FIVE YEAR CREDIT AGREEMENT
Dated as of May 9, 2005
DENTSPLY INTERNATIONAL INC., a Delaware corporation (the
"Company"), the banks, financial institutions and other institutional
lenders (the "Initial Lenders") and issuers of letters of credit ("Initial
Issuing Banks") listed on Schedule I hereto, JPMORGAN CHASE BANK, N.A., as
syndication agent, HARRIS TRUST AND SAVINGS BANK, MANUFACTURERS AND TRADERS
TRUST COMPANY and WACHOVIA BANK, NATIONAL ASSOCIATION, as co-documentation
agents, CITIGROUP GLOBAL MARKETS INC. and J.P. MORGAN SECURITIES INC., as joint
lead arrangers and joint bookrunners, and CITIBANK, N.A. ("Citibank"), as agent
(the "Agent") for the Lenders(as hereinafter defined), agree as follows:
ARTICLE I
FINITIONS 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):
"Advance" means an advance by a Lender to any Borrower as part
of a Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate
Advance (each of which shall be a "Type" of Advance).
"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
vote 5% or more of the Voting Stock of such Person or 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.
"Agent's Account" means (a) in the case of Advances
denominated in Dollars, the account of the Agent maintained by the
Agent at Citibank at its office at Two Penns Way, New Castle, Delaware
19720, Account No. 36852248, Attention: Bank Loan Syndications, (b) in
the case of Advances denominated in any Committed Currency, the account
of the Sub-Agent designated in writing from time to time by the Agent
to the Company and the Lenders for such purpose and (c) in any such
case, such other account of the Agent as is designated in writing from
time to time by the Agent to the Company and the Lenders for such
purpose.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurocurrency Lending Office in the case
of a Eurocurrency Rate Advance.
"Applicable Margin" means as of any date (a) for Base Rate
Advances, 0.00% per annum, and (b) for Eurocurrency Rate Advances, a
percentage per annum determined by reference to the Public Debt Rating
in effect on such date as set forth below:
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Public Debt Rating Applicable Margin for
S&P/Moody's Eurocurrency Rate Advances
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Level 1
A or A2 or above 0.230%
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Level 2
A- or A3 0.270%
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Level 3
BBB+ or Baa1 0.350%
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Level 4
BBB or Baa2 0.450%
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Level 5
BBB- or Baa3 0.600%
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Level 6
Lower than Level 5 1.050%
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"Applicable Percentage" means, as of any date a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
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Public Debt Rating Applicable
S&P/Moody's Percentage
- -------------------------------- -----------------------------
- -------------------------------- -----------------------------
Level 1
A or A2 or above 0.070%
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- -------------------------------- -----------------------------
Level 2
A- or A3 0.080%
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- -------------------------------- -----------------------------
Level 3
BBB+ or Baa1 0.100%
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- -------------------------------- -----------------------------
Level 4
BBB or Baa2 0.125%
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- -------------------------------- -----------------------------
Level 5
BBB- or Baa3 0.150%
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- -------------------------------- -----------------------------
Level 6
Lower than Level 5 0.200%
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"Applicable Utilization Fee" means, as of any date that the
aggregate principal amount of the Advances plus the aggregate Available
Amount of the Letters of Credit outstanding exceed 50% of the aggregate
Revolving Credit Commitments, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth
below:
- -------------------------------- -----------------------------
Public Debt Rating Applicable
S&P/Moody's Utilization Fee
- -------------------------------- -----------------------------
- -------------------------------- -----------------------------
Level 1
A or A2 or above 0.100%
- -------------------------------- -----------------------------
- -------------------------------- -----------------------------
Level 2
A- or A3 0.100%
- -------------------------------- -----------------------------
- -------------------------------- -----------------------------
Level 3
BBB+ or Baa1 0.100%
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- -------------------------------- -----------------------------
Level 4
BBB or Baa2 0.100%
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- -------------------------------- -----------------------------
Level 5
BBB- or Baa3 0.100%
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- -------------------------------- -----------------------------
Level 6
Lower than Level 5 0.100%
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"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.18(d).
"Assumption Agreement" has the meaning specified in Section
2.18(d)(ii).
"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).
"Bankruptcy Law" means any proceeding of the type referred to
in Section 6.01(e) or Title 11, U.S. Code, or any similar foreign,
federal or state law for the relief of debtors.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means an Advance denominated in Dollars
that bears interest as provided in Section 2.07(a)(i).
"Borrowers" means, collectively, the Company and the
Designated Subsidiaries from time to time.
"Borrowing" means a borrowing consisting of simultaneous
Advances of the same Type made by each of the Lenders.
"Borrowing Minimum" means, in respect of Advances denominated
in Dollars, $5,000,000, in respect of Advances denominated in Euros,
Euro 5,000,000, in respect of Advances denominated in Swiss Francs,
CHF5,000,000, in respect of Advances denominated in Yen, JPY
500,000,000 and, in respect of Advances denominated in any other
Committed Currency, such amount as the Agent may designate to the
Company, which shall be a whole multiple of 5,000,000 units of such
currency.
"Borrowing Multiple" means, in respect of Advances denominated
in Dollars, $1,000,000, in respect of Advances denominated in Euros,
Euro 1,000,000, in respect of Advances denominated in Swiss Francs,
CHF1,000,000, in respect of Advances denominated in Yen, JPY
100,000,000 and, in respect of Advances denominated in any other
Committed Currency, such amount as the Agent may designate to the
Company, which shall be a whole multiple of 1,000,000 units of such
currency.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advances, on
which dealings are carried on in the London interbank market and banks
are open for business in London and in the country of issue of the
currency of such Eurocurrency Rate Advance (or, in the case of an
Advance denominated in Euro, on which the Trans-European Automated
Real-Time Gross Settlement Express Transfer (TARGET) System is open).
"Commitment" means a Revolving Credit Commitment or a Letter of Credit
Commitment.
"Commitment Date" has the meaning specified in Section
2.18(b).
"Commitment Increase" has the meaning specified in Section
2.18(a).
"Committed Currencies" means Euros, lawful currency of The
Swiss Federation, lawful currency of Japan and any other actively
traded currency that is freely convertible and transferable into
Dollars and available from all Lenders.
"Company Information" has the meaning specified in Section
9.08.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of such Person's business), (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 acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital 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, (h) all Debt
of others referred to in clauses (a) through (g) above or clause (i)
below and other payment obligations (collectively, "Guaranteed Debt")
guaranteed directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person through an
agreement (1) to pay or purchase such Guaranteed Debt or to advance or
supply funds for the payment or purchase of such Guaranteed Debt, (2)
to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Guaranteed Debt or to assure the holder
of such Guaranteed Debt against loss, (3) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received
or such services are rendered) or (4) otherwise to assure a creditor
against loss, and (i) all Debt referred to in clauses (a) through (h)
above (including Guaranteed Debt) secured by (or for which the holder
of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (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 Debt.
"Debt for Borrowed Money" of any Person means all items that,
in accordance with GAAP, would be classified as indebtedness on a
Consolidated balance sheet of such Person, provided that Debt for
Borrowed Money of the Company and its Subsidiaries shall not include
Debt incurred in connection with the Consignment Agreements relating to
the consignment of precious metals between the Company and certain
counterparties.
"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.
"Designated Subsidiary" means any direct or indirect
wholly-owned Subsidiary of the Company designated for borrowing
privileges under this Agreement pursuant to Section 9.09.
"Designation Agreement" means, with respect to any Designated
Subsidiary, an agreement in the form of Exhibit E hereto signed by such
Designated Subsidiary and the Company.
"Dollars" and the "$" sign each means lawful currency of the
United States of America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and Acceptance pursuant to which it became a Lender,
or such other office of such Lender as such Lender may from time to
time specify to the Company and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus
the sum of (a) interest expense, (b) income tax expense, (c)
depreciation expense and (d) amortization expense, in each case
determined in accordance with GAAP for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent, each Issuing
Bank and, unless an Event of Default has occurred and is continuing at
the time any assignment is effected in accordance with Section 9.07,
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 action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any 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 or agency interpretation, policy or guidance
relating to pollution or 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 Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"Equivalent" in Dollars of any Committed Currency on any date
means the equivalent in Dollars of such Committed Currency determined
by using the quoted spot rate at which the Sub-Agent's principal office
in London offers to exchange Dollars for such Committed Currency in
London prior to 4:00 P.M. (London time) (unless otherwise indicated by
the terms of this Agreement) on such date as is required pursuant to
the terms of this Agreement, and the "Equivalent" in any Committed
Currency of Dollars means the equivalent in such Committed Currency of
Dollars determined by using the quoted spot rate at which the
Sub-Agent's principal office in London offers to exchange such
Committed Currency for Dollars in London prior to 4:00 P.M. (London
time) (unless otherwise indicated by the terms of this Agreement) on
such date as is required pursuant to the terms of this Agreement.
"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.
"EURIBO Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Borrowing, the
rate appearing on Page 248 of the Moneyline Telerate Service (or on any
successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to
those currently provided on such page of such Service, as determined by
the Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in Euro by reference to the
Banking Federation of the European Union Settlement Rates for deposits
in Euro) at approximately 10:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, as the rate for
deposits in Euro with a maturity comparable to such Interest Period or,
if for any reason such rate is not available, the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the respective rates per annum at
which deposits in Euros are offered by the principal office of each of
the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount substantially equal
to such Reference Bank's Eurocurrency Rate Advance comprising part of
such Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period (subject, however, to the
provisions of Section 2.08).
"Euro" means the lawful currency of the European Union as
constituted by the Treaty of Rome which established the European
Community, as such treaty may be amended from time to time and as
referred to in the EMU legislation.
"Eurocurrency Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Eurocurrency
Lending Office" opposite its name on Schedule I hereto or in the
Assumption Agreement or the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may
from time to time specify to the Company and the Agent.
"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.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a)(i) in the case of any Advance denominated in Dollars or
any Committed Currency other than Euro, the rate per annum (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum) appearing
on Moneyline Telerate Markets Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars or the applicable
Committed Currency at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period or, if for any reason such rate is
not available, the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in Dollars or the
applicable Committed Currency is offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurocurrency Rate Advance comprising
part of such Borrowing to be outstanding during such Interest Period
and for a period equal to such Interest Period or, (ii) in the case of
any Advance denominated in Euros, the EURIBO Rate by (b) a percentage
equal to 100% minus the Eurocurrency Rate Reserve Percentage for such
Interest Period. If the Moneyline Telerate Markets Page 3750 (or any
successor page) is unavailable, the Eurocurrency Rate for any Interest
Period for each Eurocurrency Rate Advance comprising part of the same
Borrowing shall be determined by the Agent on the basis of applicable
rates furnished to and received by the 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.
"Eurocurrency Rate Advance" means an Advance denominated in
Dollars or a Committed Currency that bears interest as provided in
Section 2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period
for all Eurocurrency Rate Advances comprising part of the same
Borrowing means 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) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal
Reserve System in New York City 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 Eurocurrency Rate Advances is determined)
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"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 next 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 Agent from three Federal funds brokers of
recognized standing selected by it.
"GAAP" has the meaning specified in Section 1.03.
"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.
"Increase Date" has the meaning specified in Section 2.18(a).
"Increasing Lender" has the meaning specified in Section
2.18(b).
"Information Memorandum" means the information memorandum
dated April 13, 2005 used by the Agent in connection with the
syndication of the Commitments.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurocurrency Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurocurrency Rate Advance and ending on
the last day of the period selected by the Borrower requesting such
Borrowing pursuant to the provisions below and, thereafter, 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 applicable Borrower may, upon notice received by the
Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(a) the Borrowers may not select any Interest Period
that ends after the Termination Date;
(b) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same
Borrowing shall be of the same duration;
(c) in the case of any such Borrowing, the Borrowers
shall not be entitled to select an Interest Period having
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 Agent
that such Lender will be providing funding for such 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
Borrowing shall be one, two, three or six months, as specified
by the Borrower requesting such Borrowing in the applicable
Notice of Borrowing as the desired alternative to an Interest
Period of nine or twelve months;
(d) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next 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
rulings issued thereunder.
"issuance" with respect to any Letter of Credit means the
issuance, amendment, renewal or extension of such Letter of Credit.
"Issuing Bank" means an Initial Issuing Bank or any Eligible
Assignee to which a portion of the Letter of Credit Commitment
hereunder has been assigned pursuant to Section 9.07 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
Agent of its Applicable Lending Office (which information shall be
recorded by the Agent in the Register), for so long as such Initial
Issuing Bank or Eligible Assignee, as the case may be, shall have a
Letter of Credit Commitment.
"L/C Cash Deposit Account" means an interest bearing cash
deposit account to be established and maintained by the Agent, over
which the Agent shall have sole dominion and control, upon terms as may
be satisfactory to the Agent.
"L/C Related Documents" has the meaning specified in Section
2.06(b)(i).
"Lenders" means each Initial Lender, each Issuing Bank, each
Assuming Lender that shall become a party hereto pursuant to Section
2.18 and each Person that shall become a party hereto pursuant to
Section 9.07.
"Letter of Credit" has the meaning specified in Section
2.01(b).
"Letter of Credit Agreement" has the meaning specified in
Section 2.03(a).
"Letter of Credit Commitment" means, with respect to each
Issuing Bank, the obligation of such Issuing Bank to issue Letters of
Credit for the account of the Borrowers and their specified
Subsidiaries in (a) the Dollar amount set forth opposite the Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
Commitment" or (b) if such Issuing Bank has entered into one or more
Assignment and Acceptances, the Dollar amount set forth for such
Issuing Bank in the Register maintained by the Agent pursuant to
Section 9.07(d) as such Issuing Bank's "Letter of Credit Commitment",
in each case as such amount may be reduced prior to such time pursuant
to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount
equal to the least of (a) the aggregate amount of the Issuing Banks'
Letter of Credit Commitments at such time, (b) $50,000,000 and (c) the
aggregate amount of the Revolving Credit Commitments, as such amount
may be reduced at or prior to such time pursuant to Section 2.05.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
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.
"Material Adverse Change" means any material adverse change in
the business, financial condition or operations of the Company or the
Company and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, financial condition or operations of the Company or
the Company and its Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or any Lender under this Agreement or any Note or
(c) the ability of any Borrower to perform its obligations under this
Agreement or any Note.
"Moody's" means Moody's Investors Service, Inc.
"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.
"Note" means a promissory note of a Borrower payable to the
order of any Lender, delivered pursuant to a request made under Section
2.16 in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of such Borrower to such Lender resulting from
the Advances made by such Lender.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Issuance" has the meaning specified in Section
2.03(a).
"OFAC" means the U.S. Department of the Treasury's Office of
Foreign Assets Control.
"Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26,
2001.
"Payment Office" means, for any Committed Currency, such
office of Citibank as shall be from time to time selected by the Agent
and notified by the Agent to the Company and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (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 that are not overdue for a period of more than 30
days; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; and (d) easements, rights of way and other
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect
the use of such property for its present purposes.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
- ----
"Post-Petition Interest" has the meaning specified in Section
7.05.
"Public Debt Rating" means, as of any date, 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
debt issued by the Company or, if any such rating agency shall have
issued more than one such rating, the lowest such rating issued by such
rating agency. 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
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 will be set in accordance with Level 6 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 levels, the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be based upon the higher rating unless the such
ratings differ by two or more levels, in which case the applicable
level will be deemed to be one level above the lower of such levels;
(d) if any rating established by S&P or Moody's shall be changed, such
change shall be effective as of the date on which such change is first
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,
each reference to the Public Debt Rating announced by S&P or Moody's,
as the case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be.
"Ratable Share" of any amount means, with respect to any
Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Revolving Credit
Commitment at such time (or, if the Revolving Credit Commitments shall
have been terminated pursuant to Section 2.05 or 6.01, such Lender's
Revolving Credit Commitment as in effect immediately prior to such
termination) and the denominator of which is the aggregate amount of
all Revolving Credit Commitments at such time (or, if the Revolving
Credit Commitments shall have been terminated pursuant to Section 2.05
or 6.01, the aggregate amount of all Revolving Credit Commitments as in
effect immediately prior to such termination).
"Reference Banks" means Citibank, JPMorgan Chase Bank, N.A., Bank of America,
N.A. and Wachovia Bank, National Association.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount
(based on the Equivalent in Dollars at such time) of the Advances owing
to Lenders, or, if no such principal amount is then outstanding,
Lenders having at least a majority in interest of the Commitments.
"Revolving Credit Commitment" means as to any Lender (a) the
Dollar amount set forth opposite such Lender's name on Schedule I
hereto as such Lender's "Revolving Credit Commitment", (b) if such
Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the Dollar amount set forth in such Assumption Agreement or
(c) if such Lender has entered into an Assignment and Acceptance, the
Dollar amount set forth for such Lender in the Register maintained by
the Agent pursuant to Section 9.07(d), as such amount may be reduced
pursuant to Section 2.05 or increased pursuant to Section 2.18.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"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.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"Sub-Agent" means Citibank International plc.
"Subordinated Obligations" has the meaning specified in
Section 7.05.
"Subsidiary" of any Person means 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 capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Termination Date" means the earlier of May 9, 2010 and the
date of termination in whole of the Commitments pursuant to Section
2.05 or 6.01.
"Unissued Letter of Credit Commitment" means, with respect to
any Issuing Bank, the obligation of such Issuing Bank to issue Letters
of Credit for the account of the Company or its specified Subsidiaries
in an amount equal to the excess of (a) the amount of its Letter of
Credit Commitment over (b) the aggregate Available Amount of all
Letters of Credit issued by such Issuing Bank.
"Unused Revolving Credit Commitment" means, with respect to
each Lender at any time, (a) such Lender's Revolving Credit Commitment
at such time minus (b) the sum of (i) the aggregate principal amount of
all Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time, plus (ii) such Lender's Ratable Share of (A)
the aggregate Available Amount of all the Letters of Credit outstanding
at such time and (B) the aggregate principal amount of all Advances
made by each Issuing Bank pursuant to Section 2.03(c) that have not
been ratably funded by such Lender and outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
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".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. The Advances and Letters of Credit. (a) The
Advances. Each Lender severally agrees, on the terms and conditions hereinafter
set forth, to make 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 (based in respect of any Advances to be denominated in a Committed
Currency by reference to the Equivalent thereof in Dollars determined on the
date of delivery of the applicable Notice of Borrowing) not to exceed such
Lender's Unused Revolving Credit Commitment. Each Borrowing shall be in an
amount not less than the Borrowing Minimum or the Borrowing Multiple in excess
thereof and shall consist of Advances of the same Type and in the same currency
made on the same day by the Lenders ratably according to their respective
Revolving Credit Commitments. Within the limits of each Lender's Revolving
Credit 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) Letters of Credit. Each Issuing Bank agrees, on the terms
and conditions hereinafter set forth, in reliance upon the agreements of the
other Lenders set forth in this Agreement, to issue letters of credit (each, a
"Letter of Credit") denominated in Dollars for the account of any Borrower and
its specified Subsidiaries 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. No Letter of Credit shall
have an expiration date (including all rights of the applicable Borrower or the
beneficiary to require renewal) later than 10 Business Days before the
Termination Date. Within the limits referred to above, the Borrowers may from
time to time request the issuance of Letters of Credit under this Section
2.01(b). Each letter of credit listed on Schedule 2.01(b) 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 than 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 Advances. (a) Except as otherwise
provided in Section 2.03(c), each Borrowing shall be made on notice, given not
later than (x) 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Borrowing in the case of a Borrowing consisting of
Eurocurrency Rate Advances denominated in Dollars, (y) 4:00 P.M. (London time)
on the third Business Day prior to the date of the proposed Borrowing in the
case of a Borrowing consisting of Eurocurrency Rate Advances denominated in any
Committed Currency, or (z) 11:00 A.M. (New York City time) on the date of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances,
by any Borrower to the Agent (and, in the case of a Borrowing consisting of
Eurocurrency Rate Advances, simultaneously to the Sub-Agent), which shall give
to each Lender prompt notice thereof by telecopier. Each such notice of a
Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed immediately
in writing, or telecopier in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Type of
Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing,
and (iv) in the case of a Borrowing consisting of Eurocurrency Rate Advances,
initial Interest Period and currency for each such Advance. Each Lender shall,
before 1:00 P.M. (New York City time) on the date of such Borrowing, in the case
of a Borrowing consisting of Advances denominated in Dollars, and before 2:00
P.M. (London time) on the date of such Borrowing, in the case of a Borrowing
consisting of Eurocurrency Rate Advances denominated in any Committed Currency,
make available for the account of its Applicable Lending Office to the Agent at
the applicable Agent's Account, in same day funds, such Lender's ratable portion
of such Borrowing. After the Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the Agent will make such
funds available to the Borrower requesting the Borrowing at the Agent's address
referred to in Section 9.02 or at the applicable Payment Office, as the case may
be.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrowers may not select Eurocurrency Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than the
Borrowing Minimum or if the obligation of the Lenders to make Eurocurrency Rate
Advances shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) the
Eurocurrency Rate Advances may not be outstanding as part of more than fifteen
separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower requesting the Borrowing. In the case of any Borrowing that the
related Notice of Borrowing specifies is to be comprised of Eurocurrency Rate
Advances, such Borrower 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 such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss (including 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 Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(d) Unless the Agent shall have received notice from an Lender
prior to the time of any Borrowing that such Lender will not make available to
the Agent such Lender's ratable portion of such Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date of
such Borrowing in accordance with subsection (a) of this Section 2.02, and the
Agent may, in reliance upon such assumption, make available to the Borrower
requesting the Borrowing on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available to
the Agent, such Lender and such Borrower severally agree to repay to the Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to such Borrower until
the date such amount is repaid to the Agent, at (i) in the case of such
Borrower, the higher of (A) the interest rate applicable at the time to the
Advances comprising such Borrowing and (B) the cost of funds incurred by the
Agent in respect of such amount and (ii) in the case of such Lender (A) the
Federal Funds Rate in the case of Advances denominated in Dollars or (B) the
cost of funds incurred by the Agent in respect of such amount in the case of
Advances denominated in Committed Currencies. If such Lender shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any 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 11:00 A.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
any Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent,
prompt notice thereof. Each such notice by a Borrower of Issuance of a Letter of
Credit (a "Notice of Issuance") shall be by telecopier or telephone, confirmed
immediately in writing, 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 (which shall not be later
than 10 Business Days before the Termination Date), (D) name and address of the
beneficiary of such Letter of Credit and (E) form of such Letter of Credit, such
Letter of Credit shall be issued pursuant to such application and agreement for
letter of credit as such Issuing Bank and the applicable Borrower shall agree
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 reasonable discretion (it being understood that any
such form shall have only explicit documentary conditions to draw and shall not
include discretionary conditions), such Issuing Bank will, if in its reasonable
discretion it elects to do so, and unless any Lender gives prior notice to such
Issuing Bank or the Agent that the applicable conditions of Article III would
not be satisfied at the time of such issuance, upon fulfillment of the
applicable conditions set forth in Section 3.03, 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 or decreasing 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 Ratable Share of the Available Amount of 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 Agent, for the account of such Issuing Bank, in same day
funds, such Lender's Ratable 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 such
Borrower for any reason, which amount will be advanced, and deemed to be a
Advance to such Borrower hereunder, regardless of the satisfaction of the
conditions set forth in Section 3.03. 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
Ratable Share of the Available Amount of such Letter of Credit at each time such
Lender's Revolving Credit Commitment is amended pursuant to 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 which is not reimbursed by the
applicable Borrower on the date made shall constitute for all purposes of this
Agreement the making by any such Issuing Bank of a Advance, which shall be a
Base Rate Advance, in the amount of such draft, without regard to whether the
making of such a Advance would exceed such Issuing Bank's Unused Revolving
Credit Commitment. Each Issuing Bank shall give prompt notice of each drawing
under any Letter of Credit issued by it to the applicable Borrower and the
Agent. Upon written demand by such Issuing Bank, with a copy of such demand to
the Agent and the applicable Borrower, each Lender shall pay to the Agent such
Lender's Ratable Share of such outstanding Advance pursuant to Section 2.03(b).
Each Lender acknowledges and agrees that its obligation to make Advances
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. Promptly after
receipt thereof, the Agent shall transfer such funds to such Issuing Bank. Each
Lender agrees to fund its Ratable Share of an outstanding 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 Advance available to
the Agent, such Lender agrees to pay to the 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 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 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 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
(A) to the Agent and each Lender (with a copy to the Company) on the first
Business Day of each month a written report summarizing Issuance and expiration
dates of Letters of Credit issued by such Issuing Bank during the preceding
month and drawings during such month under all Letters of Credit and (B) to the
Agent and each Lender (with a copy to the Company) 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 such Issuing Bank.
(e) Failure to Make Advances. The failure of any Lender to
make the 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 Advance on
such date, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on such date.
SECTION 2.04. Fees. (a) Facility Fee. The Company agrees to
pay to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment from the date hereof in the case of each
Initial Lender and from the effective date specified in the Assumption Agreement
or in the Assignment and Acceptance pursuant to which it became a Lender in the
case of each other Lender until 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 day of each March, June, September and December,
commencing June 30, 2005, and on the later of the Termination Date and the date
all Advances to each Lender are paid in full.
(b) Letter of Credit Fees. (i) Each Borrower shall pay to the
Agent for the account of each Lender a commission on such Lender's
Ratable Share of the average daily aggregate Available Amount of all
Letters of Credit issued for the account of such Borrower and
outstanding from time to time at a rate per annum equal to the sum of
(x) the Applicable Margin for Eurocurrency Rate Advances in effect from
time to time during such calendar quarter plus (y) the Applicable
Utilization Fee in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing with the quarter ended June 30, 2005, and on the later or
the Termination Date and the date that all Letters of Credit have been
fully drawn or terminated; provided that the Applicable Margin shall be
2% above the Applicable Margin in effect upon the occurrence and during
the continuation of an Event of Default if such Borrower is required to
pay default interest pursuant to Section 2.07(b).
(ii) Each Borrower shall pay to each Issuing Bank, for its own
account, a fronting fee and such other commissions, issuance fees,
transfer fees and other fees and charges in connection with the
Issuance or administration of each Letter of Credit as such Borrower
and such Issuing Bank shall agree.
(c) Agent's Fees. The Company shall pay to the Agent for its
own account such fees as may from time to time be agreed between the
Company and the Agent.
SECTION 2.05. Optional Termination or Reduction of the
Commitments. The Company shall have the right, upon at least three Business
Days' notice to the Agent, to terminate in whole or permanently reduce ratably
in part the Unused Revolving Credit Commitments or the Unissued Letter of Credit
Commitments of the Lenders, provided that each partial reduction shall be in the
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof.
SECTION 2.06. Repayment. (a) Advances. Each Borrower shall
repay to the Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Advances made to it and then
outstanding.
(b) Letter of Credit Drawings. The obligations of each
Borrower under any Letter of Credit Agreement and any other agreement
or instrument relating to any Letter of Credit issued for the account
of such Borrower 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 such
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 Note, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument 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 such 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 such 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 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;
(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 such
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, such Borrower or a guarantor.
SECTION 2.07. Interest on Advances. (a) Scheduled Interest.
Each Borrower shall pay interest on the unpaid principal amount of each Advance
made to it and owing to each Lender from the date of such 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 Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(x) the Base Rate in effect from time to time plus (y) the Applicable
Margin in effect from time to time plus (z) the Applicable Utilization
Fee, if applicable, in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x)
the Eurocurrency Rate for such Interest Period for such Advance plus
(y) the Applicable Margin in effect from time to time plus (z) the
Applicable Utilization Fee, if applicable, in effect from time to time,
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 Eurocurrency
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), the Agent
may, and upon the request of the Required Lenders shall, require the
Borrowers to pay interest ("Default Interest") on (i) the unpaid
principal amount of each Advance owing to each Lender, payable in
arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at
a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the
amount of any interest, fee or other amount payable hereunder 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 clause (a)(i) above; provided,
however, that following acceleration of the Advances pursuant to
Section 6.01, Default Interest shall accrue and be payable hereunder
whether or not previously required by the Agent.
SECTION 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees, if requested by the Agent, to furnish to the Agent timely
information for the purpose of determining each Eurocurrency Rate. If any one or
more of the Reference Banks shall not furnish such timely information to the
Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Agent shall give prompt notice to the Company and
the Lenders of the applicable interest rate determined by the Agent for purposes
of Section 2.07(a)(i) or (ii), and 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 Eurocurrency Rate Advances, the
Lenders owed at least 51% of the aggregate principal amount thereof
notify the Agent that (i) they are unable to obtain matching deposits
in the London inter-bank market at or about 11:00 A.M. (London time) on
the second Business Day before the making of a Borrowing in sufficient
amounts to fund their respective Advances as a part of such Borrowing
during its Interest Period or (ii) the Eurocurrency Rate for any
Interest Period for such Advances will not adequately reflect the cost
to such Lenders of making, funding or maintaining their respective
Eurocurrency Rate Advances for such Interest Period, the Agent shall
forthwith so notify the Company and the Lenders, whereupon (A) the
Borrower of such Eurocurrency Rate Advances will, on the last day of
the then existing Interest Period therefor, (1) if such Eurocurrency
Rate Advances are denominated in Dollars, either (x) prepay such
Advances or (y) Convert such Advances into Base Rate Advances and (2)
if such Eurocurrency Rate Advances are denominated in any Committed
Currency, either (x) prepay such Advances or (y) exchange such Advances
into an Equivalent amount of Dollars and Convert such Advances into
Base Rate Advances and (B) the obligation of the Lenders to make, or to
Convert Advances into, Eurocurrency Rate Advances shall be suspended
until the Agent shall notify the Company that such Lenders have
determined 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 Eurocurrency Rate Advances in accordance with
the provisions contained in the definition of "Interest Period" in
Section 1.01, the Agent will forthwith so notify such Borrower and the
Lenders and such Advances will automatically, on the last day of the
then existing Interest Period therefor, (i) if such Eurocurrency Rate
Advances are denominated in Dollars, Convert into Base Rate Advances
and (ii) if such Eurocurrency Rate Advances are denominated in a
Committed Currency, be exchanged for an Equivalent amount of Dollars
and Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount
of Eurocurrency Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than the
Borrowing Minimum, such Advances shall automatically (i) if such
Eurocurrency Rate Advances are denominated in Dollars, Convert into
Base Rate Advances and (ii) if such Eurocurrency Rate Advances are
denominated in a Committed Currency, be exchanged for an Equivalent
amount of Dollars and Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default, (i) each Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest Period
therefor, (A) if such Eurocurrency Rate Advances are denominated in
Dollars, be Converted into Base Rate Advances and (B) if such
Eurocurrency Rate Advances are denominated in any Committed Currency,
be exchanged for an Equivalent amount of Dollars and be Converted into
Base Rate Advances and (ii) the obligation of the Lenders to make, or
to Convert Advances into, Eurocurrency Rate Advances shall be
suspended.
(f) If Moneyline Telerate Markets Page 3750 is unavailable and
fewer than two Reference Banks furnish timely information to the Agent
for determining the Eurocurrency Rate for any Eurocurrency Rate
Advances after the Agent has requested such information,
(i) the Agent shall forthwith notify the applicable Borrower
and the Lenders that the interest rate cannot be determined for such
Eurocurrency Rate Advances,
(ii) each such Advance will automatically, on the last day of
the then existing Interest Period therefor, (A) if such Eurocurrency
Rate Advance is denominated in Dollars, Convert into a Base Rate
Advance and (B) if such Eurocurrency Rate Advance is denominated in any
Committed Currency, be prepaid by the applicable Borrower or be
automatically exchanged for an Equivalent amount of Dollars and be
Converted into a Base Rate Advance (or if such Advance is then a Base
Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or to Convert Advances into Eurocurrency Rate Advances shall
be suspended until the Agent shall notify the Company and the Lenders
that the circumstances causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Advances. The Borrower of any Advance
may on any Business Day, upon notice given to the 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 and subject to the provisions of Sections 2.08 and 2.12,
Convert all or any portion of Advances denominated in Dollars of one Type
comprising the same Borrowing into Advances denominated in Dollars of the other
Type; provided, however, that any Conversion of Eurocurrency Rate Advances into
Base Rate Advances shall be made only on the last day of an Interest Period for
such Eurocurrency Rate Advances, any Conversion of Base Rate Advances into
Eurocurrency Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.02(b), no Conversion of any Advances shall result
in more separate Borrowings than permitted under Section 2.02(b) and each
Conversion of Advances comprising part of the same Borrowing shall be made
ratably among the Lenders. Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
Dollar denominated Advances to be Converted, and (iii) if such Conversion is
into Eurocurrency Rate Advances, the duration of the initial Interest Period for
each such Advance. Each notice of Conversion shall be irrevocable and binding on
the Borrower giving such notice.
SECTION 2.10. Prepayments of Advances. (a) Optional. Each
Borrower may, upon notice at least two Business Days' prior to the date of such
prepayment, in the case of Eurocurrency Rate Advances, and not later than 11:00
A.M. (New York City time) on the date of such prepayment, in the case of Base
Rate Advances, to the Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given such Borrower shall,
prepay the outstanding principal amount of the Advances comprising part of the
same Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid; provided, however,
that (x) each partial prepayment of Advances shall be in an aggregate principal
amount of not less than the Borrowing Minimum or a Borrowing Multiple in excess
thereof and (y) in the event of any such prepayment of a Eurocurrency Rate
Advance, such Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 9.04(c).
(b) Mandatory. (i) If, on any date, the Agent notifies the
Company that, on any interest payment date, the sum of (A) the aggregate
principal amount of all Advances denominated in Dollars plus the aggregate
Available Amount of all Letters of Credit then outstanding plus (B) the
Equivalent in Dollars (determined on the third Business Day prior to such
interest payment date) of the aggregate principal amount of all Advances
denominated in Committed Currencies then outstanding exceeds 103% of the
aggregate Revolving Credit Commitments of the Lenders on such date, the
Borrowers shall, as soon as practicable and in any event within two Business
Days after receipt of such notice, prepay the outstanding principal amount of
any Advances owing by the Borrowers in an aggregate amount sufficient to reduce
such sum to an amount not to exceed 100% of the aggregate Revolving Credit
Commitments of the Lenders on such date.
(ii) Each prepayment made pursuant to this Section 2.10(b)
shall be made together with any interest accrued to the date of such prepayment
on the principal amounts prepaid and, in the case of any prepayment of a
Eurocurrency Rate Advance on a date other than the last day of an Interest
Period or at its maturity, any additional amounts which the applicable Borrower
shall be obligated to reimburse to the Lenders in respect thereof pursuant to
Section 9.04(c). The Agent shall give prompt notice of any prepayment required
under this Section 2.10(b) to the Company and the Lenders.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority including, without limitation, any agency
of the European Union or similar monetary or multinational 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, funding or maintaining Eurocurrency Rate
Advances or of agreeing to issue or of issuing or maintaining or participating
in Letters of Credit (excluding for purposes of this Section 2.11 any such
increased costs resulting from (i) Taxes or Other Taxes (as to which Section
2.14 shall govern) and (ii) changes in the basis of taxation of overall net
income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or has
its Applicable Lending Office or any political subdivision thereof), then the
Company shall from time to time, upon demand by such Lender (with a copy of such
demand to the Agent), pay to the Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost; 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 Applicable Lending Office if the making
of such designation would avoid the need for, or reduce the amount of, such
increased cost 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, submitted to the Company and the 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 or
regulation or any guideline or request from any central bank or other
governmental authority (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 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 such type or the Issuance or maintenance of or participation in
the Letters of Credit (or similar contingent obligations), then, upon demand by
such Lender (with a copy of such demand to the Agent), the Company shall pay to
the Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend or to issue or participate in Letters of
Credit hereunder or to the Issuance or maintenance of or participation in any
Letters of Credit. A certificate as to such amounts submitted to the Company and
the Agent by such Lender shall be conclusive and binding for all purposes,
absent manifest error.
SECTION 2.12. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the introduction of
or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurocurrency Lending Office to perform its
obligations hereunder to make Eurocurrency Rate Advances in Dollars or any
Committed Currency or to fund or maintain Eurocurrency Rate Advances in Dollars
or any Committed Currency hereunder, (a) each Eurocurrency Rate Advance will
automatically, upon such demand (i) if such Eurocurrency Rate Advance is
denominated in Dollars, be Converted into a Base Rate Advance and (ii) if such
Eurocurrency Rate Advance is denominated in any Committed Currency, be exchanged
into an Equivalent amount of Dollars and be Converted into a Base Rate Advance
and (b) the obligation of the Lenders to make Eurocurrency Rate Advances or to
Convert Advances into Eurocurrency Rate Advances shall be suspended until the
Agent shall notify the Company that such Lender has determined that the
circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) Each Borrower
shall make each payment hereunder (except with respect to principal of, interest
on, and other amounts relating to, Advances denominated in a Committed
Currency), irrespective of any right of counterclaim or set-off, not later than
11:00 A.M. (New York City time) on the day when due in Dollars to the Agent at
the applicable Agent's Account in same day funds. Each Borrower shall make each
payment hereunder with respect to principal of, interest on, and other amounts
relating to, Advances denominated in a Committed Currency, irrespective of any
right of counterclaim or set-off, not later than 11:00 A.M. (at the Payment
Office for such Committed Currency) on the day when due in such Committed
Currency to the Agent, by deposit of such funds to the applicable Agent's
Account in same day funds. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest, fees or
commissions ratably (other than amounts payable pursuant to Section 2.03,
2.04(b), 2.11, 2.14 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 any Assuming Lender becoming a Lender hereunder as
a result of a Commitment Increase pursuant to Section 2.18 and upon the Agent's
receipt of such Lender's Assumption Agreement and recording of the information
contained therein in the Register, from and after the applicable Increase Date,
the Agent shall make all payments hereunder and under any Notes issued in
connection therewith in respect of the interest assumed thereby to the Assuming
Lender. Upon its acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section 9.07(c), from
and after the effective date specified in such Assignment and Acceptance, the
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.
(b) Each Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of such
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall
be made by the Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurocurrency Rate or the
Federal Funds Rate and of fees and Letter of Credit Commissions shall be made by
the Agent on the basis of a year of 360 days (or, in each case of Advances
denominated in Committed Currencies where market practice differs, in accordance
with market practice), 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. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) 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, fee or commission,
as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurocurrency Rate Advances to be made in
the next following calendar month, such payment shall be made on the next
preceding Business Day.
(e) Unless the Agent shall have received notice from any
Borrower prior to the date on which any payment is due to the Lenders hereunder
that such Borrower will not make such payment in full, the Agent may assume that
such Borrower has made such payment in full to the Agent on such date and the
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 Agent, each Lender shall repay to the 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 Agent, at (i) the Federal Funds Rate in the case of Advances
denominated in Dollars or (ii) the cost of funds incurred by the Agent in
respect of such amount in the case of Advances denominated in Committed
Currencies.
(f) To the extent that the Agent receives funds for
application to the amounts owing by any Borrower under or in respect of this
Agreement or any Note in currencies other than the currency or currencies
required to enable the Agent to distribute funds to the Lenders in accordance
with the terms of this Section 2.13, the Agent shall be entitled to convert or
exchange such funds into Dollars or into a Committed Currency or from Dollars to
a Committed Currency or from a Committed Currency to Dollars, as the case may
be, to the extent necessary to enable the Agent to distribute such funds in
accordance with the terms of this Section 2.13; provided that each Borrower and
each of the Lenders hereby agree that the Agent shall not be liable or
responsible for any loss, cost or expense suffered by such Borrower or such
Lender as a result of any conversion or exchange of currencies affected pursuant
to this Section 2.13(f) or as a result of the failure of the Agent to effect any
such conversion or exchange; and provided further that the Borrowers agree to
indemnify the Agent and each Lender, and hold the Agent and each Lender
harmless, for any and all losses, costs and expenses incurred by the Agent or
any Lender for any conversion or exchange of currencies (or the failure to
convert or exchange any currencies) in accordance with this Section 2.13(f).
SECTION 2.14. Taxes. (a) Any and all payments by each Borrower
to or for the account of any Lender or the Agent hereunder or under the Notes or
any other documents to be delivered hereunder shall be made, in accordance with
Section 2.13 or the applicable provisions of such other documents, 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 Agent, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction under the laws of which such Lender or the 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 in lieu of net income taxes, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If any Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note or any other documents to be delivered hereunder to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.14) such Lender or the Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Company shall 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 any
other documents to be delivered hereunder or from the execution, delivery or
registration of, performing under, or otherwise with respect to, this Agreement
or the Notes or any other documents to be delivered hereunder (hereinafter
referred to as "Other Taxes").
(c) Each Borrower shall indemnify each Lender and the Agent
for and hold it harmless against the full amount of Taxes or Other Taxes
(including, without limitation, taxes of any kind imposed or asserted by any
jurisdiction on amounts payable under this Section 2.14) imposed on or paid by
such Lender or the 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 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 Agent, at its address referred to in Section
9.02, the original or a certified copy of a receipt evidencing such payment to
the extent such a receipt is issued therefor, or other written proof of payment
thereof that is reasonably satisfactory to the Agent. In the case of any payment
hereunder or under the Notes or any other documents to be delivered hereunder by
or on behalf of such Borrower through an account or branch outside the United
States or by or on behalf of such Borrower by a payor that is not a United
States person, if such Borrower determines that no Taxes are payable in respect
thereof, such Borrower shall furnish, or shall cause such payor to furnish, to
the Agent, at such address, an opinion of counsel acceptable to the Agent
stating that such payment is exempt from Taxes. For purposes of this subsection
(d) and subsection (e), the terms "United States" and "United States person"
shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender and on the date of the
Assumption Agreement or the Assignment and Acceptance pursuant to which it
becomes a Lender in the case of each other Lender, and from time to time
thereafter as reasonably requested in writing by the Company (but only so long
as such Lender remains lawfully able to do so), shall provide each of the Agent
and the Company with two original Internal Revenue Service Forms W-8BEN or
W-8ECI, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender is exempt from or entitled
to a reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the form provided by a Lender at the time such Lender
first becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Lender provides the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for periods
governed by such form; provided, however, that, if at the date of the Assignment
and Acceptance pursuant to which a Lender assignee becomes a party to this
Agreement, the Lender assignor was entitled to payments under subsection (a) in
respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender assignee on such date. If any form or document referred to
in this subsection (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 shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender has failed
to provide the Company with the appropriate form, certificate or other document
described in Section 2.14(e) (other than if such failure is due to a change in
law, or in the interpretation or application thereof, occurring subsequent to
the date on which a form, certificate or other document originally was required
to be provided, or if such form, certificate or other document otherwise is not
required under subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.14(a) or (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,
certificate or other document required hereunder, the Company shall take such
steps as the Lender shall reasonably request to assist the Lender to recover
such Taxes.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Advances owing to it (other
than (x) as payment of an Advance made by an Issuing Bank pursuant to the first
sentence of Section 2.03(c) or (y) pursuant to Section 2.11, 2.14 or 9.04(c)) in
excess of its Ratable Share of payments on account of the Advances obtained by
all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Advances owing to them 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 ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) 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 law,
exercise all its rights of payment (including the right of set-off) 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. 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 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 Advances. Each Borrower agrees that upon notice by any Lender to such
Borrower (with a copy of such notice to the Agent) to the effect that a Note is
required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the Advances owing to, or to be
made by, such Lender, such Borrower shall promptly execute and deliver to such
Lender a Note in substantially the form of Exhibit A hereto, payable to the
order of such Lender in a principal amount equal to the Revolving Credit
Commitment of such Lender.
(b) The Register maintained by the 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 Agent from such Borrower
hereunder and each Lender's share thereof.
(c) Entries made in good faith by the 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 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 2.17. Use of Proceeds. The proceeds of the Advances
shall be available (and each Borrower agrees that it shall use such proceeds)
solely for general corporate purposes of such Borrower and its Subsidiaries.
SECTION 2.18. Increase in the Aggregate Revolving Credit
Commitments. (a) The Company may, at any time but in any event not more than
once in any calendar year prior to the Termination Date, by notice to the 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 scheduled Termination Date then in effect (the "Increase Date") as
specified in the related notice to the Agent; provided, however that (i) in no
event shall the aggregate amount of the Revolving Credit Commitments at any time
exceed $650,000,000 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 Article III shall be satisfied.
(b) The Agent shall promptly notify the Lenders 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 Lenders wishing to
participate in the Commitment Increase must commit to an increase in
the amount of their respective Revolving Credit Commitments (the
"Commitment Date"). Each Lender that is willing to participate in such
requested Commitment Increase (each an "Increasing Lender") shall, in
its sole discretion, give written notice to the Agent on or prior to
the Commitment Date of the amount by which it is willing to increase
its Revolving Credit Commitment. If the Lenders notify the Agent that
they are willing to increase the amount of their respective Revolving
Credit Commitments by an aggregate amount that exceeds the amount of
the requested Commitment Increase, the requested Commitment Increase
shall be allocated among the Lenders willing to participate therein in
such amounts as are agreed between the Company and the Agent.
(c) Promptly following each Commitment Date, the Agent shall
notify the Company as to the amount, if any, by which the Lenders are
willing to participate in the requested Commitment Increase. If the
aggregate amount by which the Lenders are willing to participate in any
requested Commitment Increase on any such Commitment Date is less than
the requested Commitment Increase, then the Company may extend offers
to one or more Eligible Assignees to participate in any portion of the
requested Commitment Increase that has not been committed to by the
Lenders as of the applicable Commitment Date; provided, however, that
the Revolving Credit Commitment of each such Eligible Assignee shall be
in an amount not less than $10,000,000.
(d) On each Increase Date, each Eligible Assignee that accepts
an offer to participate in a requested Commitment Increase in
accordance with Section 2.18(b) (each such Eligible Assignee, an
"Assuming Lender") shall become a Lender party to this Agreement as of
such Increase Date and the Revolving Credit Commitment of each
Increasing Lender for such requested Commitment Increase shall be so
increased by such amount (or by the amount allocated to such Lender
pursuant to the last sentence of Section 2.18(b)) as of such Increase
Date; provided, however, that the Agent shall have received on or
before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the Board of
Directors of the Company or the Executive Committee of such Board
approving the Commitment Increase and the corresponding modifications
to this Agreement and (B) an opinion of counsel for the Company (which
may be in-house counsel), in substantially the form of Exhibit E
hereto;
(ii) an assumption agreement from each Assuming Lender, if
any, in form and substance satisfactory to the Company and the Agent
(each an "Assumption Agreement"), duly executed by such Eligible
Assignee, the Agent and the Company; and
(iii) confirmation from each Increasing Lender of the increase
in the amount of its Revolving Credit Commitment in a writing
satisfactory to the Company and the Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.18(d), the 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. Each Increasing Lender
and each Assuming Lender shall, before 2:00 P.M. (New York City time) on the
Increase Date, make available for the account of its Applicable Lending Office
to the Agent at the Agent's Account, in same day funds, in the case of such
Assuming Lender, an amount equal to such Assuming Lender's ratable portion of
the Borrowings then outstanding (calculated based on its Revolving Credit
Commitment as a percentage of the aggregate Revolving Credit Commitments
outstanding after giving effect to the relevant Commitment Increase) and, in the
case of such Increasing Lender, an amount equal to the excess of (i) such
Increasing Lender's ratable portion of the Borrowings then outstanding
(calculated based on its Revolving Credit Commitment as a percentage of the
aggregate Revolving Credit Commitments outstanding after giving effect to the
relevant Commitment Increase) over (ii) such Increasing Lender's ratable portion
of the Borrowings then outstanding (calculated based on its Revolving Credit
Commitment (without giving effect to the relevant Commitment Increase) as a
percentage of the aggregate Revolving Credit Commitments (without giving effect
to the relevant Commitment Increase). After the Agent's receipt of such funds
from each such Increasing Lender and each such Assuming Lender, the 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 Advances owing to
each Lender after giving effect to such distribution equals such Lender's
ratable portion of the Borrowings then outstanding (calculated based on its
Revolving Credit Commitment as a percentage of the aggregate Revolving Credit
Commitments outstanding after giving effect to the relevant Commitment
Increase).
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 2004.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Company or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(c) Nothing shall have come to the attention of the Lenders
during the course of their due diligence investigation to lead them to
believe that the Information Memorandum was or has become misleading,
incorrect or incomplete in any material respect; without limiting the
generality of the foregoing, the Lenders shall have been given such
access to the management, records, books of account, contracts and
properties of the Company and its Subsidiaries as they shall have
requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not 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 upon the transactions contemplated hereby.
(e) The Company shall have notified each Lender and the Agent
in writing as to the proposed Effective Date.
(f) The Company shall have paid all accrued fees and expenses
of the Agent and the Lenders (including the accrued fees and expenses
of counsel to the Agent).
(g) On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Company, dated
the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(h) The Agent shall have received on or before the Effective
Date the following, each dated such day, in form and substance
satisfactory to the Agent and (except for the Notes) in sufficient
copies for each Lender:
(i) The Notes to the order of the Lenders to the
extent requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board
of Directors of the Company approving this Agreement and the
Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Company certifying the names and true
signatures of the officers of the Company authorized to sign
this Agreement and the Notes and the other documents to be
delivered hereunder.
(iv) A favorable opinion of Brian M. Addison, General
Counsel for the Company, substantially in the form of Exhibit
D hereto and as to such other matters as any Lender through
the Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling LLP,
counsel for the Agent, in form and substance satisfactory to
the Agent.
(h) The Company shall have terminated the commitments of the
lenders and repaid or prepaid all of the obligations under, the
Facility A 364-Day Competitive Advance, Revolving Credit and Guaranty
Agreement and the Facility B Five-Year Competitive Advance, Revolving
Credit and Guaranty Agreement, each dated as of May 25, 2001 and among
the Company, the guarantors named therein, the lenders parties thereto
and ABN AMRO Bank N.V., as administrative agent., and each of the
Lenders that is a party to such credit facility hereby waives, upon
execution of this Agreement, any notice required by said Credit
Agreement relating to the termination of commitments thereunder.
SECTION 3.02. Initial Advance to Each Designated Subsidiary.
The obligation of each Lender to make an initial Advance to each Designated
Subsidiary is subject to the receipt by the Agent on or before the date that is
ten Business Days prior to such initial Advance of each of the following, in
form and substance reasonably satisfactory to the Agent and dated such date, and
(except for the Notes) in sufficient copies for each Lender:
(a) The Notes of such Designated Subsidiary to the order of
the Lenders to the extent requested by any Lender pursuant to Section
2.16.
(b) Certified copies of the resolutions of the Board of
Directors of such Designated Subsidiary (with a certified English
translation if the original thereof is not in English) approving this
Agreement and the Notes to be delivered by it, and of all documents
evidencing other necessary corporate action and governmental approvals,
if any, with respect to this Agreement.
(c) A certificate of a proper officer of such Designated
Subsidiary certifying the names and true signatures of the officers of
such Designated Subsidiary authorized to sign its Designation Agreement
and the Notes to be delivered by it and the other documents to be
delivered by it hereunder.
(d) A certificate signed by a duly authorized officer of the
Company, certifying that such Designated Subsidiary has obtained all
governmental and third party authorizations, consents, approvals
(including exchange control approvals) and licenses required under
applicable laws and regulations necessary for such Designated
Subsidiary to execute and deliver its Designation Agreement and the
Notes to be delivered by it and to perform its obligations hereunder
and thereunder.
(e) A Designation Agreement duly executed by such Designated
Subsidiary and the Company.
(f) Favorable opinions of counsel (which may be in-house
counsel) to such Designated Subsidiary substantially in the form of
Exhibit D hereto, and as to such other matters as any Lender through
the Agent may request.
(g) Such other approvals, opinions or documents as any Lender,
through the Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Borrowing, Issuance
and Commitment Increase. The obligation of each Lender to make an Advance (other
than a Advance made by any Issuing Bank or any Lender pursuant to Section
2.03(c)) on the occasion of each Borrowing, the obligation of each Issuing Bank
to issue a Letter of Credit and each Commitment Increase shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Borrowing, such issuance or the applicable Increase Date (as the case
may be) (a) the following statements shall be true (and each of the giving of
the applicable Notice of Borrowing, Notice of Issuance or request for Commitment
Increase and the acceptance by any Borrower of the proceeds of such Borrowing,
such issuance or such Increase Date shall constitute a representation and
warranty by such Borrower that on the date of such Borrowing, such issuance or
such Increase Date such statements are true):
(i) the representations and warranties contained in Section
4.01 (except, in the case of Borrowings and issuances, the
representations set forth in the last sentence of subsection (e)
thereof and in subsection (f)(i) thereof) are correct on and as of such
date, before and after giving effect to such Borrowing, such issuance
or such Commitment Increase and to the application of the proceeds
therefrom, as though made on and as of such date, and additionally, if
such Borrowing or issuance shall have been requested by a Designated
Subsidiary, the representations and warranties of such Designated
Subsidiary contained in its Designation Agreement are correct on and as
of the date of such Borrowing or such issuance, before and after giving
effect to such Borrowing, such issuance or such Commitment Increase and
to the application of the proceeds therefrom, as though made on and as
of such date, and
(ii) no event has occurred and is continuing, or would result
from such Borrowing, such issuance or such Commitment Increase or from
the application of the proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.04. 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 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 or the date
of the initial Advance to the applicable Designated Subsidiary, as the case may
be, specifying its objection thereto. The Agent shall promptly notify the
Lenders of the occurrence of the Effective Date and each date of initial Advance
to a Designated Subsidiary, as applicable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company. The Company
represents and warrants as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Company of
this Agreement and the Notes to be delivered by it, and the
consummation of the transactions contemplated hereby, are within the
Company's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Company's charter or
by-laws or (ii) law or any contractual restriction binding on or
affecting the Company.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by the Company of this Agreement or the Notes to be
delivered by it.
(d) This Agreement has been, and each of the Notes to be
delivered by it when delivered hereunder will have been, duly executed
and delivered by the Company. This Agreement is, and each of the Notes
when delivered hereunder will be, the legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with their respective terms, except as the enforceability thereof may
be limited by the effect of any applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by general
principles of equity.
(e) The Consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 2004, and the related Consolidated
statements of income and cash flows of the Company and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of
PricewaterhouseCoopers LLC, independent public accountants, and the
Consolidated balance sheet of the Company and its Subsidiaries as at
March 31, 2005, and the related Consolidated statements of income and
cash flows of the Company and its Subsidiaries for the three months
then ended, duly certified by the chief financial officer, treasurer or
controller of the Company, copies of which have been furnished to each
Lender, fairly present, subject, in the case of said balance sheet as
at March 31, 2005, and said statements of income and cash flows for the
three months then ended, to year-end audit adjustments, the
Consolidated financial condition of the Company and its Subsidiaries as
at such dates and the Consolidated results of the operations of the
Company and its Subsidiaries for the periods ended on such dates, all
in accordance with generally accepted accounting principles
consistently applied. Since December 31, 2004, there has been no
Material Adverse Change.
(f) There is no pending or, to the knowledge of the Company,
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Company or any of its Subsidiaries before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(g) No Borrower is engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock.
(h) No Borrower is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(i) Neither the Information Memorandum nor any other
information, exhibit or report furnished by or on behalf of the Company
or any other Borrower to the Agent or any Lender in connection with the
negotiation and syndication of this Agreement or pursuant to the terms
of this Agreement contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements made
therein not misleading.
(j) Each Borrower is, individually and together with its
Subsidiaries, Solvent.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain unpaid,
and Letter of Credit isoutstanding or any Lender shall have any Commitment
hereunder, the Company will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA, Environmental Laws and the
Patriot Act.
(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;
provided, however, that neither the Company nor any of its Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge
or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained,
unless and until any Lien resulting therefrom attaches to its property
and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, 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
and owning similar properties in the same general areas in which the
Company or such Subsidiary operates; provided, however, that the
Company and its Subsidiaries may self-insure to the same extent as
other companies engaged in similar businesses and owning similar
properties in the same general areas in which the Company or such
Subsidiary operates and to the extent consistent with prudent business
practice.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Company and its Subsidiaries may consummate
any merger or consolidation permitted under Section 5.02(b) and
provided further that neither the Company nor any of its Subsidiaries
shall be required to maintain corporate existence of any Subsidiary or
preserve any right or franchise if the Board of Directors of the
Company or such Subsidiary shall determine that the maintenance or
preservation thereof is no longer desirable in the conduct of the
business of the Company or such Subsidiary, as the case may be, and
that the loss thereof is not disadvantageous in any material respect to
the Company, such Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time, permit the 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 of, and visit the properties of,
the Company and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Company and 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 the Company 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
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(h) 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 the Company or such Subsidiary than
it would obtain in a comparable arm's-length transaction with a Person
not an Affiliate.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45
days after the end of each of the first three quarters of each
fiscal year of the Company, the Consolidated balance sheet of
the Company and its Subsidiaries as of the end of such quarter
and Consolidated statements of income and cash flows of the
Company and its Subsidiaries for the period commencing at the
end of the previous fiscal year and ending with the end of
such quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer, treasurer or
controller of the Company as having been prepared in
accordance with generally accepted accounting principles and
certificates of the chief financial officer, treasurer or
controller of the Company as to compliance with the terms of
this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section
5.03, provided that in the event of any change in generally
accepted accounting principles used in the preparation of such
financial statements, the Company shall also provide, if
necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial
statements to GAAP;
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Company, a copy
of the annual audit report for such year for the Company and
its Subsidiaries, containing the Consolidated balance sheet of
the Company and its Subsidiaries as of the end of such fiscal
year and Consolidated statements of income and cash flows of
the Company and its Subsidiaries for such fiscal year, in each
case accompanied by an opinion acceptable to the Required
Lenders by PricewaterhouseCoopers LLC or other independent
public accountants acceptable to the Required Lenders and
certificates of the chief financial officer, treasurer or
controller of the Company as to compliance with the terms of
this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section
5.03, provided that in the event of any change in generally
accepted accounting principles used in the preparation of such
financial statements, the Company shall also provide, if
necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial
statements to GAAP;
(iii) as soon as possible and in any event within
five days after the occurrence of each Default continuing on
the date of such statement, a statement of the chief financial
officer, treasurer or controller of the Company setting forth
details of such Default and the action that the Company has
taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports that the Company sends to any of its
securityholders, and copies of all reports and registration
statements that the Company or any Subsidiary files with the
Securities and Exchange Commission or any national securities
exchange;
(v) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting the Company or any of its
Subsidiaries of the type described in Section 4.01(f); and
(vi) such other information respecting the Company or
any of its Subsidiaries as any Lender through the Agent may
from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain unpaid,
and Letter of Credit is outstanding or any Lender shall have any Commitment
hereunder, the Company 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, whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real
property or equipment acquired or held by the Company or any
Subsidiary in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt
incurred solely for the purpose of financing the acquisition
of such property or equipment, or Liens existing on such
property or equipment 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 property) or extensions, renewals or replacements of
any of the foregoing for the same or a lesser amount,
provided, however, that no such Lien shall extend to or cover
any properties of any character other than the real property
or equipment being acquired, and no such extension, renewal or
replacement shall extend to or cover any properties not
theretofore subject to the Lien being extended, renewed or
replaced, provided further that the aggregate principal amount
of the indebtedness secured by the Liens referred to in this
clause (ii) shall not exceed the amount specified therefor in
Section 5.02(d)(iii) at any time outstanding,
(iii) the Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the
Company or any Subsidiary of the Company or becomes a
Subsidiary of the Company; provided that such Liens were not
created in contemplation of such merger, consolidation or
acquisition and do not extend to any assets other than those
of the Person so merged into or consolidated with the Company
or such Subsidiary or acquired by the Company or such
Subsidiary,
(v) other Liens securing Debt in an aggregate
principal amount not to exceed the amount specified therefor
in Section 5.02(d)(iv) at any time outstanding, and
(vi) the replacement, extension or renewal of any
Lien permitted by clause (iii) or (iv) above upon or in the
same property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured
thereby.
(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 assets (whether now owned or hereafter acquired) to, any Person, or
permit any of its Subsidiaries to do so, except that any Subsidiary of
the Company may merge or consolidate with or into, or dispose of assets
to, any other Subsidiary of the Company, and except that any Subsidiary
of the Company may merge into or dispose of assets to the Company,
provided, in each case, that no Default shall have occurred and be
continuing at the time of such proposed transaction or would result
therefrom.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally
accepted accounting principles.
(d) Subsidiary Debt. Permit any of its Subsidiaries to create
or suffer to exist, any Debt other than:
(i) Debt owed to the Company or to a wholly owned
Subsidiary of the Company or Debt under this Agreement or the
Notes,
(ii) Debt existing on the Effective Date and
described on Schedule 5.02(d) hereto (the "Existing Debt"),
and any Debt extending the maturity of, or refunding or
refinancing, in whole or in part, the Existing Debt, provided
that the principal amount of such Existing Debt shall not be
increased above the principal amount thereof outstanding
immediately prior to such extension, refunding or refinancing,
and the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such extension,
refunding or refinancing,
(iii) Debt secured by Liens permitted by Section
5.02(a)(ii) aggregating for all of the Company's Subsidiaries
not more than $50,000,000 at any one time outstanding,
(iv) Debt that, in aggregate with all Debt secured by
Liens permitted by Section 5.02(a)(v), does not exceed an
amount equal to 15% of Consolidated net worth of the Company
and its Subsidiaries at any one time outstanding,
(v) endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course
of business.
(e) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of the business
as carried on by the Company and its Subsidiaries at the date hereof.
SECTION 5.03. Financial Covenants. So long as any Advance
shall remain unpaid, and Letter of Credit is outstanding or any Lender shall
have any Commitment hereunder, the Company will:
(a) Leverage Ratio. Maintain a ratio of Consolidated Debt for
Borrowed Money to the sum of Consolidated Debt for Borrowed Money plus
Consolidated net worth of the Company and its Subsidiaries of not
greater than 0.55 to 1.00.
(b) Interest Coverage Ratio. Maintain a ratio of Consolidated
EBITDA for the period of four fiscal quarters then ended of the Company
and its Subsidiaries to the sum of interest payable on, and
amortization of debt discount in respect of, all Debt during such
period by the Company and its Subsidiaries of not less than 3.5 to 1.0.
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) The Company or any other Borrower shall fail to pay any
principal of any Advance when the same becomes due and payable; or the
Company or any other Borrower shall fail to pay any interest on any
Advance or make any other payment of fees or other amounts payable
under this Agreement or any Note within five 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 or by any Designated Subsidiary in the Designation Agreement
pursuant to which such Designated Subsidiary became a Borrower
hereunder shall prove to have been incorrect in any material respect
when made; or
(c) (i) The Company shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (e), (h) or (i),
5.02 or 5.03, or (ii) the Company shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement on its
part to be performed or observed if such failure shall remain
unremedied for 10 days after written notice thereof shall have been
given to the Company by the Agent or any Lender; or
(d) The Company or any of its Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt that is outstanding
in a principal or notional amount of at least $25,000,000 in the
aggregate (but excluding Debt outstanding hereunder) of the Company 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 Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt 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 Debt; or any such Debt 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 Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) The Company or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Company or any of its Subsidiaries 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 30
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 for any substantial part of its property) shall occur; or
the Company or any of its Subsidiaries shall take any corporate action
to authorize any of the actions set forth above in this subsection (e);
or
(f) Judgments or orders for the payment of money in excess of
$25,000,000 in the aggregate shall be rendered against the Company or
any of its Subsidiaries 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 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) (i) Any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of the
Company (or other securities convertible into such Voting Stock)
representing 30% or more of the combined voting power of all Voting
Stock of the Company; or (ii) during any period of up to 24 consecutive
months, commencing after the date of this Agreement, individuals who at
the beginning of such 24-month period were directors of the Company
shall cease for any reason (other than due to death or disability) to
constitute a majority of the board of directors of the Company (except
to the extent that individuals who at the beginning of such 24-month
period were replaced by individuals (x) elected by a majority of the
remaining members of the board of directors of the Company or (y)
nominated for election by a majority of the remaining members of the
board of directors of the Company and thereafter elected as directors
by the shareholders of the Company); or
(h) The Company or any of its ERISA Affiliates shall incur, or
shall be reasonably likely to incur liability in excess of $25,000,000
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 or any of its ERISA Affiliates from a Multiemployer
Plan; or (iii) the reorganization or termination of a Multiemployer
Plan;
(i) so long as any Subsidiary of the Company is a Designated
Subsidiary, any provision of Article VII shall for any reason cease to
be valid and binding on or enforceable against the Company, or the
Company shall so state in writing;
then, and in any such event, the 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 Advances (other than Advances by an Issuing
Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing Banks 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 Advances, all interest
thereon and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Advances, 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 Borrower; provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to the Company or any other Borrower
under the Federal Bankruptcy Code, (A) the obligation of each Lender to make
Advances (other than Advances by an Issuing Bank or a Lender pursuant to Section
2.03(c)) and of the Issuing Banks to issue Letters of Credit shall automatically
be terminated and (B) the Advances, 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 Borrower.
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
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 Agent on behalf of the Lenders in same
day funds at the Agent's office designated in such demand, for deposit in the
L/C Cash Deposit 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
Revolving Credit Lenders having at least 51% of the Revolving Credit Commitments
and not more disadvantageous to the Borrowers than clause (a); provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to any Borrower under the Federal Bankruptcy Code, an amount equal
to the aggregate Available Amount of all outstanding Letters of Credit shall be
immediately due and payable to the Agent for the account of the Lenders without
notice to or demand upon the Borrowers, which are expressly waived by each
Borrower, to be held in the L/C Cash Deposit Account. If at any time an Event of
Default is continuing the Agent determines that any funds held in the L/C Cash
Deposit Account are subject to any right or claim of any Person other than the
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 Agent, pay to the Agent, as additional funds to be
deposited and held in the L/C Cash Deposit 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 Deposit Account that the 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 Deposit
Account, such funds shall be applied to reimburse the Issuing Banks to the
extent permitted by applicable law. After 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 LC Cash Deposit Account shall be returned to the Borrowers.
ARTICLE VII
GUARANTY
SECTION 7.01. Unconditional Guaranty. The Company hereby
absolutely, unconditionally and irrevocably guarantees the punctual payment when
due, whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all obligations of each other Borrower now
or hereafter existing under or in respect of this Agreement and the Notes
(including, without limitation, any extensions, modifications, substitutions,
amendments or renewals of any or all of the foregoing obligations), whether
direct or indirect, absolute or contingent, and whether for principal, interest,
premiums, fees, indemnities, contract causes of action, costs, 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 Agent or any Lender in enforcing any rights
under this Agreement. 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 such Borrower to the Agent or any
Lender under or in respect of this Agreement and the Notes but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Borrower.
SECTION 7.02. Guaranty Absolute. (a) The Company guarantees
that the Guaranteed Obligations will be paid strictly in accordance with the
terms of this Agreement and the 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 Agent or any Lender with respect thereto. The obligations
of the Company under or in respect of this Guaranty are independent of the
Guaranteed Obligations or any other obligations of any other Borrower under or
in respect of this Agreement and the Notes, and a separate action or actions may
be brought and prosecuted against the Company to enforce this Guaranty,
irrespective of whether any action is brought against any Borrower or whether
any Borrower is joined in any such action or actions. The liability of the
Company under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and the Company hereby irrevocably waives any defenses it may
now have or hereafter acquire in any way relating to, any or all of the
following:
(a) any lack of validity or enforceability of this Agreement,
any Note or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any
other obligations of any Borrower under or in respect of this Agreement
and the Notes, 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
the extension of additional credit to any Borrower or any of its
Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of, or
consent to departure from, any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of any collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other obligations of any Borrower under
this Agreement and the Notes or any other assets of any Borrower or any
of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Borrower or any of its Subsidiaries;
(f) any failure of the Agent or any Lender to disclose to the
Company any information relating to the business, condition (financial
or otherwise), operations, performance, properties or prospects of any
Borrower now or hereafter known to the Agent or such Lender (the
Company waiving any duty on the part of the Agent and the Lenders to
disclose such information);
(g) the failure of any other Person to execute or deliver this
Guaranty or any other guaranty or agreement or the release or reduction
of liability of the Company or other guarantor or surety with respect
to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Agent or any Lender that might otherwise
constitute a defense available to, or a discharge of, any Borrower or
any other guarantor or surety.
This Guaranty 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 Agent or any Lender or any other Person
upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise,
all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) The Company
hereby unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Agent or any Lender protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Borrower or
any other Person or any collateral.
(b) The Company hereby unconditionally and irrevocably waives
any right to revoke this Guaranty and acknowledges that this Guaranty
is continuing in nature and applies to all Guaranteed Obligations,
whether existing now or in the future.
(c) The Company hereby unconditionally and irrevocably waives
(i) any defense arising by reason of any claim or defense based upon an
election of remedies by the Agent or any Lender that in any manner
impairs, reduces, releases or otherwise adversely affects the
subrogation, reimbursement, exoneration, contribution or
indemnification rights of the Company or other rights of the Company to
proceed against any Borrower, any other guarantor or any other Person
or any collateral and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the obligations of the Company
hereunder.
(d) The Company hereby unconditionally and irrevocably waives
any duty on the part of the Agent or any Lender to disclose to the
Company any matter, fact or thing relating to the business, condition
(financial or otherwise), operations, performance, properties or
prospects of any Borrower or any of its Subsidiaries now or hereafter
known by the Agent or such Lender.
(e) The Company acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements
contemplated by this Agreement and the Notes and that the waivers set
forth in Section 7.02 and 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
hereafter acquire against any Borrower or any other insider guarantor that arise
from the existence, payment, performance or enforcement of the Company's
obligations under or in respect of this Guaranty, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the Agent
or any Lender against any 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 any Borrower or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off 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
Guaranty shall have been paid in full in cash, all Letters of Credit shall have
expired or been terminated and the Commitments shall have expired or been
terminated. If any amount shall be paid to the Company in violation of the
immediately preceding sentence at any time prior to the latest of (a) the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (b) the Termination Date and (c) the latest date of
expiration or termination of all Letters of Credit, such amount shall be
received and held in trust for the benefit of the Agent and the Lenders, shall
be segregated from other property and funds of the Company and shall forthwith
be paid or delivered to the Agent in the same form as so received (with any
necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of this Agreement and
the Notes, or to be held as collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If (i) the Company shall
make payment to the Agent or any Lender of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been paid in full in cash, (iii) the
Termination Date shall have occurred and (iv) all Letters of Credit shall have
expired or been terminated, the 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 made by the Company pursuant to this
Guaranty.
SECTION 7.05. Subordination. The Company hereby subordinates
any and all debts, liabilities and other obligations owed to the Company by any
Borrower (the "Subordinated Obligations") to the Guaranteed Obligations to the
extent and in the manner hereinafter set forth in this Section 7.05:
(a) Prohibited Payments, Etc. Except during the continuance of
an Event of Default under (including the commencement and continuation
of any proceeding under any Bankruptcy Law relating to such Borrower),
the Company may receive regularly scheduled payments from such Borrower
on account of the Subordinated Obligations. After the occurrence and
during the continuance of any Event of Default (including the
commencement and continuation of any proceeding under any Bankruptcy
Law relating to such Borrower), however, unless the Required Lenders
otherwise agree, the Company shall not demand, accept or take any
action to collect any payment on account of the Subordinated
Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding
under any Bankruptcy Law relating to such Borrower, the Company agrees
that the Agent and the Lenders shall be entitled to receive payment in
full in cash of all Guaranteed Obligations (including all interest and
expenses accruing after the commencement of a proceeding under any
Bankruptcy Law, whether or not constituting an allowed claim in such
proceeding ("Post Petition Interest")) before the Company receives
payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance
of any Event of Default (including the commencement and continuation of
any proceeding under any Bankruptcy Law relating to such Borrower), the
Company shall, if the Agent so requests, collect, enforce and receive
payments on account of the Subordinated Obligations as trustee for the
Agent and the Lenders and deliver such payments to the Agent on account
of the Guaranteed Obligations (including all Post Petition Interest),
together with any necessary endorsements or other instruments of
transfer, but without reducing or affecting in any manner the liability
of the Company under the other provisions of this Guaranty.
(d) Agent Authorization. After the occurrence and during the
continuance of any Event of Default (including the commencement and
continuation of any proceeding under any Bankruptcy Law relating to
such Borrower), the Agent is authorized and empowered (but without any
obligation to so do), in its discretion, (i) in the name of the
Company, to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and to apply any amounts received thereon to
the Guaranteed Obligations (including any and all Post Petition
Interest), and (ii) to require the Company (A) to collect and enforce,
and to submit claims in respect of, Subordinated Obligations and (B) to
pay any amounts received on such obligations to the Agent for
application to the Guaranteed Obligations (including any and all Post
Petition Interest).
SECTION 7.06. Continuing Guaranty; Assignments. This Guaranty
is a continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty, (ii) the Termination Date and (iii)
the latest date of expiration or termination of all Letters of Credit, (b) be
binding upon the Company, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Agent and the Lenders and their successors,
transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, the Agent or any Lender may assign or otherwise
transfer all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or any portion of its Commitments, the
Advances owing to it and the Note or Notes held by it) to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted to the Agent or such Lender herein or otherwise, in each case as
and to the extent provided in Section 9.07.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender (in its
capacities as a Lender and Issuing Bank, as applicable) hereby appoints and
authorizes the 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 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 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 Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Company or any other
Borrower pursuant to the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees 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 Agent: (i) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assumption Agreement entered into by an
Assuming Lender as provided in Section 2.18 or an Assignment and Acceptance
entered into by such Lender, as assignor, and an Eligible Assignee, as assignee,
as provided in Section 9.07; (ii) may consult with legal counsel (including
counsel for the Company), independent 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; (iv) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of this Agreement on the part of any Borrower or the existence at any
time of any Default or to inspect the property (including the books and records)
of the Company or any other Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, this
Agreement 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. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and the Note issued to it, Citibank 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 Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank 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, the Company,
any of its Subsidiaries and any Person who may do business with or own
securities of the Company or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders. The Agent
shall have no duty to disclose any information obtained or received by it or any
of its Affiliates relating to the Company or any of its Subsidiaries to the
extent such information was obtained or received in any capacity other than as
Agent.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 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 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) Each Lender severally
agrees to indemnify the Agent (to the extent not reimbursed by the Company) from
and against such Lender's Ratable 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 the Agent in its capacity as such, in any way relating
to or arising out of this Agreement or any action taken or omitted by the Agent
under this Agreement (collectively, the "Indemnified Costs"), provided that no
Lender shall be liable for any portion of the Indemnified Costs resulting from
the Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including reasonable counsel
fees) incurred by the 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, to the extent that
the Agent is not reimbursed for such expenses by the Company. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 8.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify the Issuing
Banks (to the extent not promptly reimbursed by the Company) from and against
such Lender's Ratable 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 its capacity as such, in any way
relating to or arising out of the Loan Documents 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 Ratable Share of any costs
and expenses (including, without limitation, reasonable fees and expenses of
counsel) payable by the Company under Section 9.04, to the extent that such
Issuing Bank is not promptly reimbursed for such costs and expenses by the
Company.
(c) The failure of any Lender to reimburse the Agent or any
Issuing Bank promptly upon demand for its ratable share of any amount required
to be paid by the Lenders to the Agent as provided herein shall not relieve any
other Lender of its obligation hereunder to reimburse the Agent or any 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 Agent or any 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. Each of the Agent and each Issuing Bank agrees to return to
the Lenders their respective ratable shares of any amounts paid under this
Section 8.05 that are subsequently reimbursed by the Company.
SECTION 8.06. Successor Agent. The 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 Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor 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 Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as 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 Agent under this Agreement.
SECTION 8.07. Sub-Agent. The Sub-Agent has been designated
under this Agreement to carry out duties of the Agent. The Sub-Agent shall be
subject to each of the obligations in this Agreement to be performed by the
Sub-Agent, and each of the Company, each other Borrower and the Lenders agrees
that the Sub-Agent shall be entitled to exercise each of the rights and shall be
entitled to each of the benefits of the Agent under this Agreement as relate to
the performance of its obligations hereunder.
SECTION 8.08. Other Agents. Each Lender hereby acknowledges
that none of the syndication agent, the co-documentation agents nor any other
Lender designated as any "Agent" on the signature pages hereof has any liability
hereunder other than in its capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the 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 (a) no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do any of the following:
(i) waive any of the conditions specified in Section 3.01, (ii) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Advances, or the number of Lenders, that shall be required for the Lenders or
any of them to take any action hereunder, (iii) release the Company from its
obligations under Article VII or (iv) amend this Section 9.01; and (b) no
amendment, waiver or consent shall, unless in writing and signed by the Required
Lenders and each Lender that is directly affected by such amendment, waiver or
consent (i) increase the Commitments of such Lender, (ii) reduce the principal
of, or interest on, the Advances or any fees or other amounts payable hereunder
to such Lender, (iii) postpone any date fixed for any payment of principal of,
or interest on, the Advances or any fees or other amounts payable hereunder to
such Lender or (iv) release the Company from any of its obligations under
Section 7.01; and provided further that (x) no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the Agent
under this Agreement or any Note and (y) 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 shall be either (x) in writing (including
telecopier or telegraphic communication) and mailed, telecopied, telegraphed or
delivered or (y) as and to the extent set forth in Section 9.02(b) and in the
proviso to this Section 9.02(a), if to the Company or any other Borrower, at the
Company's address at Susquehanna Commerce Center, 221 West Philadelphia Street,
York, Pennsylvania 17405-0872, Attention: Secretary, with a copy to Attention:
Treasurer; if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its Domestic
Lending Office specified in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender; and if to the Agent, at its
address at Two Penns Way, New Castle, Delaware, 19720, Attention: Bank Loan
Syndications Department; or, as to the Company or the 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 Agent,
provided that materials required to be delivered pursuant to Section 5.01(i)(i),
(ii) or (iv) shall be delivered to the Agent as specified in Section 9.02(b) or
as otherwise specified to any Borrower by the Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or e-mailed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by e-mail, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VIII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
(b) So long as Citibank or any of its Affiliates is the Agent,
materials required to be delivered pursuant to Section 5.01(i)(i), (ii) and (iv)
shall be delivered to the Agent in an electronic medium in a format acceptable
to the Agent and the Lenders by e-mail at oploanswebadmin@citigroup.com. The
Company agrees that the Agent may make such materials, as well as any other
written information, documents, instruments and other material relating to the
Company, any of its Subsidiaries or any other materials or matters relating to
this Agreement, the Notes or any of the transactions contemplated hereby
(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 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 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 Agent shall deliver a copy of the
Communications to such Lender by email or telecopier. Each Lender agrees (i) to
notify the Agent in writing of such Lender's e-mail address to which 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 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 Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; 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 law.
SECTION 9.04. Costs and Expenses. (a) The Company agrees to
pay on demand all costs and expenses of the 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 due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Company further agrees to pay on demand all costs and expenses of
the Agent and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), 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 Agent and each Lender in
connection with the enforcement of rights under this Section 9.04(a).
(b) The Company agrees to indemnify and hold harmless the
Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or Letters of Credit, (ii) the actual or alleged
presence of Hazardous Materials on any property of the Company or any of its
Subsidiaries or any Environmental Action relating in any way to the Company or
any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct or (iii) any civil penalty or fine assessed by
OFAC against, and all reasonable costs and expenses (including counsel fees and
disbursements) incurred in connection with defense thereof, by the Agent or any
Lender as a result of conduct of the Borrower that violates a sanction enforced
by OFAC. In the case of an investigation, litigation or other proceeding to
which the indemnity in this Section 9.04(b) applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by the Company, its directors, equityholders or creditors or an Indemnified
Party or any other Person, whether or not any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. The Company also agrees not to assert any claim for special,
indirect, consequential or punitive damages against the Agent, any Lender, any
of their Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, arising out of or otherwise
relating to the Notes, this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance is made by any Borrower to or for the account of a
Lender (i) other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.08, 2.10 or 2.12,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender other than on the last day
of the Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 9.07 as a result of a
demand by the Company pursuant to Section 9.07(a) or (ii) as a result of a
payment or Conversion pursuant to Section 2.08, 2.10 or 2.12, such Borrower
shall, upon demand by such Lender (with a copy of such demand to the Agent), pay
to the 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 (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
any Lender to fund or maintain such Advance. If the amount of the Committed
Currency purchased by any Lender in the case of a Conversion or exchange of
Advances in the case of Section 2.08 or 2.12 exceeds the sum required to satisfy
such Lender's liability in respect of such Advances, such Lender agrees to remit
to the applicable Borrower such excess.
(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, interest and all other amounts payable hereunder and under the Notes.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Advances 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 law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender or such Affiliate to or for the credit or the account of the Company or
any Borrower against any and all of the obligations of the Company or any
Borrower now or hereafter existing under this Agreement and the Note held by
such Lender, whether or not such Lender shall have made any demand under this
Agreement or such Note and although such obligations may be unmatured, provided
that the deposits and other indebtedness owing by any Lender to the Company or
any Borrower organized under the laws of any political subdivision of the United
States shall be set-off prior to the set-off of the deposits or other
indebtedness owed to any other Borrower. Each Lender agrees promptly to notify
the Company or the applicable Borrower after any such set-off and application,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender and its Affiliates under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) 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 the Company and the Agent and when the 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 the Company,
the Agent and each Lender and their respective successors and assigns, except
that neither the Company nor any other 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 with the consent of each Issuing Bank (which consent shall not be
unreasonably withheld or delayed) and, if demanded by the Company (so long as no
Default shall have occurred and be continuing and following a demand by such
Lender pursuant to Section 2.11 or 2.14) upon at least five Business Days'
notice to such Lender and the Agent, 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 Unissued
Letter of Credit Commitment, the Advances owing to it, its participations in
Letters of Credit and the Note or Notes held by it); provided, however, that (i)
each such assignment shall be of a constant, and not a varying, percentage of
all rights and obligations under and in respect of one or more of the
Facilities, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of (x) 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 in no event be less than $10,000,000 or
an integral multiple of $1,000,000 in excess thereof and (y) the Unissued Letter
of 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 in no event be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, in each case, unless the
Company and the Agent otherwise agree (iii) each such assignment shall be to an
Eligible Assignee, (iv) 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 after
consultation with the Agent 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 together cover all of the
rights and obligations of the assigning Lender under this Agreement, (v) no
Lender shall be obligated to make any such 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 either the Borrowers or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, and (vi) the parties
to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment and a processing and recordation fee of
$3,500 payable by the parties to each such assignment, provided, however, that
in the case of each assignment made as a result of a demand by the Company, such
recordation fee shall be payable by the Company except that no such recordation
fee shall be payable in the case of an assignment made at the request of the
Company to an Eligible Assignee that is an existing Lender. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) 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 (y) 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 (other than
its rights under Sections 2.11, 2.14 and 9.04 to the extent any claim thereunder
relates to an event arising prior to such assignment) and be released from its
obligations (other than its obligations under Section 8.05 to the extent any
claim thereunder relates to an event arising prior to such assignment) 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).
(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, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, this
Agreement 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 the Company or any
other Borrower or the performance or observance by the Company or any other
Borrower of any of its obligations under this Agreement 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 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 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 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 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 Note or Notes subject to such assignment, the 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.
(d) The Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assumption Agreement and each Assignment and
Acceptance delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitment of, and principal
amount of the Advances owing to, 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 Company and the other Borrowers, the 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 the Company 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 the Company or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and any Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) such Lender shall remain the holder of any such Note for
all purposes of this Agreement, (iv) the Company , the other Borrowers, the
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 the Company or any other 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 participation, or
postpone any date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent
subject to such participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Company furnished to such Lender by
or on behalf of the Company; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Company Information relating to the Company
received by it from such Lender.
(g) 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
Advances owing to it and any 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. Confidentiality. Neither the Agent nor any
Lender may disclose to any Person any confidential, proprietary or non-public
information of the Company furnished to the Agent or the Lenders by the Company
(such information being referred to collectively herein as the "Company
Information"), except that each of the Agent and each of the Lenders may
disclose Company Information (i) to its and its affiliates' employees, officers,
directors, agents and advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Company Information and instructed to keep such Company Information confidential
on substantially the same terms as provided herein), (ii) to the extent
requested by any regulatory authority, (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (iv)
to any other party to this Agreement, (v) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (vi) subject to an agreement containing
provisions substantially the same as those of this Section 9.08, to any assignee
or participant or prospective assignee or participant, (vii) to the extent such
Company Information (A) is or becomes generally available to the public on a
non-confidential basis other than as a result of a breach of this Section 9.08
by the Agent or such Lender, or (B) is or becomes available to the Agent or such
Lender on a nonconfidential basis from a source other than the Company and
(viii) with the consent of the Company.
SECTION 9.09. Designated Subsidiaries. (a) Designation. The
Company may at any time, and from time to time, by delivery to the Agent of a
Designation Agreement duly executed by the Company and the respective Subsidiary
and substantially in the form of Exhibit D hereto, designate such Subsidiary as
a "Designated Subsidiary" for purposes of this Agreement and such Subsidiary
shall thereupon become a "Designated Subsidiary" for purposes of this Agreement
and, as such, shall have all of the rights and obligations of a Borrower
hereunder. The Agent shall promptly notify each Lender of each such designation
by the Company and the identity of the respective Subsidiary.
(b) Termination. Upon the indefeasible payment and performance
in full of all of the indebtedness, liabilities and obligations under this
Agreement of any Designated Subsidiary then, so long as at the time no Notice of
Borrowing or Notice of Issuance in respect of such Designated Subsidiary is
outstanding, such Subsidiary's status as a "Designated Subsidiary" shall
terminate upon notice to such effect from the Agent to the Lenders (which notice
the Agent shall give promptly, and only upon its receipt of a request therefor
from the Company). Thereafter, the Lenders shall be under no further obligation
to make any Advance hereunder to such Designated Subsidiary.
SECTION 9.10. Governing Law. This Agreement and 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. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase Dollars with
such other currency at Citibank's principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.
(b) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder in a Committed Currency into
Dollars, the parties agree to the fullest extent that they may effectively do
so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures the Agent could purchase such Committed Currency with
Dollars at Citibank's principal office in London at 11:00 A.M. (London time) on
the Business Day preceding that on which final judgment is given.
(c) The obligation of any Borrower in respect of any sum due
from it in any currency (the "Primary Currency") to any Lender or the Agent
hereunder shall, notwithstanding any judgment in any other currency, be
discharged only to the extent that on the Business Day following receipt by such
Lender or the Agent (as the case may be), of any sum adjudged to be so due in
such other currency, such Lender or the Agent (as the case may be) may in
accordance with normal banking procedures purchase the applicable Primary
Currency with such other currency; if the amount of the applicable Primary
Currency so purchased is less than such sum due to such Lender or the Agent (as
the case may be) in the applicable Primary Currency, each Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or the Agent (as the case may be) against such loss, and if the amount of
the applicable Primary Currency so purchased exceeds such sum due to any Lender
or the Agent (as the case may be) in the applicable Primary Currency, such
Lender or the Agent (as the case may be) agrees to remit to such Borrower such
excess.
SECTION 9.13. 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, 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 law, in such federal court. Each Designated Subsidiary
hereby agrees that service of process in any such action or proceeding brought
in the any such New York State court or in such federal court may be made upon
the Company and each Designated Subsidiary hereby irrevocably appoints the
Company its authorized agent to accept such service of process, and agrees that
the failure of the Company to give any notice of any such service shall not
impair or affect the validity of such service or of any judgment rendered in any
action or proceeding based thereon. The Company and each Designated Subsidiary
hereby further irrevocably consent 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 the Company at its address
specified pursuant to Section 9.02. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or the Notes in the courts of any jurisdiction. To the extent that each
Designated Subsidiary has or hereafter may acquire any immunity from
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, each Designated Subsidiary
hereby irrevocably waives such immunity in respect of its obligations under this
Agreement.
(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 law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 9.14. Substitution of Currency. If a change in any
Committed Currency occurs pursuant to any applicable law, rule or regulation of
any governmental, monetary or multi-national authority, this Agreement
(including, without limitation, the definition of Eurocurrency Rate) will be
amended to the extent determined by the Agent (acting reasonably and in
consultation with the Company) to be necessary to reflect the change in currency
and to put the Lenders and the Borrowers in the same position, so far as
possible, that they would have been in if no change in such Committed Currency
had occurred.
SECTION 9.15. 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 such Issuing Bank's willful misconduct or gross negligence when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. 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, regardless of
any notice or information to the contrary; provided that nothing herein shall be
deemed to excuse such Issuing Bank if it acts with gross negligence or willful
misconduct in accepting such documents.
SECTION 9.16. Patriot Act Notice. Each Lender and the Agent
(for itself and not on behalf of any Lender) hereby notifies each Borrower that
pursuant to the requirements of the Patriot Act, it is required to obtain,
verify and record information that identifies each Borrower, which information
includes the name and address of each Borrower and other information that will
allow such Lender or the Agent, as applicable, to identify each Borrower in
accordance with the Patriot Act. Each Borrower shall provide such information
and take such actions as are reasonably requested by the Agent or any Lenders in
order to assist the Agent and the Lenders in maintaining compliance with the
Patriot Act or any similar "know your customer" or other similar checks under
all applicable laws and regulations.
SECTION 9.17. Power of Attorney. Each Subsidiary of the
Company may from time to time authorize and appoint the Company as its
attorney-in-fact to execute and deliver (a) any amendment, waiver or consent in
accordance with Section 9.01 on behalf of and in the name of such Subsidiary and
(b) any notice or other communication hereunder, on behalf of and in the name of
such Subsidiary. Such authorization shall become effective as of the date on
which such Subsidiary delivers to the Agent a power of attorney enforceable
under applicable law and any additional information to the Agent as necessary to
make such power of attorney the legal, valid and binding obligation of such
Subsidiary.
SECTION 9.18. Waiver of Jury Trial. Each of the Company, the
other Borrowers, the 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 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.
DENTSPLY INTERNATIONAL INC.
By
- ------------------------
William R. Jellison
Senior Vice President and Chief Financial Officer
By
- ------------------------
William E. Reardon
Treasurer
CITIBANK, N.A.,
as Agent
By
- ------------------------
Title:
Initial Lenders
CITIBANK, N.A.
By
- ------------------------
Title:
JPMORGAN CHASE BANK, N.A.
By
- ------------------------
Title:
HARRIS TRUST AND SAVINGS BANK
By
- ------------------------
Name: Mark Piekos
Title: Director
MANUFACTURERS AND TRADERS TRUST COMPANY
By
- ------------------------
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By
- ------------------------
Title:
JPMORGAN CHASE BANK, N.A.
By
- ------------------------
Title:
BANK OF AMERICA, N.A.
By
- ------------------------
Title:
DRESDNER BANK AG, in FRANKFURT AM MAIN
By
- ------------------------
Title:
THE BANK OF TOKYO-MITSUBISHI LTD.
By
- ------------------------
Title:
ABN AMRO BANK, N.V.
By
- ------------------------
Title:
KBC BANK, N.V.
By
- ------------------------
Title:
MIZUHO CORPORATE BANK (USA)
By
- ------------------------
Title:
PNC BANK, NATIONAL ASSOCIATION
By
- ------------------------
Title:
UBS LOAN FINANCE LLC
By
- ------------------------
Title:
By
- ------------------------
Title:
SCHEDULE I
DENTSPLY INTERNATIONAL INC.
FIVE YEAR CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
Name of Initial Lender Revolving Credit Letter of Domestic Lending Office Eurocurrency Lending
Commitment Credit Office
Commitment
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
Citibank, N.A $60,000,000 $50,000,000 Two Penns Way Two Penns Way
New Castle, DE 19720 New Castle, DE 19720
Attn: Bank Loan Attn: Bank Loan
Syndications Syndications
T: 302 894-6029 T: 302 894-6029
F: 212 994-0961 F: 212 994-0961
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
JPMorgan Chase Bank, N.A. $60,000,000 $0 695 Rte 46 West 695 Rte 46 West
Fairfield, NJ 07004 Fairfield, NJ 07004
Attn: Alice Shanahan Attn: Alice Shanahan
T: 973 439-5034 T: 973 439-5034
F: 973 439-5013 F: 973 439-5013
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
Harris Trust and Savings $50,000,000 $0 115 S. LaSalle 115 S. LaSalle
Bank 17th Floor 17th Floor
Chicago, IL 60603 Chicago, IL 60603
Attn: N'Gina Armstrong Attn: N'Gina Armstrong
T: 312 461-3158 T: 312 461-3158
F: 312 293-5283 F: 312 293-5283
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
Manufacturers and Traders $50,000,000 $0 1 Fountain Plaza 1 Fountain Plaza
Trust Company 2nd Floor 2nd Floor
Buffalo, NY 14240 Buffalo, NY 14240
Attn: Attn:
T: 716 848-3448 T: 716 848-3448
F: 716 848-7881 F: 716 848-7881
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
Wachovia Bank, National $50,000,000 $0 201 S. College St. 201 S. College St.
Association Charlotte, NC 28288 Charlotte, NC 28288
Attn: Lekeisha Neely Attn: Lekeisha Neely
T: 704 374-6145 T: 704 374-6145
F: 704 715-0095 F: 704 715-0095
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
Bank of America, N.A. $35,000,000 $0 2001 Clayton Rd. 2001 Clayton Rd.
(Mail Code: (Mail Code:
CA4-702-02-25) CA4-702-02-25)
Concord, CA 94520 Concord, CA 94520
Attn: Indiana Arguello Attn: Indiana Arguello
T: 925 675-8075 T: 925 675-8075
F: 888 969-9261 F: 888 969-9261
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
Dresdner Bank AG in $35,000,000 $0 Gallusanlage 2, 3. OG Gallusanlage 2, 3. OG
Frankfurt am Main Frankfurt, Germany Frankfurt, Germany
Attn: Matthias Attn: Matthias
Hopfgarten Hopfgarten
T: 0049-69-263-12874 T: 0049-69-263-12874
F: 0049-69-236-12878 F: 0049-69-236-12878
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
The Bank of $35,000,000 $0
Tokyo-Mitsubishi Ltd.
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
ABN AMRO Bank N.V. $25,000,000 $0 540 West Madison 540 West Madison
Street, Suite 2100 Street, Suite 2100
Chicago, IL 60661 Chicago, IL 60661
Attn: Loan Attn: Loan
Administration Administration
T: 312 992-5150 T: 312 992-5150
F: 312 992-5155 F: 312 992-5155
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
KBC Bank N.V. $25,000,000 $0 125 West 55th Street 125 West 55th Street
10th Floor 10th Floor
New York, NY 10019 New York, NY 10019
Attn: Rose Pagan Attn: Rose Pagan
T: 212 541-0657 T: 212 541-0657
F: 212 956-5581 F: 212 956-5581
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
Mizuho Corporate Bank (USA) $25,000,000 $0 1800 Plaza Ten 1800 Plaza Ten
Jersey City, NJ 07311 Jersey City, NJ 07311
Attn: Nate Spivey Attn: Nate Spivey
T: 201 626-9280 T: 201 626-9280
F: 201 626-9932 F: 201 626-9932
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
PNC Bank, National $25,000,000 $0 500 First Avenue 500 First Avenue
Association Pittsburgh, PA 15219 Pittsburgh, PA 15219
Attn: Bret Stezoski Attn: Bret Stezoski
T: 412 768-7517 T: 412 768-7517
F: 412 768-4586 F: 412 768-4586
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
UBS Loan Finance LLC $25,000,000 $0 677 Washington Blvd 677 Washington Blvd
Stamford, CT Stamford, CT
Attn: Christopher Aitkin Attn: Christopher Aitkin
T: 203 719-3845 T: 203 719-3845
F: 203 719-3888 F: 203 719-3888
- ----------------------------- ------------------ ----------------- ------------------------- -------------------------
EXHIBIT A - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
__________ corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (each as defined in the Credit Agreement
referred to below) the principal sum of U.S.$[amount of the Lender's Commitment
in figures] or, if less, the aggregate principal amount of the Advances (as
defined below) made by the Lender to the [Dentsply International Inc.,] pursuant
to the Five Year Credit Agreement dated as of May 9, 2005 among the Borrower,
the Lender and certain other lenders parties thereto, JPMorgan Chase Bank, N.A.,
as syndication agent, Harris Trust and Savings Bank, Manufacturers and Traders
Trust Company and Wachovia Bank, National Association, as co-documentation
agents, Citigroup Global Markets Inc. and J.P. Morgan Securities Inc., as joint
lead arrangers and joint bookrunners, and Citibank, N.A. as Agent for the Lender
and such other lenders (as amended or modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)
outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest in respect of each Advance (i) in
Dollars are payable in lawful money of the United States of America to the Agent
at its account maintained at Two Penns Way, New Castle, Delaware 19720, in same
day funds and (ii) in any Committed Currency are payable in such currency at the
applicable Payment Office in same day funds. Each Advance owing to the Lender by
the Borrower pursuant to the Credit Agreement, and all payments made on account
of principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of advances (the "Advances") by
the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Advance being evidenced by
this Promissory Note, (ii) contains provisions for determining the Dollar
Equivalent of Advances denominated in Committed Currencies and (iii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.
[NAME OF BORROWER]
By
- ------------------------
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
- ----------------------------- ------------------ -----------------
Amount of
Date Amount of Principal Paid Unpaid Principal Notation
Advance or Prepaid Balance Made By
EXHIBIT B - FORM OF NOTICE OF
BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, [NAME OF BORROWER], refers to the Five Year
Credit Agreement, dated as of May 9, 2005 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, [Dentsply International Inc.,] certain
Lenders parties thereto, JPMorgan Chase Bank, N.A., as syndication agent, Harris
Trust and Savings Bank, Manufacturers and Traders Trust Company and Wachovia
Bank, National Association, as co-documentation agents, Citigroup Global Markets
Inc. and J.P. Morgan Securities Inc., as joint lead arrangers and joint
bookrunners, and Citibank, N.A., as Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________, 200_.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________][for a Borrowing in a Committed Currency, list
currency and amount of Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate
Advance made as part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement (except the representations set forth in
the last sentence of subsection (e) thereof and in subsection (f)(i)
thereof) and, in the case of any Borrowing made to a Designated
Subsidiary, in the Designation Agreement for such Designated
Subsidiary, are correct, before and after giving effect to the Proposed
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date; and
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
[NAME OF BORROWER]
By
- ------------------------
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Five Year Credit Agreement dated as of May 9, 2005
(as amended or modified from time to time, the "Credit Agreement") among
Dentsply International Inc., a Delaware corporation (the "Company"), the Lenders
(as defined in the Credit Agreement), JPMorgan Chase Bank, N.A., as syndication
agent, Harris Trust and Savings Bank, Manufacturers and Traders
Trust Company and Wachovia Bank, National Association, as co-documentation
agents, Citigroup Global Markets Inc. and J.P. Morgan
Securities Inc., as joint lead arrangers and joint bookrunners, and
Citibank, N.A., as agent for the Lenders (the "Agent"). Terms
defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the [Credit Agreement as of the
date hereof] [the Letter of Credit Facility] equal to the percentage interest
specified on Schedule 1 hereto of [all outstanding rights and obligations under
the Credit Agreement together with participations in Letters of Credit held by
the Assignor on the date hereof] [such Assignor's Unissued Letter of Credit
Commitment]. After giving effect to such sale and assignment, the Assignee's
[Revolving Credit Commitment and the amount of the Advances owing to the
Assignee] [Letter of Credit Commitment] will be as set forth on Schedule 1
hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any lien
or security interest created or purported to be created under or in connection
with, the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or any
other Borrower or the performance or observance by the Company or any other
Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iv) attaches the Note[,
if any,] held by the Assignor [and requests that the Agent exchange such Note
for a new Note payable to the order of [the Assignee in an amount equal to the
Commitments assumed by the Assignee pursuant hereto or new Notes payable to the
order of the Assignee in an amount equal to the Commitments assumed by the
Assignee pursuant hereto and] the Assignor in an amount equal to the Commitments
retained by the Assignor under the Credit Agreement[, respectively,] as
specified on Schedule 1 hereto].
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor 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
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service forms required under Section 2.14 of
the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the Credit
Agreement and the Notes in respect of the interest assigned hereby (including,
without limitation, all payments of principal, interest and facility fees with
respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement and the Notes for
periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance 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 Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
[Assignee's Revolving Credit Commitment: $______
Aggregate outstanding principal amount of Revolving Credit Advances
assigned: $______
Principal amount of Note payable to Assignee: $______
Principal amount of Note payable to Assignor: $______]
[Assignee's Letter of Credit Commitment: $______]
Effective Date*: _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By
------------------------
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By
------------------------
Title:
Dated: _______________, 200_
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
Address]
Accepted [and Approved]** this
__________ day of _______________, 200_
CITIBANK, N.A., as Agent
By
------------------------------------------
Title:
[Approved this __________ day
of _______________, 200_
DENTSPLY INTERNATIONAL INC.
By ]*
------------------------------------------
Title:
EXHIBIT D - FORM OF
OPINION OF COUNSEL
FOR THE COMPANY
[Effective Date]
To each of the Lenders parties
to the Five Year Credit Agreement dated
as of May 9, 2005
among Dentsply International Inc.,
said Lenders and Citibank, N.A.,
as Agent for said Lenders, and
to Citibank, N.A., as Agent
Dentsply International Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(h)
(iv) of the Five Year Credit Agreement, dated as of May
9, 2005 (the "Credit Agreement"), among Dentsply International Inc.
(the "Borrower"), the Lenders parties thereto, JPMorgan Chase
Bank, N.A., as syndication agent, Harris Trust and Savings Bank,
Manufacturers and Traders Trust Company and Wachovia Bank, National
Association, as co-documentation agents, Citigroup Global Markets Inc.
and J.P. Morgan Securities Inc., as joint lead arrangers and
joint bookrunners, and Citibank, N.A., as Agent for said Lenders. Terms
defined in the Credit Agreement are used herein as therein defined.
We have acted as counsel for the Borrower in connection with the preparation,
execution and delivery of the Credit Agreement.
In that connection, we have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Borrower pursuant to
Article III of the Credit Agreement.
(3) The [Articles] [Certificate] of Incorporation of the
Borrower and all amendments thereto (the "Charter").
(4) The by-laws of the Borrower and all amendments thereto
(the "By-laws").
(5) A certificate of the Secretary of State of __________,
dated _______________, 2005, attesting to the continued corporate
existence and good standing of the Borrower in that State.
We have also examined the originals, or copies certified to our satisfaction, of
the documents listed in a certificate of the chief financial officer of the
Borrower, dated the date hereof (the "Certificate"), certifying that the
documents listed in such certificate are all of the indentures, loan or credit
agreements, leases, guarantees, mortgages, security agreements, bonds, notes and
other agreements or instruments, and all of the orders, writs, judgments,
awards, injunctions and decrees, that affect or purport to affect the Borrower's
right to borrow money or the Borrower's obligations under the Credit Agreement
or the Notes. In addition, we have examined the originals, or copies certified
to our satisfaction, of such other corporate records of the Borrower,
certificates of public officials and of officers of the Borrower, and
agreements, instruments and other documents, as we have deemed necessary as a
basis for the opinions expressed below. As to questions of fact material to such
opinions, we have, when relevant facts were not independently established by us,
relied upon certificates of the Borrower or its officers or of public officials.
We have assumed the due execution and delivery, pursuant to due authorization,
of the Credit Agreement by the Initial Lenders and the Agent.
Our opinions expressed below are limited to the law of the
State of [New York], the General Corporation Law of the State of Delaware and
the Federal law of the United States.
Based upon the foregoing and upon such investigation as we
have deemed necessary, we are of the following opinion:
1. The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Borrower of
the Credit Agreement and the Notes, and the consummation of the
transactions contemplated thereby, are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action,
and do not contravene (i) the Charter or the By-laws or (ii) any law,
rule or regulation applicable to the Borrower (including, without
limitation, Regulation X of the Board of Governors of the Federal
Reserve System) or (iii) any contractual or legal restriction contained
in any document listed in the Certificate or, to the best of our
knowledge, contained in any other similar document. The Credit
Agreement and the Notes have been duly executed and delivered on behalf
of the Borrower.
3. No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by the Borrower of the Credit Agreement and the Notes.
4. The Credit Agreement is, and after giving effect to the
initial Borrowing, the Notes will be, legal, valid and binding
obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms.
5. To the best of our knowledge, there are no pending or
overtly threatened actions or proceedings against the Borrower or any
of its Subsidiaries before any court, governmental agency or arbitrator
that purport to affect the legality, validity, binding effect or
enforceability of the Credit Agreement or any of the Notes or the
consummation of the transactions contemplated thereby or that are
likely to have a materially adverse effect upon the financial condition
or operations of the Borrower or any of its Subsidiaries.
The opinions set forth above are subject to the following
qualifications:
(a) Our opinion in paragraph 4 above as to enforceability is
subject to the effect of any applicable bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar law affecting
creditors' rights generally.
(b) Our opinion in paragraph 4 above as to enforceability is
subject to the effect of general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith
and fair dealing (regardless of whether considered in a proceeding in
equity or at law).
(c) We express no opinion as to (i) Section 2.14 of the Credit
Agreement insofar as it provides that any Lender purchasing a
participation from another Lender pursuant thereto may exercise set-off
or similar rights with respect to such participation and (ii) the
effect of the law of any jurisdiction other than the State of [New
York] wherein any Lender may be located or wherein enforcement of the
Credit Agreement or the Notes may be sought that limits the rates of
interest legally chargeable or collectible.
Very truly yours,
EXHIBIT E - FORM OF
DESIGNATION AGREEMENT
[DATE]
To each of the Lenders
parties to the Credit Agreement
(as defined below) and to Citibank, N.A.,
as Agent for such Lenders
Ladies and Gentlemen:
Reference is made to the Five Year Credit Agreement dated as of May 9, 2005
(as amended or modified from time to time, the "Credit Agreement") among
Dentsply International Inc., a Delaware corporation (the "Company"), the
Lenders (as defined in the Credit Agreement), JPMorgan Chase Bank, N.A., as
syndication agent, Harris Trust and Savings Bank, Manufacturers and Traders
Trust Company and Wachovia Bank, National Association, as co-documentation
agents, Citigroup Global Markets Inc. and J.P. Morgan Securities Inc., as joint
lead arrangers and joint bookrunners, and Citibank, N.A., as agent for the
Lenders (the "Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
Please be advised that the Company hereby designates its
undersigned Subsidiary, ____________ ("Designated Subsidiary"), as a "Designated
Subsidiary" under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's
agreement to extend credit to it under and on the terms and conditions set forth
in the Credit Agreement, does hereby assume each of the obligations imposed upon
a "Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Lender as follows:
(a) The Designated Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of
______________________.
(b) The execution, delivery and performance by the Designated
Subsidiary of this Designation Agreement, the Credit Agreement and the
Notes to be delivered by it are within the Designated Subsidiary's
corporate or other powers, have been duly authorized by all necessary
corporate or other action and do not contravene (i) the Designated
Subsidiary's charter or by-laws or (ii) law or any contractual
restriction binding on or affecting the Designated Subsidiary. The
Designation Agreement and the Notes delivered by it have been duly
executed and delivered on behalf of the Designated Subsidiary.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any third party is required for the due execution, delivery and
performance by the Designated Subsidiary of this Designation Agreement,
the Credit Agreement or the Notes to be delivered by it.
(d) This Designation Agreement is, and the Notes to be
delivered by the Designated Subsidiary when delivered will be, legal,
valid and binding obligations of the Designated Subsidiary enforceable
against the Designated Subsidiary in accordance with their respective
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in
equity or law).
(e) There is no pending or threatened action, suit,
investigation or proceeding, including, without limitation, any
Environmental Action, affecting the Designated Subsidiary or any of its
Subsidiaries before any court, governmental agency or arbitrator that
purports to affect the legality, validity or enforceability of this
Designation Agreement, the Credit Agreement or any Note of the
Designated Subsidiary.
The Designated Subsidiary hereby agrees that service of
process in any action or proceeding brought in any New York State court or in
federal court may be made upon the Company at its offices at ___________,
Attention: __________ (the "Process Agent") and the Designated Subsidiary hereby
irrevocably appoints the Process Agent to give any notice of any such service of
process, and agrees that the failure of the Process Agent to give any notice of
any such service shall not impair or affect the validity of such service or of
any judgment rendered in any action or proceeding based thereon.
The Company hereby accepts such appointment as Process Agent
and agrees with you that (i) the Company will maintain an office in __________,
New York through the Termination Date and will give the Agent prompt notice of
any change of address of the Company, (ii) the Company will perform its duties
as Process Agent to receive on behalf of the Designated Subsidiary and its
property service of copies of the summons and complaint and any other process
which may be served in any action or proceeding in any New York State or federal
court sitting in New York City arising out of or relating to the Credit
Agreement and (iii) the Company will forward forthwith to the Designated
Subsidiary at its address at ___________________ or, if different, its then
current address, copies of any summons, complaint and other process which the
Company received in connection with its appointment as Process Agent.
This Designation Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
Very truly yours,
DENTSPLY INTERNATIONAL INC.
By ________________________
Name:
Title:
[THE DESIGNATED SUBSIDIARY]
By__________________________
Name:
Title:
EXECUTION COPY
U.S. $500,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of May 9, 2005
Among
DENTSPLY INTERNATIONAL INC.
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Administrative Agent
and
JPMORGAN CHASE BANK, N.A.
as Syndication Agent
and
HARRIS TRUST AND SAVINGS BANK
MANUFACTURERS AND TRADERS TRUST COMPANY
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Co-Documentation Agents
and
CITIGROUP GLOBAL MARKETS INC.
and
J.P. MORGAN SECURITIES INC.
as Joint Lead Arrangers and Joint Bookrunners
iv
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
- ---------------------
SECTION 1.02. Computation of Time Periods 12
- ---------------------------
SECTION 1.03. Accounting Terms 12
- ----------------
ARTICLE II
SECTION 2.01. The Advances and Letters of Credit 12
- ----------------------------------
SECTION 2.02. Making the Advances 13
- -------------------
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit 14
- ------------------------------------------------------------------
SECTION 2.04. Fees 15
- ----
SECTION 2.05. Termination or Reduction of the Commitments 15
- -------------------------------------------
SECTION 2.06. Repayment of Advances and Letter of Credit Drawings 16
- ---------------------------------------------------
SECTION 2.07. Interest on Revolving Credit Advances 16
- -------------------------------------
SECTION 2.08. Interest Rate Determination 17
- ---------------------------
SECTION 2.09. Optional Conversion of Revolving Credit Advances 18
- ------------------------------------------------
SECTION 2.10. Prepayments of Advances 18
- -----------------------
SECTION 2.11. Increased Costs 19
- ---------------
SECTION 2.12. Illegality 19
- ----------
SECTION 2.13. Payments and Computations 20
- -------------------------
SECTION 2.14. Taxes 21
- -----
SECTION 2.15. Sharing of Payments, Etc. 22
- ------------------------
SECTION 2.16. Evidence of Debt 22
- ----------------
SECTION 2.17. Use of Proceeds 23
- ---------------
SECTION 2.18. Increase in the Aggregate Commitments 23
- -------------------------------------
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 24
- -----------------------------------------------------
SECTION 3.02. Initial Advance to Each Designated Subsidiary 26
- ---------------------------------------------
SECTION 3.03. Conditions Precedent to Each Borrowing, Issuance and Commitment
Increase. 26
- ------------------------------------------------------------------------
SECTION 3.04. Determinations Under Section 3.01 27
- ---------------------------------
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Company 27
- ---------------------------------------------
ARTICLE V
SECTION 5.01. Affirmative Covenants 28
- ---------------------
SECTION 5.02. Negative Covenants 30
- ------------------
SECTION 5.03. Financial Covenants 32
- -------------------
ARTICLE VI
SECTION 6.01. Events of Default 32
- -----------------
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default 34
- --------------------------------------------------------
ARTICLE VII
SECTION 7.01. Unconditional Guaranty 34
- ----------------------
SECTION 7.02. Guaranty Absolute 34
- -----------------
SECTION 7.03. Waivers and Acknowledgments 35
- ---------------------------
SECTION 7.04. Subrogation 36
- -----------
SECTION 7.05. Subordination 36
- -------------
SECTION 7.06. Continuing Guaranty; Assignments 37
- --------------------------------
ARTICLE VIII
SECTION 8.01. Authorization and Action 37
- ------------------------
SECTION 8.02. Agent's Reliance, Etc. 37
- ---------------------
SECTION 8.03. Citibank and Affiliates 38
- -----------------------
SECTION 8.04. Lender Credit Decision 38
- ----------------------
SECTION 8.05. Indemnification 38
- ---------------
SECTION 8.06. Successor Agent 39
- ---------------
SECTION 8.07. Sub-Agent 39
- ---------
SECTION 8.08. Other Agents. 39
- -------------
ARTICLE IX
SECTION 9.01. Amendments, Etc. 39
- ---------------
SECTION 9.02. Notices, Etc. 40
- ------------
SECTION 9.03. No Waiver; Remedies 40
- -------------------
SECTION 9.04. Costs and Expenses 41
- ------------------
SECTION 9.05. Right of Set-off 42
- ----------------
SECTION 9.06. Binding Effect 42
- --------------
SECTION 9.07. Assignments and Participations 42
- ------------------------------
SECTION 9.08. Confidentiality 44
- ---------------
SECTION 9.09. Designated Subsidiaries 44
- -----------------------
SECTION 9.10. Governing Law 45
- -------------
SECTION 9.11. Execution in Counterparts 45
- -------------------------
SECTION 9.12. Judgment 45
- --------
SECTION 9.13. Jurisdiction, Etc. 45
- -----------------
SECTION 9.14. Substitution of Currency 46
- ------------------------
SECTION 9.15. No Liability of the Issuing Banks 46
- ---------------------------------
SECTION 9.16. Patriot Act Notice 46
- ------------------
SECTION 9.17. Power of Attorney 46
- -----------------
SECTION 9.18. Waiver of Jury Trial 46
- --------------------
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 2.01(b) - Existing Letters of Credit
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Existing Debt
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Company
Exhibit E - Form of Designation Letter
* This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Agent.
** Required if the Assignee is an Eligible Assignee solely by reason of clause
(viii) of the definition of "Eligible Assignee". * Required if the Assignee is
an Eligible Assignee solely by reason of clause (viii) of the definition of
"Eligible Assignee".