficient copies
for each Lender) a Designation Letter, duly executed by such Approved
Borrower and the Company and acknowledged by the Administrative Agent.
(d) The Administrative Agent shall have received a certificate of each of
the Borrowers, dated such date and signed, in the case of the Company, by a
Financial Officer of the Company, and in the case of the Borrowers other than
the Company, a Responsible Officer of such Borrower, confirming compliance
with the conditions precedent set forth in paragraphs (b) and (c) of Section
4.03.
Upon the satisfaction of the conditions precedent set forth in this Section
4.02, such Approved Borrower shall become a Borrower hereunder with the same
force and effect as if originally named as a Borrower hereunder. The rights and
obligations of each Borrower hereunder shall remain in full force and effect
notwithstanding the addition of any new Borrower as a party to this Agreement.
SECTION 4.03. All Borrowings. On the date of each Borrowing, including each
Borrowing in which Loans are refinanced with new Loans as contemplated by
Section 2.05, the obligations of the lenders to make the Loans comprising such
Borrowing are subject to the satisfaction of the following conditions:
(a) The Administrative Agent shall have received a notice of such Borrowing
as required by Section 2.03 or Section 2.04, as applicable.
(b) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the date of
such Borrowing with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly relate to
an earlier date; provided,
45
however, that no representation as to either (i) the absence of any Material
Adverse Change in the financial condition of the Company, as provided in the
last sentence of Section 3.02, or (ii) the absence of any pending or
threatened legal or arbitral proceedings, or any proceedings by or before any
Governmental Authority, that could have a Material Adverse Effect on the
Company, as provided in Section 3.03, shall be required as a condition to any
Borrowing following the Effective Date.
(c) Each Borrower shall be in compliance with all the terms and provisions
set forth herein and in each other Loan Document on its part to be observed
or performed, and at the time of and immediately after such Borrowing no
Event of Default or Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrowers on the date of such Borrowing as to the matters specified in
paragraphs (b) and (c) of this Section 4.03.
ARTICLE V
Affirmative Covenants
---------------------
The Company covenants and agrees with each Lender and the Administrative
Agent that, so long as this Agreement shall remain in effect or the principal of
or interest on any Loan, any Fees or any other expenses or amounts payable under
any Loan Document shall be unpaid, unless the Required Lenders shall otherwise
consent in writing, the Company will, and will cause each of its Subsidiaries
to:
SECTION 5.01. Existence; Businesses and Properties. (a) Preserve and
maintain its corporate existence, rights (charter and statute) and material
franchises, except as otherwise permitted by Section 6.03; provided, however,
that the Company shall not be required to preserve any such right or franchise
if (i) the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and (ii) the loss of any
such right or franchise is not disadvantageous in any material respect to the
Lenders.
(b) Comply in all material respects with all applicable laws, rules,
regulations and orders (including, without limitation, laws requiring payment of
all taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith by appropriate
proceedings) and all Environmental Laws except where the failure to so comply
would not result in a Material Adverse Change.
(c) Maintain and preserve all of its properties which are used in the
conduct of its business in good working order and condition, ordinary wear and
tear excepted, to the extent that any failure to do so would result in a
Material Adverse Change and except for dispositions thereof permitted by Section
6.03.
46
SECTION 5.02. Insurance. Maintain insurance with financially sound and
reputable insurance companies (which insurance companies shall, in any event,
have an A.M. Best rating of "B+" or better), and with respect to property and
risks of a character usually maintained by corporations engaged in the same or
similar business similarly situated, against loss, damage and liability of the
kinds and in the amounts customarily maintained by such corporations.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise which, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Company
shall have set aside on its books adequate reserves with respect thereto.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Company, furnish to the Administrative Agent and each Lender:
(a) within 75 days after the end of each fiscal year, its consolidated
balance sheets and related statements of income, changes in stockholders'
equity and cash flows, showing the financial condition of the Company and its
Subsidiaries as of the close of such fiscal year and the results of its
operations and the operations of its Subsidiaries during such year, all
audited by PricewaterhouseCoopers LLP or other independent public accountants
of recognized national standing acceptable to the Required Lenders and
accompanied by an opinion of such accountants (which shall not be qualified
in any material respect) to the effect that such consolidated financial
statements fairly present the financial condition and results of operations
of the Company on a consolidated basis in accordance with GAAP consistently
applied;
(b) within 40 days after the end of each of the first three fiscal quarters
of each fiscal year, its consolidated balance sheets and related statements
of income, changes in stockholders' equity and cash flows, showing the
financial condition of the Company and its Subsidiaries as of the close of
such fiscal quarter and the results of its operations and the operations of
its Subsidiaries during such fiscal quarter and the then elapsed portion of
such fiscal year, all certified by one of its Financial Officers as fairly
presenting the financial condition and results of operations of the Company
on a consolidated basis in accordance with GAAP consistently applied, subject
to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a) or (b)
above, a certificate of the accounting firm or Financial Officer opining on
or certifying such statements (which certificate, when furnished by an
accounting firm, may be limited to accounting matters and disclaim
responsibility for legal
47
interpretations) (i) certifying that no Event of Default or Default has
occurred or, if such an Event of Default or Default has occurred, specifying
the nature and extent thereof and any corrective action taken or proposed to
be taken with respect thereto and (ii) setting forth computations in
reasonable detail satisfactory to the Administrative Agent demonstrating
compliance with the covenant contained in Section 6.06;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by it
with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of or all the functions of such Commission, or with any
national securities exchange, or distributed to its shareholders, as the case
may be; and
(e) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Company or any
Subsidiary, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative
Agent and each Lender prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with respect
thereto;
(b) the filing or commencement of, or any threat or notice of intention of
any person to file or commence, any action, suit or proceeding, whether at
law or in equity or by or before any Governmental Authority, against the
Company or any Affiliate thereof which, if adversely determined, could result
in a Material Adverse Change; and
(c) any other development that has resulted in, or could reasonably be
anticipated to result in, a Material Adverse Change.
SECTION 5.06. ERISA. (a) Comply in all material respects with the
applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent and each Lender (i) as soon as possible, and in any event
within 30 days after any Responsible Officer of the Company or any ERISA
Affiliate either knows or has reason to know that any Reportable Event has
occurred that alone or together with any other Reportable Event could reasonably
be expected to result in liability of the Company to the PBGC in an aggregate
amount exceeding $5,000,000, a statement of a Financial Officer setting forth
details as to such Reportable Event and the action proposed to be taken with
respect thereto, together with a copy of the notice, if any, of such Reportable
Event given to the PBGC, (ii) promptly after receipt thereof, a copy of any
notice the Company or any ERISA Affiliate may receive from the PBGC relating to
the intention of the PBGC to terminate any Plan or Plans (other than a Plan
maintained by an ERISA
48
Affiliate which is considered an ERISA Affiliate only pursuant to subsection (m)
or (o) of Section 414 of the Code) or to appoint a trustee to administer any
Plan or Plans, and (iii) within 10 days after the due date for filing with the
PBGC pursuant to Section 412(n) of the Code of a notice of failure to make a
required installment or other payment with respect to a Plan, a statement of a
Financial Officer setting forth details as to such failure and the action
proposed to be taken with respect thereto, together with a copy of such notice
given to the PBGC.
SECTION 5.07. Maintaining Records. Maintain all financial records in
accordance with GAAP and unless protected by attorney-client privilege permit
any representatives designated by any Lender, upon reasonable request, to
examine and make abstracts from the records and books of account of, and visit
the properties of, the Company or any of its Subsidiaries, and to discuss the
affairs, finances and condition of the Company or any Subsidiary with the
officers thereof and independent accountants therefor all upon reasonable
notice, at such reasonable times and as often as may reasonably be desired,
provided that all non-public information obtained by any such Lender pursuant to
this shall be treated as confidential in accordance with customary practices.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans only for the
purposes set forth in the preamble to this Agreement.
ARTICLE VI
Negative Covenants
------------------
The Company covenants and agrees with each Lender and the Administrative
Agent that, so long as this Agreement shall remain in effect or the principal of
or interest on any Loan, any Fees or any other expenses or amounts payable under
any Loan Document shall be unpaid, unless the Required Lenders shall otherwise
consent in writing, the Company will not, and will not cause or permit any of
its Subsidiaries to:
SECTION 6.01. Liens. Create, incur, assume or suffer to exist any Lien upon
any of its property, whether now owned or hereafter acquired, except:
(a) Liens in existence on the date hereof and listed in Part B of Schedule
3.12 hereto;
(b) Liens imposed by any Governmental Authority for taxes, assessments or
charges not yet due or that are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Company or the affected Subsidiaries, as the
case may be, in accordance with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
49
other like Liens arising in the ordinary course of business that are not
overdue for a period of more than 30 days or that are being contested in good
faith and by appropriate proceedings and Liens securing judgments but only to
the extent for an amount and for a period not resulting in an Event of
Default under Article VII clause (i) hereof;
(d) pledges or deposits under worker's compensation, unemployment insurance
and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts (other than
for Indebtedness), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(f) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business and encumbrances consisting of
zoning restrictions, easements, licenses, restrictions on the use of property
or minor imperfections in title thereto that, in the aggregate, are not
material in amount, and that do not in any case materially detract from the
value of the property subject thereto or interfere with the ordinary conduct
of the business of the Company or any of its Subsidiaries;
(g) Liens on property of any corporation that becomes a Subsidiary of the
Company after the date of this Agreement; provided that such Liens are in
existence at the time such corporation becomes a Subsidiary of the Company
and were not created in anticipation thereof;
(h) Liens upon real and/or tangible personal property acquired after the
date hereof (by purchase, construction or otherwise) by the Company or any of
its Subsidiaries, each of which Liens either (A) existed on such property
before the time of its acquisition and was not created in anticipation
thereof or (B) was created solely for the purpose of securing Indebtedness
representing, or incurred to finance, refinance or refund, the cost
(including the cost of construction) of such property; provided that no such
Lien shall extend to or cover any property of the Company or such Subsidiary
other than the property so acquired and improvements thereon;
(i) additional Liens upon real and/or personal property created after the
date hereof; provided that the aggregate Indebtedness secured thereby and
incurred on and after the date hereof shall not exceed $25,000,000 in the
aggregate at any one time outstanding; and
(j) any extension, renewal or replacement of the foregoing; provided that
the Liens permitted hereunder shall not be spread to cover any additional
Indebtedness or property (other than a substitution of like property).
SECTION 6.02. Sale and Lease-Back Transactions. Enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer any
50
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred (such an arrangement, a "Sale and Lease-Back
Transaction"), other than (i) Sale and Lease-Back Transactions entered into in
connection with the financing of aircraft to be used in connection with the
Company's business capitalized on the books of the Company or treated as
operating leases if the aggregate sale price of all such Sale and Lease-Back
Transactions does not exceed $25,000,000 in aggregate amount at any time
outstanding, and (ii) Sale and Lease-Back Transactions capitalized on the books
of the Company or treated as operating leases (other than a Sale and Lease-Back
Transaction permitted by clause (i) above) if the aggregate sale price of all
such Sale and Lease-Back Transactions does not exceed $25,000,000 in aggregate
amount at any time outstanding.
SECTION 6.03. Mergers, Sales of Assets, etc. (a) In the case of any
Borrower, consolidate or merge with or into any other corporation or convey,
transfer or lease its properties and assets substantially as an entirety to any
person, unless:
(i) the corporation formed by such consolidation or merger or the person
which acquires by conveyance or transfer, or which leases, the properties and
assets of such Borrower substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America or any
state or the District of Columbia and shall expressly assume, by an agreement
supplemental hereto, executed and delivered to each other party hereto, in
form satisfactory to the Administrative Agent, the due and punctual payment
of the principal of and interest on the Loans and all other obligations of
such Borrower under the Loan Documents and the performance or observance of
every covenant of this Agreement on the part of such Borrower to be performed
or observed;
(ii) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Administrative Agent an
officers' certificate and an opinion of counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
agreement comply with this paragraph (a) and that all conditions precedent
herein provided for relating to such transaction have been complied with.
(b) Upon any consolidation by any Borrower with or merger by any Borrower
into any other corporation or any conveyance, transfer or lease of the
properties and assets of any Borrower substantially as an entirety in accordance
with paragraph (a) above, the successor corporation formed by such consolidation
or into which such Borrower is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the applicable Borrower under the Loan Documents with the
same effect as if such successor corporation had been named as a Borrower
herein, and thereafter, the predecessor corporation shall be relieved of all
obligations and covenants under the Loan Documents.
51
SECTION 6.04. Lines of Business; Fiscal Year. Engage or invest in
operations engaging to any substantial extent in any line or lines of business
activity other than the business of manufacturing, providing, distributing and
selling such diverse goods and industrial services, principally for industrial,
commercial, construction and defense applications, the same or similar to those
goods and services as are manufactured, provided, distributed and sold by the
Company on the date hereof and business activities reasonably related,
ancillary, similar or supportive thereto. In the case of the Company, change its
fiscal year end from that in effect at December 31, 1999.
SECTION 6.05. Transactions with Affiliates. Sell or transfer any property
or assets to, or purchase or acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates, except that as
long as no Default or Event of Default shall have occurred and be continuing,
the Company or any Subsidiary may engage in any of the foregoing transactions in
the ordinary course of business at prices and on terms and conditions not less
favorable to the Company or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties.
SECTION 6.06. Total Debt to Total Capital Ratio. The Company will not
permit the ratio of Total Debt to Total Capital at any time on or after the date
hereof to exceed the ratio 0.60 to 1.
ARTICLE VII
Events of Default
-----------------
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in connection
with any Loan Document or the borrowings hereunder, or any representation,
warranty, statement or information contained in any report, certificate,
financial statement or other instrument furnished in connection with or
pursuant to any Loan Document, shall prove to have been false or misleading
in any material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan when
and as the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or by acceleration thereof or
otherwise;
(c) default shall be made in the payment of any interest on any Loan or any
Fee or any other amount (other than an amount referred to in (b) above) due
under any Loan Document, when and as the same shall become due and payable,
and such default shall continue unremedied for a period of five days;
(d) default shall be made in the due observance or performance by any of
52
the Borrowers or any Subsidiary of any covenant, condition or agreement
contained in Section 5.01(a) or 5.05 or in Article VI;
(e) default shall be made in the due observance or performance by any of
the Borrowers or any Subsidiary of any covenant, condition or agreement
contained in any Loan Document (other than those specified in (b), (c) or (d)
above) and such default shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent or any Lender to the
Company;
(f) (i) the Company or any Subsidiary shall (A) fail to pay any principal
or interest, regardless of amount, due in respect of any Indebtedness in a
principal amount in excess of (I) $20,000,000, in the case of any single
obligation, or (II) $20,000,000, in the case of all obligations in the
aggregate, in each case, when and as the same shall become due and payable,
or (B) fail to observe or perform any other term, covenant, condition or
agreement contained in any agreement or instrument evidencing or governing
any Indebtedness in an aggregate principal amount in excess of $20,000,000
and such failure shall continue beyond any applicable grace period; or (ii)
Indebtedness of the Company and its Subsidiaries, or any of them, in a
principal amount in excess of (A) $20,000,000, in the case of any single
obligation, or (B) $20,000,000, in the case of all obligations in the
aggregate, shall be declared due and payable or required to be prepaid prior
to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed in a court of competent jurisdiction seeking (i) relief in
respect of any Borrower or any Subsidiary, or of a substantial part of the
property or assets of any Borrower or a Subsidiary, under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership or similar law (or
similar statute or law in any other jurisdiction), (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for any Borrower or any Subsidiary or for a substantial part of the property
or assets of any Borrower or a Subsidiary or (iii) the winding-up or
liquidation of any Borrower or any Subsidiary; and such proceeding or
petition shall continue undismissed for 45 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(h) any Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal or
state bankruptcy, insolvency, receivership or similar law (or similar statute
or law in any other jurisdiction), (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or the
filing of any petition described in (g) above, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for any Borrower or any Subsidiary or for a substantial
part of the property or assets of any Borrower or any Subsidiary, (iv) file
an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general
53
assignment for the benefit of creditors, (vi) become unable, admit in writing
its inability or fail generally to pay its debts as they become due or (vii)
take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate amount
in excess of $20,000,000 (exclusive of amounts fully covered by insurance
where the insurer has admitted liability in respect of such judgment) shall
be rendered against any Borrower, any Subsidiary or any combination thereof
and the same shall remain undischarged for a period of 60 consecutive days
during which 60 days execution shall not be effectively stayed, or otherwise
being appropriately contested in good faith, or any action shall be legally
taken by a judgment creditor to levy upon assets or properties of any
Borrower or any Subsidiary to enforce any such judgment;
(j) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section
412(n)(l) of the Code), shall have occurred with respect to any Plan or Plans
that reasonably could be expected to result in liability of any Borrower to
the PBGC or to a Plan in an aggregate amount exceeding $10,000,000 and,
within 30 days after the reporting of any such Reportable Event to the
Administrative Agent or after the receipt by the Administrative Agent of the
statement required pursuant to Section 5.06, the Administrative Agent shall
have notified such Borrower in writing that (i) the Required Lenders have
made a determination that, on the basis of such Reportable Event or
Reportable Events or the failure to make a required payment, there are
reasonable grounds (A) for the termination of such Plan or Plans by the PBGC,
(B) for the appointment by the appropriate United States District Court of a
trustee to administer such Plan or Plans or (C) for the imposition of a lien
in favor of a Plan and (ii) as a result thereof an Event of Default exists
hereunder; or a trustee shall be appointed by a United States District Court
to administer any such Plan or Plans; or the PBGC shall institute proceedings
to terminate any Plan or Plans;
(k) the Guarantor's guarantee hereunder shall become ineffective for any
reason or the Guarantor shall deny its obligations as a guarantor hereunder
in writing; or
(l) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to a Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, with the consent of the
Required Lenders, may, or at the request of the Required Lenders, shall, by
notice to the Borrowers, take either or both of the following actions, at the
same or different times: (i) terminate forthwith the Commitments and (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or
in part, whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrowers accrued hereunder and under any other Loan
Document, shall
54
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the
Borrowers, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event with respect to a Borrower described
in paragraph (g) or (h) above, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrowers
accrued hereunder and under any other Loan Document, shall automatically become
due and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Borrowers, anything
contained herein or in any other Loan Document to the contrary notwithstanding.
ARTICLE VIII
The Administrative Agent
------------------------
In order to expedite the transactions contemplated by this Agreement,
JPMorgan Chase Bank, N.A. is hereby appointed to act as Administrative Agent on
behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the
Administrative Agent to take such actions on behalf of such Lender or holder and
to exercise such powers as are specifically delegated to the Administrative
Agent by the terms and provisions hereof and of the other Loan Documents,
together with such actions and powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Lenders, without
hereby limiting any implied authority, (a) to receive on behalf of the Lenders
all payments of principal of and interest on the Loans and all other amounts due
to the Lenders hereunder, and promptly to distribute to each Lender its proper
share of each payment so received; (b) as provided in Article VII, to give
notice on behalf of each of the Lenders to the Borrowers of any Event of Default
specified in this Agreement of which the Administrative Agent has actual
knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Lender copies of all notices, financial statements and other
materials delivered by any Borrower pursuant to this Agreement as received by
the Administrative Agent.
The Administrative Agent is hereby authorized to designate one of its
affiliates (the "Agent Designee") to perform the functions of the Administrative
Agent with respect to Alternative Currency Borrowings. The Administrative Agent
shall designate the Agent Designee by notice to the Company and the Lenders (and
may from time to time replace the Agent Designee with any of its affiliates by
notice to the Company and the Lenders). Upon and after any such designation, (i)
copies of all Borrowing Requests, Competitive Bid Requests, Competitive Bids and
all other notices required to be delivered hereunder with respect to Alternative
Currency Borrowings shall be delivered to both the Administrative Agent and the
Agent Designee and (ii) all references hereunder to the "Administrative Agent"
and "Administrative Agent in London" in the context of Alternative Currency
Borrowings shall be construed as
55
including references to the Agent Designee. The Administrative Agent hereby
designates ▇.▇. ▇▇▇▇▇▇ Europe Limited as the initial Agent Designee.
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrowers of any of the terms, conditions, covenants or agreements contained in
any Loan Document. The Administrative Agent shall not be responsible to the
Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement, or any other Loan Documents or other
instruments or agreements. The Administrative Agent shall in all cases be fully
protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. The Administrative Agent
shall, in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper person or persons. Neither the
Administrative Agent nor any of its directors, officers, employees or agents
shall have any responsibility to the Borrowers on account of the failure of or
delay in performance or breach by any Lender of any of its obligations hereunder
or to any Lender on account of the failure of or delay in performance or breach
by any other Lender or the Borrowers of any of their respective obligations
hereunder or under any other Loan Document or in connection herewith or
therewith. The Administrative Agent may execute any and all duties hereunder by
or through agents or employees and shall be entitled to rely upon the advice of
legal counsel selected by it with respect to all matters arising hereunder and
shall not be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agent shall be under
no duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any time by
notifying the Lenders and the Company. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, having a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent and the retiring
Administrative Agent
56
shall be discharged from its duties and obligations hereunder. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 10.05 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
With respect to the Loans made by it hereunder, the Administrative Agent in
its individual capacity and not as Administrative Agent shall have the same
rights and powers as any other Lender and may exercise the same as though it
were not the Administrative Agent, and the Administrative Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrowers or any Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent.
Each Lender agrees (i) to reimburse the Administrative Agent, on demand, in
the amount of its pro rata share (based on its Commitment hereunder) of any
expenses incurred for the benefit of the Lenders by the Administrative Agent,
including counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders, which shall not have been reimbursed
by the Borrowers and (ii) to indemnify and hold harmless the Administrative
Agent and any of its directors, officers, employees or agents, on demand, in the
amount of such pro rata share, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against it in its capacity as the Administrative
Agent or any of them in any way relating to or arising out of this Agreement or
any other Loan Document or any action taken or omitted by it or any of them
under this Agreement or any other Loan Document, to the extent the same shall
not have been reimbursed by the Borrowers; provided that no Lender shall be
liable to the Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent or any of its directors, officers,
employees or agents.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement or any other Loan Document, any
related agreement or any document furnished hereunder or thereunder.
57
ARTICLE IX
Guarantee
---------
SECTION 9.01. Guarantee. The Guarantor hereby guarantees to each Lender and
the Administrative Agent and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration, by
optional prepayment or otherwise) of the principal of and interest on the Loans
made by the Lenders to any Approved Borrower and all other amounts from time to
time owing to the Lenders or the Administrative Agent by any Approved Borrower
under this Agreement or pursuant to its Designation Letter, strictly in
accordance with the terms thereof (such obligations being herein collectively
called the "Guaranteed Obligations"). The Guarantor hereby further agrees that
if any Approved Borrower shall fail to pay in full when due (whether at stated
maturity, by acceleration, by optional prepayment or otherwise) any of the
Guaranteed Obligations, the Guarantor will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
SECTION 9.02. Obligations Unconditional. The obligations of the Guarantor
under Section 9.01 hereof are absolute and unconditional irrespective of the
value, genuineness, validity, regularity or enforceability of the obligations of
any Approved Borrower under this Agreement or any other agreement or instrument
referred to herein or therein (including, without limitation, any Designation
Letter), or any substitution, release or exchange of any other guarantee of or
security for any of the Guaranteed Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 9.02 that the
obligations of the Guarantor hereunder shall be absolute and unconditional under
any and all circumstances. Without limiting the generality of the foregoing, it
is agreed that the occurrence of any one or more of the following shall not
affect the liability of the Guarantor hereunder:
(i) at any time or from time to time, without notice to the Guarantor, the
time for any performance of or compliance with any of the Guaranteed
Obligations shall be extended, or such performance or compliance shall be
waived;
(ii) any of the acts mentioned in any of the provisions of this Agreement
or any other agreement or instrument referred to herein or therein shall be
done or omitted; or
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement or
any other agreement or instrument referred to herein or therein shall be
waived or any other guarantee
58
of any of the Guaranteed Obligations or any security therefor shall be
released or exchanged in whole or in part or otherwise dealt with.
The Guarantor hereby expressly waives diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against any
Approved Borrower under this Agreement or any other agreement or instrument
referred to herein or therein, or against any other person under any other
guarantee of, or security for, any of the Guaranteed Obligations.
SECTION 9.03. Reinstatement. The obligations of the Guarantor under this
Article IX shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Approved Borrower in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise and the Guarantor agrees that it will
indemnify the Administrative Agent and each Lender on demand for all reasonable
costs and expenses (including, without limitation, fees of counsel) incurred by
the Administrative Agent or such Lender in connection with such rescission or
restoration.
SECTION 9.04. Subrogation. The Guarantor hereby irrevocably waives all
rights of subrogation or contribution, whether arising by operation of law
(including, without limitation, any such right arising under Title 11 of the
United States Code) or otherwise, by reason of any payment by it pursuant to the
provisions of this Article IX and further agrees that for the benefit of each of
its creditors (including, without limitation, each Lender and the Administrative
Agent) that any such payment by it of the Guaranteed Obligations of any Approved
Borrower shall constitute a contribution of capital by the Guarantor to such
Approved Borrower.
SECTION 9.05. Remedies. The Guarantor agrees that, as between the Guarantor
and the Lenders, the obligations of any Approved Borrower under this Agreement
may be declared to be forthwith due and payable as provided in Article VII
hereof (and shall be deemed to have become automatically due and payable in the
circumstances provided in said Article VII) for purposes of Section 9.01 hereof
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against any Approved Borrower and that, in the event of such declaration (or
such obligations being deemed to have become automatically due and payable),
such obligations (whether or not due and payable by such Approved Borrower)
shall forthwith become due and payable by the Guarantor for purposes of such
Section 9.01.
SECTION 9.06. Continuing Guarantee. The guarantee in this Article IX is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
59
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Company, to it at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (Telecopy No. 717-763-6402);
(b) if to an Approved Borrower, to it at its address as set forth in its
Designation Letter;
(c) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and
Agency Services, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (Telecopy No. 713-750-2782), with copies to JPMorgan
Chase Bank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. 212-270-5127) and, with respect to any
Alternative Currency Borrowing, to ▇.▇. ▇▇▇▇▇▇ Europe Limited, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇
(Telecopy No. ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇) or to any other Agent Designee as directed by
the Administrative Agent; and
(d) if to a Lender, to it at its address (or telecopy number) set forth in
its Administrative Questionnaire or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto.
(e) All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier
service or sent by telecopy, or on the date five Business Days after dispatch
by certified or registered mail, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 10.01 or in
accordance with the latest unrevoked direction from such party given in
accordance with this Section 10.01.
SECTION 10.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and shall survive the making by the Lenders
of the Loans, regardless of any investigation made by the Lenders or on their
behalf, and shall continue in full force and effect as long as the principal of
or any accrued interest on any Loan or any Fee or any other amount payable under
this Agreement or any other Loan Document is outstanding and unpaid and so long
as the Commitments have not been terminated.
SECTION 10.03. Binding Effect. This Agreement shall become effective when
it shall have been executed by the Company and the Administrative Agent and
60
when the Administrative Agent shall have received copies hereof which, when
taken together, bear the signatures of each Lender, and thereafter shall be
binding upon and inure to the benefit of the Borrowers, the Administrative Agent
and each Lender and their respective successors and assigns, except that the
Borrowers shall not have the right to assign rights hereunder or any interest
herein without the prior consent of all the Lenders.
SECTION 10.04. Successors and Assigns. (a) Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of the Borrowers, the Administrative Agent or the
Lenders that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) the Administrative Agent and, except in the case of an
assignment to a Lender or an Affiliate of such Lender, the Company, must give
their prior written consent to such assignment (which consent shall not be
unreasonably withheld and in the case of the Company, shall not be required
during the continuation of an Event of Default), (ii) each such assignment shall
be of a constant, and not a varying, percentage of all the assigning Lender's
rights and obligations under this Agreement, (iii) the amount of the Commitment
of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $5,000,000 (or, if smaller,
such Lender's remaining Commitment) and the amount of the Commitment of such
Lender remaining after such assignment shall not be less than $5,000,000 or
shall be zero, (iv) the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, and a
processing and recordation fee of $3,500 and (v) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (e) of this
Section 10.04, from and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least five Business Days after
the execution thereof, (A) the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement and (B) the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto (but shall continue to
be entitled to the benefits of Sections 2.13, 2.15, 2.19, 2.23 and 10.05, as
well as to any Fees accrued for its account hereunder and not yet paid)).
Notwithstanding the foregoing, any Lender assigning its rights and obligations
under this Agreement may retain any Competitive Loans made by it outstanding at
such time, and in such case shall retain its rights hereunder in respect of any
Loans so retained until such Loans have been repaid in full in accordance with
this Agreement.
61
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Commitment, if any, and the outstanding balances of its Standby Loans and
Competitive Loans, if any, in each case without giving effect to assignments
thereof which have not become effective, are as set forth in such Assignment and
Acceptance, (ii) except as set forth in (i) above, 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, any other Loan Document or any other
instrument or document furnished pursuant hereto or the financial condition of
the Company or any Subsidiary or the performance or observance by any Borrower
of any of its obligations under this Agreement, any other Loan Document or any
other instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.04 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; (v) such assignee will
independently and without reliance upon the Administrative 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; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at one of its offices in The
City of New York a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive in the absence of manifest error and the Borrower,
the Administrative Agent and the Lenders may treat each person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by the Company and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Company and the
Administrative Agent to such
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assignment, the Administrative Agent shall (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Lenders.
(f) Upon giving written notice to the Company, each Lender may without the
consent of the Company or the Administrative Agent sell participations to one or
more banks or other entities in all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating banks or other entities shall be entitled to the benefit
of the cost protection provisions contained in Sections 2.13, 2.15, 2.19 and
2.23 to the same extent as if they were Lenders and (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 such Lender shall retain the sole right to
enforce the obligations of the Borrowers relating to the Loans and to approve
any amendment, modification or waiver of any provision of this Agreement (other
than amendments, modifications or waivers decreasing any fees payable hereunder
or the amount of principal of or the rate at which interest is payable on the
Loans, extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans or changing or extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrowers furnished to such Lender
by or on behalf of the Borrowers; provided that, prior to any such disclosure of
information designated by the Company as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information. It
is understood that confidential information relating to the Borrowers would not
ordinarily be provided in connection with assignments or participations of
Competitive Loans.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank; provided that no such assignment
shall release a Lender from any of its obligations hereunder. In order to
facilitate such an assignment to a Federal Reserve Bank, the applicable Borrower
shall, at the request of the assigning Lender, duly execute and deliver to the
assigning Lender a promissory note or notes evidencing the Loans made to such
Borrower by the assigning Lender hereunder.
(i) The Borrowers shall not assign or delegate any of their rights or
duties hereunder, except as permitted by Section 6.03.
SECTION 10.05. Expenses; Indemnity. (a) Each Borrower agrees to pay all
out-of-pocket expenses incurred by the Administrative Agent in connection with
the preparation of this Agreement and the other Loan Documents or in connection
with any
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amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby contemplated shall be consummated) or
incurred by the Administrative Agent or any Lender in connection with the
enforcement or protection of their rights in connection with this Agreement and
the other Loan Documents or in connection with the Loans made hereunder,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
▇▇▇▇▇ LLP, counsel for the Administrative Agent, and, in connection with any
such amendment, modification or waiver or any such enforcement or protection,
the reasonable fees, charges and disbursements of any other counsel for the
Administrative Agent or any Lender. Each Borrower further agrees that it shall
indemnify the Lenders from and hold them harmless against any documentary taxes,
assessments or charges made by any Governmental Authority by reason of the
execution and delivery of this Agreement or any of the other Loan Documents.
(b) Each Borrower agrees to indemnify the Administrative Agent, each
Lender, any of their respective Affiliates that have made Loans as provided in
Section 2.02(b) and the respective directors, officers, employees and agents of
the foregoing persons (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the transactions contemplated thereby, (ii)
the actual or proposed use of the proceeds of the Loans, (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto or (iv) any actual or alleged
presence or release of Hazardous Materials on or from any property currently or
formerly owned or operated by the Borrower or its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or its subsidiaries;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) The provisions of this Section 10.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf
of the Administrative Agent or any Lender. All amounts due under this Section
10.05 shall be payable on written demand therefor.
SECTION 10.06. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender (and any of its Affiliates that have made Loans
as provided in Section 2.02(b)) is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at
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any time owing by such Lender (or such Affiliates) to or for the credit or the
account of any Borrower against any of and all the obligations of such Borrower
now or hereafter existing under this Agreement and other Loan Documents held by
such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement or such other Loan Document and although such
obligations may be unmatured. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 10.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
SECTION 10.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent or any Lender in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies which
they would otherwise have. No waiver of any provision of this Agreement or any
other Loan Document or consent to any departure by any Borrower therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any
Borrower in any case shall entitle such Borrower to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Company and the Required Lenders; provided, however, that no such
agreement shall (i) decrease the principal amount of, or extend the maturity of
or any scheduled principal payment date or date for the payment of any interest
on any Loan, or waive or excuse any such payment or any part thereof, or
decrease the rate of interest on any Loan, without the prior written consent of
each Lender affected thereby, (ii) change or extend the Commitment or decrease
the Utilization Fees or Facility Fees of any Lender without the prior written
consent of such Lender, (iii) change Section 2.17 in a manner that would alter
the pro rata sharing of payments required thereby without the prior written
consent of each Lender, or (iv) amend or modify the provisions of Section 2.16,
the provisions of Article IX, the provisions of this Section or the definition
of "Required Lenders", without the prior written consent of each Lender;
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent hereunder without the prior
written consent of the Administrative Agent.
SECTION 10.09. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the applicable interest rate, together with all
fees and charges which are treated as interest under applicable law
(collectively the "Charges"), as
65
provided for herein or in any other document executed in connection herewith, or
otherwise contracted for, charged, received, taken or reserved by any Lender,
shall exceed the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by such Lender in
accordance with applicable law, the rate of interest payable on the Loan of such
Lender, together with all Charges payable to such Lender, shall be limited to
the Maximum Rate.
SECTION 10.10. Entire Agreement. This Agreement and the other Loan
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
SECTION 10.11. Waiver of Jury Trial. Each party hereto hereby waives, to
the fullest extent permitted by applicable law, any right it may have to a trial
by jury in respect of any litigation directly or indirectly arising out of,
under or in connection with this Agreement or any of the other Loan Documents.
Each party hereto (a) certifies that no representative, agent or attorney of any
other party has represented, expressly or otherwise, that such other party would
not, in the event of litigation, seek to enforce the foregoing waiver and (b)
acknowledges that it and the other parties hereto have been induced to enter
into this Agreement and the other Loan Documents, as applicable, by, among other
things, the mutual waivers and certifications in this Section 10.11.
SECTION 10.12. Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10.13. Judgment Currency. (a) The Borrowers' obligations hereunder
and under the other Loan Documents to make payments in Dollars or in any
Alternative Currency (the "Obligation Currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by the
Administrative Agent or a Lender of the full amount of the Obligation Currency
expressed to be payable to the Administrative Agent or such Lender under this
Agreement or the other Loan Documents. If, for the purpose of obtaining or
enforcing judgment against any Borrower or in any court or in any jurisdiction,
it becomes necessary to convert into or from any currency other than the
Obligation Currency (such other currency being hereinafter referred to as the
"Judgment Currency") an amount due in the Obligation Currency, the conversion
shall be made at the Alternative Currency Equivalent or Dollar Equivalent, in
the case of any Alternative
66
Currency or Dollars, and, in the case of other currencies, the rate of exchange
(as quoted by the Administrative Agent or if the Administrative Agent does not
quote a rate of exchange on such currency, by a known dealer in such currency
designated by the Administrative Agent) determined, in each case, as of the date
immediately preceding the day on which the judgment is given (such Business Day
being hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Borrower covenants and agrees to pay, or cause to be paid, as a
separate obligation and notwithstanding any judgment, such additional amounts,
if any (but in any event not a lesser amount), as may be necessary to ensure
that the amount paid in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of Judgment
Currency stipulated in the judgment or judicial award at the rate of exchange
prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining the Alternative Currency Equivalent or
Dollar Equivalent or rate of exchange for this Section, such amounts shall
include any premium and costs payable in connection with the purchase of the
Obligation Currency.
SECTION 10.14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract, and shall become effective as
provided in Section 10.03.
SECTION 10.15. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 10.16. Jurisdiction; Consent to Service of Process. (a) Each
Borrower 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, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. 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 law. Nothing in this Agreement shall affect any right that any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against any Borrower or its properties in
the courts of any jurisdiction.
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(b) Each Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 10.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 10.17. USA Patriot Act. Each Lender hereby notifies the Borrowers
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies each Borrower, which
information includes the name and address of each Borrower and other information
that will allow such Lender to identify each Borrower in accordance with the
Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers, all as of the date first above
written.
HARSCO CORPORATION,
by: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President, Chief
Financial Officer and Treasurer
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent,
by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President