EXECUTION COPY
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U.S. $1,000,000,000
FIVE-YEAR CREDIT AGREEMENT
Dated as of October 29, 2004
Among
THE BLACK & DECKER CORPORATION,
and
BLACK & DECKER HOLDINGS INC.,
as Initial Borrowers,
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
CITIBANK, N.A.,
as Administrative Agent,
and
JPMORGAN CHASE BANK,
as Syndication Agent
and
BANK OF AMERICA, N.A.
BNP PARIBAS
and
COMMERZBANK AG,
as Co-Documentation Agents
-----------------------------------------------------
J.P. MORGAN SECURITIES INC.
and
CITIGROUP GLOBAL MARKETS INC.,
as Co-Lead Arrangers and Co-Bookrunners
-----------------------------------------------------
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 23
ARTICLE II 23
SECTION 2.01. The Revolving Credit Advances and Letters of Credit 23
SECTION 2.02. Making the Revolving Credit Advances and Purchasing
the Discounted Notes 24
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit 26
SECTION 2.04. Fees 28
SECTION 2.05. Termination or Reduction of the Commitments 28
SECTION 2.06. Repayment of Revolving Credit Advances and Repurchase
of Discounted Notes 29
SECTION 2.07. Interest on Revolving Credit Advances 30
SECTION 2.08. Interest Rate and Discount Determination 31
SECTION 2.09. Optional Conversion of Revolving Credit Advances 32
SECTION 2.10. Optional Prepayments of Revolving Credit Advances
and Repurchases of Discounted Notes 33
SECTION 2.11. Increased Costs 34
SECTION 2.12. Illegality 35
SECTION 2.13. Payments and Computations 36
SECTION 2.14. Taxes 37
SECTION 2.15. Sharing of Payments, Etc. 40
SECTION 2.16. Defaulting Lenders 41
SECTION 2.17. Extension of Termination Date 41
i
SECTION 2.18. Use of Proceeds 44
SECTION 2.19. Increase in the Aggregate Revolving Credit Commitments 44
SECTION 2.20. Evidence of Debt 46
SECTION 2.21. Addition of Issuing Banks 46
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 47
SECTION 3.02. Conditions Precedent to the Initial Borrowing of
Each Designated Subsidiary 49
SECTION 3.03. Conditions Precedent to Each Revolving Credit
Borrowing and Each Issuance 50
SECTION 3.04. Conditions Precedent to Each Extension Date and Each
Commitment Increase 51
SECTION 3.05. Determinations Under Section 3.01 52
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Borrowers 52
ARTICLE V
SECTION 5.01. Affirmative Covenants 54
SECTION 5.02. Negative Covenants 58
SECTION 5.03. Financial Covenants 61
ARTICLE VI
SECTION 6.01. Events of Default 61
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default 63
ARTICLE VII
SECTION 7.01. Unconditional Guarantee 64
SECTION 7.02. Guarantee Absolute 64
SECTION 7.03. Waivers 65
ii
SECTION 7.04. Subrogation 66
SECTION 7.05. Continuing Guarantee; Assignments 66
ARTICLE VIII
SECTION 8.01. Authorization and Action 67
SECTION 8.02. Administrative Agent's Reliance, Etc. 67
SECTION 8.03. Administrative Agent and Affiliates 68
SECTION 8.04. Lender Credit Decision 68
SECTION 8.05. Indemnification 68
SECTION 8.06. Successor Administrative Agent 70
ARTICLE IX
SECTION 9.01. Amendments, Etc. 70
SECTION 9.02. Notices, Etc. 71
SECTION 9.03. No Waiver; Remedies 73
SECTION 9.04. Costs and Expenses 73
SECTION 9.05. Right of Setoff 74
SECTION 9.06. Binding Effect 75
SECTION 9.07. Assignments and Participations 75
SECTION 9.08. Designated Subsidiaries 80
SECTION 9.09. Confidentiality 81
SECTION 9.10. Governing Law 81
SECTION 9.11. Execution in Counterparts 81
SECTION 9.12. Jurisdiction, Etc. 81
SECTION 9.13. No Liability of the Issuing Banks 82
SECTION 9.14. Patriot Act 83
SECTION 9.15. Waiver of Jury Trial 84
iii
SCHEDULES
Schedule I - Applicable Lending Office
Schedule 4.01 - Environmental Compliance
Schedule 5.02(a) - Existing Liens
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Master Discounted Note
Exhibit B - Form of Notice of Revolving Credit Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E-1 - Form of Opinion of Counsel for the Borrowers
Exhibit E-2 - Form of Opinion of Special Counsel for a Designated
Subsidiary
Exhibit F - Form of Designation Letter
Exhibit G - Form of Acceptance of Process Agent
iv
FIVE-YEAR CREDIT AGREEMENT
Dated as of October 29, 2004
THE BLACK & DECKER CORPORATION, a Maryland corporation (the
"Company"), BLACK & DECKER HOLDINGS INC., a Delaware corporation ("Holdings"
and, together with the Company, the "Initial Borrowers"), the banks, financial
institutions and other institutional lenders (collectively, the "Initial
Lenders") and initial issuing banks (the "Initial Issuing Banks") listed on the
signature pages hereof, CITIBANK, N.A. ("Citibank"), as the administrative agent
(together with any successor agent appointed pursuant to Article VIII, the
"Administrative Agent") for the Lenders (as hereinafter defined), JPMORGAN CHASE
BANK ("JPMorgan"), as syndication agent (the "Syndication Agent"), and Bank of
America, N.A., BNP Paribas and Commerzbank AG, as co-documentation agents for
the Lenders, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Accreted Value" means, with respect to each Discounted Note
comprising part of the same Revolving Credit Borrowing at any date of
determination, an amount equal to the sum of (a) the Discounted Purchase
Price of such Discounted Note and (b) the portion of the Discount
applicable to such Discounted Note that shall have accreted from the date
of such Revolving Credit Borrowing until such date.
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at 399 Park
Avenue, New York, New York 10043, Account no. 36852248 and such other
account of the Administrative Agent as is designated in writing from time
to time by the Administrative Agent to the Borrowers and the Lenders for
such purpose.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"Agreement" means this Five-Year Credit Agreement, as it may be
amended from time to time in accordance with Section 9.01.
"Agreement Value" means, with respect to any Hedge Agreement at any
date of determination, the amount, if any, that would be payable to any
counterparty thereunder in respect of the "agreement value" under such
Hedge Agreement if such Hedge Agreement were terminated on such date,
calculated as provided in the International Swap Dealers Association, Inc.
Code of Standard Wording, Assumptions and Provisions for Swaps, 1986
Edition.
"Anniversary Date" means October 29, 2005 and October 29 in each
succeeding calendar year occurring during the term of this Agreement.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Base Rate Lending Office in the case of a Base Rate Advance or a
Discounted Note and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance.
"Applicable Margin" means, at any time and from time to time, a
percentage per annum equal to the applicable percentage set forth below for
the Performance Level set forth below:
------------------- -------------------
Performance Eurodollar
Level Rate Advances
------------------- -------------------
I 0.260%
II 0.340%
III 0.375%
IV 0.700%
V 1.000%
------------------- -------------------
The Applicable Margin for (a) each Eurodollar Rate Advance shall be
determined by reference to the Performance Level in effect from time to
time and (b) each Discounted Note shall be determined by reference to the
Performance Level in effect two Business Days before the date such
Discounted Note is purchased by a Lender.
"Applicable Percentage" means, at any time and from time to time, a
percentage per annum equal to the applicable percentage set forth below for
the Performance Level set forth below:
------------------- -------------------
Performance
Level Facility Fee
------------------- -------------------
I 0.090%
II 0.110%
III 0.125%
IV 0.175%
V 0.250%
------------------- -------------------
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The Applicable Percentage for the Facility Fee shall be determined by
reference to the Performance Level in effect from time to time.
"Applicable Utilization Fee" means, at any time that the sum of (a)
the aggregate principal amount of the Revolving Credit Advances then
outstanding, plus (b) the aggregate Discounted Purchase Price of all
Discounted Notes then outstanding plus (c) the Available Amount of the
Letters of Credit then outstanding exceeds 50% of the aggregate Revolving
Credit Commitments, a percentage per annum equal to the applicable
percentage set forth below for the Performance Level set forth below:
------------------- -------------------
Performance
Level Utilization Fee
------------------- -------------------
I 0.100%
II 0.100%
III 0.125%
IV 0.125%
V 0.250%
------------------- -------------------
The Applicable Utilization Fee shall be determined by reference to the
Performance Level in effect from time to time, except that the Applicable
Utilization Fee for each Discounted Note shall be determined by reference
to the Performance Level in effect two Business Days before the date such
Discounted Note is purchased by a Lender.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent and, if applicable, the Company, in substantially the
form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.17(c).
"Assumption Agreement" means (a) an assumption agreement entered into
by a Non-Consenting Lender and an Assuming Lender, and accepted by the
Administrative Agent and the Company, in substantially the form of Exhibit
D hereto, pursuant to which such Assuming Lender agrees to become a Lender
hereunder pursuant to Section 2.17 or (b) an assumption agreement entered
into by an Assuming Lender, and accepted by the Administrative Agent and
the Company pursuant to which such Assuming Lender agrees to become a
Lender hereunder pursuant to Section 2.19.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
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(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(i).
"Base Rate Lending Office" means, with respect to any Lender, the
office of such Lender or any of its Affiliates specified as its "Base Rate
Lending Office" opposite its name on Schedule I hereto or in the Assignment
and Acceptance or in the Assumption Agreement, as the case may be, pursuant
to which it became a Lender, or such other office of such Lender or any of
its Affiliates as such Lender may from time to time specify to the Company
and the Administrative Agent for such purpose.
"Borrowers" means, collectively, each Initial Borrower and each
Designated Subsidiary that shall become a party to this Agreement pursuant
to Section 9.08.
"Borrowers' Account" means, in the case of the Company, the account of
the Company, Account Number 4057-7058, in the case of Holdings, the account
of Holdings, Account Number 4076-2552, each at Citibank at its offices at
399 Park Avenue, New York, New York 10043, and such other account of the
Borrowers (or any one of them) as is agreed in writing from time to time
among the Borrowers and the Administrative Agent for such purpose.
"Borrowing" means a Revolving Credit Borrowing or a Refinancing
Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York, New York, or in London, England,
and, if the applicable Business Day relates to any Eurodollar Rate Advance
or any Discounted Note, on which dealings are carried on in the London
interbank market.
"Capitalized Leases" means all leases that have been or should be, in
accordance with generally accepted accounting principles in effect from
time to time, recorded as capitalized leases.
"Cash Flow Coverage Ratio" means, with respect to the Company and its
Subsidiaries at any date of determination, the ratio of (a) EBITDA of the
Company and its Subsidiaries for the most recently completed consecutive
four fiscal quarter period ending on such date to (b) Consolidated Net
Interest Expense for the most recently completed consecutive four fiscal
quarter period ending on such date, in each case calculated in accordance
with GAAP. Calculations of the Cash Flow Coverage Ratio shall exclude all
effects of unusual or nonrecurring credits or charges.
"Change of Control" means the occurrence of any of the following:
(a) any "person" or "group" (each as used in Sections 13(d)(3)
and 14(d)(2) of the Securities Exchange Act of 1934, as amended)
becomes the "beneficial owner" (as defined in Rule 13d-3 of the
Securities Exchange Act of 1934, as amended), directly or indirectly,
of Voting Stock of the Company (or securities convertible into or
exchangeable for such Voting Stock) representing
4
more than 30% of the combined voting power of all Voting Stock of the
Company (on a fully diluted basis); or
(b) a majority of the members of the board of directors of the
Company are not Continuing Directors at any time.
"Chesapeake Holdings" means Chesapeake Falls Holdings Company, an
unlimited company organized under the laws of the Republic of Ireland.
"Citibank" has the meaning specified in the recital of parties to this
Agreement.
"Commitment" means a Revolving Credit Commitment or a Letter of Credit
Commitment.
"Commitment Date" has the meaning specified in Section 2.19(b).
"Commitment Increase" has the meaning specified in Section 2.19(a).
"Company" has the meaning specified in the recital of parties to this
Agreement.
"Confidential Information" means information furnished by or on behalf
of any Borrower to the Administrative Agent or any Lender in connection
with this Agreement in a writing designated by such Borrower as
confidential, but does not include any such information that (a) is or
becomes generally available to the public, (b) was available to the
Administrative Agent or any Lender on a nonconfidential basis prior to its
disclosure to the Administrative Agent or such Lender by any Borrower or
any of its Subsidiaries or (c) is or becomes available to the
Administrative Agent or such Lender on a nonconfidential basis from a
source other than any Borrower or any of its Subsidiaries.
"Consenting Lender" has the meaning specified in Section 2.17(b).
"Consolidated Net Interest Expense" means, with respect to the Company
and its Subsidiaries for any period, (a) total interest expense (including,
without limitation, the interest component on all obligations under
Capitalized Leases during such period and all Discounts accrued during such
period) of the Company and its Subsidiaries for such period less (b) total
interest income of the Company and its Subsidiaries for such period, in
each case determined on a consolidated basis for the Company and its
Subsidiaries in accordance with GAAP; provided, however, that calculation
of Consolidated Net Interest Expense for that period shall exclude any
income/expense for that period associated with spot-to-forward differences
or points on foreign currency trades that are included in interest
income/expense as a result of Statement of Financial Accounting Standards
No. 133, as amended and interpreted.
"Continuing Director" means an individual who is a member of the board
of directors of the Company on the date of this Agreement or whose election
to the board of directors of the Company is approved by a majority of the
other Continuing Directors.
5
"Convert", "Conversion" and "Converted" each refers to a conversion of
Revolving Credit Advances of one Type into Revolving Credit Advances of
another Type or the continuation of Revolving Credit Advances of the same
Type for another Interest Period pursuant to Section 2.08 or 2.09.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Defaulted Advance" means, with respect to any Lender at any time, the
portion of any Revolving Credit Advance required to be made by such Lender
to any Borrower, or the portion of any Discounted Note required to be
purchased by such Lender from Holdings, pursuant to Sections 2.01 and 2.02
at or prior to such time that has not been made or purchased by such Lender
or by the Administrative Agent for the account of such Lender pursuant to
Section 2.02(c) as of such time. In the event that a portion of a Defaulted
Advance shall be deemed made pursuant to Section 2.16, the remaining
portion of such Defaulted Advance shall be considered a Defaulted Advance
originally required to be made pursuant to Sections 2.01 and 2.02 on the
same date as the Defaulted Advance so deemed made in part.
"Defaulting Lender" means, at any time, any Lender that at such time
owes a Defaulted Advance.
"Designated Subsidiary" means any Substantially Owned Subsidiary
designated after the date of this Agreement for borrowing privileges
hereunder pursuant to Section 9.08.
"Designation Letter" means a letter entered into by a Designated
Subsidiary, the Company and the Administrative Agent, in substantially the
form of Exhibit F hereto, pursuant to which such Designated Subsidiary
shall become a Borrower hereunder in accordance with Section 9.08.
"Discount" means, for each Discounted Note comprising part of the same
Revolving Credit Borrowing, the amount obtained by dividing (a) the product
of (i) the Face Amount of such Discounted Note multiplied by (ii) the
product of (A)(1) the Eurodollar Rate for US Dollars for such Discounted
Note plus (2) the Applicable Margin for such Discounted Note plus (3) the
Applicable Utilization Fee, if any, for such Discounted Note multiplied by
(B) a fraction the numerator of which is the number of days in the term to
Maturity Date of such Discounted Note and the denominator of which is 360
days by (b) the sum of (i) one and (ii) the product of (A)(1) the
Eurodollar Rate for US Dollars for such Discounted Note plus (2) the
Applicable Margin in effect for such Discounted Note plus (3) the
Applicable Utilization Fee, if any, for such Discounted Note multiplied by
(B) a fraction the numerator of which is the number of days in the term to
Maturity Date of such Discounted Note and the denominator of which is 360
days.
"Discounted Note" means any payment obligation of Holdings evidenced
by the Master Discounted Note and purchased by a Lender pursuant to Section
2.01(b).
6
"Discounted Purchase Price" means, with respect to any Discounted Note
purchased by any Lender, the difference between (a) the Face Amount of such
Discounted Note and (b) the Discount applicable to such Discounted Note.
"EBITDA" means, for any period, (a) earnings before income taxes for
such period as set forth on the consolidated statements of earnings of the
Company and its Subsidiaries for such period less (or plus) (b) other
income (or expense) of the Company and its Subsidiaries for such period to
the extent included in earnings before income taxes plus (c) Consolidated
Net Interest Expense for such period plus (d) all charges for depreciation
and amortization for such period as set forth in the consolidated
statements of cash flows of the Company and its Subsidiaries for such
period; provided, however, that, for purposes of calculating EBITDA for any
period, Consolidated Net Interest Expense for that period will be included
without giving effect to the proviso at the end of the definition of
"Consolidated Net Interest Expense".
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) a Lender, (b) an Affiliate of a Lender
or (c) any other Person approved by the Administrative Agent and, unless an
Event of Default has occurred and is continuing, the Company, such approval
not to be unreasonably withheld or delayed; provided, however, that neither
the Company nor an Affiliate of the Company shall qualify as an Eligible
Assignee.
"Environmental Action" means any suit, demand, demand letter, claim,
notice of noncompliance or violation, notice of liability or potential
liability, proceeding, consent order or consent agreement relating in any
way to any Environmental Law, any Environmental Permit or any Hazardous
Materials or arising from alleged injury or threat of injury to health,
safety or the environment, including, without limitation, (a) by any
Governmental Authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any Governmental Authority
or any other third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial determination relating to pollution or to protection of the
environment, health, safety or natural resources, including, without
limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.
"Environmental Lien" means a Lien in favor of a Governmental Authority
securing (a) any liability under any Environmental Law or any Environmental
Permit or (b) damages arising from, or remediation costs or injunctive
relief imposed by a Governmental Authority in response to, the release or
threatened release of Hazardous Materials.
"Environmental Permit" means any permit, license or other
authorization required under any Environmental Law.
7
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Company's controlled group, or under common
control with the Company, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are met
with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (b) the application
for a minimum funding waiver with respect to a Plan; (c) the provision by
the administrator of any Plan of a notice of intent to terminate such Plan
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA); (d)
the cessation of operations at a facility of the Company or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Company or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (f) the conditions for the
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, a Plan.
"Eurocurrency liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender or any of its Affiliates specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the Assignment
and Acceptance or the Assumption Agreement, as the case may be, pursuant to
which it became a Lender (or, if no such office is specified, its Base Rate
Lending Office), or such other office of such Lender or any of its
Affiliates as such Lender may from time to time specify to the Company and
the Administrative Agent for such purpose.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Revolving Credit Borrowing or for
the term to Maturity Date of each Discounted Note comprising part of the
same Revolving Credit Borrowing, as the case may be, an interest rate per
annum equal to:
8
(a) the rate per annum appearing on Reuters Screen LIBO Page as
the London interbank offered rate for deposits in U.S. Dollars at or
about 11:00 A.M. (London time) two Business Days before (i) in the
case of each such Eurodollar Rate Advance, the first day of such
Interest Period and for a period equal to such Interest Period and
(ii) in the case of each such Discounted Note, the date that such
Discounted Note is purchased by a Lender and for a period equal to the
term to Maturity Date thereof; or
(b) if such rate does not so appear on the Reuters Screen LIBO
Page at such time, the average (rounded upward to the nearest whole
multiple of 1/100 of 1% per annum, if such average is not such a
multiple) of the rates per annum at which deposits in US Dollars are
offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at or
about 11:00 A.M. (London time) two Business Days before (i) in the
case of each such Eurodollar Rate Advance, the first day of such
Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Revolving
Credit Borrowing to be outstanding during such Interest Period and for
a period equal to such Interest Period and (ii) in the case of each
such Discounted Note, the date such Discounted Note is purchased by a
Lender in an amount substantially equal to such Reference Bank's
Discounted Note comprising part of such Revolving Credit Borrowing and
for a period equal to the term to Maturity Date thereof; provided that
any determination of the Eurodollar Rate for any Interest Period
pursuant to this clause (b) shall be determined by the Administrative
Agent on the basis of applicable rates furnished to and received by
the Administrative Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance denominated
in US Dollars that bears interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" means, with respect to any Lender
for any Interest Period for any Eurodollar Rate Advance made by such Lender
from time to time, the reserve percentage applicable two Business Days
before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or
any successor thereto) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Lender with respect to liabilities
or assets consisting of or including Eurocurrency liabilities (or with
respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurodollar Rate Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Credit Agreement" means that certain Five Year Credit
Agreement dated as of April 2, 2001 among the Company, Holdings, the banks
party thereto, Citibank, as Administrative Agent, JPMorgan, a Division of
Chase Securities Inc., as
9
Documentation Agent, and Bank of America, N.A. and Commerzbank AG, as
Co-Syndication Agents, as amended, supplemented or otherwise modified
through the date hereof.
"Extension Date" has the meaning specified in Section 2.17(b).
"Face Amount" means, with respect to any Discounted Note, the amount
payable to the holder of such Discounted Note on the Maturity Date thereof.
"Facility Fee" has the meaning specified in Section 2.04(a).
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
immediately preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"Financial Statements" means, with respect to any Person at any date
of determination:
(a) the financial statements of such Person and its Subsidiaries
included in the quarterly report of such Person on Form 10-Q or the
annual report of such Person on Form 10-K, as the case may be, for the
period ended on such date, in each case as filed with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended, and including all financial statements of such
Person and its Subsidiaries incorporated by reference therein; or
(b) if there is no quarterly report of such Person on Form 10-Q
or annual report of such Person on Form 10-K, as the case may be, for
the period ended on such date, a consolidated balance sheet of such
Person and its Subsidiaries as at such date and consolidated
statements of earnings and cash flow and, as applicable, changes in
financial position of such Person and its Subsidiaries for the period
ended on such date and for the period commencing at the end of the
immediately preceding fiscal year of such Person and ending on such
date, setting forth in each case in comparative form the corresponding
figures as of the end of and for the corresponding period in the
immediately preceding fiscal year of such Person and the corresponding
figures as of the end of and for the corresponding year-to-date period
in the immediately preceding fiscal year of such Person, all in
reasonable detail.
"Foreign Borrower" means each Designated Subsidiary organized under
the laws of a jurisdiction outside of the United States that becomes a
Borrower hereunder.
10
"GAAP" means generally accepted accounting principles consistent with
those applied in the preparation of the Financial Statements of the Company
for the fiscal year of the Company ended December 31, 2003, filed with the
Securities and Exchange Commission in the Annual Report of the Company on
Form 10-K for such fiscal year, as modified for the fiscal quarter ended
September 26, 2004 and subsequent fiscal quarters by the Company's adoption
of FASB Staff Position (FSP) No. FAS 106-2, Accounting and Disclosure
Requirements Related to the Medicare Prescription Drug, Improvement and
Modernization Act of 2003.
"Governmental Authority" means any nation or government or any state,
province or other political subdivision thereof, or any governmental,
executive, legislative, judicial, administrative or regulatory agency,
department, authority, instrumentality, commission, board or similar body,
whether federal, state, local or foreign.
"Guaranteed Obligations" has the meaning specified in Section 7.01.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements.
"Holdings" has the meaning specified in the recital of parties to this
Agreement.
"Home Jurisdiction Withholding Taxes" means in the case of the
Company, withholding for United States income taxes, United States back-up
withholding taxes and United States withholding taxes.
"Indebtedness" means, with respect to any Person (without
duplication):
(a) all indebtedness of such Person for borrowed money;
(b) all obligations of such Person for the deferred purchase
price of property and assets or services (other than trade payables
incurred in the ordinary course of such Person's business but only if
and for so long as the same remains payable on customary trade terms);
(c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments;
(d) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property or assets acquired by such Person (even though the rights and
remedies of the seller
11
or the lender under such agreement in the event of default are limited
to repossession or sale of such property or assets);
(e) all obligations of such Person as lessee under Capitalized
Leases;
(f) all obligations, contingent or otherwise, of such Person in
respect of acceptances, letters of credit or similar extensions of
credit;
(g) all obligations of such Person in respect of Hedge
Agreements, valued at the Agreement Value thereof;
(h) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Mandatorily
Redeemable Stock, valued at the greater of (i) its voluntary or
involuntary liquidation preference and (ii) the aggregate amount
payable therefor upon purchase, redemption, defeasance or payment
therefor, except for Senior Preferred Shares issued by Chesapeake
Holdings which will be valued at the amount attributed thereto on the
Company's Financial Statements;
(i) all Indebtedness of other Persons referred to in clauses (a)
through (h) above or clause (j) below guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (i) to pay
or purchase such Indebtedness or to advance or supply funds for the
payment or purchase of such Indebtedness, (ii) to purchase, sell or
lease (as lessee or lessor) property or assets, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make
payment of such Indebtedness or to assure the holder of such
Indebtedness against loss, (iii) to supply funds to, or in any other
manner to invest in, the debtor (including any agreement to pay for
property, assets or services irrespective of whether such property or
assets are received or such services are rendered) or (iv) otherwise
to assure a creditor against loss; and
(j) all Indebtedness referred to in clauses (a) through (i) above
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on
property and assets (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness.
"Indemnified Party" has the meaning specified in Section 9.04(b).
"Increase Date" has the meaning specified in Section 2.19(a).
"Increasing Lender" has the meaning specified in Section 2.19(d).
"Initial Borrowers" has the meaning specified in the recital of
parties to this Agreement.
12
"Initial Issuing Banks" has the meaning specified in the recital of
parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of parties
to this Agreement.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Revolving Credit Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of any
Base Rate Advance into such Eurodollar Rate Advance and ending on the last
day of the period selected by the Borrower requesting such Borrowing or
Conversion pursuant to the provisions below and, thereafter, with respect
to any such Eurodollar Rate Advance, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on the
last day of the period selected by such Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one, two, three
or six months, and subject to clause (c) of this definition, nine or twelve
months, as the Borrower requesting such Borrowing or Conversion may, upon
notice received by the Administrative Agent in accordance with the
applicable provisions of Section 2.02(a) or 2.09, as the case may be,
select; provided, however, that:
(a) such Borrower may not select any Interest Period that ends
after the scheduled Termination Date;
(b) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Revolving Credit Borrowing
shall be of the same duration;
(c) in the case of any such Revolving Credit Borrowing, such
Borrower shall not be entitled to select an Interest Period having a
duration of nine or twelve months unless, by 2:00 P.M. (New York City
time) on the third Business Day prior to the first day of such
Interest Period, each Lender notifies the Administrative Agent that
such Lender will be providing funding for such Revolving Credit
Borrowing with such Interest Period (the failure of any Lender to so
respond by such time being deemed for all purposes of this Agreement
as an objection by such Lender to the requested duration of such
Interest Period); provided that, if any or all of the Lenders object
to the requested duration of such Interest Period, the duration of the
Interest Period for such Revolving Credit Borrowing shall be one, two,
three or six months, as specified by the Borrower requesting such
Revolving Credit Borrowing in the applicable Notice of Revolving
Credit Borrowing as the desired alternative to an Interest Period of
nine or twelve months;
(d) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day; provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the
13
next succeeding calendar month, the last day of such Interest Period
shall occur on the immediately preceding Business Day; and
(e) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"Issuing Bank" means an Initial Issuing Bank or any Eligible Assignee
(x) that has been appointed by the Company pursuant to Section 2.21 or (y)
to which a portion of the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 9.07, in each case so long as such Eligible
Assignee expressly agrees to perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Administrative Agent of
its Applicable Lending Office (which information shall be recorded by the
Administrative Agent in the Register), for so long as the Initial Issuing
Bank or Eligible Assignee, as the case may be, shall have a Letter of
Credit Commitment.
"JPMorgan" has the meaning specified in the recital of parties to this
Agreement.
"L/C Cash Collateral Account" means an interest bearing cash
collateral account to be established and maintained by the Administrative
Agent, over which the Administrative Agent shall have sole dominion and
control, upon terms as may be satisfactory to the Administrative Agent.
"L/C Related Documents" has the meaning specified in Section
2.06(c)(i).
"Lenders" means, collectively, each Initial Lender, each Issuing Bank
and each other Person that shall become a party hereto pursuant to Section
2.17, 2.19 or 9.07(a), (b) and (c).
"Letter of Credit Agreement" shall have the meaning specified in
Section 2.03(a).
"Letter of Credit Commitment" means as to any Issuing Bank (a) the
amount set forth opposite such Issuing Bank's name on the signature pages
hereto under the caption "Letter of Credit Commitment" or (b) if such
Issuing Bank has entered into one or more Assignment and Acceptances, the
amount set forth for such Issuing Bank in the Registrar maintained by the
Administrative Agent pursuant to Section 9.07(d) as such Issuing Bank's
"Letter of Credit Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount equal to the
lesser of (a) the aggregate amount of the Issuing Banks' Letter of Credit
Commitments at such time
14
and (b) $75,000,000, as such amount may be reduced at or prior to such time
pursuant to Section 2.05(b).
"Letters of Credit" has the meaning specified in Section 2.01(c).
"Leverage Ratio" means, with respect to the Company and its
Subsidiaries at any date of determination, the ratio of (a) the sum
(without duplication) of (i) all Reported Net Indebtedness at such date,
(ii) all Mandatorily Redeemable Stock of the Company and its Subsidiaries
outstanding at such date which is not included in Reported Net Indebtedness
(valued at the greater of (A) its voluntary or involuntary liquidation
preference and (B) the aggregate amount payable therefor upon purchase,
redemption, defeasance or payment therefor, except for Senior Preferred
Shares issued by Chesapeake Holdings which will be valued at the amount
attributed thereto on the Company's Financial Statements), determined on a
consolidated basis less the amount of any cash deposits maintained by
Chesapeake Holdings or its Subsidiaries that secure a redemption payment
obligation thereon (to the extent the deposits are not included as cash or
cash equivalents in Reported Net Indebtedness), (iii) the aggregate book
value of all accounts receivable on the books of the purchasers thereof
sold by the Company or any of its Subsidiaries to any Person other than the
Company or any of its Subsidiaries at such date and (iv) all outstanding
obligations of any Person for borrowed money (other than any such
obligations of employees in an aggregate amount not to exceed $10,000,000
(or the equivalent thereof in one or more foreign currencies)) that is
guaranteed or in effect guaranteed by, or secured by a Lien on the property
or assets of, the Company or any of its Subsidiaries at such date to (b)
EBITDA of the Company and its Subsidiaries for the most recently completed
consecutive four fiscal quarters ending on such date, in each case
calculated in accordance with GAAP. Calculations of the Leverage Ratio
shall exclude all effects of unusual or nonrecurring credits or charges.
"Lien" means any lien, security or other charge or encumbrance of any
kind, including, without limitation, the lien or retained security title of
a conditional vendor and any easement, right of way or other encumbrance on
title to real property, but shall not include the interest of a third party
in receivables sold by any Person to such third party on a nonrecourse
basis.
"Mandatorily Redeemable Stock" means, at any date of determination,
(a) with respect to any Person, any shares of capital stock of (or other
similar ownership interest in) such Person or any other Person that, at
such date, (i) are redeemable, payable or required to be purchased or
otherwise retired or extinguished, or are convertible into any Indebtedness
or other liability of such Person, whether mandatorily or at the option of
the holder thereof (except if an event must occur to cause or permit the
holder thereof to require redemption or repurchase of such capital stock
(or such other ownership interest) and such event has not occurred at such
date), prior to the then scheduled Termination Date or (ii) are convertible
into any shares of capital stock (or other similar ownership interest) of
the types referred to in subclause (a)(i) above and (b) in addition, with
respect to Chesapeake Holdings, its Senior Preferred Shares of all classes.
15
"Master Discounted Note" means a promissory note of Holdings in favor
of the Administrative Agent, for the account of the Lenders, in
substantially the form of Exhibit A-2 hereto, evidencing the aggregate
indebtedness of Holdings to the Lenders under or in respect of Discounted
Notes.
"Material Adverse Effect" means any material adverse effect on (a) the
ability of the Company and its Subsidiaries, taken as a whole, to perform
the obligations of the Borrowers under this Agreement and the Notes or (b)
the legality, binding nature, validity or enforceability of this Agreement
or any Note as an obligation of any Borrower that is intended to be a party
thereto.
"Maturity Date" means, for each Discounted Note comprising part of the
same Revolving Credit Borrowing, the date on which the Face Amount for such
Discounted Note becomes due and payable in accordance with the provisions
set forth below, which shall be a day occurring one, two, three or six
months after the date on which such Discounted Note is purchased by a
Lender as part of any Revolving Credit Borrowing, as Holdings may, upon
notice received by the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date on which such
Discounted Note is to be purchased, select; provided, however, that:
(a) Holdings may not select a Maturity Date for any Discounted
Note that occurs after the scheduled Termination Date;
(b) the Maturity Dates for all Discounted Notes comprising part
of the same Revolving Credit Borrowing shall occur on the same date;
(c) Discounted Notes may not be Converted;
(d) whenever the Maturity Date for any Discounted Note would
otherwise occur on a day other than a Business Day, such Maturity Date
shall be extended to occur on the next succeeding Business Day;
provided, however, that, if such extension would cause the Maturity
Date for such Discounted Note to occur in the next succeeding calendar
month or to be more than 183 days after the date that such Discounted
Note was purchased by a Lender, the Maturity Date thereof shall occur
on the immediately preceding Business Day; and
(e) whenever the date that any Discounted Notes was purchased by
a Lender occurs on a day of an initial calendar month for which there
is no numerically corresponding day the calendar month that succeeds
such initial calendar month by the number of months equal to the
number of months selected by Holdings in its notice to the
Administrative Agent for such Discounted Note, the Maturity Date
thereof shall be the last Business Day of such succeeding calendar
month.
"Moody's" means Moody's Investors Service, Inc., or any successor
thereto acceptable to the Required Lenders.
16
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate is making
or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any ERISA Affiliate and at least one Person other than the
Company and the ERISA Affiliates or (b) was so maintained and in respect of
which the Company or any ERISA Affiliate could have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Non-Consenting Lender" has the meaning specified in Section 2.17(b).
"Note" means a Revolving Credit Note, a Discounted Note or a Master
Discounted Note, as the context may require.
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.02(a).
"Other Taxes" has the meaning specified in Section 2.14(b).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Performance Level" means Performance Level I, Performance Level II,
Performance Level III, Performance Level IV or Performance Level V, as
appropriate.
"Performance Level I" means, at any date of determination, the
non-credit enhanced long-term senior unsecured public debt of the Company
shall have a Public Debt Rating in effect on such date of at least A- by
S&P or at least A3 by Moody's.
"Performance Level II" means, at any date of determination, (a) the
Performance Level does not meet the requirements of Performance Level I and
(b) the non-credit enhanced long-term senior unsecured public debt of the
Company shall have a Public Debt Rating in effect on such date of at least
BBB+ by S&P or at least Baa1 by Moody's.
"Performance Level III" means, at any date of determination, (a) the
Performance Level does not meet the requirements of Performance Level I or
Performance Level II and (b) the non-credit enhanced long-term senior
unsecured public debt of the Company shall have a Public Debt Rating in
effect on such date of at least BBB by S&P or at least Baa2 by Moody's.
"Performance Level IV" means, at any date of determination, (a) the
Performance Level does not meet the requirements of Performance Level I,
Performance Level II or Performance Level III and (b) the non-credit
enhanced long-term senior unsecured public
17
debt of the Company shall have a Public Debt Rating in effect on such date
of at least BBB- by S&P or at least Baa3 by Moody's.
"Performance Level V" means, at any date of determination, the
Performance Level does not meet the requirements of Performance Level I,
Performance Level II, Performance Level III or Performance Level IV.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced and remain unstayed:
(a) Liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.01(b);
(b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens
arising in the ordinary course of business securing obligations (other
than Indebtedness for borrowed money) that (i) are not overdue for a
period of more than 30 days or (ii) are being contested in good faith
and by proper proceedings and as to which appropriate reserves are
being maintained in accordance with generally accepted accounting
principles in effect from time to time;
(c) pledges or deposits to secure obligations under workers'
compensation laws or other similar legislation (other than in respect
of employee benefit plans subject to ERISA) or to secure public or
statutory obligations;
(d) Liens securing the performance of, or payment in respect of,
bids, tenders, government contracts (other than for the repayment of
borrowed money), surety and appeal bonds and other obligations of a
similar nature incurred in the ordinary course of business;
(e) any interest or title of a lessor or sublessor and any
restriction or encumbrance to which the interest or title of such
lessor or sublessor may be subject that is incurred in the ordinary
course of business and, either individually or when aggregated with
all other Permitted Liens in effect on any date of determination,
could not be reasonably expected to have a Material Adverse Effect;
(f) easements, rights of way, zoning restrictions and other
encumbrances on title to real property that do not, either
individually or in the aggregate, render title to the property
encumbered thereby unmarketable or materially and adversely affect the
use of such property for its present purposes; and
(g) any interest of the Administrative Agent and the Lenders in
the L/C Cash Collateral Account.
18
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pro Rata Share" of any amount means, with respect to any Lender at
any time, the product of (a) a fraction the numerator of which is the
amount of such Lender's Revolving Credit Commitment at such time and the
denominator of which is the aggregate Revolving Credit Commitments of all
Lenders at such time and (b) such amount.
"Public Debt Rating" means, as of any date of determination, the
rating that has been most recently announced by either S&P or Moody's, as
the case may be, for any class of non-credit enhanced long-term senior
unsecured public debt issued or to be issued by the Company. For purposes
of the foregoing:
(a) if only one of S&P and Moody's shall have in effect a Public
Debt Rating, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be determined by reference to the
available rating;
(b) if, at any time, neither S&P nor Moody's shall have in effect
a Public Debt Rating, the Applicable Margin, the Applicable Percentage
and the Applicable Utilization Fee shall be set in accordance with
Performance Level V under the definition of "Applicable Margin",
"Applicable Percentage" or "Applicable Utilization Fee", as the case
may be;
(c) if the ratings established by S&P and Moody's shall fall
within different Performance Levels, the Applicable Margin, the
Applicable Percentage and the Applicable Utilization Fee shall be
based upon the higher rating therefrom; provided, however, that, if
the lower of such ratings is two Performance Levels below the higher
of such ratings, the Applicable Margin, the Applicable Percentage and
the Applicable Utilization Fee shall be set in accordance with the
Performance Level that is in the middle of such Performance Levels;
and provided further, however, that, if the lower of such ratings is
more than two Performance Levels below the higher of such ratings, the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be deemed to be the average of the Applicable
Margins, the Applicable Percentages or the Applicable Utilization
Fees, as the case may be, that correspond to such ratings;
(d) if any rating established by S&P or Moody's shall be changed,
such change shall be effective as of the first Business Day after the
date on which such change is announced publicly by the rating agency
making such change; and
(e) if S&P or Moody's shall change the basis on which ratings are
established by it, each reference to the Public Debt Rating announced
by S&P or
19
Moody's shall refer to the then equivalent rating by S&P or Moody's,
as the case may be.
"Reference Banks" means Citibank, JPMorgan Chase Bank and Bank of
America, N.A. or, in the event that any one of such banks ceases to be a
Lender hereunder at any time, any other commercial bank designated by the
Company and approved by the Required Lenders as constituting a "Reference
Bank" hereunder.
"Refinancing Borrowing" means a Revolving Credit Borrowing consisting
of the purchase of Discounted Notes on such date to the extent that (a) the
Discounted Purchase Price thereof is not greater than the Face Amount of
the Discounted Notes maturing on such date and (b) the proceeds of such
Revolving Credit Borrowing are used to repurchase the Discounted Notes
maturing on such date.
"Register" has the meaning specified in Section 9.07(d).
"Reported Net Indebtedness" means, at any date of determination, (a)
the consolidated liabilities of the Company and its Subsidiaries at such
date that are for money borrowed or that constitute short-term borrowings
or long-term debt less (b) all cash and cash equivalents of the Company and
its Subsidiaries at such date, determined in accordance with GAAP;
provided, however, that calculation of Reported Net Indebtedness shall
include the aggregate carrying value of such indebtedness, excluding any
effects of fair value hedges on the carrying value of the indebtedness as
imposed by Statement of Financial Accounting Standards No. 133, as amended
and interpreted.
"Required Lenders" means, at any time, Lenders owed at least a
majority in interest of the aggregate unpaid principal amount of all
Revolving Credit Advances owing to, and the aggregate Face Amount of all
outstanding Discounted Notes purchased by, Lenders at such time, or, if no
such principal amount or Face Amount is outstanding at such time, Lenders
having at least a majority in interest of the Revolving Credit Commitments
at such time.
"Responsible Officer" means the Chief Executive Officer, the Chief
Financial Officer, the Treasurer or the General Counsel of each Borrower
(or other executive officers of any Borrower performing similar functions)
or any other officer of any Borrower or any of its Subsidiaries responsible
for overseeing or reviewing compliance with this Agreement and the Notes.
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurodollar Rate Advance.
"Revolving Credit Borrowing" means a Borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made, or of the
simultaneous issuance of Discounted Notes by Holdings purchased, by each of
the Lenders pursuant to Section 2.01.
20
"Revolving Credit Commitment" means, with respect to any Lender, the
amount set forth opposite such Lender's name on the signature pages hereof
under the caption "Revolving Credit Commitment" or, if such Lender has
entered into an Assignment and Acceptance or an Assumption Agreement, as
the case may be, the amount set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 9.07(d), in each
case as such amount may be reduced pursuant to Section 2.05(a) or increased
pursuant to Section 2.19.
"Revolving Credit Note" means a promissory note of any Borrower
payable to the order of any Lender, in substantially the form of Exhibit
A-1 hereto, evidencing the aggregate indebtedness of such Borrower to such
Lender resulting from the Revolving Credit Advances made, and the
Discounted Notes purchased, by such Lender.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc., or any successor thereto acceptable to the
Required Lenders.
"Significant Subsidiary" means, at any date of determination, any
Subsidiary of the Company that, either individually or together with its
Subsidiaries, taken as a whole, (a) accounted for more than 10% of the
consolidated assets of the Company and its Subsidiaries as of such date or
(b) accounted for more than 10% of the consolidated net income of the
Company and its Subsidiaries for any of the three most recently completed
fiscal years of the Company prior to such date, in each case as reflected
on the applicable Financial Statements of the Company at or prior to such
date.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any ERISA Affiliate and no Person other than the Company and the
ERISA Affiliates or (b) was so maintained and in respect of which the
Company or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"SPC" has the meaning specified in Section 9.07(f).
"Subsidiary" means, with respect to any Person, any corporation,
partnership, joint venture, limited liability company, trust or estate of
which (or in which) more than 50% of
(a) the issued and outstanding shares of capital stock having
ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether at the time shares of
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such limited
liability company, partnership or joint venture, or
(c) the beneficial interest in such trust or estate,
21
is at the time, directly or indirectly, owned or controlled by such Person,
by such Person and one or more of its other Subsidiaries or by one or more
of such Person's other Subsidiaries; provided, however, that, for all
purposes of this Agreement, Chesapeake Holdings shall constitute a
Subsidiary of the Company.
"Substantially Owned Subsidiary" means, at any time, any Subsidiary of
the Company of which (or in which) at least 80% of
(a) the issued and outstanding shares of capital stock having
ordinary voting power to elect a majority of the board of directors of
such Subsidiary (irrespective of whether at the time shares of capital
stock of any other class or classes of such Subsidiary shall or might
have voting power upon the occurrence of any contingency), and/or
(b) all other ownership interests and rights to acquire ownership
interests in such Subsidiary,
is at such time, directly or indirectly, owned or controlled by the
Company, by the Company and one or more of its wholly owned Subsidiaries or
by one or more wholly owned Subsidiaries of the Company.
"Syndication Agent" has the meaning specified in the recital of
parties to this Agreement.
"Taxes" has the meaning specified in Section 2.14(a).
"Termination Date" means the earlier of (a) October 29, 2009, subject
to extension thereof pursuant to Section 2.17, and (b) the date of
termination in whole of the Commitments pursuant to Section 2.05 or 6.01;
provided, however, that the Termination Date of any Lender that is a
Non-Consenting Lender pursuant to Section 2.17 shall be the Termination
Date in effect immediately prior to the applicable Extension Date for all
purposes of this Agreement.
"Type" refers to the distinction between Revolving Credit Advances
bearing interest at the Base Rate and at the Eurodollar Rate.
"Unused Commitment" means, with respect to any Lender at any time, (a)
such Lender's Revolving Credit Commitment at such time less (b) the sum of
(i) the aggregate principal amount of all Revolving Credit Advances made,
and the aggregate Face Amount of all Discounted Notes purchased, by such
Lender (in its capacity as a Lender) and outstanding at such time plus (ii)
such Lender's Pro Rata Share of the aggregate Available Amount of all the
Letters of Credit outstanding at such time.
"US Dollars" and the "$" sign each mean the lawful money of the United
States of America.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of
22
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even if the right so to vote
has been suspended by the happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
ARTICLE II
TERMS OF THE REVOLVING CREDIT ADVANCES,
THE DISCOUNTED NOTES AND LETTERS OF CREDIT
SECTION 2.01. The Revolving Credit Advances and Letters of Credit. (a)
The Revolving Credit Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make Revolving Credit Advances to any
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an amount for each such Revolving
Credit Advance not to exceed such Lender's Unused Commitment on such Business
Day. Each Revolving Credit Borrowing comprised of Revolving Credit Advances
shall be in an aggregate amount of not less than $10,000,000 and shall consist
of Revolving Credit Advances of the same Type made on the same day by the
Lenders according to their respective Pro Rata Shares of such Revolving Credit
Borrowing. Within the limits of each Lender's Unused Commitment, any Borrower
may borrow under this Section 2.01(a), prepay pursuant to Section 2.10 and
reborrow under this Section 2.01(a).
(b) The Discounted Notes. Each Lender severally agrees, on the terms
and conditions hereinafter set forth, to purchase Discounted Notes denominated
in US Dollars from Holdings from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an aggregate Face
Amount for each such Discounted Note not to exceed such Lender's Unused
Commitment on such Business Day. Each Revolving Credit Borrowing comprised of
Discounted Notes shall be in an aggregate Face Amount of not less than
$10,000,000 and shall consist of Discounted Notes purchased on the same day by
the Lenders according to their respective Pro Rata Shares of such Revolving
Credit Borrowing. Within the limits of each Lender's Unused Commitment, Holdings
may borrow under this Section 2.01(b), repurchase pursuant to Section 2.10 and
reborrow under this Section 2.01(b).
(c) Letters of Credit. Each Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (each, a "Letter of
Credit") for the account of any Borrower from time to time on any Business Day
during the period from the Effective Date until 30 days before the Termination
Date in an aggregate Available Amount (i) for all Letters of Credit issued by
each Issuing Bank not to exceed at any time the lesser of (x) the Letter of
Credit Facility at such time and (y) such Issuing Bank's Letter of Credit
Commitment at such time and (ii) for each such Letter of Credit not to exceed an
amount equal to the Unused Commitments of the Lenders at such time. Each Letter
of Credit shall be for a stated amount of $250,000 or more. No Letter of Credit
shall have an expiration date (including all rights of the applicable Borrower
or the beneficiary to require renewal) later than the earlier of (x) the date
that is one year after the
23
date of issuance thereof or (y) 10 Business Days prior to the Termination Date
(which, if the applicable Issuing Bank is a Non-Consenting Lender pursuant to
Section 2.17, shall be the Termination Date in effect immediately prior to the
applicable Extension Date). Within the limits referred to above, the Borrowers
may request the issuance of Letters of Credit under this Section 2.01(c), repay
any Revolving Credit Advances resulting from drawings thereunder pursuant to
Section 2.03(c) and request the issuance of additional Letters of Credit under
this Section 2.01(c). Each letter of credit listed on Schedule 2.01(c) shall be
deemed to constitute a Letter of Credit issued hereunder, and each Lender that
is an issuer of such a Letter of Credit shall, for purposes of Section 2.03, be
deemed to be an Issuing Bank for each such letter of credit, provided that any
renewal or replacement of any such letter of credit shall be issued by an
Issuing Bank pursuant to the terms of this Agreement.
SECTION 2.02. Making the Revolving Credit Advances and Purchasing the
Discounted Notes. (a) Except as otherwise provided in Section 2.03(c), each
Revolving Credit Borrowing shall be made on notice, given not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
comprised of Eurodollar Rate Advances or Discounted Notes, or not later than
9:00 A.M. (New York City time) on the same Business Day as the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
comprised of Base Rate Advances, by any Borrower to the Administrative Agent,
which shall give each Lender prompt notice thereof by telecopier. Each such
notice of a Revolving Credit Borrowing (a "Notice of Revolving Credit
Borrowing") shall be by telephone, confirmed immediately in writing, or by
telecopier, in substantially the form of Exhibit B hereto, specifying therein
(i) the requested date of such Revolving Credit Borrowing (which shall be a
Business Day), (ii) whether Discounted Notes or Revolving Credit Advances are to
comprise such proposed Revolving Credit Borrowing and, if Revolving Credit
Advances, the requested Type of Revolving Credit Advances comprising such
proposed Revolving Credit Borrowing, (iii) the requested aggregate principal
amount (or, in the case of Discounted Notes, the requested aggregate Face
Amount) of such Revolving Credit Borrowing and (iv) in the case of a Revolving
Credit Borrowing consisting of (A) Eurodollar Rate Advances, the requested
initial Interest Period for each such Revolving Credit Advance and (B)
Discounted Notes, (1) the requested Maturity Date of such Discounted Notes and
(2) the amount of proceeds thereof, if any, that are to constitute a Refinancing
Borrowing. In the case of a proposed Revolving Credit Borrowing consisting of
Discounted Notes, the Administrative Agent shall notify Holdings and each Lender
not later than 9:00 A.M. (New York City time) on the second Business Day prior
to the date of such proposed Revolving Credit Borrowing, by telecopier, of the
Discount applicable to, and such Lender's Pro Rata Share of the aggregate
Discounted Purchase Price of, the Discounted Notes comprising such Revolving
Credit Borrowing. Each Lender shall, before 12:00 Noon (New York City time) on
the date of such Revolving Credit Borrowing, make available for the account of
its Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's Pro Rata Share of such
Revolving Credit Borrowing (other than any Revolving Credit Borrowing to the
extent it constitutes a Refinancing Borrowing), which, in the case of a
Revolving Credit Borrowing comprised of Discounted Notes, shall be equal for
each Lender to the Discounted Purchase Price of the Discounted Note purchased by
such Lender as part of such Revolving Credit Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Borrower requesting such Revolving Credit
24
Borrowing at the applicable Borrowers' Account or at such other address and
account number of such Borrower as is reasonably acceptable to the
Administrative Agent and as such Borrower shall have specified in the related
Notice of Revolving Credit Borrowing. In the case of any Revolving Credit
Borrowing that constitutes in whole or in part a Refinancing Borrowing, upon
fulfillment of the applicable conditions set forth in Article III, the
Discounted Purchase Price of the Discounted Notes comprising such Refinancing
Borrowing shall be applied to redeem all or a portion of the Discounted Notes
maturing on such Business Day, without any further action by, or any transfer of
funds to or from, Holdings, the Administrative Agent or any Lender (other than
the redemption of any portion of the Discounted Notes maturing on such Business
Day that exceeds the amount of such Refinancing Borrowing).
(b) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the Borrower that requested such Borrowing. In the case of any
Revolving Credit Borrowing that the related Notice of Revolving Credit Borrowing
specifies is to be comprised of Eurodollar Rate Advances or Discounted Notes,
the Borrower that requested such Borrowing shall indemnify each Lender against
any loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in the Notice of Revolving Credit
Borrowing for such Revolving Credit Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made, or the Discounted Note to be purchased, by
such Lender as part of such Revolving Credit Borrowing when such Revolving
Credit Advance or such Discounted Note, as a result of such failure, is not made
or purchased on such date.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Revolving Credit Borrowing comprised of
Eurodollar Rate Advances, or prior to 12:00 Noon (New York City time) on the
date of any Revolving Credit Borrowing comprised of Base Rate Advances, that
such Lender will not make available to the Administrative Agent such Lender's
Pro Rata Share of such Revolving Credit Borrowing, the Administrative Agent may
assume that such Lender has made such Pro Rata Share available to the
Administrative Agent on the date of such Revolving Credit Borrowing in
accordance with Section 2.02(a) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower requesting such Revolving
Credit Borrowing on such date a corresponding amount. If and to the extent that
such Lender shall not have so made its Pro Rata Share available to the
Administrative Agent, such Lender and such Borrower severally agree to repay to,
or to repurchase from, the Administrative Agent forthwith on demand such amount,
and (except for any Discounted Notes repurchased by Holdings pursuant to clause
(i) of this sentence) to pay interest thereon, for each day from the date such
amount is made available to such Borrower until the date such amount is repaid
to, or repurchased from, the Administrative Agent, at (i) in the case of such
Borrower, the interest rate applicable at the time to the Revolving Credit
Advances, or the Accreted Value at such time of the Discounted Notes, comprising
such Revolving Credit Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to, or repurchase from, the
Administrative Agent such corresponding amount, such amount so repaid or so
repurchased shall constitute such Lender's Revolving Credit Advance or the
purchase by such Lender of its Discounted Note as part of such Revolving Credit
Borrowing for all purposes of this Agreement.
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(d) The failure of any Lender to make the Revolving Credit Advance to
be made, or to purchase the Discounted Note to be purchased, by it as part of
any Revolving Credit Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Revolving Credit Advance or to
purchase its Discounted Note, as the case may be, on the date of such Revolving
Credit Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Revolving Credit Advance to be made, or to purchase the
Discounted Note to be purchased, by such other Lender on the date of any
Revolving Credit Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters
of Credit. (a) Request for Issuance. (i) Each Letter of Credit shall be issued
upon notice, given not later than 1:00 P.M. (New York City time) on the fifth
Business Day prior to the date of the proposed issuance of such Letter of Credit
(or on such shorter notice as the applicable Issuing Bank may agree), by the
applicable Borrower to any Issuing Bank, and such Issuing Bank shall give the
Administrative Agent, prompt notice thereof by telecopier. Each such notice of
issuance of a Letter of Credit (a "Notice of Issuance") shall be by telephone,
confirmed immediately in writing, or telecopier, specifying therein the
requested (A) date of such issuance (which shall be a Business Day), (B)
Available Amount of such Letter of Credit, (C) expiration date of such Letter of
Credit, (D) name and address of the beneficiary of such Letter of Credit and (E)
form of such Letter of Credit, and shall be accompanied by such customary
application and agreement for letter of credit as such Issuing Bank may specify
to the Borrower for use in connection with such requested Letter of Credit (a
"Letter of Credit Agreement"). If the requested form of such Letter of Credit is
acceptable to such Issuing Bank in its sole discretion, such Issuing Bank will,
upon fulfillment of the applicable conditions set forth in Article III, make
such Letter of Credit available to the applicable Borrower at its office
referred to in Section 9.02 or as otherwise agreed with such Borrower in
connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(b) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
such Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Pro Rata Share of the aggregate amount available to be drawn under such
Letter of Credit. Each Borrower hereby agrees to each such participation. In
consideration and in furtherance of the foregoing, each Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of such Issuing Bank, such Lender's Pro Rata Share of each drawing made under a
Letter of Credit funded by such Issuing Bank and not reimbursed by the
applicable Borrower on the date made, or of any reimbursement payment required
to be refunded to any Borrower for any reason. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a Default
or reduction or termination of the Revolving Credit Commitments, and that each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Lender further acknowledges and agrees that its
participation in each Letter of Credit will be automatically adjusted to reflect
such Lender's Pro Rata Share of the Available Amount of such Letter of Credit at
each time such Lender's Revolving Credit Commitment is amended
26
pursuant to a Commitment Increase in accordance with Section 2.19, an assignment
in accordance with Section 9.07 or otherwise pursuant to this Agreement.
(c) Drawing and Reimbursement. The payment by an Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by any such Issuing Bank of a Revolving Credit Advance to
the Borrower for whose account such Letter of Credit was issued, which shall be
a Base Rate Advance, in the amount of such draft. Each Issuing Bank shall give
prompt notice (and such Issuing Bank will use its commercially reasonable
efforts to deliver such notice within one Business Day) of each drawing under
any Letter of Credit issued by it to the applicable Borrower and the
Administrative Agent. Upon written demand by such Issuing Bank made to the
Administrative Agent, which the Administrative Agent shall forward to each
Lender, each Lender shall pay to the Administrative Agent such Lender's Pro Rata
Share of such outstanding Revolving Credit Advance, by making available to the
Administrative Agent for the account of such Issuing Bank, by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Revolving Credit Advance to
be funded by such Lender. Promptly after receipt thereof, the Administrative
Agent shall transfer such funds to such Issuing Bank. Each Lender agrees to fund
its Pro Rata Share of an outstanding Revolving Credit Advance on (i) the
Business Day on which demand therefor is made by such Issuing Bank, provided
that notice of such demand is given not later than 11:00 A.M. (New York City
time) on such Business Day, or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. If and to the extent
that any Lender shall not have so made the amount of such Revolving Credit
Advance available to the Administrative Agent, such Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by any such Issuing Bank until the
date such amount is paid to the Administrative Agent, at the Federal Funds Rate
for its account or the account of such Issuing Bank, as applicable. If such
Lender shall pay to the Administrative Agent such amount for the account of any
such Issuing Bank on any Business Day, such amount so paid in respect of
principal shall constitute a Revolving Credit Advance made by such Lender on
such Business Day for purposes of this Agreement, and the outstanding principal
amount of the Revolving Credit Advance made by such Issuing Bank shall be
reduced by such amount on such Business Day.
(d) Letter of Credit Reports. Each Issuing Bank shall furnish (i) to
the Administrative Agent on the first Business Day following the issuance,
increase of Available Amount, expiration or drawing of a Letter of Credit issued
by it, a written report summarizing such issuance, increase, expiry or drawing
and (ii) to the Administrative Agent and each Lender on the first Business Day
of each calendar quarter a written report setting forth the average daily
aggregate Available Amount during the preceding calendar quarter of all Letters
of Credit issued by it.
(e) Failure to Make Revolving Credit Advances. The failure of any
Lender to make the Revolving Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Revolving Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on such date.
27
SECTION 2.04. Fees. (a) Facility Fee. Each Borrower jointly and
severally agrees to pay to the Administrative Agent, for the account of each
Lender, a facility fee (the "Facility Fee") on the daily amount of such Lender's
Revolving Credit Commitment (whether used or unused) from the Effective Date in
the case of each Initial Lender and from the effective date specified in the
Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it became a Lender in the case of each other Lender until, in
each case, the Termination Date at a rate per annum equal to the Applicable
Percentage in effect from time to time, payable in arrears quarterly on the last
Business Day of each March, June, September and December, commencing December
31, 2004, and on the Termination Date.
(b) Letter of Credit Fees. (i) Each Borrower for whose account a
Letter of Credit has been issued shall pay to the Administrative Agent for the
account of each Lender a commission on such Lender's Pro Rata Share of the
average daily aggregate Available Amount of all Letters of Credit issued on its
account and outstanding from time to time at a rate per annum equal to the
Applicable Margin for Eurodollar Rate Advances in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and
December, commencing December 31, 2004, and on the Termination Date, and after
the Termination Date payable upon demand; provided that the Applicable Margin
shall increase by 2% upon the occurrence and during the continuation of an Event
of Default if the Borrower is required to pay default interest pursuant to
Section 2.07(b).
(ii) The Borrower shall pay to each Issuing Bank for its own account
an issuance fee on the average daily aggregate Available Amount of all
Letters of Credit issued by such Issuing Bank equal to 0.125% per annum,
payable in arrears quarterly on the last day of each March, June, September
and December, commencing December 31, 2004, and on the Termination Date,
and after the Termination Date payable upon demand, and such other
reasonable and customary presentation, amendment and other processing fees
as may from time to time be agreed in writing between the Company and such
Issuing Bank.
(c) Agents' Fees. The Company shall pay to each of the Administrative
Agent and the Syndication Agent, for its own account, such fees as may from time
to time be agreed in various fee letters between the Company, on the one hand,
and the Administrative Agent or the Syndication Agent, on the other hand.
SECTION 2.05. Termination or Reduction of the Commitments. (a) The
Borrowers shall have the right, upon at least three Business Days' notice to the
Administrative Agent, to irrevocably terminate in whole or reduce ratably in
part the aggregate Unused Commitments of the Lenders; provided that each partial
reduction shall be in the aggregate amount of $25,000,000 or an integral
multiple of $1,000,000 in excess thereof or, if less, the aggregate amount of
the Revolving Credit Commitments at such time.
(b) The Borrowers shall have the right, upon at least three Business
Days' notice to the Administrative Agent, to terminate in whole or permanently
reduce ratably in part the unused Letter of Credit Commitments of the Issuing
Banks, provided that each partial reduction (i) shall be in the aggregate amount
of $10,000,000 or an integral multiple of
28
$1,000,000 in excess thereof and (ii) shall, to the extent practicable, be made
ratably among the Issuing Banks in accordance with their Letter of Credit
Commitments.
SECTION 2.06. Repayment of Revolving Credit Advances and Repurchase of
Discounted Notes. (a) Repayment of Revolving Credit Advances. Each Borrower
shall repay to the Administrative Agent, for the ratable account of the Lenders,
on the Termination Date the aggregate principal amount of all Revolving Credit
Advances made to such Borrower and outstanding on such date.
(b) Repurchase of Discounted Notes. Holdings shall redeem or
repurchase all Discounted Notes from the Administrative Agent, for the ratable
account of the Lenders (i) on the Maturity Date specified for such Discounted
Notes at the Face Amount of all such Discounted Notes comprising the same
Revolving Credit Borrowing or (ii) if earlier, on the Termination Date at a
purchase price equal to the aggregate Accreted Value of all outstanding
Discounted Notes on such date.
(c) Letter of Credit Reimbursements. The obligations of each Borrower
under this Agreement, any Letter of Credit Agreement and any other agreement or
instrument, in each case, relating to any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement, such Letter of Credit Agreement and such other
agreement or instrument under all circumstances, including, without limitation,
the following circumstances (it being understood that any such payment by any
Borrower is without prejudice to, and does not constitute a waiver of, any
rights such Borrower might have or might acquire as a result of the payment by
any Lender of any draft or the reimbursement by such Borrower thereof):
(i) any lack of validity or enforceability of this Agreement, any
Letter of Credit, any Letter of Credit Agreement or any other agreement or
instrument, in each case, relating thereto (all of the foregoing being,
collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of any Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right that
any Borrower may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any Persons for which any such beneficiary or any
such transferee may be acting), any Issuing Bank, the Administrative Agent,
any Lender or any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(iv) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
29
(v) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of any Borrower in respect of
the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, any Borrower or a guarantor.
SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
Interest. Each Borrower shall pay interest on the unpaid principal amount of
each Revolving Credit Advance made to such Borrower and owing to each Lender
from the date of such Revolving Credit Advance until such principal amount shall
be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving Credit
Advance is a Base Rate Advance, a rate per annum equal at all times to the
sum of (A) the Base Rate in effect from time to time plus (B) the
Applicable Utilization Fee, if any, in effect from time to time, payable in
arrears quarterly on the last Business Day of each June, September,
December and March during such periods and on the date such Base Rate
Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Revolving
Credit Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Revolving Credit Advance to the
sum of (A) the Eurodollar Rate for such Interest Period for such Revolving
Credit Advance plus (B) the Applicable Margin in effect from time to time
during such Interest Period plus (C) the Applicable Utilization Fee, if
any, in effect from time to time during such Interest Period, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of such
Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default under Section 6.01(a), each Borrower shall pay interest
on:
(i) the unpaid principal amount of each Revolving Credit Advance made
to such Borrower and owing to each Lender, payable in arrears on the dates
referred to in Section 2.07(a)(i) or 2.07(a)(ii), at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be paid
on such Revolving Credit Advance pursuant to Section 2.07(a)(i) or
2.07(a)(ii), as applicable;
(ii) to the fullest extent permitted by applicable law, the amount of
any interest, fees or other amounts (including, without limitation, any
Discounted Note)
30
owing by such Borrower to the Administrative Agent or any Lender under this
Agreement or any Note that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on
the date such amount shall be paid in full and on demand, at a rate per
annum equal at all times to 2% per annum above the rate per annum required
to be paid on Base Rate Advances pursuant to Section 2.07(a)(i).
(c) Additional Interest on Eurodollar Rate Advances. Each Borrower
shall pay to each Lender, so long as and to the extent such Lender shall be
required under regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency liabilities, additional interest on the unpaid
principal amount of each Eurodollar Rate Advance of such Lender, from the date
of such Eurodollar Rate Advance until such principal amount is paid in full, at
an interest rate per annum equal at all times to the remainder obtained by
subtracting (a) the Eurodollar Rate for the applicable Interest Period for such
Eurodollar Rate Advance from (b) the rate obtained by dividing such Eurodollar
Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
of such Lender for such Interest Period, payable on each date on which interest
is otherwise payable on such Eurodollar Rate Advance. Such Lender shall as soon
as practicable provide notice to the Administrative Agent and the Borrowers of
any such additional interest arising in connection with any such Eurodollar Rate
Advance, which notice shall be conclusive and binding, absent manifest error;
provided, however, that no Lender shall be entitled to additional interest on
any Eurodollar Rate Advance pursuant to this Section 2.07(c) for any period
occurring more than 90 days prior to the date that notice of such additional
interest is first provided by such Lender to the Borrowers.
SECTION 2.08. Interest Rate and Discount Determination. (a) Each
Reference Bank agrees to furnish to the Administrative Agent timely information
for the purpose of determining each Eurodollar Rate in accordance with clause
(b) of the definition thereof set forth in Section 1.01 and, if necessary, each
Discount. If any one of the Reference Banks shall not furnish such timely
information to the Administrative Agent for the purpose of determining any such
interest rate or Discount, the Administrative Agent shall determine such
interest rate or Discount on the basis of timely information furnished by the
remaining Reference Banks. The Administrative Agent shall give prompt notice to
the Borrowers and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.07(a)(i) or 2.07(a)(ii) and, if
applicable, the rate, if any, furnished by each Reference Bank for the purpose
of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Eurodollar Rate Advances will not adequately reflect
the cost to such Required Lenders of making, funding or maintaining their
respective Eurodollar Rate Advances for such Interest Period, the Administrative
Agent shall forthwith so notify the affected Borrowers and the Lenders,
whereupon (i) such Eurodollar Rate Advances will automatically, on the last day
of the then existing Interest Period therefor, Convert into Base Rate Advances
and (ii) the obligation of the Lenders to make Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrowers and the
Lenders that the circumstances causing such suspension no longer exist. If, with
respect to Discounted Notes having a particular Maturity Date, the
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Required Lenders notify the Administrative Agent that the Eurodollar Rate for
such Discounted Notes will not adequately reflect the cost to such Required
Lenders of purchasing, funding or maintaining their respective Discounted Notes,
the Administrative Agent shall forthwith so notify Holdings and the Lenders,
whereupon the obligation of the Lenders to purchase such Discounted Notes or any
other Discounted Notes shall be suspended until the Administrative Agent shall
notify Holdings and the Lenders that the circumstances causing such suspension
no longer exist.
(c) If any Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances made or to be made to such Borrower in
accordance with the provisions contained in the definition of "Interest Period"
set forth in Section 1.01, the Administrative Agent will forthwith so notify
such Borrower and the Lenders and such Eurodollar Rate Advances will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Advances.
(d) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make
Eurodollar Rate Advances, and to purchase Discounted Notes from Holdings, shall
be suspended.
(e) If fewer than two Reference Banks furnish timely information to
the Administrative Agent for determining the Eurodollar Rate for any Eurodollar
Rate Advances in accordance with clause (b) of the definition thereof set forth
in Section 1.01 or, if necessary, the Discount for any Discounted Notes:
(i) the Administrative Agent shall forthwith notify the affected
Borrower and the Lenders that the interest rate cannot be determined for
such Eurodollar Rate Advances or that the Discount cannot be determined for
such Discounted Notes, as the case may be;
(ii) each such Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base Rate
Advance (or, if such Revolving Credit Advance is then a Base Rate Advance,
will continue as a Base Rate Advance); and
(iii) the obligation of the Lenders to make Eurodollar Rate Advances,
or to Convert Revolving Credit Advances into Eurodollar Rate Advances, or
to purchase Discounted Notes, shall be suspended until the Administrative
Agent shall notify the Borrowers and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. Each
Borrower may on any Business Day on which no Default has occurred and is
continuing, upon notice given to the Administrative Agent not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Conversion in the case of a Conversion of Base Rate Advances into
Eurodollar Rate Advances or of Eurodollar Rate Advances of one
32
Interest Period into Eurodollar Rate Advances of another Interest Period, or not
later than 1:00 P.M. (New York City time) on the same Business Day as the date
of the proposed Conversion in the case of a Conversion of Eurodollar Rate
Advances into Base Rate Advances, and, in any case, subject to the provisions of
Sections 2.08, 2.09 and 2.13, Convert all Revolving Credit Advances comprising
one or more Borrowings into one or more Borrowings comprised of Revolving Credit
Advances; provided, however, that:
(a) No Conversion of Revolving Credit Advances shall result in (i) any
Revolving Credit Borrowing failing to comply with the second sentence of Section
2.01 or (ii) the aggregate principal amount of all outstanding Revolving Credit
Advances, and the aggregate Face Amount of all outstanding Discounted Notes, at
the time of such Conversion exceeding the aggregate Revolving Credit Commitments
of the Lenders at such time; and
(b) In the case of any Conversion of Eurodollar Rate Advances of one
Interest Period into Eurodollar Rate Advances of another Interest Period or of
Eurodollar Rate Advances into Base Rate Advances other than on the last day of
an Interest Period therefor, the Borrower requesting such Conversion shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section
9.04(c).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion (which shall be a Business Day), (ii)
the Revolving Credit Advances to be Converted and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
each such Revolving Credit Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower requesting such Conversion.
SECTION 2.10. Optional Prepayments of Revolving Credit Advances and
Repurchases of Discounted Notes. Each Borrower may, upon at least the same
Business Day's notice to the Administrative Agent received not later than 11:00
A.M. (New York City time) in the case of a Revolving Credit Borrowing consisting
of Base Rate Advances, and upon at least three Business Days' notice to the
Administrative Agent received not later than 11:00 A.M. (New York City time) in
the case of a Revolving Credit Borrowing consisting of Eurodollar Rate Advances
or Discounted Notes, stating the proposed date and aggregate principal amount of
the prepayment or, in the case of Discounted Notes, aggregate Face Amount of the
repurchase, and if such notice is given such Borrower shall, (a) in the case of
Revolving Credit Advances, prepay the outstanding principal amount of the
Revolving Credit Advances comprising part of the same Revolving Credit Borrowing
in whole or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid, and (b) in the case of Discounted
Notes, repurchase, by payment of the Accreted Value to the date of such
repurchase of the outstanding Discounted Notes comprising part of the same
Revolving Credit Borrowing in whole or ratably in part; provided, however, that
(i) each partial prepayment or repurchase, as the case may be, shall be in an
aggregate amount of not less than $10,000,000 and (ii) in the case of any such
prepayment of Eurodollar Rate Advances or any such repurchase of Discounted
Notes, such Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 9.04(c).
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SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law, rule or regulation or (ii)
the compliance with, or the implementation or administration (or change in the
administration or enforcement) of, any directive, guideline or request from any
central bank or other Governmental Authority, whether or not having the force of
law, there shall be any increase in the cost to any Lender of agreeing to make
or making, to purchase or purchasing, funding or maintaining Eurodollar Rate
Advances or Discounted Notes or agreeing to issue or of issuing or maintaining
or participating in Letters of Credit, or any reduction in the amount owing to,
or effective return earned or realizable by, any Lender under this Agreement or
any Note in respect of any such Revolving Credit Advances, Discounted Notes or
Letters of Credit, as the case may be (including for purposes of this Section
2.11 any such increased costs resulting from Taxes or Other Taxes for which the
Borrowers are obligated to reimburse the Administrative Agent or the Lenders
under Section 2.14), then the Borrowers jointly and severally agree to pay from
time to time to the Administrative Agent, for the account of such Lender,
additional amounts sufficient to compensate such Lender for all such increased
costs or reduced amounts or return, such additional compensation to be paid by
the Borrowers within 15 days of the date of demand therefor by such Lender (with
a copy of such demand to the Administrative Agent) for all additional
compensation accrued prior to such demand and on the dates specified by such
Lender in such demand for all such additional compensation owing to such Lender
thereafter; provided, however, that if a Lender fails to deliver a demand for
any additional compensation to which it is entitled under this Section 2.11(a)
within 180 days after such Lender becomes entitled thereto, such Lender shall
only be entitled to additional compensation for any such amounts incurred prior
to the date of such demand that accrued from and after the date that is 180 days
prior to the date such Lender delivers such demand and for all such additional
compensation that shall accrue on and after the date of such demand; and
provided further, however, that before making any such demand, each Lender
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Applicable Lending Office
if the making of such a designation would avoid the need for, or reduce the
amount of, such increased cost or reduced amount or return and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
A certificate as to the amount of such increased cost or reduced amount or
return in reasonable detail (including the basis of calculation thereof),
submitted to the Borrowers and the Administrative Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law, rule or
regulation or any directive, guideline or request from any central bank or other
Governmental Authority, or any change therein or in the implementation,
administration or enforcement thereof, that is enacted or becomes effective, or
is implemented or is first required or expected to be complied with, after the
date of this Agreement, whether or not having the force of law, affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or is based upon the existence of such Lender's
commitment to lend or to issue or participate in Letters of Credit hereunder and
other commitments of this type or the issuance or maintenance of or
participation in the Letters of Credit (or similar contingent obligations), then
the Borrowers jointly and severally agree to pay from time to time to the
Administrative Agent, for the account of such Lender, additional amounts
sufficient to compensate such Lender or such corporation in
34
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend or to issue or participate in Letters of Credit
hereunder or the issuance or maintenance of or participation in the Letters of
Credit, such additional compensation to be paid by the Borrowers within 15 days
of the date of demand therefor by such Lender (with a copy of such demand to the
Administrative Agent) for all additional compensation accrued prior to such
demand and on the dates specified by such Lender in such demand for all such
additional compensation owing to such Lender thereafter; provided, however, that
if a Lender fails to deliver a demand for any additional compensation to which
it is entitled under this Section 2.11(b) within 180 days after such Lender
becomes entitled thereto, such Lender shall only be entitled to additional
compensation for any such amounts incurred prior to the date of such demand that
accrued from and after the date that is 180 days prior to the date such Lender
delivers such demand and for all such additional compensation that shall accrue
on and after the date of such demand. A certificate as to such amounts in
reasonable detail (including the basis of calculation thereof), submitted to the
Borrowers and the Administrative Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(c) If a Lender demands additional compensation under Section 2.11(a)
or 2.11(b) with respect to Eurodollar Rate Advances or Discounted Notes, the
Borrowers may (but shall not be obligated to), upon at least five Business Days'
notice to such Lender (with a copy of such notice to the Administrative Agent),
elect that, until the circumstances causing such demand for additional
compensation no longer apply to such Lender, all Eurodollar Rate Advances that
would otherwise be made, and all Discounted Notes that would otherwise be
purchased, by such Lender as part of any Revolving Credit Borrowing shall be
made instead as Base Rate Advances, and all payments of principal of and
interest on such Base Rate Advances shall be made at the same time as payments
on the Eurodollar Rate Advances or the Discounted Notes, as the case may be,
otherwise comprising part of such Revolving Credit Borrowing.
SECTION 2.12. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law, rule or
regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to purchase Discounted Notes, or to fund or maintain Eurodollar Rate Advances or
Discounted Notes, (a) each Eurodollar Rate Advance of such Lender will
automatically, on the last day of the Interest Period then in effect therefor if
permitted by applicable law or otherwise upon demand, Convert into a Base Rate
Advance and (b) the obligation of such Lender to make Eurodollar Rate Advances,
to Convert Revolving Credit Advances into Eurodollar Rate Advances or to
purchase Discounted Notes shall be suspended until the Administrative Agent
shall notify the Borrowers (promptly following notice from such Lender) that the
circumstances causing such suspension no longer exist; provided, however, that
before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Eurodollar Lending Office if the making of such a
designation would allow such Lender or its Eurodollar Lending Office to continue
to perform its obligations to make Eurodollar Rate Advances, and to purchase
Discounted Notes, or to continue to fund or maintain Eurodollar Rate Advances or
Discounted Notes, and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. If the
35
obligation of a Lender to make Eurodollar Rate Advances or to purchase
Discounted Notes is suspended pursuant to this Section 2.12, then, until the
circumstances causing such suspension no longer apply to such Lender, all
Eurodollar Rate Advances that would otherwise be made, and all Discounted Notes
that would otherwise be purchased, by such Lender as part of any Revolving
Credit Borrowing shall be made instead as Base Rate Advances, and all payments
of principal of and interest on such Base Rate Advances shall be made at the
same time as payments on the Eurodollar Rate Advances or the Discounted Notes,
as the case may be, otherwise comprising part of such Revolving Credit
Borrowing.
SECTION 2.13. Payments and Computations. (a) Each Borrower shall make
each payment required to be made by it hereunder and under the Notes not later
than 11:00 A.M. (New York City time) on the day when due in US Dollars to the
Administrative Agent at the Administrative Agent's Account, in same day funds.
The Administrative Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest or the Facility Fee
ratably (other than amounts payable pursuant to Section 2.02(c), 2.07(c), 2.11,
2.12, 2.14, 2.15, 2.17 or 9.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves. Upon any Assuming Lender becoming a
Lender hereunder as a result of an extension of the Termination Date pursuant to
Section 2.17, and upon the Administrative Agent's receipt of such Lender's
Assumption Agreement and recording the information contained therein in the
Register pursuant to Section 2.17(d), from and after the applicable Extension
Date, the Administrative Agent shall make all payments hereunder and under the
Notes in respect of the interest assumed thereby to the Assuming Lender. Upon
any Assuming Lender becoming a Lender hereunder as a result of a Commitment
Increase pursuant to Section 2.19, and upon the Administrative Agent's receipt
of such Lender's Assumption Agreement and recording the information contained
therein in the Register pursuant to Section 2.19(d), from and after the
applicable Increase Date, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assumed thereby to the
Assuming Lender.
(b) All computations of interest that are based on clause (a) of the
definition of "Base Rate" set forth in Section 1.01 and of Facility Fees shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest that are otherwise based on
the Eurodollar Rate or that are based on the Federal Funds Rate and of Discount
and of the Applicable Utilization Fee and Letter of Credit commissions shall be
made by the Administrative Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest, fees or commissions
are payable or such Discount has accreted. Each determination by the
Administrative Agent of an interest rate, fee, commission or Discount hereunder
shall be conclusive and binding for all purposes, absent manifest error.
36
(c) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest, fees or commissions, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances, or the payment of the Face
Amount or the Accreted Value of any Discounted Notes, to be made in the next
following calendar month, such payment shall be made on the immediately
preceding Business Day.
(d) Unless the Administrative Agent shall have received notice from
the Borrower required to make any payment hereunder prior to the date on which
such payment is due to the Lenders hereunder that such Borrower will not make
such payment in full, the Administrative Agent may assume that such Borrower has
made such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent such Borrower shall not have so made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender,
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by any Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its overall net income and franchise taxes imposed on it
by the jurisdiction under the laws of which such Lender or the Administrative
Agent, as the case may be, is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its overall net income and
franchise taxes imposed on it by the jurisdiction of such Lender's Applicable
Lending Office or any political subdivision thereof (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under any of the Notes being hereinafter referred to as
"Taxes"). If any Borrower shall be required by applicable law to deduct any
Taxes from or in respect of any sum paid or payable hereunder or under any Note
to any Lender or the Administrative Agent, or, if the Administrative Agent shall
be required by law to deduct any Taxes from or in respect of any sum paid or
payable hereunder or under any Note to any Lender, (i) the sum payable by such
Borrower shall be increased by such Borrower as may be necessary so that, after
making all required deductions (including deductions, whether by such Borrower
or the Administrative Agent, applicable to additional sums payable under this
Section 2.14), such Lender and the Administrative Agent each receive an amount
equal to the sum they each would have received had no such deductions been made
(for example, and without limitation, if the sum paid or payable hereunder from
or in respect of which a Borrower or the Administrative Agent shall be required
to deduct any Taxes is interest, the interest payable by such Borrower shall be
increased by such Borrower as may be necessary so that, after making all
required deductions (including deductions applicable to additional interest),
such Lender and the Administrative Agent each receive interest equal to the
interest they each would have received had no such deduction been made), (ii)
such Borrower (or, as the case may be and as required by applicable law, the
37
Administrative Agent) shall make such deductions and (iii) such Borrower (or, as
the case may be and as required by applicable law, the Administrative Agent)
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, performance under, or otherwise
with respect to, this Agreement or any of the Notes (hereinafter referred to as
"Other Taxes").
(c) Each Borrower shall indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any taxes imposed by any jurisdiction on amounts payable under this
Section 2.14) imposed on or paid by such Lender or the Administrative Agent, as
the case may be, and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be made
within 30 days from the date such Lender or the Administrative Agent, as the
case may be, makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, each
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 9.02, the original or a certified copy of a receipt evidencing
payment thereof. In the case of any payment hereunder or under any of the Notes,
if any Borrower determines that no Taxes are payable in respect thereof, such
Borrower shall within 30 days after any request from the Administrative Agent or
any Lender furnish to the Administrative Agent or such Lender a certificate from
the appropriate taxing authority or an opinion of counsel or of independent
certified public accountants acceptable to the Administrative Agent or such
Lender, as the case may be, stating that such payment is exempt from Taxes.
(e) Each Lender shall (i) promptly after the Effective Date in the
case of each Initial Lender and promptly after the date of the Assignment and
Acceptance or the Assumption Agreement, as the case may be, pursuant to which it
became a Lender in the case of each other Lender and (ii) from time to time
thereafter upon the obsolescence or expiration of any previously delivered form
or certificate (but only so long as such Lender remains lawfully able to do so),
provide the Company and the Administrative Agent with any form or certificate
that is required by any taxing authority (including, if applicable, two original
Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate (or any
successor form or other form prescribed by the Internal Revenue Service), an
original Internal Revenue Service form W-9 (or any successor form), or to the
extent permitted by applicable law, as an alternative to forms W-8BEN or W-8ECI,
two original Internal Revenue Service forms W-8 (or any successor form
prescribed by the Internal Revenue Service), certifying that such Lender is
exempt from United States federal withholding tax pursuant to Section 871(h) or
881(c) of the Internal Revenue Code, together with an annual certificate stating
that such Lender is not a "person" or other entity described in Section
871(h)(3) or 881(c)(3) of the Internal Revenue Code) as shall be appropriate to
establish, subject to the last sentence of this Section 2.14(e) that such Lender
is exempt from Home Jurisdiction Withholding Taxes on payments pursuant to this
Agreement or the Notes (or, in the case of a Lender that becomes a party to this
Agreement pursuant to Section 2.17, 2.19 or 9.07(a), (b) and (c), exempt from or
entitled to a reduced rate of Home Jurisdiction Withholding
38
Taxes on payments pursuant to this Agreement or the Notes that is no greater
than the rate to which the Non-Consenting Lender or the assigning Lender, as
applicable, was entitled); provided, however, that such Lender shall have been
advised in writing by each Borrower (including at the time any renewal form is
due) of the form or certificate applicable to it, determined by reference to the
jurisdiction of organization and Applicable Lending Offices of such Lender set
forth on Schedule I hereto, in the case of each Initial Lender, or to the
jurisdiction of organization and Applicable Lending Offices of such Lender set
forth in the Assignment and Acceptance or the Assumption Agreement, as the case
may be, pursuant to which it became a Lender, in the case of each other Lender,
or such other branch or office of such Lender designated by such Lender from
time to time as the branch or office at which any of its Revolving Credit
Advances are to be made or maintained or its Discounted Notes are to be
purchased or maintained. Each Lender shall promptly notify the Company and the
Administrative Agent if, because of any change in the jurisdiction of
organization or an Applicable Lending Office of such Lender, (A) it is required
to withdraw or cancel any form or certificate previously submitted by it or any
form or certificate has otherwise become ineffective or inaccurate or (B)
payments to it are or will be subject to withholding of any Home Jurisdiction
Withholding Tax to a greater or lesser extent than the extent to which payments
to it pursuant to this Agreement or the Notes were previously subject. If any
form or document referred to in this Section 2.14(e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form W-8BEN
or W-8ECI, that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Company and the Administrative Agent and shall
not be obligated to include in such form or document such confidential
information. No Lender shall be required to provide a form or certificate
pursuant to this Section 2.14(e) to establish that such Lender is exempt from
any withholding for income taxes or withholding taxes on payments from Holdings
pursuant to this Agreement or the Notes.
(f) For any period with respect to which a Lender has failed, within
30 days of such Lender's receipt of written advice to such effect from any
Borrower, to provide the Company and such Borrower with the appropriate form or
certificate described in Section 2.14(e) (other than if such failure is due to a
change in law (including, without limitation, any change in regulation or change
in the interpretation of any statute or regulation or other rule of law)
occurring subsequent to the date on which a form originally was required to be
provided, or if such form otherwise is not required under the first sentence of
Section 2.14(e)), such Lender shall not be entitled to indemnification under
Section 2.14(a) or 2.14(c) with respect to Taxes imposed by the United States by
reason of such failure; provided, however, that should a Lender become subject
to Taxes because of its failure to deliver a form required hereunder, the
Borrowers shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
(g) Each Lender shall promptly upon the request of the Administrative
Agent take all action (including without limitation the completion of forms and
the provision of information to the appropriate taxing authorities) reasonably
requested by the Administrative Agent, and the Administrative Agent shall, to
the extent appropriate and reasonable, take similar action, to secure the
benefit of any exemption from, or relief with respect to, Taxes or Other Taxes
imposed by the United Kingdom in relation to any amounts payable under this
Agreement or any of the Notes.
39
(h) Notwithstanding the foregoing provisions of this Section 2.14, no
Borrower shall be required to pay any additional amount to any Lender or the
Administrative Agent pursuant to Section 2.14(a) or 2.14(c) in respect of
withholding for United States income taxes or United States back-up withholding
taxes, except to the extent such taxes are required to be withheld as a result
of any amendment to the laws (or any regulations thereunder) of the United
States or any amendment to, or change in, any interpretation or application of
any such laws or regulations by any Governmental Authority or to the extent such
taxes are required to be withheld with respect to any Borrowings by Holdings
that are comprised of Revolving Credit Advances.
(i) Any Lender claiming additional amounts payable pursuant to this
Section 2.14 (including, without limitation, any additional amounts that any
Lender would be entitled to claim under this Section 2.14 with respect to
payments from a Designated Subsidiary that becomes a Borrower pursuant to
Section 9.08) shall use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to file any certificate or document
requested by any Borrower or to change the jurisdiction of its Applicable
Lending Office if the making of such filing or change would avoid the need for
or reduce the amount of any such additional amounts which may thereafter accrue
and would not, in the sole judgment of such Lender, be disadvantageous to such
Lender. Each Borrower shall promptly upon request by any Lender or the
Administrative Agent take all actions (including, without limitation, the
completion of forms and the provision of information to the appropriate taxing
authorities) reasonably requested by such Lender or the Administrative Agent to
secure the benefit of any exemption from, or relief with respect to, Taxes or
Other Taxes in relation to any amounts payable under this Agreement.
(j) In the event that an additional payment is made under Section
2.14(a) or 2.14(c) for the account of any Lender and such Lender, in its sole
opinion, determines that it has received or been granted a credit against or
release or remission for, or repayment of, any tax paid or payable by it in
respect of or calculated with reference to the deduction or withholding giving
rise to such payment, such Lender shall, to the extent that it can do so without
prejudice to the retention of the amount of such credit, relief, remission or
repayment, pay to the Company or to the applicable Borrower such amount as such
Lender shall, in its sole opinion, have determined to be attributable to such
deduction or withholding and as will leave such Lender (after such payment) in
no better or worse position than it would have been in if such Borrower had not
been required to make such deduction or withholding. Nothing contained in this
Section 2.14 shall interfere with the right of a Lender to arrange its tax
affairs in whatever manner it deems proper nor oblige any Lender to claim any
tax credit or to disclose any information relating to its tax affairs or any
computations in respect thereof or require any Lender to do anything that would
prejudice its ability to benefit from any other credits, reliefs, remissions or
repayments to which it may be entitled.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff or otherwise) on account of the Revolving Credit Advances owing to it or
the Discounted Notes purchased by it (other than pursuant to Section 2.02(c),
2.07(c), 2.11, 2.12, 2.14 or 9.04) in excess of its Pro Rata Share of payments
on account of the Revolving Credit Advances or the Discounted Notes obtained by
all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Revolving Credit Advances owing to them or the
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Discounted Notes purchased by them, as the case may be, as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery, together with an amount equal to
such Lender's Pro Rata Share (according to the proportion of (a) the amount of
such Lender's required repayment to (b) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. Each Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by applicable
law, exercise all of its rights of payment (including the right of setoff) with
respect to such participation as fully as if such Lender were the direct
creditor of such Borrower in the amount of such participation.
SECTION 2.16. Defaulting Lenders. If, at any time, (a) any Lender
shall be a Defaulting Lender, (b) such Defaulting Lender shall owe a Defaulted
Advance to any Borrower and (c) such Borrower shall be required to make any
payment under this Agreement or under any Note to or for the account of such
Defaulting Lender, then such Borrower may, so long as no Default under Section
6.01(a) or 6.01(e) or Event of Default shall have occurred and be continuing and
to the fullest extent permitted by applicable law, set off and otherwise apply
the obligation of such Borrower to make such payment to or for the account of
such Defaulting Lender against the obligation of such Defaulting Lender to make
such Defaulted Advance. If, on any date, any Borrower shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by such Borrower shall
constitute for all purposes of this Agreement and the Notes a Revolving Credit
Advance or the purchase of a Discounted Note by such Defaulting Lender on the
date such Defaulted Advance was originally required to have been made pursuant
to Sections 2.01 and 2.02. Such Revolving Credit Advance or such Discounted Note
shall be (i) in the case of a Revolving Credit Borrowing comprised of Discounted
Notes, deemed to be the purchase from Holdings by such Defaulting Lender of a
Discounted Note having the same Maturity Date, and with a Discount based on the
same Eurodollar Rate, as all other outstanding Discounted Notes comprising part
of such Revolving Credit Borrowing and (ii) in all other cases, a Base Rate
Advance, even if the other Revolving Credit Advances comprising such Borrowing
shall be Eurodollar Rate Advances on the date such Revolving Credit Advance is
deemed to be made pursuant to this Section 2.16, and, in any such case, shall be
considered for all purposes of this Agreement to comprise part of the Borrowing
in connection with which such Defaulted Advance was originally required to have
been made pursuant to Sections 2.01 and 2.02. Each Borrower shall promptly
notify the Administrative Agent at any time such Borrower exercises its right of
setoff pursuant to this Section 2.16 and shall set forth in such notice (A) the
name of the Defaulting Lender and the Defaulted Advance required to be made by
such Defaulting Lender and (B) the amount set off and otherwise applied in
respect of such Defaulted Advance pursuant to this Section 2.16.
SECTION 2.17. Extension of Termination Date. (a) At least 60 days but
not more than 90 days prior to any Anniversary Date but in any event not more
than twice prior to the Termination Date in effect on the date hereof, the
Company, by written notice to the Administrative Agent, may request an extension
of the Termination Date in effect at such time
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by one calendar year from the Agreement's then scheduled expiration. The
Administrative Agent shall promptly notify each Lender of such request, and each
Lender shall in turn, in its sole discretion, within 15 days of such notice but
not later than 45 days prior to such next Anniversary Date, notify the
Administrative Agent in writing as to whether such Lender will consent to such
extension. If any Lender shall fail to notify the Administrative Agent in
writing of its consent to, or refusal of, any such request for extension of the
Termination Date at least 45 days prior to the next Anniversary Date, such
Lender shall be deemed to be a Non-Consenting Lender with respect to such
request. The Administrative Agent shall notify the Company not later than 40
days prior to such next Anniversary Date of the decision of the Lenders
regarding the Company's request for an extension of the Termination Date. It is
understood and agreed that no Lender shall have any obligation whatsoever to
agree to any request made by the Company for an extension of the Termination
Date.
(b) If all of the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.17 and upon fulfillment of the
applicable conditions set forth in Article III, the Termination Date in effect
at such time shall, effective as at such next Anniversary Date (the "Extension
Date"), be extended for one calendar year. If less than all of the Lenders
consent in writing to any such request in accordance with subsection (a) of this
Section 2.17, the Termination Date in effect at such time shall, upon
fulfillment of the applicable conditions set forth in Article III, effective as
at the applicable Extension Date, be extended as to those Lenders that so
consented (each, a "Consenting Lender") but shall not be extended as to any
other Lender (each, a "Non-Consenting Lender"); provided that at least a
majority in interest of the aggregate Commitments at such time (after giving
effect to any assumptions of the Commitments of Non-Consenting Lenders in
accordance with subsection (c) of this Section 2.17) consent in writing to any
such request for extension of the Termination Date. To the extent that the
Termination Date is not extended as to any Lender pursuant to this Section 2.17
and the Commitment of such Lender is not assumed in accordance with subsection
(c) of this Section 2.17 on or prior to the applicable Extension Date, the
Commitment of such Non-Consenting Lender shall automatically terminate in whole
on such unextended Termination Date without any further notice or other action
by the Company, such Lender or any other Person; provided that such
Non-Consenting Lender's rights under Sections 2.10, 2.13 and 9.04, and its
obligations under Section 8.05, shall survive the Termination Date for such
Lender as to matters occurring prior to such Extension Date.
(c) If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this Section 2.17, the Company may arrange for one
or more Consenting Lenders or other Eligible Assignees to assume, effective as
of the Extension Date, any Non-Consenting Lender's Commitment and all of the
rights and obligations of such Non-Consenting Lender under this Agreement
thereafter arising (each Eligible Assignee assuming the Commitment of one or
more Non-Consenting Lenders pursuant to this Section 2.17, or becoming a party
to this Agreement in accordance with Section 2.19, being an "Assuming Lender"),
without recourse to or warranty by, or expense to, such Non-Consenting Lender;
provided, however, that the amount of the Commitment of any such Assuming Lender
shall in no event be less than $10,000,000 unless the amount of the Commitment
of such Non-Consenting Lender is less than $10,000,000, in which case such
Assuming Lender shall assume all of such lesser amount; and provided further
that:
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(i) any such Consenting Lender or Assuming Lender shall have paid to
such Non-Consenting Lender the aggregate principal amount of, and any
interest accrued and unpaid to the effective date of such assumption on,
the outstanding Revolving Credit Advances, if any, of such Non-Consenting
Lender;
(ii) any such Consenting Lender or Assuming Lender shall have
purchased from such Non-Consenting Lender all Discounted Notes owing to
such Non-Consenting Lender, if any, at a purchase price equal to the
aggregate Accreted Value thereof to the effective date of such assumption;
(iii) any accrued and unpaid Facility Fees owing to such
Non-Consenting Lender as of the effective date of such assumption, and all
other accrued and unpaid amounts owing to such Non-Consenting Lender under
this Agreement and the Notes as of the effective date of such assumption,
shall have been paid to such Non-Consenting Lender by the Borrower or such
Consenting Lender or Assuming Lender; and
(iv) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 9.07(a) shall have
been paid.
At least three Business Days prior to any Extension Date, (A) each such Assuming
Lender, if any, shall have delivered to the Company and the Administrative Agent
an Assumption Agreement, duly executed by such Assuming Lender, such
Non-Consenting Lender, the Company and the Administrative Agent, (B) each such
Consenting Lender, if any, shall have delivered written confirmation
satisfactory to the Company and the Administrative Agent as to any increase in
the amount of its Commitment resulting from its assumption of one or more
Commitments of the Non-Consenting Lenders and (C) each Non-Consenting Lender
being replaced pursuant to this Section 2.17(c) shall have delivered to the
Administrative Agent, to be held in escrow on behalf of such Non-Consenting
Lender until the payment in full of all amounts owing to such Non-Consenting
Lender under clauses (i) through (iii) of this Section 2.17, any Note or Notes
held by such Non-Consenting Lender. Upon the payment or prepayment of all
amounts referred to in clauses (i) through (iv) of this Section 2.17(c), each
such Consenting Lender or Assuming Lender, as of the Extension Date, will be
substituted for the applicable Non-Consenting Lender(s) under this Agreement and
shall be a Lender for all purposes of this Agreement, without any further
acknowledgment by or the consent of any of the other Lenders, and the
obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
(d) If a majority in interest of the Lenders (after giving effect to
any assumptions pursuant to subsection (c) of this Section 2.17) consent in
writing to a requested extension (whether by execution and delivery of an
Assumption Agreement or otherwise) not later than one Business Day prior to an
Extension Date, the Administrative Agent shall so notify the Company, and, upon
fulfillment of the applicable conditions set forth in Article III, the
Termination Date then in effect shall be extended for an additional one-year
period, as described in subsection (a) of this Section 2.17, and all references
in this Agreement and in the Notes to the "Termination Date" shall, with respect
to each Consenting Lender and each Assuming Lender for such Extension Date,
refer to the Termination Date as so extended. Promptly following each Extension
Date, the Administrative Agent shall notify the Lenders (including, without
limitation,
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each Assuming Lender) of the extension of the scheduled Termination Date in
effect immediately prior thereto and shall thereupon record in the Register the
relevant information with respect to each such Consenting Lender and each such
Assuming Lender.
(e) Within ten Business Days after each Extension Date, each Borrower
shall, at its own expense, execute and deliver to the Administrative Agent
Revolving Credit Notes payable to the order of each Consenting Lender that has
requested a Revolving Credit Note in accordance with Section 2.20 (in the case
of each such Consenting Lender, in exchange for the Revolving Credit Note
surrendered by such Consenting Lender to the Administrative Agent), if any, and
each Assuming Lender, if any, in each case dated such Extension Date and in
substantially the form of Exhibit A-1 hereto and in an amount equal to the
Commitment of such Consenting Lender or Assuming Lender, as the case may be,
after giving effect to such extension of the Termination Date. The
Administrative Agent, upon receipt of such Revolving Credit Notes, shall
promptly deliver such Revolving Credit Notes to the respective Consenting
Lenders and Assuming Lenders.
SECTION 2.18. Use of Proceeds. The proceeds of the Revolving Credit
Advances and the Discounted Notes shall be available (and each Borrower agrees
that it shall use such proceeds) solely for general corporate purposes of such
Borrower and its Subsidiaries not otherwise prohibited under the terms of this
Agreement.
SECTION 2.19. Increase in the Aggregate Revolving Credit Commitments.
(a) The Company may, not more than twice in any calendar year, by notice to the
Administrative Agent, request that the aggregate amount of the Revolving Credit
Commitments be increased by an amount of $25,000,000 or an integral multiple
thereof (each a "Commitment Increase") to be effective as of a date that is at
least 90 days prior to the Termination Date (the "Increase Date") as specified
in the related notice to the Administrative Agent; provided, however that (i) in
no event shall the aggregate amount of the Revolving Credit Commitments at any
time exceed $1,500,000,000 and (ii) on the date of any request by the Company
for a Commitment Increase and on the related Increase Date, the applicable
conditions set forth in Section 3.04 shall be satisfied.
(b) The Administrative Agent shall promptly notify such Lenders or
Eligible Assignees as the Company shall identify of a request by the Company for
a Commitment Increase, which notice shall include (i) the proposed amount of
such requested Commitment Increase, (ii) the proposed Increase Date and (iii)
the date by which such Lenders or Eligible Assignees wishing to participate in
the Commitment Increase must commit to an increase in the amount of their
respective Revolving Credit Commitments (the "Commitment Date"). The requested
Commitment Increase shall be allocated among the Lenders and Eligible Assignees
willing to participate therein in such amounts as are agreed between the Company
and the Administrative Agent.
(c) Promptly following each Commitment Date, the Administrative Agent
shall notify the Company as to the amount, if any, by which the Lenders and
Eligible Assignees are willing to participate in the requested Commitment
Increase. The Revolving Credit Commitment of each such Eligible Assignee shall
be in a minimum amount of $10,000,000.
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(d) On each Increase Date, each bank or other entity that is not prior
to such date a Lender hereunder and accepts an offer to participate in a
requested Commitment Increase in accordance with Section 2.19(b) (each such bank
or other entity, an "Assuming Lender") shall become a Lender party to this
Agreement as of such Increase Date and the Revolving Credit Commitment of each
bank or other entity that prior to such date is a Lender and accepts an offer to
participate in such requested Commitment Increase (an "Increasing Lender") shall
be so increased by such amount as of the Increase Date; provided, however, that
the Administrative Agent shall have received on or before such Increase Date the
following, each dated such date:
(i) (A) evidence satisfactory to the Administrative Agent of
authorization of the Board of Directors of each Borrower approving the
Commitment Increase, (B) Revolving Credit Notes duly executed by each of
the Borrowers to the order of each of the Assuming Lenders and the
Increasing Lenders that has requested a Revolving Credit Note in accordance
with Section 2.20 and (C) an opinion of counsel for the Borrowers (which
may be in-house counsel), in substantially the form of Exhibit E-1 hereto;
(ii) an assumption agreement from each Assuming Lender, if any, in
form and substance satisfactory to the Company and the Administrative
Agent, duly executed by such Assuming Lender, the Administrative Agent and
the Borrower; and
(iii) confirmation from each Increasing Lender, if any, of the
increase in the amount of its Revolving Credit Commitment in a writing
satisfactory to the Company and the Administrative Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.19(d), the Administrative Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Company, on or before 1:00 P.M. (New York City time), by telecopier, of
the occurrence of the Commitment Increase to be effected on such Increase Date
and shall record in the Register the relevant information with respect to each
Increasing Lender and each Assuming Lender on such date. On each Increase Date
each Assuming Lender and each Increasing Lender shall make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, in the case of an Assuming
Lender, an amount equal to such Assuming Lender's ratable portion of the
Revolving Credit Borrowings then outstanding (calculated based on its Commitment
as a percentage of the aggregate Commitments after giving effect to the relevant
Commitment Increase) and, in the case of such Increasing Lender, an amount equal
to the excess of (A) such Increasing Lender's ratable portion of the Revolving
Credit Borrowings then outstanding (calculated based on its Commitment as a
percentage of the aggregate Commitments after giving effect to the relevant
Commitment increase) over (B) such Increasing Lender's ratable portion of the
Revolving Credit Borrowings then outstanding (based on its Commitment (without
giving effect to the relevant Commitment Increase) as a percentage of the
aggregate Commitments (without giving effect to such Commitment Increase). After
the Administrative Agent's receipt of such funds from each such Increasing
Lender and each such Assuming Lender, the Administrative Agent will promptly
thereafter cause to be distributed like funds to the other Lenders for the
account of their respective Applicable Lending Offices in an amount to each
other Lender such that the aggregate amount of the outstanding Revolving Credit
Advances owing to each Lender, and the outstanding Discounted Notes purchased by
each
45
Lender, after giving effect to such distribution equals such Lender's ratable
portion of the Revolving Credit Borrowings then outstanding (calculated based on
its Commitment as a percentage of the aggregate Commitments after giving effect
to the relevant Commitment Increase). On each Increase Date, each Borrower shall
pay on to the Administrative Agent for the Account of each Lender amounts, if
any, owing to such Lenders pursuant to Section 9.04(c).
SECTION 2.20. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Revolving
Credit Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. Each Borrower agrees that
upon notice by any Lender to such Borrower (with a copy of such notice to the
Administrative Agent) to the effect that a Revolving Credit Note is required or
appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) the Revolving Credit Advances owing to, or to
be made by, such Lender, such Borrower shall promptly execute and deliver to
such Lender a Revolving Credit Note payable to the order of such Lender in a
principal amount up to the Revolving Credit Commitment of such Lender.
(b) The Register maintained by the Administrative Agent pursuant to
Section 9.07(d) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the terms of each Assumption Agreement and each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or interest
due and payable or to become due and payable from each Borrower to each Lender
hereunder and (iv) the amount of any sum received by the Administrative Agent
from each Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from each Borrower to, in the case of the Register, each Lender and, in the case
of such account or accounts, such Lender, under this Agreement, absent manifest
error; provided, however, that the failure of the Administrative Agent or such
Lender to make an entry, or any finding that an entry is incorrect, in the
Register or such account or accounts shall not limit or otherwise affect the
obligations of any Borrower under this Agreement.
SECTION 2.21. Addition of Issuing Banks. The Company may, by notice to
the Administrative Agent, request that an Eligible Assignee be added as an
Issuing Bank under this Agreement and having a Letter of Credit Commitment in
the amount indicated in such notice, to be effective as of a date that is at
least 90 days prior to the Termination Date (the "Addition Date"). On each
Addition Date, each such Eligible Assignee that is not prior to such date a
Lender hereunder shall become a Lender and an Issuing Bank party to this
Agreement as of such Addition Date having a Letter of Credit Commitment as
indicated in such notice, and each such Eligible Assignee that prior to such
date is a Lender and accepts an offer to become an Issuing Bank shall become an
Issuing Bank party to this Agreement as of such Addition Date having a
46
Letter of Credit Commitment as indicated in such notice; provided, however, that
the Administrative Agent shall have received on or before such Addition Date the
following, an assumption agreement from each such Eligible Assignee, in form and
substance satisfactory to the Company and the Administrative Agent, duly
executed by such Eligible Assignee, the Administrative Agent and the Borrower,
pursuant to which such Eligible Assignee agrees to be bound by the terms of this
Agreement and to perform the obligations of an Issuing Bank hereunder. On each
Addition Date, upon fulfillment of the conditions set forth in the immediately
preceding sentence of this Section 2.21, the Administrative Agent shall notify
the Company of the addition of each such Issuing Bank to be effected on such
Addition Date and shall record in the Register the relevant information with
respect to each applicable Eligible Assignee on such date.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 shall become effective on and as of the first date (the "Effective
Date") on which the following conditions precedent have been satisfied:
(a) No event or development shall have occurred or failed to occur,
and no action shall have been taken or failed to have been taken, by or on
behalf of any Borrower or any of its Subsidiaries that, either individually
or in the aggregate, has had or could reasonably be expected to have a
Material Adverse Effect since December 31, 2003. No fact or circumstance
shall be known by any Borrower that, either individually or in the
aggregate, has had or could reasonably be expected to have (so far as such
Borrower can reasonably foresee) a Material Adverse Effect since December
31, 2003.
(b) All governmental and other third party consents and approvals
necessary in connection with this Agreement and the Notes and with the
transactions contemplated hereby shall have been obtained (without the
imposition of any conditions that are not reasonably acceptable to the
Lenders) and shall remain in effect; and no law or regulation shall be
applicable in the reasonable judgment of the Lenders that restrains,
prevents or imposes materially adverse conditions on this Agreement or any
Note or upon any of the transactions contemplated hereby.
(c) The Company shall have notified each Lender and the Administrative
Agent in writing as to the proposed Effective Date.
(d) All accrued fees and, to the extent invoices have been delivered
to the Company on or prior to such date, all accrued expenses of the
Administrative Agent and the Lenders (including, without limitation, all
accrued fees and expenses of counsel for the Administrative Agent and the
Syndication Agent) shall have been paid.
(e) All of the amounts owing by any Borrower or any of its
Subsidiaries under the Existing Credit Agreement shall have been, or
concurrently with any initial Borrowing made on the Effective Date shall
be, paid in full, and all commitments of the lenders thereunder shall have
been, or concurrently with any initial Borrowing made on
47
the Effective Date shall be, terminated in accordance with the terms of
such Agreement and each of the Initial Lenders that is a party to the
Existing Credit Agreement hereby waives, upon execution of this Agreement,
the three business days' notice required by Section 2.04 of the Existing
Credit Agreement relating to the termination of the commitments under the
Existing Credit Agreement.
(f) On the Effective Date, the following statements shall be true and
the Administrative Agent shall have received for the account of each Lender
a certificate of the Company, on behalf of itself and each other Borrower,
signed by a duly authorized officer of the Company, dated such date,
stating that:
(i) The representations and warranties contained in Section 4.01
are correct on and as of the Effective Date, as though made on and as
of such date;
(ii) No event has occurred and is continuing, or shall occur as a
result of the occurrence of the Effective Date, that constitutes a
Default; and
(iii) All of the amounts owing by any Borrower or any of its
Subsidiaries under the Existing Credit Agreement shall have been, or
concurrently with any initial Borrowing made on the Effective Date
shall be, paid in full, and all commitments of the lenders thereunder
shall have been, or concurrently with any initial Borrowing made on
the Effective Date shall be, terminated in accordance with the terms
of such Agreement.
(g) The Administrative Agent shall have received on or before the
Effective Date each of the following, dated the Effective Date and in form
and substance satisfactory to the Administrative Agent:
(i) The Revolving Credit Notes of each of the Borrowers to the
order of each of the Lenders that has requested a Revolving Credit
Note in accordance with Section 2.20.
(ii) A certificate of the Secretary or an Assistant Secretary (or
person performing similar functions) of each of the Borrowers
certifying (A) appropriate resolutions of the board of directors (or
persons performing similar functions) of such Borrower authorizing
Borrowings under this Agreement and its Notes, and all documents
evidencing other necessary corporate (or equivalent) action and
governmental approvals, if any, with respect to this Agreement and its
Notes (copies of which shall be attached thereto), (B) copies of the
by-laws (or the equivalent thereof) of such Borrower (copies of which
shall be attached thereto) and (C) the names and true signatures of
the officers of such Borrower authorized to sign this Agreement and
its Notes and the other documents to be delivered by such Borrower
hereunder.
(iii) A copy of the charter or articles (or other similar
organizational documents) of each Borrower, certified (as of a date
reasonably near the Effective Date) as being a true and complete copy
thereof by the Secretary of State (or other appropriate Governmental
Authority) of the jurisdiction of organization of such
48
Borrower or, if such certificate is not provided in the jurisdiction
of organization of any Borrower, certified (as of a date reasonably
near the Effective Date) as being a true and complete copy thereof by
a duly authorized officer of such Borrower.
(iv) A copy of a certificate of the Secretary of State (or other
appropriate Governmental Authority) of the jurisdiction of
organization of such Borrower, dated reasonably near the Effective
Date, certifying that such Borrower is duly organized and in good
standing (or the equivalent thereof) under the laws of the
jurisdiction of its organization.
(v) A favorable opinion of Miles & Stockbridge P.C., counsel for
the Borrowers, in substantially the form of Exhibit E-1 hereto, and
addressing such other matters as the Administrative Agent may
reasonably request.
(vi) A favorable opinion of Shearman & Sterling LLP, counsel for
the Administrative Agent and the Syndication Agent.
SECTION 3.02. Conditions Precedent to the Initial Borrowing of Each
Designated Subsidiary. The obligation of each Lender to make an initial
Revolving Credit Advance to each Designated Subsidiary following its designation
as a Borrower hereunder pursuant to Section 9.08 on the occasion of the initial
Borrowing thereby is subject to the Administrative Agent's receipt on or before
the date of such initial Borrowing of each of the following, in form and
substance satisfactory to the Administrative Agent and dated such date:
(a) The Designation Letter of such Designated Subsidiary, in
substantially the form of Exhibit F hereto.
(b) A Revolving Credit Note of such Designated Subsidiary to the order
of each of the Lenders, respectively.
(c) A certificate of the Secretary or an Assistant Secretary (or
person performing similar functions) of such Designated Subsidiary
certifying (A) appropriate resolutions of the board of directors (or
persons performing similar functions) of such Designated Subsidiary
approving this Agreement and its Notes, and all documents evidencing other
necessary corporate (or equivalent) action and governmental approvals, if
any, with respect to this Agreement and its Notes (copies of which shall be
attached thereto), (B) copies of the by-laws (or the equivalent thereof) of
such Designated Subsidiary (copies of which shall be attached thereto) and
(C) the names and true signatures of the officers of such Designated
Subsidiary authorized to sign the Designation Letter of such Designated
Subsidiary and its Notes and the other documents to be delivered by such
Designated Subsidiary hereunder.
(d) A copy of the charter or articles (or other similar organizational
document) of such Designated Subsidiary, certified (as of a date reasonably
near the date of such Borrowing) as being a true and complete copy thereof
by the Secretary of State (or other appropriate Governmental Authority) of
the jurisdiction of organization of such Designated Subsidiary or, if such
certificate is not provided in the jurisdiction of
49
organization of such Designated Subsidiary, certified (as of a date
reasonably near the date of such Borrowing) as being a true and complete
copy thereof by a duly authorized officer of such Designated Subsidiary.
(e) A copy of a certificate of the Secretary of State (or other
appropriate Governmental Authority) of the jurisdiction of organization of
such Designated Subsidiary, dated reasonably near the date of such
Borrowing, certifying that such Designated Subsidiary is duly organized and
in good standing (or the equivalent thereof) under the laws of the
jurisdiction of its organization.
(f) A certificate signed by a duly authorized officer of such
Designated Subsidiary, dated as of the date of such Borrowing, certifying
that such Designated Subsidiary has obtained all authorizations, consents,
approvals (including, without limitation, exchange control approvals) and
licenses of any Governmental Authority or other third party necessary for
such Designated Subsidiary to execute and deliver its Designation Letter
and its Notes and to perform its obligations under this Agreement or any of
its Notes.
(g) Evidence of acceptance by the Company of its appointment as the
process agent of such Designated Subsidiary in accordance with Section
9.12(a), in substantially the form of Exhibit G hereto.
(h) A favorable opinion of counsel for such Designated Subsidiary
reasonably acceptable to the Administrative Agent, dated the date of such
Borrowing, in substantially the form of Exhibit E-2 hereto (subject to the
assumptions, qualifications and limitations customary for legal opinions in
the jurisdiction for which such opinion is delivered), and addressing such
other matters as any Lender through the Administrative Agent may reasonably
request.
(i) Such other documents, opinions and other information as any
Lender, through the Administrative Agent, may reasonably request.
SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing
and Each Issuance. The obligation of each Lender to make a Revolving Credit
Advance, or to purchase a Discounted Note, as the case may be, on the occasion
of each Revolving Credit Borrowing, and the obligations of each Issuing Bank to
issue, or increase the Available Amount of, a Letter of Credit, shall be subject
to the conditions precedent that the Effective Date shall have occurred and on
the date of such Revolving Credit Borrowing or such issuance (a) the following
statements shall be true (and each of the giving of the applicable Notice of
Revolving Credit Borrowing and the acceptance by the Borrower that requested
such Revolving Credit Borrowing of the proceeds of such Revolving Credit
Borrowing and the giving of a Notice of Issuance shall constitute a
representation and warranty by such Borrower that on the date of such Revolving
Credit Borrowing or such issuance or increase such statements are true):
(i) Except in the case of a Refinancing Borrowing, the representations
and warranties contained in Section 4.01 (and, if such Revolving Credit
Borrowing shall have been requested by a Designated Subsidiary, the
representations and warranties of such
50
Designated Subsidiary contained in its Designation Letter) are correct on
and as of the date of such Revolving Credit Borrowing or such issuance or
increase, before and after giving effect to such Revolving Credit Borrowing
or such issuance and to the application of the proceeds therefrom, as
though made on and as of such date;
(ii) No event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or such issuance or increase or from the
application of the proceeds therefrom, that constitutes a Default; and
(iii) In the case of a Revolving Credit Borrowing consisting of
Discounted Notes (including, without limitation, a Refinancing Borrowing),
the Administrative Agent shall have received an appropriately completed and
duly executed Master Discounted Note evidencing such Revolving Credit
Borrowing;
and (b) the Administrative Agent shall have received such other documents,
opinions and other information as any Lender, through the Administrative Agent,
may reasonably request. Nothing in this Section 3.03 shall be construed to
require any Borrower to satisfy the conditions set forth herein solely upon the
Conversion of one or more Borrowings in accordance with the terms of this
Agreement.
SECTION 3.04. Conditions Precedent to Each Extension Date and Each
Commitment Increase . The obligation of each Consenting Lender and each Assuming
Lender to extend the Termination Date pursuant to Section 2.17, and the
obligation of each Increasing Lender and each Assuming Lender to increase its
Commitment pursuant to Section 2.19, is subject to the conditions precedent that
(a) (i) in the case of an Extension Date, the Administrative Agent shall have
accepted all of the Assumption Agreements of the Assuming Lenders and received
all of the written confirmations of increases in the Commitments of the
Consenting Lenders for such Extension Date and all of the Non-Consenting Lenders
shall have received all of the amounts required to have been paid to them under
Section 2.17(c) on or prior to such Extension Date and (ii) in the case of a
Commitment Increase, the Administrative Agent shall have accepted all of the
Assumption Agreements of the Assuming Lenders and received all of the written
confirmations of the increases in the Commitments of the Increasing Lenders for
such Commitment Increase, and (b) on such Extension Date or such Increase Date,
as the case may be, the following statements shall be true (and a duly
authorized officer of the Company shall certify the completeness and accuracy of
such statements to the Administrative Agent and the Lenders on and as of such
Extension Date or such Increase Date):
(i) No event or development has occurred or failed to occur, and no
action has been taken or failed to have been taken, by or on behalf of any
Borrower or any of its Subsidiaries that, either individually or in the
aggregate, has had or could reasonably be expected to have a Material
Adverse Effect since December 31, 2003. No fact or circumstance is known by
any Borrower that, either individually or in the aggregate, has had or
could reasonably be expected to have (so far as such Borrower can
reasonably foresee) a Material Adverse Effect since December 31, 2003;
51
(ii) The representations and warranties contained in Section 4.01 are
correct on and as of such Extension Date or Increase Date, before and after
giving effect to such Extension Date or Increase Date; and
(iii) No event has occurred and is continuing, or would result from
the occurrence of such Extension Date or such Increase Date that
constitutes a Default.
SECTION 3.05. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the date
that the Company, by notice to the Lenders, designates as the proposed Effective
Date, specifying its objection thereto. The Administrative Agent shall promptly
notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers. Each
Borrower represents and warrants as follows:
(a) Each Borrower and each of its Significant Subsidiaries (i) are
Persons duly organized, validly existing and, to the extent such concept is
applicable in the jurisdiction of organization of such Borrower or such
Subsidiary, in good standing under the laws of the jurisdictions of their
respective organization, (ii) are duly qualified and, to the extent such
concept is applicable in such jurisdiction, in good standing as foreign
corporations (or the equivalent thereof) in each other jurisdiction in
which they own or lease property or in which the conduct of their
respective businesses requires them to so qualify or be licensed, except
where the failure to so qualify or be licensed, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect, and (iii) have all requisite power and authority to own or lease
and operate their properties and to carry on their respective businesses as
now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by each Borrower of this
Agreement and its Notes, and the consummation of the transactions
contemplated hereby, are within such Borrower's powers, have been duly
authorized by all necessary action (including, without limitation, all
necessary stockholders' action), and do not contravene (i) such Borrower's
charter or by-laws (or similar organizational documents), (ii) any law,
statute, rule or regulation or any order, writ, judgment, injunction,
decree, determination or award or (iii) any contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding on or
affecting such Borrower, any of its Subsidiaries or any of their properties
or assets.
52
(c) No authorization or approval or other action by, and no notice to
or filing with, any Governmental Authority or any other third party is
required for the due execution, delivery and performance by any Borrower of
this Agreement or any of its Notes, or for the consummation of any of the
transactions contemplated hereby, except as have been obtained or made and
are in full force and effect.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by each Borrower
intended to be a party thereto. This Agreement is, and each of the Notes
when delivered hereunder will be, the legal, valid and binding obligation
of each Borrower intended to be a party thereto, enforceable against such
Borrower in accordance with their respective terms, except to the extent
that the enforceability thereof may be limited by the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws now or hereafter in effect relating to or affecting creditors' rights
generally or by general principles of equity.
(e) The most recently completed annual Financial Statements of the
Company and its Subsidiaries, copies of which have been furnished to each
Lender, fairly present the consolidated financial condition of the Company
and its Subsidiaries as at the date of such Financial Statements and the
consolidated results of operations of the Company and its Subsidiaries for
the fiscal year of the Company ended on the date of such Financial
Statements, all in accordance with generally accepted accounting principles
in effect at the time such Financial Statements were prepared.
(f) All information, exhibits and reports (other than financial
statements, analysts' reports, projections and assumptions) furnished by or
on behalf of each Borrower to any Lender in connection with the negotiation
of, or pursuant to the terms of, this Agreement do not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements contained therein not misleading, in light of the
circumstances under which any such statements were made.
(g) There is no action, suit, investigation, litigation or proceeding
(including, without limitation, any Environmental Action) against or in any
other way affecting any Borrower or any of its Subsidiaries or any of its
respective properties or businesses pending or, to the best knowledge of
such Borrower or any of its Subsidiaries, threatened before any court,
Governmental Authority or arbitrator that (i) either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect
or (ii) purports to adversely affect the legality, validity or
enforceability of this Agreement or any of the Notes or the consummation of
the transactions contemplated hereby.
(h) None of the Borrowers is engaged in the business of extending
credit for the purpose of purchasing or carrying "margin stock" (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve
System), and no proceeds of any Revolving Credit Advance or any Discounted
Note will be used to purchase or carry any margin stock or to extend credit
to others for the purpose of purchasing or carrying margin stock.
53
(i) Neither any Borrower nor any of its Subsidiaries is an "investment
company", or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company" (each as defined in the
Investment Company Act of 1940, as amended). Neither the making of any
Revolving Credit Advances nor the purchase of any Discounted Notes nor the
application of the proceeds or the repayment or repurchase thereof by any
Borrower, nor the consummation of any of the other transactions
contemplated hereby, will violate any provision of such Act or any rule,
regulation or order of the Securities and Exchange Commission thereunder.
(j) The Revolving Credit Advances, the Discounted Notes and all
related obligations of each Borrower under this Agreement and its Notes
rank pari passu with all other unsecured obligations of such Borrower that
are not, by their terms, expressly subordinate to such other obligations of
such Borrower.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants. So long as any Revolving Credit
Advance or any Discounted Note or Letter of Credit shall remain unpaid or any
Lender shall have any Commitment hereunder, each Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and Environmental Laws, except where, and for so long as, the failure
to so comply (i) has been excused or waived under applicable law or (ii)
either individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect. Comply, and cause each of its
Subsidiaries to comply, with the terms of all of its contracts, loan
agreements, indentures, mortgages, deeds of trust, leases and other
agreements and instruments, the violation or breach of which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property and assets; provided, however, that
neither any Borrower nor any of its Subsidiaries shall be required to pay
or discharge (A) any taxes, assessments, reassessments, charges, levies or
claims that, either individually or in the aggregate, do not exceed
$15,000,000 (or the equivalent thereof in one or more foreign currencies)
at any time or (B) any such tax, assessment, reassessment, charge, levy or
claim that is being contested in good faith and by proper proceedings and
as to which appropriate reserves are being maintained in accordance with
generally accepted accounting principles in effect from time to time,
unless and until, in any of the foregoing cases, any Lien resulting
therefrom attaches to its
54
property and enforcement, collection, levy or foreclosure proceedings shall
have been commenced and remain unstayed in respect thereof.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, (i) insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is usually carried by companies engaged in similar businesses of similar
size and owning similar properties in the same general areas in which such
Borrower or such Subsidiary operates and (ii) additional insurance to the
extent required under applicable law, rule, regulation or order unless, in
either case, the failure to maintain such insurance, either individually or
in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
(d) Preservation of Existence, Etc. Preserve and maintain, and cause
each of its Subsidiaries to preserve and maintain, its existence, rights
(charter and statutory), licenses and franchises (whether arising as a
matter of contract or under applicable law or regulation); provided,
however, that any Borrower or any of its Subsidiaries may consummate any
transaction otherwise permitted under Section 5.02(b); and provided further
that neither any Borrower nor any of its Subsidiaries shall be required to
preserve (i) any Subsidiary of the Company that is not a Borrower or (ii)
any right, license or franchise if management of such Borrower shall
determine in good faith that the preservation thereof is no longer
desirable in the conduct of the business or the continued operations of
such Borrower or such Subsidiary, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to such Borrower,
such Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to time,
during normal business hours and upon reasonable notice, permit the
Administrative Agent or any of the Lenders or any agents or representatives
thereof to examine and make copies of and abstracts from the records and
books of account, and visit and inspect the properties, of any Borrower or
any of its Subsidiaries, and to discuss the affairs, finances and accounts
of any Borrower or any of its Subsidiaries with any of their officers or
directors and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
such Borrower and each such Subsidiary in accordance with generally
accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its material
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(h) Use of Proceeds. Use all of the proceeds of the Revolving Credit
Advances and the Discounted Notes solely for general corporate purposes of
such
55
Borrower and its Subsidiaries not otherwise prohibited under the terms of
this Agreement.
(i) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to such Borrower or such Subsidiary than
it would obtain in a comparable arm's-length transaction with a Person not
an Affiliate, except for transactions between or among the Company and its
Subsidiaries or between or among Subsidiaries of the Company not otherwise
prohibited under this Agreement that, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(j) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 50 days after
the end of each of the first three fiscal quarters of each fiscal year
of the Company, commencing with the fiscal quarter of the Company
ending April 3, 2005, the Financial Statements of the Company and its
Subsidiaries as of the end of such fiscal quarter, duly certified by
the chief financial officer or the treasurer of the Company as (A)
having been prepared in accordance with generally accepted accounting
principles in effect at the time such Financial Statements were
prepared and (B) fairly presenting in all material respects, subject
to year-end adjustments, the consolidated financial condition of the
Company and its Subsidiaries as at the last day of such fiscal quarter
and the consolidated results of operations of the Company and its
Subsidiaries for such period;
(ii) as soon as available and in any event within 95 days after
the end of each fiscal year of the Company, commencing with the fiscal
year of the Company ending December 31, 2004, a copy of the annual
report, prepared in the manner required under Form 10-K, for such
fiscal year for the Company and its Subsidiaries containing the
Financial Statements of the Company and its Subsidiaries as of the end
of such fiscal year, in each case accompanied by an opinion of Ernst &
Young LLP or other independent certified public accountants of
nationally recognized standing in the United States and reasonably
acceptable to the Administrative Agent that is unqualified as to going
concern and scope of audit and is otherwise in scope and substance
acceptable to the Required Lenders, together with a certificate of
such accounting firm addressed to the Administrative Agent and the
Lenders stating that in the course of the regular audit of the
business of the Company and its Subsidiaries, which audit was
conducted by such accounting firm in accordance with generally
accepted auditing standards, nothing has come to the attention of such
accountants that causes them to believe that the Company has failed to
comply with the covenants set forth in Section 5.03;
(iii) as soon as available after the end of each fiscal year of
each Foreign Borrower, a balance sheet of such Foreign Borrower as of
the end of such fiscal year and the related statement of income of
such Foreign Borrower for such fiscal year and such other statements
for such fiscal year as are required to be
56
included in the statutory report of the jurisdiction in which such
Foreign Borrower resides, in each case prepared in accordance with
historical convention and with generally accepted accounting
principles prevailing in such jurisdiction at the time such financial
statements are delivered;
(iv) simultaneously with each delivery of the Financial
Statements referred to in clauses (i) and (ii) of this Section
5.01(j), (A) a certificate of the chief financial officer or the
treasurer of the Company (1) stating that no Default has occurred and
is continuing or, if a Default has occurred and is continuing, a
statement as to the nature thereof and the action that the Company has
taken and/or proposes to take with respect thereto and (2) setting
forth in reasonable detail the calculations necessary to demonstrate
compliance with each of the covenants set forth in Section 5.03 and
(B) in the event of any change in the generally accepted accounting
principles used in the preparation of such Financial Statements from
GAAP, a statement of reconciliation, if and to the extent necessary
for the determination of compliance with each of the covenants set
forth in Section 5.03, conforming such Financial Statements to
generally accepted accounting principles consistent with GAAP;
(v) as soon as possible and in any event within five days after
any Responsible Officer knows or has reason to know of the occurrence
of each Default, a statement of such Responsible Officer setting forth
the details of such Default or such event, development or
circumstance, as the case may be, and the action that such Borrower
has taken and/or proposes to take with respect thereto;
(vi) promptly after the sending or filing thereof, copies of all
reports that the Company sends to its securityholders, and copies of
all reports and registration statements (other than registration
statements filed on Form S-8 or otherwise relating to securities being
offered and sold under, or interests in, employee benefit plans), if
any, that any Borrower or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange;
(vii) promptly after the commencement thereof, notice of all
actions, suits, investigations, litigations and proceedings before any
court, Governmental Authority or arbitrator against or in any other
way affecting any Borrower or any of its Subsidiaries or any of their
respective properties or businesses of the type described in Section
4.01(g);
(viii) promptly and in any event within five Business Days after
becoming aware thereof, notice of any change in the rating assigned by
any nationally recognized rating agency to any securities issued by
any Borrower or any of its Subsidiaries and the effective date of such
change, together with a copy of such notice if available at such time;
and
(ix) such other information respecting the businesses, assets,
liabilities, financial condition, results of operations or business
prospects of any Borrower or
57
any of its Subsidiaries as any Lender, through the Administrative
Agent, may from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Revolving Credit
Advance or any Discounted Note or Letter of Credit shall remain unpaid or any
Lender shall have any Commitment hereunder, each of the Borrowers will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect
to any of its properties and assets, whether now owned or hereafter
acquired, or assign as security, or permit any of its Subsidiaries to
assign as security, any right to receive income therefrom, other than:
(i) Permitted Liens;
(ii) Liens existing or contemplated on the date of this Agreement
and described on Schedule 5.02(a) hereto;
(iii) purchase money Liens upon or in one or more tangible assets
acquired or held by any Borrower or any of its Subsidiaries in the
ordinary course of business to secure the purchase price of such
tangible assets or to secure Indebtedness incurred solely for the
purpose of financing the acquisition, construction or improvement of
such tangible assets so long as such Liens are incurred within 90 days
of the date of acquisition of such tangible assets, or Liens existing
on any such tangible asset at the time of its acquisition (other than
any such Liens created in contemplation of such acquisition that were
not incurred to finance the acquisition of such tangible assets);
provided, however, that no such Lien shall extend to or cover any
property or assets of any character other than the tangible assets
being acquired, constructed or improved; and provided further that any
Indebtedness secured by such Liens shall otherwise be permitted under
the terms of this Agreement;
(iv) Liens on property and assets of a Person existing at the
time such Person is merged into or consolidated with any Borrower or
any of its Subsidiaries or becomes a Subsidiary of any Borrower;
provided that any such Liens were not created in contemplation of such
merger, consolidation or acquisition and do not extend to or cover (A)
any property or assets other than the property and assets of the
Person being merged into or consolidated with such Borrower or such
Subsidiary or being acquired by such Borrower or such Subsidiary, as
the case may be, or (B) any obligations of any Person other than those
obligations that were secured by such property and assets at the time
of such merger, consolidation or acquisition; and provided further
that any Indebtedness secured by such Liens shall otherwise be
permitted under the terms of this Agreement;
(v) Liens on any property or assets of any Subsidiary of the
Company securing Indebtedness owed to the Company or any of its other
Subsidiaries;
58
(vi) Liens securing reimbursement obligations under commercial
letters of credit incurred in the ordinary course of business;
provided that any such Liens shall cover only the goods, or documents
of title evidencing goods, that are purchased in the transaction for
which such letter of credit was issued and the products and proceeds
thereof;
(vii) Liens arising out of judgments or awards that do not
constitute an Event of Default under Section 6.01(f) or 6.01(g) and in
respect of which any Borrower or any of its Subsidiaries subject
thereto shall be prosecuting an appeal or proceedings for review in
good faith and, pending such appeal or proceedings, shall have secured
a subsisting stay of execution within 30 days of such judgment or
award and shall be maintaining appropriate reserves, in accordance
with generally accepted accounting principles in effect from time to
time, with respect to any such judgment or award;
(viii) Liens on cash, certificates of deposit or other similar
bank obligations securing Indebtedness (which Indebtedness may be in a
different currency from such cash, certificates of deposit or other
bank obligations) in an amount substantially equal in value
(determined at the time such Lien is created) to such cash,
certificates of deposit or other bank obligations, as the case may be;
(ix) Liens not otherwise permitted under this Section 5.02(a)
securing obligations in an aggregate amount not to exceed $300,000,000
(or the equivalent thereof in one or more foreign currencies) for the
Company and its Subsidiaries at any time; and
(x) the extension, renewal, replacement or refinancing of any
Lien otherwise permitted under any of clauses (ii) through (iv) of
this Section 5.02(a) upon or in the same property and assets
theretofore subject thereto; provided that no such extension, renewal,
replacement or refinancing shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed, replaced or
refinanced; and provided further that (A) any obligation secured by
such Liens shall otherwise be permitted under the terms of this
Agreement and (B) both immediately before and immediately after giving
effect to such Lien, no Default shall have occurred and be continuing.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its property and assets
(whether now owned or hereafter acquired) to, any Person, or permit any of
its Subsidiaries to do so, except that:
(i) any Subsidiary of the Company that is not a Borrower may
merge or consolidate with or into, or convey, transfer, lease or
otherwise dispose of all or substantially all of its property and
assets to, any other Person so long as, if such Person is a Borrower,
such Person is the surviving entity; and
59
(ii) any Borrower may merge with any other Person (including,
without limitation, any other Borrower or any of its Subsidiaries) so
long as (A) if the Company is a party to such merger or consolidation,
the Company is the surviving entity or (B) if any other Borrower is a
party to such merger or consolidation, either (1) the surviving entity
shall be such Borrower or (2) the surviving entity (w) shall be a
Substantially Owned Subsidiary of the Company, (x) shall succeed, by
an agreement or operation of law, to all of the businesses and
operations of such Borrower and shall assume, in an assumption
agreement in form and substance satisfactory to the Administrative
Agent, all of the rights and obligations of such Borrower under this
Agreement and the Notes, (y) shall deliver to the Administrative Agent
all of the certificates, opinions and other documents described in
clauses (b) through (h) of Section 3.02 with respect to such surviving
entity, in each case in form and substance satisfactory to the
Administrative Agent, and such other documents, opinions and other
information as any Lender, through the Administrative Agent, may
reasonably request and (z) shall cause the Company to deliver to the
Administrative Agent written confirmation of its obligations under
Section 7.01 with respect to such surviving entity;
provided, in each of the foregoing cases, that no Default shall have occurred
and be continuing at the time of such merger, consolidation, conveyance,
transfer, lease or disposition, or shall occur as a result thereof.
Notwithstanding any of the foregoing provisions of this Section 5.02(b), neither
any Borrower nor any of its Subsidiaries shall sell, convey, transfer, lease or
otherwise dispose of (whether in one transaction or in a series of transactions
and whether through the disposition of shares of capital stock or other property
or assets) all or substantially all of the power tool business engaged in by the
Company and its Subsidiaries on the date of this Agreement.
(c) Change in Nature of Business. Engage in any business other than
the businesses engaged in by the Company and its Subsidiaries on the date
of this Agreement and other businesses and activities that are
substantially similar, related or incidental thereto.
(d) Fiscal Year. Make or permit any change in the fiscal year of the
Company.
(e) Substance Storage and Disposal. Permit any Hazardous Materials to
be generated, used, treated, handled or stored at, or transported to or
from, any property owned or operated by any Borrower or any of its
Subsidiaries in any manner that could result in the incurrence by any
Borrower or any of its Subsidiaries of remedial obligations or liabilities
under any applicable Environmental Law, except (a) as set forth on Schedule
4.01 hereto and (b) for substances (i) to be used in the business of such
Borrower or such Subsidiary pending and during such use and (ii) that are
generated or used in the business of such Borrower or such Subsidiary
pending their disposal.
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SECTION 5.03. Financial Covenants. So long as any Revolving Credit
Advance or any Discounted Note or Letter of Credit shall remain unpaid or any
Lender shall have any Commitment hereunder, the Company will:
(a) Leverage Ratio. Maintain a Leverage Ratio as of the last day of
each of its fiscal quarters of not greater than 3.5 to 1.
(b) Cash Flow Coverage Ratio. Maintain a Cash Flow Coverage Ratio as
of the last day of each of its fiscal quarters of not less than 3.25 to 1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail (i) to pay any principal of any Revolving
Credit Advance, or any portion of the Face Amount of any Discounted Note,
when the same becomes due and payable or (ii) to pay any interest on any
Revolving Credit Advance or to make any payment of fees or other amounts
payable under this Agreement or any Note within three Business Days after
the same becomes due and payable; or
(b) Any representation or warranty made by any Borrower herein or by
any Borrower (or any of its officers) in connection with this Agreement
(including, without limitation, in the Designation Letter of any Borrower)
shall prove to have been incorrect or misleading in any material respect
when made; or
(c) Any Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.01(a), (d), (h), (i) or
(j)(v), or 5.02(a), (b) or (d), or 5.03 to be performed or observed by such
Borrower or (ii) any other term, covenant or agreement contained in this
Agreement to be performed or observed by such Borrower if such failure
shall remain unremedied for 30 days after the earlier of (A) the first date
on which a Responsible Officer of any Borrower knows or has reason to know
of such failure and (B) the date on which written notice thereof shall have
been given to the Company or the applicable Borrower by the Administrative
Agent or any Lender; or
(d) Any Borrower or any of its Subsidiaries shall fail to pay any
principal of or any premium or interest on any Indebtedness that is
outstanding in a principal amount of or, in the case of any Hedge
Agreement, having an Agreement Value of, at least $50,000,000 (or the
equivalent thereof in one or more foreign currencies), either individually
or in the aggregate (but excluding Indebtedness outstanding hereunder), of
such Borrower or such Subsidiary, as the case may be, when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after
the applicable grace period, if any, specified in the agreement or
instrument relating to such Indebtedness; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
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such Indebtedness and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Indebtedness; or any such Indebtedness shall be declared
to be due and payable, or required to be prepaid or redeemed (other than by
a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such
Indebtedness shall be required to be made, in each case prior to the stated
maturity thereof; provided, however, that the required redemption or
repurchase of any such Indebtedness comprised of Mandatorily Redeemable
Stock of Chesapeake Holdings shall not constitute an Event of Default under
this Section 6.01(d) if, and only if, Chesapeake Holdings makes timely
payment of any redemption price or repurchase price required to be paid by
it; or
(e) Any Borrower or any Significant Subsidiary shall generally not pay
its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against
any Borrower or any Significant Subsidiary seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for
it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 60 days, or
any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of
a receiver, trustee, custodian or other similar official for, it or any
substantial part of its property and assets) shall occur; or any Borrower
or any Significant Subsidiary shall take any action to authorize any of the
actions set forth above in this Section 6.01(e); or
(f) One or more judgments or orders for the payment of money in excess
of $50,000,000 (or the equivalent thereof in one or more foreign
currencies) shall be rendered against one or more of the Borrowers and
their Subsidiaries and shall remain unsatisfied and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 30 consecutive days during which
a stay of enforcement of any such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(g) Any material provision of this Agreement (including Article VII)
or any Note after delivery thereof pursuant to Article III shall for any
reason cease to be valid and binding on or enforceable against any Borrower
intended to be a party thereto, or any Borrower or any of its Subsidiaries
or other Affiliates shall so state in writing; or
(h) The Company or any of its ERISA Affiliates shall incur, or, in the
reasonable opinion of the Required Lenders, shall be reasonably likely to
incur liability in excess of $50,000,000 in the aggregate as a result of
one or more of the following: (i) the occurrence of any ERISA Event; (ii)
the partial or complete withdrawal of the Company
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or any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan;
(i) Any Borrower (other than the Company) shall cease to be a
Substantially Owned Subsidiary; or
(j) A Change of Control shall occur;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrowers,
declare the obligation of each Lender to make Revolving Credit Advances (other
than Revolving Credit Advances to be made by an Issuing Bank or a Lender
pursuant to Section 2.03(c)), and to purchase Discounted Notes and the
obligation of any Issuing Bank to issue Letters of Credit to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrowers,
declare the Revolving Credit Advances and the Notes, all interest thereon and
all other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by each of the
Borrowers; provided, however, that in the event of an actual or deemed entry of
an order for relief with respect to any Borrower under the U.S. Federal
Bankruptcy Code or any similar bankruptcy or insolvency law of any other
jurisdiction, (A) the obligation of each Lender to make Revolving Credit
Advances (other than Revolving Credit Advances to be made by an Issuing Bank or
a Lender pursuant to Section 2.03(c)), and to purchase Discounted Notes and the
obligation of any Issuing Bank to issue Letters of Credit shall automatically be
terminated and (B) the Revolving Credit Advances and the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by each of the Borrowers.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may with the consent, or shall at the request, of the
Required Lenders, irrespective of whether it is taking any of the actions
described in Section 6.01 or otherwise, make demand upon the Borrowers to, and
forthwith upon such demand the Borrowers will, (a) pay to the Administrative
Agent on behalf of the Lenders in same day funds at the Administrative Agent's
office designated in such demand, for deposit in the L/C Cash Collateral
Account, an amount equal to the aggregate Available Amount of all Letters of
Credit then outstanding or (b) make such other arrangements in respect of the
outstanding Letters of Credit as shall be acceptable to the Required Lenders;
provided that in the event of an actual or deemed entry of an order for relief
with respect to any Borrower under the U.S. Federal Bankruptcy Code or any
similar bankruptcy or insolvency law of any other jurisdiction, the Borrowers
shall pay such amount forthwith without any notice or demand or any other action
by the Administrative Agent or any Lender, each of which is hereby waived. If at
any time the Administrative Agent determines that any funds held in the L/C Cash
Collateral Account are subject to any right or claim of any Person other than
the Administrative Agent and the Lenders or that the total amount of such funds
is less than the aggregate Available Amount of all Letters of Credit, the
Borrowers will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and
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held in the L/C Cash Collateral Account, an amount equal to the excess of (a)
such aggregate Available Amount over (b) the total amount of funds, if any, then
held in the L/C Cash Collateral Account that the Administrative Agent determines
to be free and clear of any such right and claim. Upon the drawing of any Letter
of Credit, to the extent funds are on deposit in the L/C Cash Collateral
Account, such funds shall be applied to reimburse the Issuing Banks and the
Lenders to the extent permitted by applicable law. After (i) no Event of Default
shall be continuing or (ii) all such Letters of Credit shall have expired or
been fully drawn upon and all other obligations of the Borrowers hereunder and
under the Notes shall have been paid in full, the balance, if any, in such L/C
Cash Collateral Account shall be returned to the Borrowers.
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee. For valuable consideration,
receipt whereof is hereby acknowledged, and to induce each Lender to make
Revolving Credit Advances from time to time to, and to purchase Discounted Notes
from time to time from, the Borrowers and to induce the Administrative Agent to
act in such capacity hereunder, the Company hereby unconditionally and
irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of each of the other
Borrowers now or hereafter existing under this Agreement and the Notes of such
other Borrowers, whether for principal, Face Amount, interest, fees, expenses or
otherwise (such obligations being the "Guaranteed Obligations"), and agrees to
pay any and all expenses (including, without limitation, reasonable fees and
expenses of counsel) incurred by the Administrative Agent or any Lender in
enforcing its rights under this Article VII. Without limiting the generality of
the foregoing, the Company's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Borrower to the Administrative Agent or any Lender under this Agreement or any
Note of such other Borrower but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Borrower.
SECTION 7.02. Guarantee Absolute. The Company guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the applicable Notes, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of the Administrative Agent or any Lender with respect thereto.
The obligations of the Company under this Article VII are independent of the
Guaranteed Obligations, and a separate action or actions may be brought and
prosecuted against the Company to enforce this Article VII, irrespective of
whether any action is brought against any other Borrower or whether any other
Borrower is joined in any such action or actions. The liability of the Company
under this Article VII shall be irrevocable, absolute and unconditional
irrespective of, and the Company hereby irrevocably waives any defenses it may
now or hereafter have in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement or any
Note, or any other agreement or instrument relating thereto;
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(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
obligations of any other Borrower under this Agreement or any Note, or any
other amendment or waiver of or any consent to departure from this
Agreement or any Note (including, without limitation, any increase in the
Guaranteed Obligations resulting from extensions of additional credit to
any other Borrower or otherwise);
(c) any taking, exchange, release or nonperfection of any collateral
or any taking, release or amendment or waiver of or consent to departure
from any other guarantee, for all or any of the Guaranteed Obligations;
(d) any change, restructuring or termination of the structure or
existence of any other Borrower or any of its Subsidiaries;
(e) any failure of the Administrative Agent or any Lender to disclose
to the Company any information relating to the financial condition,
operations, properties or prospects of any other Borrower now or hereafter
known by the Administrative Agent or such Lender, as the case may be; or
(f) any other circumstance (including, without limitation, any statute
of limitations to the fullest extent permitted by applicable law or any
existence of or reliance on any representation by the Administrative Agent
or any Lender) that might otherwise constitute a defense available to, or a
discharge of, the Company, any other Borrower or any other guarantor or
surety.
The guarantee of the Company set forth in this Article VII shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Guaranteed Obligations is rescinded or must otherwise be returned by
the Administrative Agent or any of the Lenders upon the insolvency, bankruptcy
or reorganization of any other Borrower or otherwise, all as though such payment
had not been made.
SECTION 7.03. Waivers. (a) The Company hereby unconditionally and
irrevocably waives promptness, diligence, presentment, demand for payment,
protest, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and the guarantee of the Company set forth in this
Article VII, and any requirement that any right or power be exhausted or any
action be taken against any other Borrower or against any other guarantor of all
or any portion of the Revolving Credit Advances or the Discounted Notes.
(b) The Company hereby unconditionally and irrevocably waives any
right to revoke its guarantee set forth in this Article VII, and acknowledges
that such guarantee is continuing in nature and applies to all of the Guaranteed
Obligations, whether existing now or in the future.
(c) The Company hereby unconditionally and irrevocably waives any duty
on the part of the Administrative Agent or any Lender to disclose to the Company
any matter, fact or thing relating to the business, properties, operation or
condition of any other Borrower or any
65
of its Subsidiaries now or hereafter known by the Administrative Agent or such
Lender, as the case may be.
(d) The Company acknowledges that it will receive substantial direct
and indirect benefits from the financing arrangements contemplated under this
Agreement and the Notes and that the waivers set forth in this Section 7.03 are
knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. The Company hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or may
hereafter acquire against any other Borrower or any other insider guarantor that
arise from the existence, payment, performance or enforcement of the obligations
of the Company under this Article VII or otherwise under this Agreement and its
Notes, including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of the Administrative Agent or any Lender against another
Borrower or any other insider guarantor or any collateral, whether or not such
claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from another
Borrower or any other insider guarantor, directly or indirectly, in cash or
other property or by setoff or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Article VII shall have been
paid in full in cash and all of the Commitments shall have expired or
terminated. If any amount shall be paid to the Company in violation of the
immediately preceding sentence at any time prior to the later of (a) the payment
in full in cash of all of the Guaranteed Obligations and all of the other
amounts payable under this Article VII and (b) the Termination Date, such amount
shall be held in trust for the benefit of the Administrative Agent and the
Lenders and shall forthwith be paid to the Administrative Agent to be credited
and applied to the Guaranteed Obligations and all other amounts payable under
this Article VII, whether matured or unmatured, in accordance with the terms of
this Agreement, or to be held as collateral for any Guaranteed Obligations or
any other amounts payable under this Article VII thereafter arising. If (i) the
Company shall make payment to the Administrative Agent or any Lender of all or
any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations
and all of the other amounts payable under this Article VII shall be paid in
full in cash and (iii) the Termination Date shall have occurred, the
Administrative Agent and the Lenders will, at the Company's request and expense,
execute and deliver to the Company appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer by
subrogation to the Company of an interest in the Guaranteed Obligations
resulting from such payment by the Company.
SECTION 7.05. Continuing Guarantee; Assignments. The guarantee of the
Company set forth in Section 7.01 is a continuing guarantee and shall (a) remain
in full force and effect until the later of (i) the indefeasible payment in full
in cash of all of the Guaranteed Obligations and all other amounts payable under
this Article VII and (ii) the Termination Date, (b) be binding upon the Company,
its successors and assigns, (c) inure to the benefit of and be enforceable by
each Lender and the Administrative Agent and their respective successors,
transferees and assigns and (d) be reinstated if at any time any payment to a
Lender or the Administrative Agent hereunder is required to be returned by such
Lender or the Administrative Agent, as the case may be. Without limiting the
generality of clause (c) of the immediately
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preceding sentence, each Lender may assign or otherwise transfer all or a
portion of its rights and obligations under this Agreement (including, without
limitation, the Revolving Credit Advances owing to it, the Discounted Notes
purchased by it and any other Notes held by it) to any other Person, and such
other Person shall thereupon become vested with all of the benefits in respect
thereof granted to such Lender under this Article VII or otherwise, in each case
as provided in Section 9.07.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action. (a) Each Lender (in its
capacity as a Lender and an Issuing Bank, as applicable) hereby appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement as are delegated
to the Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement (including, without limitation, enforcement or
collection of the Notes), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action that exposes the Administrative Agent to personal liability or that
is contrary to this Agreement or to applicable law. The Administrative Agent
agrees to give to each Lender prompt notice of each notice given to it by any
Borrower pursuant to the terms of this Agreement.
(b) None of the Syndication Agent, Bank or America, N.A., as
co-documentation agent, BNP Paribas, as co-documentation agent, or Commerzbank
AG, as co-documentation agent, shall have any powers or discretion under this
Agreement or any Note other than those afforded to it in its capacity as a
Lender, and each Lender hereby acknowledges that none of the Syndication Agent,
Bank or America, N.A., as co-documentation agent, BNP Paribas, as
co-documentation agent, or Commerzbank AG, as co-documentation agent, have any
liabilities under this Agreement or any Note other than those assumed by it in
its capacity as Lender.
SECTION 8.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its officers, directors, employees, agents or
advisors shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent:
(i) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor, and
an Eligible Assignee, as assignee, as provided in Section 9.07 or 2.17,
respectively;
67
(ii) may consult with legal counsel (including counsel for the
Company), independent certified public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to
be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts;
(iii) makes no warranty or representation to any Lender and shall not
be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with
this Agreement or any Note;
(iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of
this Agreement or any Note on the part of any Borrower or to inspect the
property (including the books and records) of any Borrower;
(v) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of
this Agreement or any Note, or any other instrument or document furnished
pursuant hereto; and
(vi) shall incur no liability under or in respect of this Agreement by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier or telegram) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 8.03. Administrative Agent and Affiliates. With respect to its
Commitment(s), the Revolving Credit Advances made by it, the Discounted Notes
purchased by it and any other Note or Notes issued to it, Citibank (or any
successor Administrative Agent appointed pursuant to Section 8.06) shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank (or any such successor) in its individual capacity. Citibank (or any
such successor) and its Affiliates may accept deposits from, lend money to, act
as trustee under indentures of, accept investment banking engagements from, and
generally engage in any kind of business with, any Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of any
Borrower or any such Subsidiary, all as if Citibank (or any such successor) were
not the Administrative Agent and without any duty to account therefor to the
Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on the financial statements referred to in Section
4.01(e) and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 8.05. Indemnification. (a) The Lenders agree to indemnify the
Administrative Agent (to the extent required to be paid and not reimbursed by
the Borrowers),
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according to their respective Pro Rata Shares of principal amounts of the
Revolving Credit Advances made by each of them (or if no Revolving Credit
Advances are outstanding at such date or if any Revolving Credit Advances or any
Discounted Notes are held by Persons that are not Lenders at such date,
according to their respective Pro Rata Shares of the aggregate Revolving Credit
Commitments at such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind or nature whatsoever that may be imposed
on, incurred by or asserted against the Administrative Agent in any way relating
to or arising out of this Agreement or any Note or any action taken or omitted
by the Administrative Agent under this Agreement or any Note; provided that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Administrative Agent promptly upon demand for its Pro Rata Share of any
out-of-pocket costs and expenses (including reasonable counsel fees and
expenses) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement
or any Note to the extent that the Administrative Agent is not reimbursed for
such expenses by the Borrowers.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to
the extent not promptly reimbursed by the Borrower) from and against such
Lender's Pro Rata Share of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against any such Issuing Bank in any way relating to or arising out of
this Agreement or any action taken or omitted by such Issuing Bank hereunder or
in connection herewith; provided, however, that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Issuing Bank's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon
demand for its Pro Rata Share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrowers under Section
9.04, to the extent that such Issuing Bank is not promptly reimbursed for such
costs and expenses by the Borrowers.
(c) The failure of any Lender to reimburse the Administrative Agent or
the Issuing Bank promptly upon demand for its ratable share of any amount
required to be paid by the Lenders to the Administrative Agent or the Issuing
Bank as provided herein shall not relieve any other Lender of its obligation
hereunder to reimburse the Administrative Agent or the Issuing Bank for its
ratable share of such amount, but no Lender shall be responsible for the failure
of any other Lender to reimburse the Administrative Agent or an Issuing Bank for
such other Lender's ratable share of such amount. Without prejudice to the
survival of any other agreement of any Lender hereunder, the agreement and
obligations of each Lender contained in this Section 8.05 shall survive the
payment in full of principal, interest and all other amounts payable hereunder
and under the Notes.
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SECTION 8.06. Successor Administrative Agent. The Administrative Agent
may resign at any time by giving written notice thereof to the Lenders and the
Company and may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Administrative Agent; provided that, so long as
no Default shall have occurred and be continuing, the Company shall have the
right to propose a successor Administrative Agent to the Lenders and shall have
the right to consent to any such successor Administrative Agent, such consent
not to be unreasonably withheld and to be deemed to have been given if the
Company does not object to the proposed successor Administrative Agent within
five Business Days after notice thereof. If no successor Administrative Agent
shall have been so appointed by the Required Lenders (and, if so required under
the immediately preceding sentence, consented to by the Company), and shall have
accepted such appointment, within 30 days after the retiring Administrative
Agent's giving of notice of resignation or the Required Lenders' removal of the
retiring Administrative Agent, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which shall be
a commercial bank organized under the laws of the United States of America or of
any state thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Article VIII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement, the Revolving Credit Notes, the Master Discounted Note or the
Discounted Notes, nor consent to any departure by any Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Required Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all of the Lenders, do any of the following:
(a) waive any of the conditions specified in Section 3.01 or 3.02 or,
with respect to all Consenting Lenders and all Assuming Lenders, Section
3.04;
(b) increase the aggregate Revolving Credit Commitments of the Lenders
or subject the Lenders to any additional obligations;
(c) reduce the principal of, or interest on, the Revolving Credit
Advances, or the Face Amount of, or Discount on, the Discounted Notes, or
any fees (other than any fees referred to in Section 2.04(b)(ii) or (c)) or
other amounts payable hereunder;
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(d) postpone any date fixed for any payment of principal of, or
interest on, the Revolving Credit Advances, or Face Amount of, or Discount
on, the Discounted Notes, or any fees (other than any fees referred to in
Section 2.04(b)(ii) or (c)) or other amounts payable hereunder, except
pursuant to Section 2.17 as in effect on the date of this Agreement;
(e) change the percentage of the Revolving Credit Commitments or of
the aggregate unpaid principal amount of the Revolving Credit Advances and
the aggregate unpaid Face Amount of the Discounted Notes, or the number of
Lenders, that shall be required for the Lenders or any of them to take any
action hereunder;
(f) release or limit the obligations of the Company under any
provision of Article VII; or
(g) amend this Section 9.01;
and provided further, however, that (x) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note, (y) no amendment, waiver
or consent of Section 9.07(f) shall, unless in writing and signed by each Lender
that has granted a funding option to an SPC in addition to the Lenders required
above to take such action, affect the rights or duties of such Lender or SPC
under this Agreement or any Note and (z) no amendment, waiver or consent shall,
unless in writing and signed by the Issuing Banks in addition to the Lenders
required above to take such action, adversely affect the rights or obligations
of the Issuing Banks in their capacities as such under this Agreement.
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder, unless otherwise expressly stated herein, shall be in
writing (including telecopier or telegraphic communication) and mailed,
telecopied, telegraphed or delivered, if to any Initial Borrower, at its address
set forth below its name on the signature pages hereof; if to any Designated
Subsidiary that becomes a Borrower hereunder, at its address set forth below its
name on the signature page to its Designation Letter; if to any Initial Lender,
at its Base Rate Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender, at its Base Rate Lending Office specified in the
Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it became a Lender; if to the Administrative Agent, at its
address at Two Penns Way, New Castle, Delaware 19720, Attention: Bank Loan
Syndications Department; or, as to any Borrower or the Administrative Agent, at
such other address as shall be designated by such party in a written notice to
the other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Company and the
Administrative Agent. All such notices and communications shall, when mailed,
telecopied or telegraphed, be effective when deposited in the mails, telecopied
or delivered to the telegraph company, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VIII
shall not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or any of the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
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(b) If any notice required under this Agreement is permitted to be
made, and is made, by telephone, actions taken or omitted to be taken in
reliance thereon by the Administrative Agent or any Lender shall be binding upon
the Borrower delivering such notice notwithstanding any inconsistency between
the notice provided by telephone and any subsequent writing in confirmation
thereof provided to the Administrative Agent or such Lender; provided that any
such action taken or omitted to be taken by the Administrative Agent or such
Lender shall have been in good faith and in accordance with the terms of this
Agreement.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any Note, (i) any notice to the Borrowers or to any one of them
required under this Agreement or any such Note that is delivered to the Company
shall constitute effective notice to the Borrowers or to any such Borrower,
including the Company and (ii) any Notice of Borrowing or any notice of
Conversion delivered pursuant to Section 2.09 may be delivered by any Borrower
or by the Company, on behalf of any other Borrower. Each Initial Borrower (other
than the Company) and each Designated Subsidiary hereby irrevocably appoints the
Company as its authorized agent to receive and deliver notices in accordance
with this Section 9.02, and hereby irrevocably agrees that (A) in the case of
clause (i) of the immediately preceding sentence, the failure of the Company to
give any notice referred to therein to any such Initial Borrower or any such
Designated Subsidiary, as the case may be, to which such notice applies shall
not impair or affect the validity of such notice with respect thereto and (B) in
the case of clause (ii) of the immediately preceding sentence, the delivery of
any such notice by the Company, on behalf of any other Borrower, shall be
binding on such other Borrower to the same extent as if such notice had been
executed and delivered directly by such Borrower.
(d) So long as Citibank or any of its Affiliates is the Administrative
Agent, materials required to be delivered pursuant to Section 5.01(j)(i), (ii)
and (vi) shall be delivered to the Administrative Agent in an electronic medium
in a format acceptable to the Administrative Agent and the Lenders by e-mail at
oploanswebadmin@citigroup.com. The Company agrees that the Administrative Agent
may make such materials (collectively, the "Communications") available to the
Lenders by posting such notices on Intralinks or a substantially similar
electronic system (the "Platform"). The Company acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided "as is" and "as available" and (iii)
neither the Administrative Agent nor any of its Affiliates warrants the
accuracy, adequacy or completeness of the Communications or the Platform and
each expressly disclaims liability for errors or omissions in the Communications
or the Platform. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from
viruses or other code defects, is made by the Administrative Agent or any of its
Affiliates in connection with the Platform.
(c) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted to
the Platform shall constitute effective delivery of such information, documents
or other materials to such Lender for purposes of this Agreement; provided that
if requested by any Lender the Administrative Agent shall deliver a copy of the
Communications to such Lender by email or telecopier. Each Lender agrees (i) to
notify the Administrative Agent in writing of such Lender's e-mail address to
which
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a Notice may be sent by electronic transmission (including by electronic
communication) on or before the date such Lender becomes a party to this
Agreement (and from time to time thereafter to ensure that the Administrative
Agent has on record an effective e-mail address for such Lender) and (ii) that
any Notice may be sent to such e-mail address.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof or consent
thereto; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by applicable law.
SECTION 9.04. Costs and Expenses. (a) Each of the Borrowers jointly
and severally agrees to pay, or to reimburse the Administrative Agent from time
to time upon demand for, all reasonable costs and expenses of the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (A) all syndication
(including printing and distribution) costs and expenses and, with the approval
of the Company, consultant costs and expenses and (B) the reasonable fees and
expenses of counsel for the Administrative Agent with respect thereto and with
respect to advising the Administrative Agent as to its rights and
responsibilities under this Agreement, the Notes and the other documents to be
delivered hereunder. Each of the Borrowers jointly and severally further agrees
to pay, or to reimburse the Administrative Agent and the Lenders from time to
time upon demand for, all reasonable costs and expenses of the Administrative
Agent and the Lenders, if any (including, without limitation, reasonable counsel
fees and expenses, but without duplication for any costs and expenses for which
the Borrowers are otherwise obligated to indemnify the Administrative Agent and
the Lenders under Section 9.04(b)), in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of this Agreement, the
Notes and the other documents to be delivered hereunder, including, without
limitation, reasonable fees and expenses of counsel for the Administrative Agent
and each Lender.
(b) Each of the Borrowers jointly and severally agrees to indemnify
and hold harmless the Administrative Agent and each Lender and each of their
Affiliates and their officers, directors, employees, agents and advisors (each,
an "Indemnified Party") from and against, and to reimburse each Indemnified
Party from time to time upon demand for, any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Revolving Credit Advances or the Discounted Notes or (ii) the actual or alleged
presence of Hazardous Materials on any property of any Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to any Borrower or
any of its Subsidiaries, in each case whether or not such investigation,
litigation or proceeding is brought by any Borrower, its directors, shareholders
or creditors or any Indemnified Party or any other Person or an Indemnified
Party is otherwise a party thereto and
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whether or not the transactions contemplated hereby are consummated, except (A)
to the extent such claim, damage, loss, liability or expense is found by a court
of competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct or (B) those resulting solely from claims of a
Lender solely against one or more other Lenders (and not from claims of one or
more Lenders against the Administrative Agent) not attributable to the actions
of any Borrower or any of its Subsidiaries or other Affiliates and for which
none of the Borrowers, any of their Subsidiaries or any of their other
Affiliates otherwise has liability. Each Borrower also agrees not to assert any
claim against the Administrative Agent, any Lender or any of their Affiliates,
or any of their respective officers, directors, employees, attorneys, agents and
advisors, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to this Agreement, any
Note, any of the transactions contemplated hereby or the actual or proposed use
of the proceeds of the Revolving Credit Advances, the Letters of Credit or the
Discounted Notes. No Indemnified Party shall settle or otherwise pay or agree to
pay any claim for which the Borrowers are obligated to provide indemnification
under this Section 9.04(b) without the prior written consent of the Company,
which consent shall not be unreasonably withheld.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance, or any repurchase of any Discounted Note, is made by any Borrower
to or for the account of a Lender other than on the last day of the Interest
Period for such Eurodollar Rate Advance or the Maturity Date of such Discounted
Note, as the case may be, as a result of a payment or Conversion pursuant to
Section 2.09, 2.10 or 2.12, acceleration of the maturity of the Notes pursuant
to Section 6.01 or by an Eligible Assignee to any Lender other than on the last
day of the Interest Period or on the Maturity Date therefor, as the case may be,
upon an assignment of the rights and obligations of such Lender under this
Agreement pursuant to Section 9.07 as a result of a demand by the Company
pursuant to Section 9.07(a), or for any other reason, the Borrowers jointly and
severally agree to pay, upon demand by such Lender (with a copy of such demand
to the Administrative Agent), to the Administrative Agent for the account of
such Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses that it may reasonably incur as a result of such
payment or Conversion, including, without limitation, any loss (excluding loss
of anticipated profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to fund or
maintain such Eurodollar Rate Advance or such Discounted Note.
(d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in Sections 2.11, 2.14 and 9.04 shall survive the payment in full of principal,
Face Amount, interest and all other amounts payable hereunder and under the
Notes.
SECTION 9.05. Right of Setoff. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and any and all other
indebtedness at any time owing by such Lender or such Affiliate to or for the
credit or the account of any Borrower against any and all of the
74
obligations of such Borrower now or hereafter existing under this Agreement and
the Note or Notes held by such Lender, whether or not such Lender shall have
made any demand under this Agreement or any such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify each
Borrower after any such setoff and application; provided that the failure to
give such notice shall not affect the validity of such setoff and application.
The rights of each Lender and its Affiliates under this Section 9.05 are in
addition to any other rights and remedies (including, without limitation, other
rights of setoff) that such Lender and its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
(other than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by each Initial Borrower and the Administrative Agent and when the
Administrative Agent shall have been notified by each Initial Lender that such
Initial Lender has executed it and, thereafter, shall be binding upon and inure
to the benefit of each Borrower, the Administrative Agent and each Lender and
their respective successors and assigns, except that no Borrower shall have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender may,
and, if demanded by the Company (following (i) a demand by such Lender for the
payment of, or the incurrence by a Borrower of any obligation to pay, additional
compensation pursuant to Section 2.07(c), 2.11 or 2.14 or (ii) an assertion by
such Lender pursuant to Section 2.12 that it is impracticable or unlawful for
such Lender to make Eurodollar Rate Advances or to purchase Discounted Notes),
upon at least 30 Business Days' notice to such Lender and the Administrative
Agent, each Lender will, assign to one or more Persons all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Revolving Credit Commitment, its unused Letter of Credit
Commitment, the Revolving Credit Advances owing to it, its participations in
Letters of Credit, the Discounted Notes purchased by it and any Revolving Credit
Note or Notes held by it); provided, however, that:
(A) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement;
(B) except in the case of an assignment to a Person that, immediately
prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, (x) the amount of the
Revolving Credit Commitment of the assigning Lender being assigned pursuant
to each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall be $10,000,000 or an
integral multiple of $1,000,000 in excess thereof and (y) the undrawn
Letter of Credit Commitment of the assigning Lender being assigned pursuant
to each such assignment (determined as of the date of the applicable
Assignment and Acceptance with respect to such assignment) shall in no
event be less than $1,000,000, unless, in each case, the Company and the
Administrative Agent otherwise agree;
(C) each such assignment shall be to an Eligible Assignee;
75
(D) each such assignment made as a result of a demand by the Company
pursuant to this Section 9.07(a) shall be arranged by the Company with the
approval of the Administrative Agent, which approval shall not be
unreasonably withheld or delayed, and shall be either an assignment of all
of the rights and obligations of the assigning Lender under this Agreement
or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that,
in the aggregate, cover all of the rights and obligations of the assigning
Lender under this Agreement;
(E) no Lender shall be obligated to make any assignment as a result of
a demand by the Company pursuant to this Section 9.07(a) unless and until
such Lender shall have received one or more payments from (1) one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of all Revolving Credit Advances owing to, and
the aggregate Accreted Value to the date of such assignment of all
outstanding Discounted Notes purchased by, such Lender, together with
accrued interest on such Advances to the date of payment of such principal
amount, and (2) the Company and/or one or more Eligible Assignees in an
aggregate amount equal to all other amounts payable to such Lender under
this Agreement and the Notes (including, without limitation, any amounts
owing under Sections 2.07(c), 2.11 and 2.14); and
(F) the parties to each such assignment shall execute and deliver to
the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with any Revolving Credit Note
subject to such assignment, and each Eligible Assignee party to such
assignment shall pay a processing and recordation fee of $3,500;
provided further, however, that no Person to which an assignment is being made
in accordance with this Section 9.07(a) shall be entitled to any additional
compensation under Sections 2.11, 2.12 and 2.14 in excess of the aggregate
amounts payable under such Sections to the Lender making such assignment prior
to the effective date of such Assignment and Acceptance, unless such additional
compensation is payable to such Person as a result of the adoption or enactment
of, or changes in or in the applicability, the interpretation or the
implementation of, any law, rule, regulation, directive, guideline or request
after such effective date. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (1) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (2) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto) provided that such assigning Lender's rights under Sections 2.11, 2.14
and 9.04, and its obligations under Section 8.05, shall survive the effective
date of such Assignment and Acceptance for such Lender as to matters occurring
prior to such effective date.
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(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any Note, or any other instrument or document
furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any
Borrower or the performance or observance by any Borrower of any of its
obligations under this Agreement or any Note, or any other instrument or
document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred to in
Section 4.01(e) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Administrative
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Company. Within ten Business Days
after receipt of such notice by the Company, each Borrower shall, at its own
expense, execute and deliver to the Administrative Agent in exchange for the
surrendered Revolving Credit Note a new Revolving Credit Note from such Borrower
to the order of such Eligible Assignee in an amount equal to the Revolving
Credit Commitment assumed by it pursuant to such Assignment and Acceptance and,
if the assigning Lender has retained a
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Revolving Credit Commitment hereunder, a new Revolving Credit Note to the order
of the assigning Lender in an amount equal to the Revolving Credit Commitment
retained by it hereunder. Such new Revolving Credit Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Revolving Credit Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A-1 hereto. Upon the Administrative Agent's receipt of notice from
the assigning Lender that such assigning Lender is satisfied with the form and
substance of such new Revolving Credit Notes, the Administrative Agent shall, at
the expense of the Borrowers, cancel the surrendered Revolving Credit Notes of
such assigning Lender and deliver to the Company such cancelled Revolving Credit
Notes.
(d) The Administrative Agent shall maintain at its address referred to
in Section 9.02(a) a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment(s) of, and the principal amount of the Revolving
Credit Advances owing to, and the Face Amount of the Discounted Notes purchased
by, each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by any Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than any Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Revolving Credit Commitment, the Revolving
Credit Advances owing to it, the Discounted Notes purchased by it and the other
Note or Notes held by it); provided, however, that:
(i) such Lender's obligations under this Agreement (including, without
limitation, its Revolving Credit Commitment hereunder) shall remain
unchanged;
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations;
(iii) such Lender shall remain the holder of any such Notes for all
purposes of this Agreement;
(iv) the Borrowers, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement; and
(v) no participant under any such participation shall have any right
to approve any amendment or waiver of any provision of this Agreement or
any Note, or any consent to any departure by any Borrower therefrom, except
to the extent that such amendment, waiver or consent would reduce the
principal of, or interest on, the Revolving Credit Advances, the Face
Amount of, or Discount on, the Discounted Notes, or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation,
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or postpone any date fixed for any payment of principal of, or interest on,
the Revolving Credit Advances, any Face Amount of the Discounted Notes, or
any fees or other amounts payable hereunder, in each case to the extent
subject to such participation, except pursuant to Section 2.17;
and provided further that the Borrowers shall not be required to pay any
additional amounts under this Agreement to compensate a participant (or such
Lender, on behalf of a participant) in respect of the rights and obligations of
such participant relating to this Agreement in excess of what the Borrowers
would otherwise be required to pay to such Lender if the participation had not
been sold.
(f) Each Lender may grant to a special purpose funding vehicle (an
"SPC") that is an Affiliate of such Lender the option to fund all or any part of
any Advance or purchase of a Discounted Note that such Lender is obligated to
fund or purchase under this Agreement (and upon the exercise by such SPC of such
option to fund or purchase, such Lender's obligations with respect to such
Advance or Discounted Note shall be deemed satisfied to the extent of any
amounts funded by such SPC); provided, however, that:
(i) such Lender's obligations under this Agreement (including, without
limitation, its Revolving Credit Commitment to the Borrowers hereunder)
shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations,
(iii) the Borrowers, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement,
(iv) any such option granted to an SPC shall not constitute a
commitment by such SPC to fund any Advance,
(v) neither the grant to nor the exercise of such option by an SPC
shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrowers under this Agreement (including, without
limitation, its obligations under Sections 2.11, 2.12 and 2.14),
(vi) the SPC shall be bound by the provisions of Section 9.09 and
(vii) no SPC shall have any right under such grant to approve any
amendment or waiver of any provision of this Agreement or any Note, nor any
consent to any departure by the Borrower therefrom, except to the extent
that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such grant of funding option, or
postpone any date fixed for any payment of principal of, or interest on,
the Revolving Credit Advances, the Face Amount of, or Discount on, the
Discounted Notes, or any fees or other amounts payable hereunder, in each
case to the extent subject to such grant of funding option.
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Each party to this Agreement hereby agrees that no SPC shall be liable for any
indemnity or payment under this Agreement for which a Lender would otherwise be
liable. Subject to the foregoing provisions of this clause (f), an SPC shall
have all the rights of the granting Lender. An SPC may assign or participate all
or a portion of its interest in any Advances to the granting Lender or to any
financial institution providing liquidity or credit support to or for the
account of such SPC without paying any processing fee therefor and, in
connection therewith may disclose on a confidential basis any information
relating to the Borrowers to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancements to such
SPC. In furtherance of the foregoing, each party hereto agrees (which agreements
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or
join any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof.
(g) Any Lender may, in connection with any assignment, participation
or grant of a funding option or proposed assignment, participation or grant of a
funding option pursuant to this Section 9.07, disclose to the assignee,
participant or SPC or proposed assignee, participant or SPC, any information
relating to any Borrower or any of its Subsidiaries furnished to such Lender by
or on behalf of any Borrower; provided that, prior to any such disclosure, the
assignee, participant or SPC or proposed assignee, participant or SPC shall
agree to preserve the confidentiality of any Confidential Information received
by it from such Lender in accordance with the terms of Section 9.09.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Revolving
Credit Advances owing to it, the Discounted Notes purchased by it and the other
Note or Notes held by it) in favor of any Federal Reserve Bank in accordance
with Regulation A of the Board of Governors of the Federal Reserve System.
SECTION 9.08. Designated Subsidiaries. (a) Designation. The Company
may at any time and from time to time by delivery to the Administrative Agent of
a Designation Letter, duly executed by the Company and a Substantially Owned
Subsidiary and in substantially the form of Exhibit F hereto, designate such
Subsidiary as a "Designated Subsidiary" for all purposes of this Agreement, and,
upon fulfillment of the applicable conditions set forth in Article III and after
such Designation Letter is accepted by the Administrative Agent, such Subsidiary
shall thereupon become a Designated Subsidiary for all purposes of this
Agreement and, as such, shall have all of the rights and obligations of a
Borrower hereunder. The Administrative Agent shall promptly notify each Lender
of each such designation by the Company and the identity of each such Designated
Subsidiary.
(b) Termination. Upon the payment and performance in full of all of
the indebtedness, liabilities and obligations of any Designated Subsidiary or
any Initial Borrower (other than the Company) under this Agreement and the Notes
issued by it, then, so long as at such time such Designated Subsidiary or such
Initial Borrower, as the case may be, has not submitted a Notice of Revolving
Credit Borrowing, such Designated Subsidiary's or such Initial
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Borrower's status as a Borrower and, if applicable, as a Designated Subsidiary
shall terminate upon notice to such effect from the Administrative Agent to the
Lenders (which notice the Administrative Agent shall promptly deliver to the
Lenders following its receipt of such a request from the Company), provided that
the termination of the status of Borrower of any Designated Subsidiary shall not
terminate any obligations of the Company under Article VII with respect to such
Designated Subsidiary. Thereafter, the Lenders shall be under no further
obligation to make any Revolving Credit Advances to, or to purchase any
Discounted Notes from, such Designated Subsidiary or such Initial Borrower, as
the case may be.
SECTION 9.09. Confidentiality. Neither the Administrative Agent nor
any Lender or SPC shall disclose any Confidential Information to any Person,
without the prior written consent of the Company, other than (a) to the
Administrative Agent's or such Lender's Affiliates and their officers,
directors, employees, agents and advisors and, as contemplated by Section
9.07(f), to actual or prospective assignees and participants, and, in each such
case, then only on a confidential basis, (b) as required by any law, rule or
regulation or by judicial process, (c) to any rating agency when required by it
to do so; provided that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Confidential Information
relating to any Borrower received by it from such Lender, (d) as requested or
required by any state, federal or foreign authority or examiner regulating banks
or banking, (e) to protect, preserve, exercise or enforce the Administrative
Agent's or such Lender's rights under or pursuant to this Agreement or any Note
and (f) to perform any of the Administrative Agent's or such Lender's
obligations under or pursuant to this Agreement or any Note.
SECTION 9.10. Governing Law. This Agreement and each of the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 9.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York state court or federal court of the
United States of America sitting in New York City, New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or the Notes, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such New York state court or, to the extent permitted by
applicable law, in such federal court. Each Borrower hereby further irrevocably
consents to the service of process in any action or proceeding in such courts by
the mailing thereof by any parties hereto by registered or certified mail,
postage prepaid, to such Borrower at its address specified pursuant to Section
9.02. Each Initial Borrower (other than the Company) and each Designated
Subsidiary hereby further agrees that service of process in any such action or
proceeding brought in any such New York state court or in any such federal court
may be made upon the Company at its
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address referred to in Section 9.02, and each Initial Borrower (other than the
Company) and each Designated Subsidiary hereby irrevocably appoints the Company
as its authorized agent to accept such service of process, and hereby
irrevocably agrees that the failure of the Company to give any notice of any
such service to such Initial Borrower or such Designated Subsidiary, as the case
may be, shall not impair or affect the validity of such service or of any
judgment rendered in any action or proceeding based thereon. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by applicable law. Nothing in this Agreement shall
affect any right that any party may otherwise have to serve legal process in any
other manner permitted by applicable law or to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York state or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by applicable law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) To the extent that any Borrower has or hereafter may acquire any
immunity from the jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, such
Borrower hereby irrevocably waives such immunity in respect of its obligations
under this Agreement and the Notes.
SECTION 9.13. No Liability of the Issuing Banks. The Borrowers assume
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit. Neither an
Issuing Bank nor any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
applicable Borrower shall have a claim against such Issuing Bank, and such
Issuing Bank shall be liable to such Borrower, to the extent of any direct, but
not consequential damages suffered by such Borrower that such Borrower proves
were caused by (i) such Issuing Bank's willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit comply with
the terms of the Letter of Credit or (ii) such Issuing Bank's willful failure to
make lawful payment under a Letter of Credit after the presentation to it of a
draft and certificates strictly complying with the terms and conditions of the
Letter of Credit. In furtherance and not in limitation of the foregoing, such
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation.
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SECTION 9.14. 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, guarantor
or grantor (the "Loan Parties"), which information includes the name and address
of each Loan Party and other information that will allow such Lender to identify
such Loan Party in accordance with the Act.
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SECTION 9.15. Waiver of Jury Trial. Each of the Borrowers, the
Administrative Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Administrative Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE BLACK & DECKER CORPORATION
By: /s/ MARK M. ROTHLEITNER
-----------------------------------------
Name: Mark M. Rothleitner
Title: Vice President-Investor Relations
and Treasurer
Address: 701 East Joppa Road
Towson, Maryland 21286
Attention: Treasurer
Telephone: (410) 716-3076
Telecopier: (410) 716-3778
With a copy to:
701 East Joppa Road
Towson, Maryland 21286
Attention: General Counsel
Telephone: (410) 716-3918
Telecopier: (410) 716-2660
BLACK & DECKER HOLDINGS INC.
By: /s/ MARK M. ROTHLEITNER
------------------------------------
Name: Mark M. Rothleitner
Title: Vice Chairman
Address: 210 Bath Road
Slough, Berkshire
SL1 3YD England
Telephone: 01-753-511234
Telecopier: 01-753-551155
With a copy to the Company
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