EXECUTION COPY
$200,000,000
THREE-YEAR CREDIT AGREEMENT
dated as of February 20, 2002,
among
LABORATORY CORPORATION OF AMERICA HOLDINGS,
THE LENDERS NAMED HEREIN
and
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
______________________
CREDIT SUISSE FIRST BOSTON,
as Sole Bookrunner and
Sole Lead Arranger
BANK OF AMERICA, N.A.,
DEUTSCHE BANC ALEX. BROWN,
UBS WARBURG LLC AND
WACHOVIA SECURITIES,
as Co-Syndication Agents
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms 1
SECTION 1.02. Terms Generally 15
SECTION 1.03. Classification of Loans and
Borrowings 15
ARTICLE II
The Credits
SECTION 2.01. Commitments 15
SECTION 2.02. Loans 15
SECTION 2.03. Competitive Bid Procedure 17
SECTION 2.04. Borrowing Procedure 19
SECTION 2.05. Evidence of Debt; Repayment
of Loans 19
SECTION 2.06. Fees 20
SECTION 2.07. Interest on Loans 21
SECTION 2.08. Default Interest 22
SECTION 2.09. Alternate Rate of Interest 22
SECTION 2.10. Termination and Reduction of
Commitments 23
SECTION 2.11. Conversion and Continuation of
Borrowings 23
SECTION 2.12. Optional Prepayment 24
SECTION 2.13. Reserve Requirements; Change
in Circumstances 25
SECTION 2.14. Change in Legality 26
SECTION 2.15. Break Funding 27
SECTION 2.16. Pro Rata Treatment 27
SECTION 2.17. Sharing of Setoffs 28
SECTION 2.18. Payments 28
SECTION 2.19. Taxes 28
SECTION 2.20. Assignment of Commitments
Under Certain Circumstances;
Duty to Mitigate 30
SECTION 2.21. Letters of Credit 31
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers 35
SECTION 3.02. Authorization 35
SECTION 3.03. Enforceability 36
SECTION 3.04. Governmental Approvals 36
SECTION 3.05. Financial Statements 36
SECTION 3.06. No Material Adverse Change 36
SECTION 3.07. Subsidiaries 36
SECTION 3.08. Litigation; Compliance
with Laws 36
SECTION 3.09. Federal Reserve Regulations 37
SECTION 3.10. Investment Company Act; Public
Utility Holding Co. Act 37
SECTION 3.11. Use of Proceeds 37
SECTION 3.12. Tax Returns 37
SECTION 3.13. No Material Misstatements 37
SECTION 3.14. Employee Benefit Plans 37
SECTION 3.15. Environmental Matters 38
SECTION 3.16. Senior Indebtedness 38
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events 38
SECTION 4.02. Closing Date 39
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and
Properties 40
SECTION 5.02. Insurance 40
SECTION 5.03. Obligations and Taxes 40
SECTION 5.04. Financial Statements,
Reports, et 41
SECTION 5.05. Litigation and Other Notices 42
SECTION 5.06. Maintaining Records; Access
to Properties and
Inspections 42
SECTION 5.07. Use of Proceeds 42
ARTICLE VI
Negative Covenants
SECTION 6.01. Subsidiary Indebtedness 43
SECTION 6.02. Liens 44
SECTION 6.03. Sale and Lease-Back
Transactions 45
SECTION 6.04. Mergers, Consolidations and
Sales of Assets 45
SECTION 6.05. Restricted Payments 45
SECTION 6.06. Business of Borrower
and Subsidiaries 46
SECTION 6.07. Interest Coverage Ratio 46
SECTION 6.08. Maximum Leverage Ratio 46
SECTION 6.09. Hedging Agreements 46
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices 50
SECTION 9.02. Survival of Agreement 50
SECTION 9.03. Binding Effect 51
SECTION 9.04. Successors and Assigns 51
SECTION 9.05. Expenses; Indemnity 54
SECTION 9.06. Right of Setoff 55
SECTION 9.07. Applicable Law 56
SECTION 9.08. Waivers; Amendment 56
SECTION 9.09. Interest Rate Limitation 57
SECTION 9.10. Entire Agreement 57
SECTION 9.11. WAIVER OF JURY TRIAL 57
SECTION 9.12. Severability 57
SECTION 9.13. Counterparts 58
SECTION 9.14. Headings 58
SECTION 9.15. Jurisdiction; Consent to
Service of Process 58
SECTION 9.16. Confidentiality 58
SECTION 9.17. Termination of Existing
Credit Agreement 59
Schedule 1.01(a) Existing Letters of Credit
Schedule 2.01 Lenders and Commitments
Schedule 3.07 Subsidiaries
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D-1 Form of Competitive Bid Request
Exhibit D-2 Form of Notice of Competitive Bid Request
Exhibit D-3 Form of Competitive Bid
Exhibit D-4 Form of Competitive Bid Accept/Reject Letter
Exhibit E-1 Form of Opinion of Chief Legal Counsel of the
Borrower
Exhibit E-2 Form of Opinion of Davis Polk & Wardwell
CREDIT AGREEMENT dated as of February 20, 2002, among
LABORATORY CORPORATION OF AMERICA HOLDINGS, a
Delaware corporation (the "Borrower"), the Lenders (as defined in
Article I), and CREDIT SUISSE FIRST BOSTON, a bank organized
under the laws of Switzerland, acting through its New York branch, as
administrative agent (in such capacity, the "Administrative Agent") for
the Lenders.
The Borrower has requested the Lenders to extend credit in the
form of Revolving Loans (such term and each other capitalized term used
but not defined herein having the meaning given it in Article I) at any time
and from time to time prior to the Maturity Date, in an aggregate principal
amount at any time outstanding not in excess of $200,000,000. The
Borrower has also requested the Lenders to provide a procedure pursuant
to which the Borrower may invite the Lenders to bid on an uncommitted
basis on short-term borrowings by the Borrower. The Borrower has
requested the Issuing Bank to issue Letters of Credit, in an aggregate face
amount at any time outstanding not in excess of $75,000,000, to support
payment obligations incurred in the ordinary course of business by the
Borrower and its Subsidiaries. The proceeds of the Loans are to be used
solely for general corporate purposes of the Borrower and its Subsidiaries,
including (a) working capital, (b) capital expenditures, (c) the funding of
share repurchases and other Restricted Payments permitted hereunder, (d)
acquisitions and (e) the repayment of all amounts outstanding or due
under the Existing Credit Agreement.
The Lenders are willing to extend such credit to the Borrower and
the Issuing Bank is willing to issue Letters of Credit for the account of the
Borrower, in each case on the terms and subject to the conditions set forth
herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions tc \l1 "ARTICLE IDefinitions
SECTION 1.01. Defined Terms tc \l2 "SECTION 1.01.
Defined Terms . As used in this Agreement, the following terms shall
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Alternate Base
Rate.
"Administrative Agent Fees" shall have the meaning assigned to
such term in Section 2.06(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A, or such other form as may be
supplied from time to time by the Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control
with the person specified.
"Aggregate Revolving Credit Exposure" shall mean the
aggregate amount of the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any
change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective on the effective date of
such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Percentage" shall mean, for any day, with respect
to any Eurodollar Loan (other than any Eurodollar Competitive Loan) or
ABR Loan, or with respect to the Facility Fees, as the case may be, the
applicable percentage set forth below under the caption "Eurodollar
Spread", "ABR Spread" or "Facility Fee Percentage", as the case may be,
based upon the rating by S&P applicable on such date to the Index Debt:
Eurodollar Facility Fee
S&P Rating Spread ABR Spread Percentage
- ----------- ----------- ---------- -------------
Category 1
Equal to or 0.500% 0.00% 0.125%
Greater than A-
Category 2
BBB+ 0.600% 0.00% 0.150%
Category 3
BBB 0.825% 0.00% 0.175%
Category 4
BBB- 1.150% 0.150% 0.225%
Category 5
Less than
BBB- 1.400% 0.400% 0.350%
For purposes of the foregoing, (i) if S&P shall not have in effect
a rating for the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then S&P shall be
deemed to have established a rating in Category 5; and (ii) if the rating
established or deemed to have been established by S&P for the Index Debt
shall be changed (other than as a result of a change in the rating system of
S&P), such change shall be effective as of the date on which it is first
announced by S&P. Each change in the Applicable Percentage shall apply
during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next
such change. If the rating system of S&P shall change, or if S&P shall
cease to be in the business of rating corporate debt obligations, the
Borrower and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the non-availability of
a rating from S&P and, pending the effectiveness of any such amendment,
the Applicable Percentage shall be determined by reference to the rating
most recently in effect prior to such change or cessation.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee (with the consent of
any party whose consent is required by Section 9.04), and accepted by the
Administrative Agent, in the form of Exhibit B or such other form as shall
be approved by the Administrative Agent.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States of America.
"Borrowing" shall mean (a) Loans of the same Type made,
converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect or (b) a Borrowing
described in the definition of the term "Competitive Borrowing".
"Borrowing Request" shall mean a request by the Borrower in
accordance with the terms of Section 2.04.
"Business Day" shall mean any day other than a Saturday,
Sunday or day on which banks in New York City are authorized or
required by law to close; provided, however, that when used in connection
with a Eurodollar Loan, the term "Business Day" shall also exclude any
day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capital Lease Obligations" of any person shall mean the
obligations of such person to pay rent or other amounts under any lease
of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if
(a) any person or group (within the meaning of Rule 13d-5 of the
Securities Exchange Act of 1934 as in effect on the date hereof) shall own
directly or indirectly, beneficially or of record, shares representing more
than 40% of the aggregate ordinary voting power represented by the
issued and outstanding capital stock of the Borrower or (b) a majority of
the seats (other than vacant seats) on the board of directors of the
Borrower shall at any time be occupied by persons who were neither
(i) nominated by the board of directors of the Borrower nor (ii) appointed
by directors so nominated.
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule
or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section
2.13, by any lending office of such Lender or by such Lender's or Issuing
Bank's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Closing Date" shall mean February 20, 2002.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Loans and to acquire participations
in Letters of Credit hereunder as set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender assumed its
Commitment, as applicable, as the same may be (a) reduced from time to
time pursuant to Section 2.10 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to
Section 9.04.
"Competitive Bid" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.03(b) in the form of Exhibit D-3.
"Competitive Bid Accept/Reject Letter" shall mean a notification
made by the Borrower pursuant to Section 2.03(d) in the form of
Exhibit D-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid,
(i) in the case of a Eurodollar Loan, the Margin, and (ii) in the case of a
Fixed Rate Loan, the fixed rate of interest offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" shall mean a request made by the
Borrower pursuant to Section 2.03(a).
"Competitive Borrowing" shall mean a Borrowing consisting of
a Competitive Loan or concurrent Competitive Loans from the Lender or
Lenders whose Competitive Bids for such Borrowing have been accepted
by the Borrower under the bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan from a Lender to the
Borrower pursuant to the bidding procedure described in Section 2.03.
Each Competitive Loan shall be a Eurodollar Competitive Loan or a Fixed
Rate Loan.
"Confidential Information Memorandum" shall mean the
Confidential Information Memorandum of the Borrower dated January
2002.
"Consolidated EBITDA" shall mean, for any period,
Consolidated Net Income for such period plus (a) without duplication and
to the extent deducted in determining such Consolidated Net Income, the
sum of (i) consolidated interest expense net of interest income for such
period, (ii) consolidated income tax expense for such period, (iii) all
amounts attributable to depreciation and amortization for such period and
(iv) any extraordinary charges and all non-cash write-offs and write-
downs of amortizable and depreciable items for such period, and minus
(b) without duplication, to the extent included in determining such
Consolidated Net Income, any extraordinary gains and all non-cash items
of income for such period, all determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any period, the
interest expense (including (a) imputed interest expense in respect of
Capital Lease Obligations and (b) the amortization of original issue
discount in connection with the Subordinated Notes and other
Indebtedness issued with original issue discount) of the Borrower and the
Subsidiaries for such period, net of interest income, in each case
determined on a consolidated basis in accordance with GAAP. For
purposes of the foregoing, interest expense shall be determined after
giving effect to any net payments made or received by the Borrower or any
Subsidiary with respect to interest rate Hedging Agreements.
"Consolidated Net Income" shall mean, for any period, the net
income or loss of the Borrower and the Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have
meanings correlative thereto.
"Credit Event" shall have the meaning assigned to such term in
Section 4.01.
"Default" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Environmental Laws" shall mean all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments or injunctions issued,
promulgated or entered into by any Governmental Authority, relating to
the environment, the preservation or reclamation of natural resources, the
management or release of Hazardous Materials or to the effect of the
environment on human health and safety.
"Environmental Liability" shall mean liabilities, obligations,
claims, actions, suits, judgments or orders under or relating to any
Environmental Law for any damages, injunctive relief, losses, fines,
penalties, fees, expenses (including fees and expenses of attorneys and
consultants) or costs, whether contingent or otherwise, including those
arising from or relating to (a) any action to address the on- or off-site
presence, release of, or exposure to, Hazardous Materials, (b) permitting
and licensing, governmental administrative oversight and financial
assurance requirements, (c) any personal injury (including death), any
property damage (real or personal) or natural resource damage and (d) the
violation of any Environmental Law.
"Equity Interests" shall mean shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity interests in any person, or any
obligations convertible into or exchangeable for, or giving any person a
right, option or warrant to acquire such equity interests or such convertible
or exchangeable obligations; provided that the Subordinated Notes are
deemed not to constitute Equity Interests of the Borrower.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code, or solely for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined
in Section 4043 of ERISA or the regulations issued thereunder, with
respect to a Plan (other than an event for which the 30-day notice period
is waived); (b) the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section 302
of ERISA), whether or not waived; (c) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan;
(d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any
Plan or the withdrawal or partial withdrawal of the Borrower or any of its
ERISA Affiliates from any Plan or Multiemployer Plan; (e) the receipt by
the Borrower or any of its ERISA Affiliates from the PBGC or a plan
administrator of any notice relating to the intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan; (f) the adoption of
any amendment to a Plan that would require the provision of security
pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (g)
the receipt by the Borrower or any of its ERISA Affiliates of any notice,
or the receipt by any Multiemployer Plan from the Borrower or any of its
ERISA Affiliates of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected
to be, insolvent or in reorganization, within the meaning of Title IV of
ERISA; or (h) the occurrence of a "prohibited transaction" with respect
to which the Borrower or any of the Subsidiaries is a "disqualified person"
(within the meaning of Section 4975 of the Code) or with respect to which
the Borrower or any such Subsidiary could otherwise be liable.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the LIBO Rate.
"Event of Default" shall have the meaning assigned to such term
in Article VII.
"Excluded Taxes" shall mean, with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any payment
to be made by or on account of any obligation of the Borrower hereunder,
(a) income, franchise or similar taxes imposed on (or measured by) its net
income by the United States of America, the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located
(or, in the case of any Lender, in which its applicable lending office is
located), or, in the case of a jurisdiction that imposes taxes on the basis of
management or control or other concept or principle of residence, the
jurisdiction in which such recipient is so resident, (b) Taxes imposed by
reason of any present or former connection between such person and the
jurisdiction imposing such Taxes, other than solely as a result of the
execution and delivery of this Agreement, the making of any Loans
hereunder or the performance of any action provided for hereunder, (c) any
branch profits taxes imposed by the United States of America or any
similar tax imposed by any other jurisdiction in which the Borrower is
located and (d) in the case of a Foreign Lender (other than as an assignee
pursuant to a request by the Borrower under Section 2.20(a)), any
withholding tax that (i) is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of
a new lending office (or assignment), to receive additional amounts from
the Borrower with respect to such withholding tax pursuant to Section
2.19(a) or (ii) is attributable to such Foreign Lender's failure to comply
with Section 2.19(e).
"Existing Credit Agreement" shall mean the Amended and
Restated Credit Agreement dated as of March 31, 1997, as amended,
among the Borrower, the lenders from time to time party thereto, and
Credit Suisse First Boston, as administrative agent.
"Existing Letter of Credit" shall mean each Letter of Credit
previously issued for the account of the Borrower that (a) is outstanding
on the Closing Date and (b) is listed on Schedule 1.01(a).
"Facility Fee" shall have the meaning assigned to such term in
Section 2.06(a).
"Federal Funds Effective Rate" shall mean, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of
1%) of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that is
a Business Day, the average (rounded upwards, if necessary, to the next
1/100 of 1%) of the quotations for the day for such transactions received
by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Fees" shall mean the Facility Fees, the Administrative Agent
Fees, the L/C Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any person shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
person.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of
Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (expressed in the form of a
decimal to no more than four decimal places) specified by the Lender
making such Loan in its Competitive Bid.
"Foreign Lender" shall mean any Lender that is organized under
the laws of a jurisdiction other than that in which the Borrower is located.
For purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" shall mean generally accepted accounting principles
applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Granting Lender" shall have the meaning assigned to such term
in Section 9.04(i).
"Guarantee" of or by any person (the "guarantor") shall mean
any obligation, contingent or otherwise, of such person guaranteeing or
having the economic effect of guaranteeing any Indebtedness of any other
person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or to purchase (or to advance or supply
funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for
the purpose of assuring the owner of such Indebtedness of the payment of
such Indebtedness or other obligation, (c) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such
Indebtedness or (d) as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness; provided,
however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business.
"Hazardous Materials" shall mean (a) petroleum products and
byproducts, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, radon gas, chlorofluorocarbons and all other ozone-depleting
substances and (b) any chemical, material, substance, waste, pollutant or
contaminant that is prohibited, limited or regulated by or pursuant to any
Environmental Law.
"Hedging Agreement" shall mean any interest rate protection
agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate or
commodity price hedging arrangement.
"Indebtedness" of any person shall mean, without duplication,
(a) all obligations of such person for borrowed money, (b) all obligations
of such person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such person under conditional sale or
other title retention agreements relating to property or assets purchased by
such person, (d) all obligations of such person issued or assumed as the
deferred purchase price of property or services (excluding trade accounts
payable and accrued obligations incurred in the ordinary course of
business), (e) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by such person,
whether or not the obligations secured thereby have been assumed, (f) all
Guarantees by such person of Indebtedness of others, (g) all Capital Lease
Obligations of such person, (h) all obligations, contingent or otherwise,
of such person as an account party in respect of letters of credit and letters
of guaranty, (i) all obligations, contingent or otherwise, of such person in
respect of bankers' acceptances and (j) all obligations of such person to
make contingent cash payments in respect of any acquisition, to the extent
such obligations are or are required to be shown as liabilities on the
balance sheet of such person in accordance with GAAP. The
Indebtedness of any person shall include the Indebtedness of any other
entity (including any partnership in which such person is a general
partner) to the extent such person is liable therefor as a result of such
person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such
person is not liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded
Taxes.
"Index Debt" shall mean the senior, unsecured, non-credit
enhanced, long-term indebtedness for borrowed money of the Borrower.
"Interest Coverage Ratio" shall mean, for any period, the ratio
of (a) Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for such period.
"Interest Payment Date" shall mean (a) with respect to any ABR
Loan, the last Business Day of each March, June, September and
December and (b) with respect to any Eurodollar Loan or Fixed Rate
Borrowing, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part or such Fixed Rate Borrowing, as the case
may be, and, in the case of a Eurodollar Borrowing with an Interest Period
of more than three months' duration or a Fixed Rate Borrowing with an
Interest Period of more than 90 days' duration, each day that would have
been an Interest Payment Date had successive Interest Periods of three
months' or 90 days' duration, respectively, been applicable to such
Borrowing.
"Interest Period" shall mean, (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or
6 months thereafter, as the Borrower may elect, and (b) with respect to
any Fixed Rate Borrowing, the period commencing on the date of such
Borrowing and ending on the date specified in the Competitive Bids in
which the offers to make the Fixed Rate Loans comprising such
Borrowing were extended, which shall not be earlier than 30 days after the
date of such Borrowing or later than 360 days after the date of such
Borrowing; provided, however, that if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless, in the case of a Eurodollar
Borrowing only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest
Period. For purposes hereof, the date of a Borrowing initially shall be the
date on which such Borrowing is made and thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"Issuing Bank" shall mean, as the context may require, (a) Credit
Suisse First Boston, in its capacity as the issuer of Letters of Credit
hereunder, (b) with respect to each Existing Letter of Credit, the Lender
that issued such Existing Letter of Credit, and (c) any other Lender that
may become an Issuing Bank pursuant to Section 2.21(i) or 2.21(k), with
respect to Letters of Credit issued by such Lender. The Issuing Bank may,
in its discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
"Issuing Bank Fees" shall have the meaning assigned to such
term in Section 2.06(c).
"L/C Commitment" shall mean the commitment of the Issuing
Bank to issue Letters of Credit pursuant to Section 2.21.
"L/C Disbursement" shall mean a payment or disbursement
made by the Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such
time and (b) the aggregate principal amount of all L/C Disbursements that
have not yet been reimbursed at such time. The L/C Exposure of any
Lender at any time shall equal its Pro Rata Percentage of the aggregate
L/C Exposure at such time.
"L/C Participation Fee" shall have the meaning assigned to such
term in Section 2.06(c).
"Lenders" shall mean (a) the persons listed on Schedule 2.01
(other than any such person that has ceased to be a party hereto pursuant
to an Assignment and Acceptance) and (b) any person that has become a
party hereto pursuant to an Assignment and Acceptance.
"Letter of Credit" shall mean any letter of credit issued pursuant
to Section 2.21 and any Existing Letter of Credit.
"Leverage Ratio" shall mean, for any period, the ratio of Total
Debt on the last day of such period to Consolidated EBITDA for such
period.
"LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, the rate per annum determined by the
Administrative Agent at approximately 11:00 a.m., London time, on the
date that is two Business Days prior to the commencement of such Interest
Period by reference to the British Bankers' Association Interest Settlement
Rates for deposits in dollars (as set forth by the Bloomberg Information
Service or any successor thereto or any other service selected by the
Administrative Agent which has been nominated by the British Bankers'
Association as an authorized information vendor for the purpose of
displaying such rates) for a period equal to such Interest Period; provided
that, to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the "LIBO Rate" shall be the
interest rate per annum determined by the Administrative Agent to be the
average of the rates per annum at which dollar deposits of $10,000,000
are offered for such relevant Interest Period to major banks in the London
interbank market in London, England by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date that is two Business
Days prior to the beginning of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, encumbrance, charge or security interest in or
on such asset or (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any
of the foregoing) relating to such asset.
"Loans" shall mean the Revolving Loans and the Competitive
Loans.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the
margin (expressed as a percentage rate per annum in the form of a decimal
to no more than four decimal places) to be added to or subtracted from the
LIBO Rate in order to determine the interest rate applicable to such Loan,
as specified in the Competitive Bid relating to such Loan.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean a materially adverse effect
on the financial condition, results of operations or business of the
Borrower and the Subsidiaries, taken as a whole.
"Material Indebtedness" shall mean Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more
Hedging Agreements, of any one or more of the Borrower and the
Subsidiaries in an aggregate principal amount exceeding $50,000,000.
For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of the Borrower or any Subsidiary in respect
of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Borrower or
such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"Material Subsidiary" shall mean at any time any Subsidiary,
except Subsidiaries which, if aggregated and considered as a single
Subsidiary, would not meet the definition of a "significant subsidiary"
contained as of the date hereof in Regulation S-X of the Securities and
Exchange Commission.
"Maturity Date" shall mean February 18, 2005.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made under this Agreement or
from the execution, delivery or enforcement of, or otherwise with respect
to, this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the
United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the
United States of America), in each case maturing within one year
from the date of acquisition thereof;
(b) investments in foreign and domestic commercial
paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, the highest credit
rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within one year from the
date of acquisition thereof issued or guaranteed by or placed with,
and money market deposit accounts issued or offered by, the
Administrative Agent or any domestic office of any commercial
bank organized under the laws of the United States of America or
any State thereof that has a combined capital and surplus and
undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in clause
(a) above and entered into with a financial institution satisfying
the criteria of clause (c) above;
(e) investments in "money market funds" within the
meaning of Rule 2a-7 of the Investment Company Act of 1940,
as amended, substantially all of whose assets are invested in
investments of the type described in clauses (a) through (d)
above;
(f) investments in so-called market auction securities
rated Aa2 or higher by Moody's or AA or higher by S&P and
which have a reset date not more than 365 days from the date of
acquisition thereof; and
(g) investments in readily-marketable obligations of
Indebtedness of any State of the United States or any municipality
organized under the laws of any State of the United States or any political
subdivision thereof which, at the time of acquisition, are accorded either
of the two highest ratings by S&P, Moody's or another nationally
recognized credit rating agency of similar standard, in any such case
maturing no later than one year after the date of acquisition thereof.
"person" shall mean any natural person, corporation, business
trust, joint venture, association, company, limited liability company,
partnership, Governmental Authority or other entity.
"Plan" shall mean any employee pension benefit plan (other than
a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 307 of ERISA, and in respect of which
the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate
in effect at its principal office in New York City; each change in the Prime
Rate shall be effective on the date such change is publicly announced as
being effective.
"Pro Rata Percentage" of any Lender at any time shall mean the
percentage of the Total Commitment represented by such Lender's
Commitment. In the event the Commitments shall have expired or been
terminated, the Pro Rata Percentages shall be determined on the basis of
the Commitments most recently in effect.
"Register" shall have the meaning assigned to such term in
Section 9.04(d).
"Regulation T" shall mean Regulation T of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation U" shall mean Regulation U of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation X" shall mean Regulation X of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Related Parties" shall mean, with respect to any specified
person, such person's Affiliates and the respective directors, officers,
employees, agents and advisors of such person and such person's
Affiliates.
"Required Lenders" shall mean, at any time, Lenders having
Commitments (or, if the Commitments have terminated, Loans)
representing at least a majority of the Total Commitment (or if the
Commitments have terminated, the aggregate amount of Loans
outstanding) at such time or, for purposes of acceleration pursuant to
clause (ii) of the last paragraph of Article VII, Lenders having Loans, L/C
Exposures and unused Commitments representing at least a majority of
the sum of all Loans outstanding, L/C Exposure and unused
Commitments.
"Restricted Payment" shall mean (a) any dividend or other
distribution (whether in cash, securities or other property) with respect to
any Equity Interests in the Borrower or any Subsidiary, or (b) any
payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, other than a payment to the extent
consisting of Equity Interests of equal or junior ranking, on account of the
purchase, redemption, retirement, acquisition, cancelation or termination
of any Equity Interests in the Borrower or any Subsidiary. It is understood
that the withholding of shares, and the payment of cash to the Internal
Revenue Service in an amount not to exceed the value of the withheld
shares, by the Company in connection with any of its stock incentive plans
shall not constitute Restricted Payments.
"Revolving Credit Borrowing" shall mean a Borrowing
comprised of Revolving Loans.
"Revolving Credit Exposure" shall mean, with respect to any
Lender at any time, the aggregate principal amount at such time of all
outstanding Revolving Loans of such Lender, plus the aggregate amount
at such time of such Lender's L/C Exposure.
"Revolving Loans" shall mean the revolving loans made by the
Lenders to the Borrower pursuant to Section 2.01. Each Revolving Loan
shall be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"S&P" shall mean Standard & Poor's Ratings Service.
"SPC" shall have the meaning assigned to such term in Section
9.04(i).
"Subordinated Notes" shall mean the Borrower's Zero Coupon
Liquid Yield Option (Subordinated Convertible) Notes due 2021, in an
aggregate principal amount at maturity of $744,000,000.
"Subordinated Note Documents" shall mean the indenture under
which the Subordinated Notes were issued and all other instruments,
agreements and other documents evidencing or governing the
Subordinated Notes or providing for any Guarantee or other right in
respect thereof.
"subsidiary" shall mean, with respect to any person (herein
referred to as the "parent"), any corporation, partnership, association or
other business entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the
ordinary voting power or more than 50% of the general partnership
interests are, at the time any determination is being made, owned,
controlled or held, or (b) that is, at the time any determination is made,
otherwise Controlled, by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Synthetic Purchase Agreement" shall mean any swap,
derivative or other agreement or combination of agreements pursuant to
which the Borrower or any Subsidiary is or may become obligated to make
(a) any payment in connection with a purchase by any third party from a
person other than the Borrower or any Subsidiary of any Equity Interest
or (b) any payment (other than on account of a permitted purchase by it
of any Equity Interest) the amount of which is determined by reference to
the price or value at any time of any Equity Interest; provided that no
phantom stock or similar plan providing for payments only to current or
former directors, officers or employees of the Borrower or the Subsidiaries
(or to their heirs or estates) shall be deemed to be a Synthetic Purchase
Agreement.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges, liabilities or withholdings imposed
by any Governmental Authority.
"364-Day Credit Agreement" shall mean the 364-Day Credit
Agreement dated as of the date hereof (as amended, supplemented or
otherwise modified from time to time), among the Borrower, the lenders
from time to time party thereto, and Credit Suisse First Boston, as
administrative agent.
"Total Debt" shall mean, at any time, the total Indebtedness of
the Borrower and the Subsidiaries at such time (excluding Indebtedness
of the type described in clause (h) of the definition of such term, except to
the extent of any unreimbursed drawings thereunder).
"Total Commitment" shall mean, at any time, the aggregate
amount of the Commitments, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in
Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the
Loans comprising such Borrowing is determined. For purposes hereof,
the term "Rate" shall include the LIBO Rate and the Alternate Base Rate.
"wholly owned Subsidiary" of any person shall mean a
subsidiary of such person of which securities (except for directors'
qualifying shares) or other ownership interests representing 100% of the
Equity Interests are, at the time any determination is being made, owned,
controlled or held by such person or one or more wholly owned
Subsidiaries of such person or by such person and one or more wholly
owned Subsidiaries of such person.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E of
Title IV of ERISA.
SECTION 1.02. Terms Generally tc \l2 "SECTION 1.02.
Terms Generally . The definitions in Section 1.01 shall apply equally to
both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding mascu-
line, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without
limitation". The word "will" shall be construed to have the same meaning
and effect as the word "shall"; and the words "asset" and "property" shall
be construed as having the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights. All references herein to Articles,
Sections, Exhibits and Schedules shall be deemed references to Articles
and Sections of, and Exhibits and Schedules to, this Agreement unless the
context shall otherwise require. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided,
however, that if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any covenant in Article VI or any related
definition to eliminate the effect of any change in GAAP occurring after
the date of this Agreement on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders
wish to amend Article VI or any related definition for such purpose), then
the Borrower's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant
is amended in a manner satisfactory to the Borrower and the Required
Lenders.
SECTION 1.03. Classification of Loans and Borrowings tc \l2
"SECTION 1.03. Classification of Loans and Borrowings . For
purposes of this Agreement, Loans may be classified and referred to by
Class (e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan")
or by Class and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings
also may be classified and referred to by Class (e.g., a "Revolving
Borrowing") or by Type (e.g., a "Eurodollar Borrowing") or by Class and
Type (e.g., a "Eurodollar Revolving Borrowing").
ARTICLE II
The Credits tc \l1 "ARTICLE IIThe Credits
SECTION 2.01. Commitments tc \l2 "SECTION 2.01.
Commitments . Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees,
severally and not jointly, to make Revolving Loans to the Borrower, at any
time and from time to time on or after the date hereof, and until the earlier
of the Maturity Date and the termination of the Commitment of such
Lender in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding that will not result in such Lender's
Revolving Credit Exposure exceeding such Lender's Commitment minus
the amount by which the outstanding Competitive Borrowings shall be
deemed to have utilized such Commitment in accordance with
Section 2.16. Within the limits set forth in the preceding sentence and
subject to the terms, conditions and limitations set forth herein, the
Borrower may borrow, pay or prepay and reborrow Revolving Loans.
SECTION 2.02. Loans tc \l2 "SECTION 2.02. Loans .
(a) Each Loan (other than Competitive Loans) shall be made as part of
a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their respective Commitments; provided, however, that
the failure of any Lender to make any Loan shall not in itself relieve any
other Lender of its obligation to lend hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other
Lender to make any Loan required to be made by such other Lender).
Each Competitive Loan shall be made in accordance with the procedures
set forth in Section 2.03. Except for Loans deemed made pursuant to
Section 2.02(f), the Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $1,000,000
and not less than $10,000,000 or (ii) equal to the remaining available
balance of the Commitments.
(b) Subject to Sections 2.09 and 2.14, each Competitive
Borrowing shall be comprised entirely of Eurodollar Competitive Loans
or Fixed Rate Loans, and each other Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request
pursuant to Section 2.03 or 2.04, as applicable. Each Lender may at its
option make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to
repay such Loan in accordance with the terms of this Agreement.
Borrowings of more than one Type may be outstanding at the same time;
provided, however, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than 15 Eurodollar
Borrowings outstanding hereunder at any time. For purposes of the
foregoing, Borrowings having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate
Borrowings.
(c) Except with respect to Loans made pursuant to
Section 2.02(f), each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately
available funds to such account in New York City as the Administrative
Agent may designate not later than 11:00 a.m., New York City time, and
the Administrative Agent shall promptly credit the amounts so received
to an account in the name of the Borrower and designated by the Borrower
in the applicable Borrowing Request or Competitive Bid Request or, if a
Borrowing shall not occur on such date because any condition precedent
herein specified shall not have been met, return the amounts so received
to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's portion of such
Borrowing, the Administrative Agent may assume that such Lender has
made such portion available to the Administrative Agent on the date of
such Borrowing in accordance with paragraph (c) above and the
Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If the
Administrative Agent shall have so made funds available then, to the
extent that such Lender shall not have made such portion available to the
Administrative Agent, such Lender and the Borrower severally agree to
repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from
the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent at (i) in the case of the
Borrower, the interest rate applicable at the time to the Loans comprising
such Borrowing and (ii) in the case of such Lender, a rate determined by
the Administrative Agent to represent its cost of overnight or short-term
funds (which determination shall be conclusive absent manifest error). If
such Lender shall repay to the Administrative Agent such corresponding
amount, such amount shall constitute such Lender's Loan as part of such
Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest
Period requested with respect thereto would end after the Maturity Date.
(f) If the Issuing Bank shall not have received from the Borrower
the payment required to be made by Section 2.21(e) within the time
specified in such Section, the Issuing Bank will promptly notify the
Administrative Agent of the L/C Disbursement and the Administrative
Agent will promptly notify each Lender of such L/C Disbursement and its
Pro Rata Percentage thereof. Each Lender shall pay by wire transfer of
immediately available funds to the Administrative Agent not later than
2:00 p.m., New York City time, on such date (or, if such Lender shall have
received such notice later than 12:00 (noon), New York City time, on any
day, not later than 10:00 a.m., New York City time, on the immediately
following Business Day), an amount equal to such Lender's Pro Rata
Percentage of such L/C Disbursement (it being understood that such
amount shall be deemed to constitute an ABR Loan of such Lender and
such payment shall be deemed to have reduced the L/C Exposure), and the
Administrative Agent will promptly pay to the Issuing Bank amounts so
received by it from the Lenders. The Administrative Agent will promptly
pay to the Issuing Bank any amounts received by it from the Borrower
pursuant to Section 2.21(e) prior to the time that any Lender makes any
payment pursuant to this paragraph (f); any such amounts received by the
Administrative Agent thereafter will be promptly remitted by the
Administrative Agent to the Lenders that shall have made such payments
and to the Issuing Bank, as their interests may appear. If any Lender shall
not have made its Pro Rata Percentage of such L/C Disbursement
available to the Administrative Agent as provided above, such Lender and
the Borrower severally agree to pay interest on such amount, for each day
from and including the date such amount is required to be paid in
accordance with this paragraph to but excluding the date such amount is
paid, to the Administrative Agent for the account of the Issuing Bank at
(i) in the case of the Borrower, a rate per annum equal to the interest rate
applicable to Revolving Loans pursuant to Section 2.07(a), and (ii) in the
case of such Lender, for the first such day, the Federal Funds Effective
Rate, and for each day thereafter, the Alternate Base Rate.
SECTION 2.03. Competitive Bid Procedure tc \l2
"SECTION 2.03. Competitive Bid Procedure . (a) In order to request
Competitive Bids, the Borrower shall notify the Administrative Agent of
such request by telephone (i) in the case of a Eurodollar Competitive
Borrowing, not later than 11:00 a.m., New York City time, four Business
Days before the proposed date of such Borrowing and (ii) in the case of
a Fixed Rate Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the proposed date of such Borrowing. Provided
that no two Competitive Bid Requests submitted on the same day shall be
identical, the Borrower may submit up to (but not more than) three
Competitive Bid Requests on the same day, but a Competitive Bid
Request shall not be made within five Business Days after the date of any
previous Competitive Bid Request unless such previous Competitive Bid
Request shall have been rejected by the Administrative Agent, as provided
below. No ABR Loan shall be requested in, or made pursuant to, a
Competitive Bid Request. Each such telephonic Competitive Bid Request
shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request substantially
in the form of Exhibit D-1. A Competitive Bid Request that does not
conform substantially to the format of Exhibit D-1 may be rejected by the
Administrative Agent and the Administrative Agent shall notify the
Borrower of such rejection as promptly as practicable. Each Competitive
Bid Request shall refer to this Agreement and specify (i) whether the
Borrowing being requested is to be a Eurodollar Borrowing or a Fixed
Rate Borrowing; (ii) the date of such Borrowing (which shall be a
Business Day); (iii) the number and the location of the account to which
funds are to be disbursed (which shall be an account that complies with
the requirements of Section 2.02(c)); (iv) the aggregate principal amount
of such Borrowing, which shall be a minimum of $10,000,000 and an
integral multiple of $1,000,000, and in any event shall not result in the
sum of the Aggregate Revolving Credit Exposure and the aggregate
outstanding principal amount of Competitive Loans, after giving effect to
such Borrowing, exceeding the Total Commitment; and (v) the Interest
Period with respect thereto (which may not end after the Maturity Date).
Promptly after its receipt of a Competitive Bid Request that is not re-
jected, the Administrative Agent shall invite the Lenders in the form set
forth as Exhibit D-2 to bid to make Competitive Loans pursuant to the
Competitive Bid Request.
(b) Each Lender may make one or more Competitive Bids to the
Borrower responsive to a Competitive Bid Request. Each Competitive
Bid by a Lender must be received by the Administrative Agent by
telecopy, (i) in the case of a Eurodollar Competitive Borrowing, not later
than 9:30 a.m., New York City time, three Business Days before the
proposed date of such Competitive Borrowing, and (ii) in the case of a
Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on
the proposed date of such Competitive Borrowing. Competitive Bids that
do not conform substantially to the format of Exhibit D-3 may be rejected
by the Administrative Agent, and the Administrative Agent shall notify
the applicable Lender as promptly as practicable. Each Competitive Bid
shall refer to this Agreement and specify (x) the principal amount (which
shall be a minimum of $5,000,000 and an integral multiple of $1,000,000
and which may equal the entire principal amount of the Competitive Bor-
rowing requested by the Borrower) of the Competitive Loan or Loans that
the Lender is willing to make, (y) the Competitive Bid Rate or Rates at
which the Lender is prepared to make such Loan or Loans and (z) the
Interest Period applicable to such Loan or Loans and the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower
by telecopy of the Competitive Bid Rate and the principal amount of each
Competitive Loan in respect of which a Competitive Bid shall have been
made and the identity of the Lender that shall have made each bid.
(d) The Borrower may, subject only to the provisions of this
paragraph (d), accept or reject any Competitive Bid. The Borrower shall
notify the Administrative Agent by telephone, confirmed by telecopy in
the form of a Competitive Bid Accept/Reject Letter, whether and to what
extent it has decided to accept or reject each Competitive Bid, (x) in the
case of a Eurodollar Competitive Borrowing, not later than 10:30 a.m.,
New York City time, three Business Days before the date of the proposed
Competitive Borrowing, and (y) in the case of a Fixed Rate Borrowing,
not later than 10:30 a.m., New York City time, on the proposed date of the
Competitive Borrowing; provided, however, that (i) the failure of the
Borrower to give such notice shall be deemed to be a rejection of each
Competitive Bid, (ii) the Borrower shall not accept a Competitive Bid
made at a particular Competitive Bid Rate if the Borrower has decided to
reject a Competitive Bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by the Borrower shall
not exceed the principal amount specified in the Competitive Bid Request,
(iv) if the Borrower shall accept a Competitive Bid or Bids made at a
particular Competitive Bid Rate but the amount of such Competitive Bid
or Bids would cause the total amount to be accepted by the Borrower to
exceed the amount specified in the Competitive Bid Request, then the
Borrower shall accept a portion of such Competitive Bid or Bids in an
amount equal to the amount specified in the Competitive Bid Request less
the amount of all other Competitive Bids so accepted, which acceptance,
in the case of multiple Competitive Bids at such Competitive Bid Rate,
shall be made pro rata in accordance with the amount of each such Bid,
and (v) except pursuant to clause (iv) above, no Competitive Bid shall be
accepted for a Competitive Loan unless such Competitive Loan is in a
minimum principal amount of $5,000,000 and an integral multiple of
$1,000,000; provided further, however, that if a Competitive Loan must
be in an amount less than $5,000,000 because of the provisions of clause
(iv) above, such Competitive Loan may be for a minimum of $1,000,000
or any integral multiple thereof, and in calculating the pro rata allocation
of acceptances of portions of multiple Competitive Bids at a particular
Competitive Bid Rate pursuant to clause (iv) the amounts shall be rounded
to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph (d)
shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted
(and, if so, in what amount and at what Competitive Bid Rate), and each
successful bidder will thereupon become bound, upon the terms and
subject to the conditions hereof, to make the Competitive Loan in respect
of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such
Competitive Bid directly to the Borrower at least one quarter of an hour
earlier than the time by which the other Lenders are required to submit
their Competitive Bids to the Administrative Agent pursuant to paragraph
(b) above.
(g) Within the limits set forth in this Section 2.03 and subject to
the terms, conditions and limitations set forth herein, the Borrower may
borrow, pay and reborrow Competitive Loans.
SECTION 2.04. Borrowing Procedure tc \l2 "SECTION 2.04.
Borrowing Procedure . In order to request a Borrowing (other than a
Competitive Borrowing or a deemed Borrowing pursuant to
Section 2.02(f), as to which this Section 2.04 shall not apply), the
Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before a proposed
Borrowing, and (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, on the day of a proposed Borrowing. Each
Borrowing Request shall be irrevocable, shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request substantially in the form of Exhibit C or such other
form as shall be acceptable to the Administrative Agent and shall specify
the following information: (i) whether the Borrowing then being requested
is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of
such Borrowing (which shall be a Business Day); (iii) the number and
location of the account to which funds are to be disbursed (which shall be
an account that complies with the requirements of Section 2.02(c));
(iv) the amount of such Borrowing; and (v) if such Borrowing is to be a
Eurodollar Borrowing, the Interest Period with respect thereto; provided,
however, that, notwithstanding any contrary specification in any
Borrowing Request, each requested Borrowing shall comply with the
requirements set forth in Section 2.02. If no election as to the Type of
Borrowing is specified in any such notice, then the requested Borrowing
shall be an ABR Borrowing. If no Interest Period with respect to any
Eurodollar Borrowing is specified in any such notice, then the Borrower
shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall promptly advise the Lenders of
any notice given pursuant to this Section 2.04 (and the contents thereof),
and of each Lender's portion of the requested Borrowing.
SECTION 2.05. Evidence of Debt; Repayment of Loans tc \l2
"SECTION 2.05. Evidence of Debt; Repayment of Loans . (a) The
Borrower hereby unconditionally promises to pay to the Administrative
Agent for the account of each Lender (i) the then unpaid principal amount
of each Competitive Loan of such Lender on the last day of the Interest
Period applicable to such Loan and (ii) the then unpaid principal amount
of each Revolving Loan of such Lender on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender
from time to time, including the amounts of principal and interest payable
and paid to such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which
it will record (i) the amount of each Loan made hereunder, the Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder from the Borrower and
each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) above shall be prima facie evidence of the
existence and amounts of the obligations therein recorded; provided,
however, that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect
the obligations of the Borrower to repay the Loans in accordance with
their terms.
(e) Any Lender may request that Loans made by it hereunder be
evidenced by a promissory note. In such event, the Borrower shall execute
and deliver to such Lender a promissory note payable to such Lender and
its registered assigns and in a form and substance reasonably acceptable
to the Administrative Agent and the Borrower. Notwithstanding any other
provision of this Agreement, in the event any Lender shall request and
receive such a promissory note, the interests represented by such note
shall at all times (including after any assignment of all or part of such
interests pursuant to Section 9.04) be represented by one or more
promissory notes payable to the payee named therein or its registered
assigns.
SECTION 2.06. Fees tc \l2 "SECTION 2.06. Fees . (a) The
Borrower agrees to pay to each Lender, through the Administrative Agent,
on the last Business Day of March, June, September and December in
each year, and on the date on which the Commitment of such Lender shall
expire or be terminated as provided herein, a facility fee (a "Facility Fee")
equal to the Applicable Percentage per annum in effect from time to time
on the daily amount of the Commitment of such Lender (whether used or
unused) during the preceding quarter (or shorter period commencing with
the date hereof or ending with the Maturity Date or the date on which the
Commitment of such Lender shall expire or be terminated); provided that,
if such Lender continues to have any Revolving Credit Exposure after its
Commitment terminates, then the Facility Fee shall continue to accrue
(and be payable on demand) on the daily amount of such Lender's
Revolving Credit Exposure from and including the date on which its
Commitment terminates to and including the date on which such Lender
ceases to have any Revolving Credit Exposure. All Facility Fees shall be
computed on the basis of the actual number of days elapsed (including the
first day but excluding the last day) in a year of 360 days. The Facility
Fee due to each Lender shall commence to accrue on the date of this
Agreement and shall cease to accrue on the later of the date on which the
Commitment of such Lender shall expire or be terminated as provided
herein and such Lender shall have no Revolving Credit Exposure.
(b) The Borrower agrees to pay to the Administrative Agent, for
its own account, the administrative fees separately agreed to in writing
from time to time by the Borrower and the Administrative Agent (the
"Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Lender, through the
Administrative Agent, on the last Business Day of March, June,
September and December of each year and on the date on which the
Commitment of such Lender shall be terminated as provided herein, a fee
(an "L/C Participation Fee") at a rate per annum equal to the Applicable
Percentage from time to time used to determine the interest rate on
Revolving Credit Borrowings comprised of Eurodollar Loans pursuant to
Section 2.07, calculated on such Lender's Pro Rata Percentage of the
daily aggregate L/C Exposure (excluding the portion thereof attributable
to unreimbursed L/C Disbursements) during the preceding quarter (or
shorter period commencing with the date hereof or ending with the
Maturity Date or the date on which the Commitment of such Lender shall
expire or be terminated); provided that, if such Lender continues to have
any L/C Exposure after its Commitment terminates, then the L/C
Participation Fee shall continue to accrue (and be payable on demand) on
such Lender's Pro Rata Percentage of the daily aggregate L/C Exposure
from and including the date on which its Commitment terminates to and
including the date on which such Lender ceases to have any
L/C Exposure) and (ii) to the Issuing Bank with respect to each Letter of
Credit, on the last Business Day of March, June, September, and
December of each year and on the date on which the L/C Commitment of
the Issuing Bank shall be terminated as provided herein (or later date on
which all the Letters of Credit issued by such Issuing Bank shall have
been terminated or expired), (x) a fronting fee equal to 0.125% per annum
on the aggregate outstanding face amount of such Letter of Credit and
(y) the standard issuance and drawing fees specified from time to time by
the Issuing Bank (the "Issuing Bank Fees"). All L/C Participation Fees
and Issuing Bank Fees shall be computed on the basis of the actual
number of days elapsed (including the first day but excluding the last day)
in a year of 360 days.
(d) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders, except that the Issuing Bank Fees shall
be paid directly to the Issuing Bank. Once paid, none of the Fees shall be
refundable under any circumstances.
SECTION 2.07. Interest on Loans tc \l2 "SECTION 2.07.
Interest on Loans . (a) Subject to the provisions of Section 2.08, the
Loans comprising each ABR Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed (including the first day but
excluding the last day) over a year of 365 or 366 days, as the case may be,
when the Alternate Base Rate is determined by reference to the Prime Rate
and over a year of 360 days at all other times) at a rate per annum equal
to the Alternate Base Rate plus the Applicable Percentage in effect from
time to time.
(b) Subject to the provisions of Section 2.08, the Loans
comprising each Eurodollar Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed (including the first day but
excluding the last day) over a year of 360 days) at a rate per annum equal
to (i) in the case of each Revolving Loan, the LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Percentage in
effect from time to time, and (ii) in the case of each Competitive Loan, the
LIBO Rate for the Interest Period in effect for such Borrowing plus the
Margin offered by the Lender making such Loan and accepted by the
Borrower pursuant to Section 2.03.
(c) Subject to the provisions of Section 2.08, each Fixed Rate
Loan shall bear interest (computed on the basis of the actual number of
days elapsed (including the first day but excluding the last day) over a
year of 360 days) at a rate per annum equal to the fixed rate of interest
offered by the Lender making such Loan and accepted by the Borrower
pursuant to Section 2.03.
(d) Interest on each Loan shall be payable on the Interest
Payment Dates applicable to such Loan except as otherwise provided in
this Agreement; provided that (i) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Loan),
accrued interest on the principal amount repaid or prepaid shall be payable
on the date of such repayment or prepayment and (ii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion. The applicable Alternate Base Rate or
LIBO Rate for each Interest Period or day within an Interest Period, as the
case may be, shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.08. Default Interest tc \l2 "SECTION 2.08.
Default Interest . If the Borrower shall default in the payment of the
principal of or interest on any Loan or any other amount becoming due
hereunder, by acceleration or otherwise, the Borrower shall on demand
from time to time pay interest, to the extent permitted by law, on such
defaulted amount to but excluding the date of actual payment (after as
well as before judgment) (a) in the case of overdue principal, at the rate
otherwise applicable to such Loan pursuant to Section 2.07 plus 2.00%
per annum and (b) in all other cases, at a rate per annum (computed on the
basis of the actual number of days elapsed (including the first day but
excluding the last day) over a year of 365 or 366 days, as the case may be,
when determined by reference to the Prime Rate and over a year of 360
days at all other times) equal to the rate that would be applicable to an
ABR Revolving Loan plus 2.00%.
SECTION 2.09. Alternate Rate of Interest tc \l2 "SECTION
2.09. Alternate Rate of Interest . In the event, and on each occasion, that
on the day two Business Days prior to the commencement of any Interest
Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London
interbank market, or that reasonable means do not exist for ascertaining
the LIBO Rate, or the Administrative Agent shall have been informed by
the Required Lenders (or, in the case of a Eurodollar Competitive Loan,
any Lender required to make such Loan) that the rates at which such dollar
deposits are being offered will not adequately and fairly reflect the cost to
the Required Lenders (or such Lender) of making or maintaining their or
its Eurodollar Loan during such Interest Period, the Administrative Agent
shall, as soon as practicable thereafter, give written or telecopy notice
thereof to the Borrower and the Lenders. In the event of any such notice,
until the Administrative Agent shall have advised the Borrower and the
Lenders that the circumstances giving rise to such notice no longer exist,
(i) any request by the Borrower for a Eurodollar Revolving Credit
Borrowing pursuant to Section 2.04 shall be deemed to be a request for an
ABR Borrowing and (ii) any request by the Borrower for a Eurodollar
Competitive Borrowing pursuant to Section 2.03 shall be of no force and
effect and shall be denied by the Administrative Agent; provided that if
the circumstances giving rise to such notice do not affect all the Lenders,
then the Borrower may make requests for Eurodollar Competitive
Borrowings to Lenders that are not affected thereby. Each determination
by the Administrative Agent under this Section 2.09 shall be conclusive
absent manifest error.
SECTION 2.10. Termination and Reduction of
Commitments tc \l2 "SECTION 2.10. Termination and Reduction of
Commitments . (a) The Commitments and the L/C Commitment shall
automatically terminate on the Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written
or telecopy notice (or telephone notice promptly confirmed by written or
telecopy notice) to the Administrative Agent, the Borrower may at any
time in whole permanently terminate, or from time to time in part
permanently reduce, the Commitments; provided, however, that (i) each
partial reduction of the Commitments shall be in an integral multiple of
$1,000,000 and in a minimum amount of $10,000,000 and (ii) the Total
Commitment shall not be reduced to an amount that is less than the sum
of the Aggregate Revolving Credit Exposure and the aggregate
outstanding principal amount of the Competitive Loans at the time.
(c) Each reduction in the Commitments hereunder shall be made
ratably among the Lenders in accordance with their respective
Commitments. The Borrower shall pay to the Administrative Agent for
the account of the applicable Lenders, on the date of each termination or
reduction, the Facility Fees on the amount of the Commitments so
terminated or reduced accrued to but excluding the date of such
termination or reduction.
SECTION 2.11. Conversion and Continuation of
Borrowings tc \l2 "SECTION 2.11. Conversion and Continuation of
Borrowings . The Borrower shall have the right at any time upon prior
irrevocable written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Administrative Agent
(a) not later than 11:00 a.m., New York City time, on the day of
conversion, to convert any Eurodollar Borrowing into an ABR Borrowing,
(b) not later than 11:00 a.m., New York City time, three Business Days
prior to conversion or continuation, to convert any ABR Borrowing into
a Eurodollar Revolving Credit Borrowing or to continue any Eurodollar
Revolving Credit Borrowing as a Eurodollar Revolving Credit Borrowing
for an additional Interest Period, and (c) not later than 11:00 a.m., New
York City time, three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurodollar Revolving Credit Borrowing
to another permissible Interest Period, subject in each case to the
following:
(i) each conversion or continuation shall be made pro
rata among the Lenders in accordance with the respective
principal amounts of the Loans comprising the converted or
continued Borrowing;
(ii) if less than all the outstanding principal amount of
any Borrowing shall be converted or continued, then each
resulting Borrowing shall satisfy the limitations specified in
Sections 2.02(a) and 2.02(b) regarding the principal amount and
maximum number of Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender
and the Administrative Agent by recording for the account of
such Lender the new Loan of such Lender resulting from such
conversion and reducing the Loan (or portion thereof) of such
Lender being converted by an equivalent principal amount;
accrued interest on any Eurodollar Loan (or portion thereof)
being converted shall be paid by the Borrower at the time of
conversion;
(iv) if any Eurodollar Borrowing is converted at a time
other than the end of the Interest Period applicable thereto, the
Borrower shall pay, upon demand, any amounts due to the
Lenders pursuant to Section 2.15;
(v) any portion of a Borrowing maturing or required to
be repaid in less than one month may not be converted into or
continued as a Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot
be converted into or continued as a Eurodollar Borrowing by
reason of the immediately preceding clause shall be automatically
converted at the end of the Interest Period in effect for such
Borrowing into an ABR Borrowing; and
(vii) upon notice to the Borrower from the
Administrative Agent given at the request of the Required
Lenders, after the occurrence and during the continuance of a
Default or Event of Default, no outstanding Revolving Loan may
be converted into, or continued as, a Eurodollar Loan and, unless
repaid, each Eurodollar Revolving Borrowing shall be converted
into an ABR Borrowing at the end of the Interest Period
applicable thereto.
Each notice pursuant to this Section 2.11 shall refer to this
Agreement and specify (i) the identity and amount of the Borrowing that
the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted to or continued as a Eurodollar Borrowing
or an ABR Borrowing, (iii) if such notice requests a conversion, the date
of such conversion (which shall be a Business Day) and (iv) if such
Borrowing is to be converted to or continued as a Eurodollar Borrowing,
the Interest Period with respect thereto. If no Interest Period is specified
in any such notice with respect to any conversion to or continuation as a
Eurodollar Borrowing, the Borrower shall be deemed to have selected an
Interest Period of one month's duration. The Administrative Agent shall
advise the Lenders of any notice given pursuant to this Section 2.11 and
of each Lender's portion of any converted or continued Borrowing. If the
Borrower shall not have given notice in accordance with this Section 2.11
to continue any Borrowing into a subsequent Interest Period (and shall not
otherwise have given notice in accordance with this Section 2.11 to
convert such Borrowing), such Borrowing shall, at the end of the Interest
Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into an ABR Borrowing. The Borrower shall
not have the right to continue or convert the Interest Period with respect
to any Competitive Borrowing pursuant to this Section 2.11.
SECTION 2.12. Optional Prepayment tc \l2 "SECTION 2.12.
Optional Prepayment . (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing (other than a
Competitive Borrowing), in whole or in part, upon at least three Business
Days' prior written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) in the case of Eurodollar Loans,
or written or telecopy notice (or telephone notice promptly confirmed by
written or telecopy notice) on the day of prepayment in the case of ABR
Loans, to the Administrative Agent before 11:00 a.m., New York City
time; provided, however, that each partial prepayment shall be in an
amount that is an integral multiple of $1,000,000 and not less than
$10,000,000. The Borrower shall not have the right to prepay any
Competitive Borrowing.
(b) In the event of any termination of all the Commitments, the
Borrower shall repay or prepay all its outstanding Revolving Credit
Borrowings on the date of such termination. If as a result of any partial
reduction of the Commitments the sum of the Aggregate Revolving Credit
Exposure and the aggregate outstanding principal amount of the
Competitive Loans at the time would exceed the Total Commitment after
giving effect thereto, then the Borrower shall, on the date of such
reduction, repay or prepay Revolving Credit Borrowings in an amount
sufficient to eliminate such excess.
(c) Each notice of prepayment shall specify the prepayment date
and the principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be irrevocable and shall commit the Borrower to prepay
such Borrowing by the amount stated therein on the date stated therein.
All prepayments under this Section 2.12 shall be subject to Section 2.15
but otherwise without premium or penalty. All prepayments under this
Section 2.12 (other than prepayment of an ABR Loan that does not occur
in connection with, or as a result of, the reduction or termination of the
Commitments) shall be accompanied by accrued and unpaid interest on
the principal amount to be prepaid to but excluding the date of payment.
SECTION 2.13. Reserve Requirements; Change in
Circumstances tc \l2 "SECTION 2.13. Reserve Requirements; Change
in Circumstances . (a) Notwithstanding any other provision of this
Agreement, if any Change in Law shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of or credit extended by any
Lender or the Issuing Bank or shall impose on such Lender or the Issuing
Bank or the London interbank market any other condition affecting this
Agreement or Eurodollar Loans or Fixed Rate Loans made by such Lender
or any Letter of Credit or participation therein, and the result of any of the
foregoing shall be to increase the cost to such Lender of making or main-
taining any Eurodollar Loan or Fixed Rate Loan or increase the cost to any
Lender or the Issuing Bank of issuing or maintaining any Letter of Credit
or purchasing or maintaining a participation therein or to reduce the
amount of any sum received or receivable by such Lender or the Issuing
Bank hereunder (whether of principal, interest or otherwise) by an amount
deemed by such Lender or the Issuing Bank to be material, then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be,
upon demand such additional amount or amounts as will compensate such
Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that
any Change in Law regarding capital adequacy has or would have the
effect of reducing the rate of return on such Lender's or the Issuing Bank's
capital or on the capital of such Lender's or the Issuing Bank's holding
company, if any, as a consequence of this Agreement or the Loans made
or participations in Letters of Credit purchased by such Lender pursuant
hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto
to a level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's or the
Issuing Bank's policies and the policies of such Lender's or the Issuing
Bank's holding company with respect to capital adequacy) by an amount
deemed by such Lender or the Issuing Bank to be material, then from time
to time the Borrower shall pay to such Lender or the Issuing Bank, as the
case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding
company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing
Bank or its holding company, as applicable, as specified in paragraph (a)
or (b) above shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the Issuing
Bank the amount shown as due on any such certificate delivered by it
within 15 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank
to demand compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital shall not constitute
a waiver of such Lender's or the Issuing Bank's right to demand such
compensation; provided that the Borrower shall not be under any
obligation to compensate any Lender or the Issuing Bank under paragraph
(a) or (b) above with respect to increased costs or reductions with respect
to any period prior to the date that is 120 days prior to such request if such
Lender or the Issuing Bank knew or could reasonably have been expected
to know of the circumstances giving rise to such increased costs or
reductions and of the fact that such circumstances could reasonably be
expected to result in a claim for increased compensation by reason of such
increased costs or reductions; provided further that the foregoing
limitation shall not apply to any increased costs or reductions arising out
of the retroactive application of any Change in Law within such 120-day
period. The protection of this Section shall be available to each Lender
and the Issuing Bank regardless of any possible contention of the
invalidity or inapplicability of the Change in Law that shall have occurred
or been imposed. Notwithstanding any other provision of this Section, no
Lender shall be entitled to demand compensation hereunder in respect of
any Competitive Loan if it shall have been aware of the event or
circumstance giving rise to such demand at the time it submitted the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.14. Change in Legality tc \l2 "SECTION 2.14.
Change in Legality . (a) Notwithstanding any other provision of this
Agreement, if any Change in Law shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan,
then, by written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will
not thereafter (for the duration of such unlawfulness) be made by
such Lender hereunder (or be continued for additional Interest
Periods and ABR Loans will not thereafter (for such duration) be
converted into Eurodollar Loans), whereupon such Lender shall
not submit a Competitive Bid in response to a request for a
Eurodollar Competitive Loan and any request for a Eurodollar
Borrowing (or to convert an ABR Borrowing to a Eurodollar
Borrowing or to continue a Eurodollar Borrowing for an
additional Interest Period) shall, as to such Lender only, be
deemed a request for an ABR Loan (or a request to continue an
ABR Loan as such for an additional Interest Period or to convert
a Eurodollar Loan into an ABR Loan, as the case may be), unless
such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar
Loans made by it be converted to ABR Loans, in which event all
such Eurodollar Loans shall be automatically converted to ABR
Loans as of the effective date of such notice as provided in
paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been
applied to repay the Eurodollar Loans that would have been made by such
Lender or the converted Eurodollar Loans of such Lender shall instead be
applied to repay the ABR Loans made by such Lender in lieu of, or result-
ing from the conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower
by any Lender shall be effective as to each Eurodollar Loan made by such
Lender, if lawful, on the last day of the Interest Period then applicable to
such Eurodollar Loan; in all other cases such notice shall be effective on
the date of receipt by the Borrower.
SECTION 2.15. Break Funding tc \l2 "SECTION 2.15. Break
Funding . The Borrower shall compensate each Lender for any loss or
expense that such Lender may sustain or incur as a consequence of (a)
such Lender receiving or being deemed to receive any amount on account
of the principal of any Fixed Rate Loan or Eurodollar Loan prior to the
end of the Interest Period in effect therefor, (b) the conversion of any
Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period
with respect to any Eurodollar Loan, in each case other than on the last
day of the Interest Period in effect therefor or (c) the failure of the
Borrower to borrow, convert, continue or prepay any Fixed Rate Loan or
Eurodollar Loan made or to be made by such Lender (including any
Eurodollar Loan to be made pursuant to a conversion or continuation
under Section 2.11) after notice of such borrowing, conversion,
continuation or prepayment shall have been given by the Borrower
hereunder (any of the events referred to in this sentence being called a
"Breakage Event"). In the case of any Breakage Event, such loss shall
include an amount equal to the excess, as reasonably determined by such
Lender, of (i) its cost of obtaining funds for the Fixed Rate Loan or
Eurodollar Loan that is the subject of such Breakage Event for the period
from the date of such Breakage Event to the last day of the Interest Period
in effect (or that would have been in effect) for such Loan over (ii) the
amount of interest likely to be realized by such Lender in redeploying the
funds released or not utilized by reason of such Breakage Event for such
period. A certificate of any Lender setting forth any amount or amounts
which such Lender is entitled to receive pursuant to this Section 2.15 shall
be delivered to the Borrower and shall be conclusive absent manifest error.
The Borrower shall pay such Lender the amount due within 15 days of the
receipt of any such certificate.
SECTION 2.16. Pro Rata Treatment tc \l2 "SECTION 2.16.
Pro Rata Treatment . Except as provided below in this Section 2.16 with
respect to Competitive Borrowings and as required under Section 2.14,
each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of the
Facility Fees and the L/C Participation Fees, each reduction of the
Commitments and each conversion of any Borrowing to or continuation
of any Borrowing as a Borrowing of any Type shall be allocated pro rata
among the Lenders in accordance with their respective Commitments (or,
if such Commitments shall have expired or been terminated, in accordance
with the respective principal amounts of their outstanding Loans). Each
payment of principal of and interest on any Competitive Borrowing shall
be allocated pro rata among the Lenders participating in such Borrowing
in accordance with the respective principal amounts of their outstanding
Competitive Loans comprising such Borrowing. For purposes of
determining the available Commitments of the Lenders at any time, each
outstanding Competitive Borrowing shall be deemed to have utilized the
Commitments of the Lenders (including those Lenders which shall not
have made Loans as part of such Competitive Borrowing) pro rata in
accordance with such respective Commitments. Each Lender agrees that
in computing such Lender's portion of any Borrowing to be made
hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole
dollar amount.
SECTION 2.17. Sharing of Setoffs tc \l2 "SECTION 2.17.
Sharing of Setoffs . Each Lender agrees that if it shall, through the
exercise of a right of banker's lien, setoff or counterclaim against the
Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other
means, obtain payment (voluntary or involuntary) in respect of any Loan
or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Loans and participations in L/C Disbursements shall be
proportionately less than the unpaid principal portion of the Loans and
participations in L/C Disbursements of any other Lender, it shall be
deemed simultaneously to have purchased from such other Lender at face
value, and shall promptly pay to such other Lender the purchase price for,
a participation in the Loans and L/C Exposure of such other Lender, so
that the aggregate unpaid principal amount of the Loans and L/C
Exposure and participations in Loans and L/C Exposure held by each
Lender shall be in the same proportion to the aggregate unpaid principal
amount of all Loans and L/C Exposure then outstanding as the principal
amount of its Loans and L/C Exposure prior to such exercise of banker's
lien, setoff or counterclaim or other event was to the principal amount of
all Loans and L/C Exposure outstanding prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided, however, that if any
such purchase or purchases or adjustments shall be made pursuant to this
Section 2.17 and the payment giving rise thereto shall thereafter be
recovered, such purchase or purchases or adjustments shall be rescinded
to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower expressly consents to
the foregoing arrangements and agrees that any Lender holding a
participation in a Loan or L/C Disbursement deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower
to such Lender by reason thereof as fully as if such Lender had made a
Loan directly to the Borrower in the amount of such participation.
SECTION 2.18. Payments tc \l2 "SECTION 2.18. Payments .
(a) The Borrower shall make each payment (including principal of or
interest on any Borrowing or any L/C Disbursement or any Fees or other
amounts) hereunder not later than 12:00 (noon), New York City time, on
the date when due in immediately available dollars, without setoff, defense
or counterclaim. Each such payment (other than Issuing Bank Fees, which
shall be paid directly to the Issuing Bank), shall be made to the
Administrative Agent at its offices at Eleven Madison Avenue, New York,
NY 10010 or as otherwise instructed by the Administrative Agent.
(b) Except as otherwise expressly provided herein, whenever any
payment (including principal of or interest on any Borrowing or any Fees
or other amounts) hereunder shall become due, or otherwise would occur,
on a day that is not a Business Day, such payment may be made on the
next succeeding Business Day, and such extension of time shall in such
case be included in the computation of interest or Fees, if applicable.
SECTION 2.19. Taxes tc \l2 "SECTION 2.19. Taxes .
(a) Any and all payments by the Borrower hereunder shall be made free
and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent or such Lender (as the case
may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes not paid
pursuant to Section 2.19(a)(iii) to the relevant Governmental Authority in
accordance with applicable law. As of the Closing Date, each Foreign
Lender intends to make Loans hereunder out of an office located in the
United States of America or out of an office so that such Loans would not
be subject to Other Taxes.
(c) The Borrower shall indemnify the Administrative Agent and
each Lender, within 15 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent or such Lender, as the case may be, on or with
respect to any payment by or on account of any obligation of the Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant
Governmental Authority; provided, however, that the Borrower shall not
be obligated to make a payment pursuant to this Section 2.19 in respect
of penalties, interest and other liabilities attributable to any Indemnified
Taxes or Other Taxes, if (i) such penalties, interest and other liabilities are
attributable to the failure of the Administrative Agent or such Lender, as
the case may be, to pay amounts paid to the Administrative Agent or such
Lender by the Borrower (for Indemnified Taxes or Other Taxes) to the
appropriate taxing authority in a timely manner after receipt of such
payment from the Borrower or (ii) such penalties, interest and other
liabilities are attributable to the gross negligence or wilful misconduct of
the Administrative Agent or such Lender, as the case may be. After the
Administrative Agent or a Lender learns of the imposition of Indemnified
Taxes or Other Taxes, such person will act in good faith to promptly
notify the Borrower of its obligations hereunder. A certificate as to the
amount of such payment or liability delivered to the Borrower by a
Lender, or by the Administrative Agent on its behalf or on behalf of a
Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the
Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Any Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower
is located, or any treaty to which such jurisdiction is a party, with respect
to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation
prescribed by applicable law and reasonably requested by the Borrower
as will permit such payments to be made without withholding or at a
reduced rate. Each Foreign Lender, before it signs and delivers this
Agreement if listed on the signature pages hereof and before it becomes
a Lender in the case of each other Foreign Lender, and from time to time
thereafter, before the date any such form expires or becomes obsolete or
invalid, shall provide the Borrower and the Administrative Agent with
Internal Revenue Service form W-8BEN or W-8ECI (or other appropriate
or successor form prescribed by the Internal Revenue Service) in
duplicate, certifying that such Foreign Lender is entitled to benefits under
an income tax treaty to which the United States of America is a party
which exempts the Foreign Lender from U.S. withholding tax on
payments of interest for the account of such Foreign Lender or certifying
that the income receivable pursuant to this Agreement is effectively
connected with the conduct by such Foreign Lender of a trade or business
in the United States of America and exempt from United States
withholding tax.
(f) If the Administrative Agent or a Lender determines that it has
received a refund or credit in respect of and specifically associated with
any Indemnified Taxes or Other Taxes as to which it has been indemnified
by the Borrower, or with respect to which the Borrower has paid
additional amounts, it shall promptly notify the Borrower of such refund
or credit and shall within 15 days from the date of receipt of such refund
or benefit of such credit pay over the amount of such refund or benefit of
such credit (including any interest paid or credited by the relevant taxing
authority or Governmental Authority with respect to such refund or credit)
to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower with respect to the Indemnified
Taxes or Other Taxes giving rise to such refund of credit), net of all out-
of-pocket expenses of such person. If the Administrative Agent or a
Lender shall become aware that it is entitled to receive a refund or credit
in respect of Indemnified Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts, it shall promptly notify the Borrower of the
availability of such refund or credit and shall, within 15 days after receipt
of a request for such by the Borrower (whether as a result of notification
that it has made of such to the Borrower or otherwise), make a claim to
such taxing authority or Governmental Authority for such refund or credit
and contest such Indemnified Taxes, Other Taxes or liabilities if (i) such
Lender or the Administrative Agent determines, in its sole discretion, that
it would not be materially disadvantaged or prejudiced as a result of such
contest (it being understood that the mere existence of fees, charges, costs
or expenses that the Borrower has offered to and agreed to pay on behalf
of a Lender or the Administrative Agent shall not be deemed to be
materially disadvantageous to such person) and (ii) the Borrower
furnishes, upon request of the Lender or the Administrative Agent, an
opinion of reputable tax counsel (such opinion and such counsel to be
acceptable to such Lender or the Administrative Agent) to the effect that
such Indemnified Taxes or Other Taxes were wrongfully or illegally
imposed.
SECTION 2.20. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate tc \l2 "SECTION 2.20. Assignment of
Commitments Under Certain Circumstances; Duty to Mitigate . (a) In
the event (i) any Lender or the Issuing Bank delivers a certificate
requesting compensation pursuant to Section 2.13, (ii) any Lender or the
Issuing Bank delivers a notice described in Section 2.14 or (iii) the
Borrower is required to pay any additional amount to any Lender or the
Issuing Bank or any Governmental Authority on account of any Lender or
the Issuing Bank pursuant to Section 2.19, the Borrower may, at its sole
expense and effort (including with respect to the processing and
recordation fee referred to in Section 9.04(b)), upon notice to such Lender
or the Issuing Bank and the Administrative Agent, require such Lender or
the Issuing Bank to transfer and assign, without recourse (in accordance
with and subject to the restrictions contained in Section 9.04), all of its
interests, rights and obligations under this Agreement to an assignee that
shall assume such assigned obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (x) such
assignment shall not conflict with any law, rule or regulation or order of
any court or other Governmental Authority having jurisdiction, (y) the
Borrower shall have received the prior written consent of the
Administrative Agent (and, if a Commitment is being assigned, of the
Issuing Bank), which consent shall not unreasonably be withheld, and (z)
the Borrower or such assignee shall have paid to the affected Lender or the
Issuing Bank in immediately available funds an amount equal to the sum
of the principal of and interest accrued to the date of such payment on the
outstanding Loans or L/C Disbursements of such Lender or the Issuing
Bank, respectively, plus all Fees and other amounts accrued for the
account of such Lender or the Issuing Bank hereunder (including any
amounts under Section 2.13 and Section 2.15); provided further that, if
prior to any such transfer and assignment the circumstances or event that
resulted in such Lender's or the Issuing Bank's claim for compensation
under Section 2.13 or notice under Section 2.14 or the amounts paid
pursuant to Section 2.19, as the case may be, cease to cause such Lender
or the Issuing Bank to suffer increased costs or reductions in amounts
received or receivable or reduction in return on capital, or cease to have
the consequences specified in Section 2.14, or cease to result in amounts
being payable under Section 2.19, as the case may be (including as a result
of any action taken by such Lender or the Issuing Bank pursuant to
paragraph (b) below), or if such Lender or the Issuing Bank shall waive
its right to claim further compensation under Section 2.13 in respect of
such circumstances or event or shall withdraw its notice under
Section 2.14 or shall waive its right to further payments under
Section 2.19 in respect of such circumstances or event, as the case may be,
then such Lender or the Issuing Bank shall not thereafter be required to
make any such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request
compensation under Section 2.13, (ii) any Lender or the Issuing Bank
delivers a notice described in Section 2.14 or (iii) the Borrower is required
to pay any additional amount or indemnity payment to any Lender or the
Issuing Bank or any Governmental Authority on account of any Lender or
the Issuing Bank, pursuant to Section 2.19, then such Lender or the
Issuing Bank shall use reasonable efforts (which shall not require such
Lender or the Issuing Bank to incur an unreimbursed loss or unreimbursed
cost or expense or otherwise take any action inconsistent with its internal
policies or legal or regulatory restrictions or suffer any disadvantage or
burden deemed by it to be significant) (x) to file any certificate or
document reasonably requested in writing by the Borrower or (y) to assign
its rights and delegate and transfer its obligations hereunder to another of
its offices, branches or affiliates, if such filing or assignment would reduce
its claims for compensation under Section 2.13 or enable it to withdraw
its notice pursuant to Section 2.14 or would reduce amounts payable
pursuant to Section 2.19, as the case may be, in the future. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any
Lender or the Issuing Bank in connection with any such filing or
assignment, delegation and transfer.
SECTION 2.21. Letters of Credit tc \l2 "SECTION 2.21.
Letters of Credit . (a) General. The Borrower may request the issuance
of a Letter of Credit for its own account or for the account of any of its
Subsidiaries (in which case the Borrower and such Subsidiary shall be co-
applicants with respect to such Letter of Credit), in a form reasonably
acceptable to the Administrative Agent and the Issuing Bank, at any time
and from time to time while the Commitments remain in effect. This
Section shall not be construed to impose an obligation upon the Issuing
Bank to issue any Letter of Credit that is inconsistent with the terms and
conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension;
Certain Conditions. In order to request the issuance of a Letter of Credit
(or to amend, renew or extend an existing Letter of Credit), the Borrower
shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the Issuing Bank) to
the Issuing Bank and the Administrative Agent (reasonably in advance of
the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension, the date on which such Letter
of Credit is to expire (which shall comply with paragraph (c) below), the
amount of such Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare such
Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if, and upon issuance, amendment, renewal or extension of
each Letter of Credit the Borrower shall be deemed to represent and
warrant that, after giving effect to such issuance, amendment, renewal or
extension (i) the L/C Exposure shall not exceed $75,000,000 and (ii) the
sum of the Aggregate Revolving Credit Exposure and the aggregate
principal amount of outstanding Competitive Borrowings shall not exceed
the Total Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the
close of business on the earlier of the date one year after the date of the
issuance of such Letter of Credit and the date that is five Business Days
prior to the Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date; provided, however, that a Letter of Credit may,
upon the request of the Borrower, include a provision whereby such Letter
of Credit shall be renewed automatically for additional consecutive
periods of 12 months or less (but not beyond the date that is five Business
Days prior to the Maturity Date) unless the Issuing Bank notifies the
beneficiary thereof at least 30 days prior to the then-applicable expiration
date that such Letter of Credit will not be renewed.
(d) Participations. By the issuance of a Letter of Credit and
without any further action on the part of the Issuing Bank or the Lenders,
the Issuing Bank hereby grants to each Lender, and each such Lender
hereby acquires from the Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Pro Rata Percentage of the aggregate
amount available to be drawn under such Letter of Credit, effective upon
the issuance of such Letter of Credit (or, in the case of the Existing Letters
of Credit, effective upon the Closing Date). In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, such Lender's Pro Rata Percentage of each L/C
Disbursement made by the Issuing Bank and not reimbursed by the
Borrower forthwith on the date due as provided in Section 2.02(f). 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 the occurrence and continuance of a Default or an
Event of Default, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, the Borrower shall pay to
the Administrative Agent an amount equal to such L/C Disbursement not
later than 5:00 p.m., New York City time, on the day on which the
Borrower shall have received notice from the Issuing Bank that payment
of such draft will be made, or, if the Borrower shall have received such
notice later than 11:00 a.m., New York City time, on any Business Day,
not later than 12:00 noon, New York City time, on the immediately
following Business Day.
(f) Obligations Absolute. The Borrower's obligations to
reimburse L/C Disbursements as provided in paragraph (e) above shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement, under any and all
circumstances whatsoever, and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein;
(ii) any amendment or waiver of this Agreement;
(iii) the existence of any claim, setoff, defense or other
right that the Borrower, any other party guaranteeing, or
otherwise obligated with, the Borrower, any Subsidiary or other
Affiliate thereof or any other person may at any time have against
the beneficiary under any Letter of Credit, the Issuing Bank, the
Administrative Agent or any Lender or any other person, whether
in connection with this Agreement or any other related or
unrelated agreement or transaction;
(iv) any draft or 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 the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not
comply with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind
of the Issuing Bank, the Lenders, the Administrative Agent or any
other person or any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable
discharge of the Borrower's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of
the Borrower hereunder to reimburse L/C Disbursements will not be
excused by the gross negligence or wilful misconduct of the Issuing Bank.
However, the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Issuing Bank's gross
negligence or wilful misconduct in determining whether drafts and other
documents presented under a Letter of Credit comply with the terms
thereof; it is understood that the 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 and,
in making any payment under any Letter of Credit (i) the Issuing Bank's
exclusive reliance on the documents presented to it under such Letter of
Credit as to any and all matters set forth therein, including reliance on the
amount of any draft presented under such Letter of Credit, whether or not
the amount due to the beneficiary thereunder equals the amount of such
draft and whether or not any document presented pursuant to such Letter
of Credit proves to be insufficient in any respect, if such document on its
face appears to be in order, and whether or not any other statement or any
other document presented pursuant to such Letter of Credit proves to be
forged or invalid or any statement therein proves to be inaccurate or
untrue in any respect whatsoever and (ii) any noncompliance in any
immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute
wilful misconduct or gross negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing
Bank shall as promptly as possible give telephonic notification, confirmed
by telecopy, to the Administrative Agent and the Borrower of such
demand for payment and whether the Issuing Bank has made or will make
an L/C Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation
to reimburse the Issuing Bank and the Lenders with respect to any such
L/C Disbursement. The Administrative Agent shall promptly give each
Lender notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrower
shall reimburse such L/C Disbursement in full on such date, the unpaid
amount thereof shall bear interest for the account of the Issuing Bank, for
each day from and including the date of such L/C Disbursement, to but
excluding the earlier of the date of payment by the Borrower or the date
on which interest shall commence to accrue thereon as provided in
Section 2.02(f), at the rate per annum that would apply to such amount if
such amount were an ABR Revolving Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing
Bank may resign at any time by giving 30 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed
at any time by the Borrower by notice to the Issuing Bank, the
Administrative Agent and the Lenders. Subject to the next succeeding
paragraph, upon the acceptance of any appointment as the Issuing Bank
hereunder by a Lender that shall agree to serve as successor Issuing Bank,
such successor shall succeed to and become vested with all the interests,
rights and obligations of the retiring Issuing Bank and the retiring Issuing
Bank shall be discharged from its obligations to issue additional Letters
of Credit hereunder. At the time such removal or resignation shall become
effective, the Borrower shall pay all accrued and unpaid fees pursuant to
Section 2.06(c)(ii). The acceptance of any appointment as the Issuing
Bank hereunder by a successor Lender shall be evidenced by an agreement
entered into by such successor, in a form satisfactory to the Borrower and
the Administrative Agent, and, from and after the effective date of such
agreement, (i) such successor Lender shall have all the rights and
obligations of the previous Issuing Bank under this Agreement and (ii)
references herein to the term "Issuing Bank" shall be deemed to refer to
such successor or to any previous Issuing Bank, or to such successor and
all previous Issuing Banks, as the context shall require. After the
resignation or removal of the Issuing Bank hereunder, the retiring Issuing
Bank shall remain a party hereto and shall continue to have all the rights
and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such resignation or removal, but
shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur
and be continuing, the Borrower shall, on the Business Day it receives
notice from the Administrative Agent or the Required Lenders (or, if the
maturity of the Loans has been accelerated, Lenders holding participations
in outstanding Letters of Credit representing greater than 50% of the
aggregate undrawn amount of all outstanding Letters of Credit) thereof
and of the amount to be deposited, deposit in an account with the
Administrative Agent, for the benefit of the Lenders, an amount in cash
equal to the L/C Exposure as of such date, provided, however that the
obligation to deposit such cash shall become effective immediately, and
such deposit shall become immediately due and payable, without demand
or other notice of any kind, upon the occurrence of any Event of Default
with respect to the Borrower described in clause (g) or (h) of Article VII.
Such deposit shall be held by the Administrative Agent as collateral for
the payment and performance of the obligations of the Borrower under
this Agreement. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such
deposits in Permitted Investments, which investments shall be made at the
option and sole discretion of the Administrative Agent, such deposits shall
not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i)
automatically be applied by the Administrative Agent to reimburse the
Issuing Bank for L/C Disbursements for which it has not been reimbursed,
(ii) be held for the satisfaction of the reimbursement obligations of the
Borrower for the L/C Exposure at such time and (iii) if the maturity of the
Loans has been accelerated (but subject to the consent of Lenders holding
participations in outstanding Letters of Credit representing greater than
50% of the aggregate undrawn amount of all outstanding Letters of
Credit), be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to
the Borrower within three Business Days after all Events of Default have
been cured or waived.
(k) Additional Issuing Banks. The Borrower may, at any time
and from time to time with the consent of the Administrative Agent
(which consent shall not be unreasonably withheld or delayed) and such
Lender, designate one or more additional Lenders to act as an issuing bank
under the terms of the Agreement. Any Lender designated as an issuing
bank pursuant to this paragraph (k) shall be deemed to be an "Issuing
Bank" (in addition to being a Lender) in respect of Letters of Credit issued
or to be issued by such Lender, and, with respect to such Letters of Credit,
such term shall thereafter apply to the other Issuing Bank and such
Lender.
ARTICLE III
Representations and Warranties tc \l1 "ARTICLE IIIRepresentations
and Warranties
The Borrower represents and warrants to the Administrative
Agent, the Issuing Bank and each of the Lenders that:
SECTION 3.01. Organization; Powers tc \l2 "SECTION 3.01.
Organization; Powers . The Borrower and each of the Subsidiaries
(a) is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, (b) has all requisite power and
authority to own its property and assets and to carry on its business as
now conducted and (c) is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required, except
where the failure so to qualify could not reasonably be expected to result
in a Material Adverse Effect.
SECTION 3.02. Authorization tc \l2 "SECTION 3.02.
Authorization . The execution, delivery and performance by the
Borrower of this Agreement and the transactions contemplated hereby
(including the Borrowings hereunder) (collectively, the "Transactions")
(a) are within the Borrower's corporate powers and have been duly
authorized by all requisite corporate and, if required, stockholder action
and (b) will not (i) violate (A) any provision of law, statute, rule or
regulation, or of the certificate or articles of incorporation or other
constitutive documents or by-laws of the Borrower or any Subsidiary,
(B) any order of any Governmental Authority or (C) any provision of any
indenture, agreement or other instrument to which the Borrower or any
Subsidiary is a party or by which any of them or any of their property is
or may be bound, the effect of which could reasonably be expected to
result in a Material Adverse Effect, (ii) result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under, or give rise
to any right to accelerate or to require the prepayment, repurchase or
redemption of any obligation under any such indenture, agreement or other
instrument, the effect of which could reasonably be expected to result in
a Material Adverse Effect, or (iii) result in the creation or imposition of
any Lien upon or with respect to any property or assets now owned or
hereafter acquired by the Borrower or any Subsidiary.
SECTION 3.03. Enforceability tc \l2 "SECTION 3.03.
Enforceability . This Agreement has been duly executed and delivered
by the Borrower and constitutes a legal, valid and binding obligation of
the Borrower enforceable against the Borrower in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforceability of creditors' rights
generally and to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.04. Governmental Approvals tc \l2
"SECTION 3.04. Governmental Approvals . No action, consent or
approval of, registration or filing with or any other action by any
Governmental Authority is or will be required in connection with the
Transactions, except for such as have been made or obtained and are in
full force and effect.
SECTION 3.05. Financial Statements tc \l2 "SECTION 3.05.
Financial Statements . The Borrower has heretofore furnished to the
Lenders its consolidated balance sheets and related statements of income,
stockholders' equity and cash flows (i) as of and for the fiscal year ended
December 31, 2000, audited by and accompanied by the opinion of
PricewaterhouseCoopers LLP, independent public accountants, and (ii) as
of and for the fiscal quarter and the portion of the fiscal year ended
September 30, 2001, certified by its chief financial officer. Such financial
statements present fairly, in all material respects, the financial condition
and results of operations and cash flows of the Borrower and its
consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to normal year-end audit adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above.
SECTION 3.06. No Material Adverse Change tc \l2
"SECTION 3.06. No Material Adverse Change . Since December 31,
2000, there has been no material adverse change in the financial condition,
results of operations or business of the Borrower and the Subsidiaries,
taken as a whole.
SECTION 3.07. Subsidiaries tc \l2 "SECTION 3.07.
Subsidiaries . Schedule 3.07 sets forth as of the Closing Date a list of all
Subsidiaries and the percentage ownership interest of the Borrower
therein.
SECTION 3.08. Litigation; Compliance with Laws tc \l2
"SECTION 3.08. Litigation; Compliance with Laws . (a) There are not
any actions, suits or proceedings at law or in equity or by or before any
Governmental Authority now pending or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any Subsidiary
or any business, property or rights of any such person (i) that involve this
Agreement or the Transactions or (ii) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined,
could reasonably be expected, individually or in the aggregate, to result in
a Material Adverse Effect.
(b) None of the Borrower or any of the Subsidiaries is in
violation of any law, rule or regulation, or is in default with respect to any
judgment, writ, injunction, decree or order of any Governmental
Authority, where such violation or default could reasonably be expected
to result in a Material Adverse Effect.
SECTION 3.09. Federal Reserve Regulations tc \l2
"SECTION 3.09. Federal Reserve Regulations . (a) The Borrower is
not engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of buying or carrying Margin
Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit
will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that entails a violation of, or
that is inconsistent with, the provisions of the Regulations of the Board,
including Regulation T, U or X.
SECTION 3.10. Investment Company Act; Public Utility
Holding Company Act tc \l2 "SECTION 3.10. Investment Company Act;
Public Utility Holding Company Act . None of the Borrower or any of
the Subsidiaries is (a) an "investment company" as defined in, or subject
to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.11. Use of Proceeds tc \l2 "SECTION 3.11. Use
of Proceeds . The Borrower will use the proceeds of the Loans and will
request the issuance of Letters of Credit only for the purposes specified
in the preamble to this Agreement.
SECTION 3.12. Tax Returns tc \l2 "SECTION 3.12. Tax
Returns . Each of the Borrower and the Subsidiaries has filed or caused
to be filed all Federal, state, local and foreign tax returns or materials
required to have been filed by it and has paid or caused to be paid all
Taxes due and payable by it and all assessments received by it, except
(a) Taxes that are being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as applicable,
shall have set aside on its books adequate reserves or (b) to the extent that
the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.13. No Material Misstatements tc \l2
"SECTION 3.13. No Material Misstatements . None of (a) the
Confidential Information Memorandum or (b) any other information,
report, financial statement, exhibit or schedule furnished by or on behalf
of the Borrower to the Administrative Agent or any Lender in connection
with the negotiation of this Agreement contains any material misstate-
ment of fact or omits to state any material fact necessary to make the
statements therein taken as a whole, in the light of the circumstances under
which they were made, not misleading; provided that to the extent any
such information, report, financial statement, exhibit or schedule was
based upon or constitutes a forecast or projection, the Borrower represents
only that it acted in good faith and utilized reasonable assumptions and
due care in the preparation of such information, report, financial
statement, exhibit or schedule.
SECTION 3.14. Employee Benefit Plans tc \l2
"SECTION 3.14. Employee Benefit Plans . No ERISA Event has
occurred or is reasonably expected to occur that, when taken together with
all other such ERISA Events, could reasonably be expected to result in a
Material Adverse Effect. The accumulated benefit obligations (as defined
in Statement of Financial Accounting Standards No. 87) under all Plans
(based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the last annual valuation
dates applicable thereto, exceed by more than $50,000,000 the fair market
value of the assets of all such Plans.
SECTION 3.15. Environmental Matters tc \l2 "SECTION 3.15.
Environmental Matters . Except with respect to any matters that,
individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect, neither the Borrower nor any of the
Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) is subject to any
Environmental Liability, (iii) has received written notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability of the Borrower or the Subsidiaries.
SECTION 3.16. Senior Indebtedness tc \l2 "SECTION 3.16.
Senior Indebtedness . The Loans and other obligations hereunder
constitute "Senior Indebtedness" under and as defined in the Subordinated
Note Documents.
ARTICLE IV
Conditions of Lending tc \l1 " ARTICLE IV Conditions of
Lending
The obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder are subject to the satisfaction of
the following conditions:
SECTION 4.01. All Credit Events tc \l2 "SECTION 4.01. All
Credit Events . On the date of each Borrowing or issuance, amendment,
extension or renewal of a Letter of Credit (each such event being called a
"Credit Event"):
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.03 or 2.04, as applicable (or
such notice shall have been deemed given in accordance with
Section 2.04), or, in the case of the issuance, amendment, extension or
renewal of a Letter of Credit, the Issuing Bank and the Administrative
Agent shall have received a notice requesting the issuance, amendment,
extension or renewal of such Letter of Credit as required by
Section 2.21(b).
(b) The representations and warranties set forth in Article III
hereof shall be true and correct in all material respects on and as of the
date of such Credit Event with the same effect as though made on and as
of such date, except to the extent such representations and warranties
expressly relate to an earlier date.
(c) At the time of and immediately after such Credit Event, no
Event of Default or Default shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation
and warranty by the Borrower on the date of such Credit Event as to the
matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. Closing Date tc \l2 "SECTION 4.02. Closing
Date . On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this
Agreement.
(b) The Administrative Agent shall have received, on
behalf of itself, the Lenders and the Issuing Bank, a favorable
written opinion of each of (i) Bradford T. Smith, Chief Legal
Counsel of the Borrower, substantially to the effect set forth in
Exhibit E-1, and (ii) Davis Polk & Wardwell, special counsel for
the Borrower, substantially to the effect set forth in Exhibit E-2,
(A) dated the Closing Date, (B) addressed to the Issuing Bank,
the Administrative Agent and the Lenders, and (C) covering such
other matters relating to this Agreement and the Transactions as
the Administrative Agent shall reasonably request, and the
Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received (i) a
copy of the certificate of incorporation, including all amendments
thereto, of the Borrower, certified as of a recent date by the
Secretary of State of the State of Delaware, and a certificate as to
the good standing of the Borrower as of a recent date, from such
Secretary of State; (ii) a certificate of the Secretary or Assistant
Secretary of the Borrower dated the Closing Date and certifying
(A) that attached thereto is a true and complete copy of the by-
laws of the Borrower as in effect on the Closing Date and at all
times since a date prior to the date of the resolutions described in
clause (B) below, (B) that attached thereto is a true and complete
copy of resolutions duly adopted by the Board of Directors of the
Borrower authorizing the execution, delivery and performance of
this Agreement and the borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are
in full force and effect, (C) that the certificate of incorporation of
the Borrower has not been amended since the date of the last
amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each officer executing this
Agreement or any other document delivered in connection
herewith on behalf of the Borrower; (iii) a certificate of another
officer as to the incumbency and specimen signature of the Secre-
tary or Assistant Secretary executing the certificate pursuant to
(ii) above; and (iv) such other documents relating to the
Borrower, this Agreement or the Transactions as the Lenders, the
Issuing Bank or the Administrative Agent may reasonably
request.
(d) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial
Officer of the Borrower, confirming compliance with the
conditions precedent set forth in paragraphs (b) and (c) of
Section 4.01.
(e) The Administrative Agent shall have received all
Fees and other amounts due and payable on or prior to the
Closing Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed
or paid by the Borrower hereunder.
(f) The 364-Day Credit Agreement shall have been
executed and delivered and the conditions precedent set forth in
Section 4.02 thereof satisfied or waived.
(g) All principal, interest, fees and other amounts
outstanding or due under the Existing Credit Agreement shall
have been paid in full, the commitments thereunder terminated
and all guarantees thereof released and discharged, and the
Administrative Agent shall have received satisfactory evidence
thereof.
(h) The credit facilities provided for by this Agreement
and the 364-Day Credit Agreement shall be rated not lower than
BBB by S&P, and the Administrative Agent shall have received
satisfactory evidence thereof.
ARTICLE V
Affirmative Covenants tc \l1 "ARTICLE VAffirmative Covenants
The Borrower covenants and agrees with each Lender that until
the Commitments have been terminated and the principal of and interest
on each Loan, all Fees and all other expenses or amounts payable
hereunder shall have been paid in full and all Letters of Credit have been
canceled or have expired and all amounts drawn thereunder have been
reimbursed in full, unless the Required Lenders shall otherwise consent in
writing, the Borrower will, and will cause each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties tc \l2
"SECTION 5.01. Existence; Businesses and Properties . (a) Do or
cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence, except as otherwise expressly
permitted under Section 6.04.
(b) Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect its rights,
licenses, permits, franchises, authorizations, patents, copyrights,
trademarks and trade names, and comply in all material respects with all
applicable laws, rules, regulations and decrees and orders of any
Governmental Authority, in each case except where the failure to do so
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.02. Insurance tc \l2 "SECTION 5.02. Insurance .
Maintain with responsible and reputable insurance companies insurance,
to such extent and against such risks as is customary with companies in
the same or similar businesses operating in the same or similar locations.
SECTION 5.03. Obligations and Taxes tc \l2 "SECTION 5.03.
Obligations and Taxes . Pay its Indebtedness and other obligations,
including Taxes, before the same shall become delinquent or in default,
except where (a) the validity or amount thereof shall be contested in good
faith by appropriate proceedings and the Borrower shall have set aside on
its books adequate reserves with respect thereto in accordance with GAAP
or (b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.04. Financial Statements, Reports, etc tc \l2
"SECTION 5.04. Financial Statements, Reports, etc . In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 105 days after the end of each fiscal year, its
consolidated balance sheet and related statements of income,
stockholders' equity and cash flows as of the close of and for
such fiscal year, together with comparative figures for the
immediately preceding fiscal year, all audited by
PricewaterhouseCoopers LLP or other independent public
accountants of recognized national standing and accompanied by
an opinion of such accountants (which shall not be qualified in
any material respect) to the effect that such consolidated financial
statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied;
(b) within 50 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheet
and related statements of income, stockholders' equity and cash
flows as of the close of and for such fiscal quarter and the then
elapsed portion of the fiscal year, and comparative figures for the
same periods in the immediately preceding fiscal year, all
certified by one of its Financial Officers as presenting fairly in all
material respects the financial condition and results of operations
of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements
under paragraph (a) or (b) above, a certificate of a Financial
Officer (A) certifying that no Event of Default or Default has
occurred or, if such an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto, (B) setting
forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the
covenants contained in Sections 6.07 and 6.08 and (C) stating
whether any change in GAAP or in the application thereof has
occurred since the date of the audited financial statements
referred to in Section 3.05 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate;
(d) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements and
other materials filed by the Borrower or any Subsidiary with the
Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or
distributed to its shareholders, as the case may be;
(e) promptly after the receipt thereof by the Borrower or
any of its Subsidiaries, a copy of any "management letter"
received by any such person from its certified public accountants
and the management's response thereto; and
(f) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition
of the Borrower or any Subsidiary, or compliance with the terms
of this Agreement, as the Administrative Agent or any Lender
may reasonably request.
SECTION 5.05. Litigation and Other Notices tc \l2 "SECTION
5.05. Litigation and Other Notices . In the case of the Borrower, furnish
to the Administrative Agent, the Issuing Bank and each Lender prompt
written notice of the following:
(a) any Event of Default or Default, specifying the
nature and extent thereof and the corrective action (if any) taken
or proposed to be taken with respect thereto;
(b) the filing or commencement of, or any threat or
notice of intention of any person to file or commence, any action,
suit or proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate
thereof that could reasonably be expected to result in a Material
Adverse Effect;
(c) any change in the rating by S&P of the Index Debt;
and
(d) the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06. Maintaining Records; Access to Properties
and Inspections tc \l2 "SECTION 5.06. Maintaining Records; Access
to Properties and Inspections . Keep books of record and account in
conformity with GAAP and all requirements of law in relation to its
business and activities. The Borrower will, and will cause each of its
Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect the financial records and the properties of the Borrower or any
Subsidiary at reasonable times and as often as reasonably requested and
to make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to
discuss the affairs, finances and condition of the Borrower or any Subsid-
iary with the officers thereof and independent accountants therefor.
SECTION 5.07. Use of Proceeds tc \l2 "SECTION 5.07. Use
of Proceeds . Use the proceeds of the Loans and request the issuance of
Letters of Credit only for the purposes set forth in the preamble to this
Agreement.
ARTICLE VI
Negative Covenants tc \l1 "ARTICLE VINegative Covenants
The Borrower covenants and agrees with each Lender that, until
the Commitments have been terminated and the principal of and interest
on each Loan, all Fees and all other expenses or amounts payable
hereunder have been paid in full and all Letters of Credit have been
canceled or have expired and all amounts drawn thereunder have been
reimbursed in full, unless the Required Lenders shall otherwise consent in
writing, the Borrower will not, and will not cause or permit any of the
Subsidiaries to:
SECTION 6.01. Subsidiary Indebtedness tc \l2 "SECTION
6.01. Subsidiary Indebtedness . With respect to the Subsidiaries, incur,
create, issue, assume or permit to exist any Indebtedness or preferred
stock, except:
(a) Indebtedness or preferred stock existing on the date
hereof and having an aggregate principal amount (or, in the case
of preferred stock, an aggregate liquidation preference) of less
than $25,000,000 in the aggregate and, in the case of any such
Indebtedness, any extensions, renewals or replacements thereof
to the extent the principal amount of such Indebtedness is not
increased, and such Indebtedness, if subordinated to the Loans,
remains so subordinated on terms no less favorable to the
Lenders, and the original obligors in respect of such Indebtedness
remain the only obligors thereon;
(b) Indebtedness created or existing (i) hereunder or
(ii) under the 364-Day Credit Agreement;
(c) intercompany Indebtedness or preferred stock to the
extent owing to or held by the Borrower or another Subsidiary;
(d) Indebtedness of any Subsidiary incurred to finance
the acquisition, construction or improvement of any fixed or
capital assets, and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal
amount thereof; provided that (i) such Indebtedness is incurred
prior to or within 180 days after such acquisition or the
completion of such construction or improvement and (ii) the
aggregate principal amount of Indebtedness permitted by this
Section 6.01(d), when combined with the aggregate principal
amount of all Capital Lease Obligations incurred pursuant to
Section 6.01(e) and all Indebtedness incurred pursuant to Section
6.01(f), shall not exceed $100,000,000 at any time outstanding;
(e) Capital Lease Obligations in an aggregate principal
amount, when combined with the aggregate principal amount of
all Indebtedness incurred pursuant to Section 6.01(d) and
Section 6.01(f), not in excess of $100,000,000 at any time
outstanding;
(f) Indebtedness of any person that becomes a
Subsidiary after the date hereof; provided that (i) such
Indebtedness exists at the time such person becomes a Subsidiary
and is not created in contemplation of or in connection with such
person becoming a Subsidiary, (ii) immediately before and after
such person becomes a Subsidiary, no Event of Default or
Default shall have occurred and be continuing and (iii) the
aggregate principal amount of Indebtedness permitted by this
clause (f), when combined with the aggregate principal amount
of all Indebtedness incurred pursuant to Section 6.01(d) and all
Capital Lease Obligations incurred pursuant to Section 6.01(e),
shall not exceed $100,000,000 at any time outstanding;
(g) Indebtedness under performance bonds or with
respect to workers' compensation claims, in each case incurred in
the ordinary course of business; and
(h) additional Indebtedness or preferred stock of the
Subsidiaries to the extent not otherwise permitted by the
foregoing clauses of this Section 6.01 in an aggregate principal
amount (or, in the case of preferred stock, with an aggregate
liquidation preference), when combined (without duplication)
with the amount of obligations of the Borrower and its
Subsidiaries secured by Liens pursuant to Section 6.02(j), not to
exceed $100,000,000 at any time outstanding.
SECTION 6.02. Liens tc \l2 "SECTION 6.02. Liens . Create,
incur, assume or permit to exist any Lien on any property or assets
(including Equity Interests or other securities of any person, including any
Subsidiary) now owned or hereafter acquired by it or on any income or
revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its
Subsidiaries existing on the date hereof and encumbering
property or assets with a fair market value, and securing
obligations having an aggregate principal amount, in each case
less than $25,000,000 in the aggregate; provided that (x) such
Liens shall secure only those obligations which they secure on the
date hereof and extensions, renewals and replacements thereof
permitted hereunder and (y) such Liens shall not apply to any
other property or assets of the Borrower or any of the
Subsidiaries;
(b) any Lien existing on any property or asset prior to
the acquisition thereof by the Borrower or any Subsidiary or
existing on any property or asset of any person that becomes a
Subsidiary after the date hereof prior to the time such person
becomes a Subsidiary; provided that (i) such Lien is not created
in contemplation of or in connection with such acquisition or such
person becoming a Subsidiary, as the case may be, (ii) such Lien
does not apply to any other property or assets of the Borrower or
any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the
date such person becomes a Subsidiary, as the case may be and
extensions, renewals and replacements thereof permitted
hereunder;
(c) Liens for taxes not yet due or which are being
contested in compliance with Section 5.03;
(d) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business and securing obligations that are not
overdue by more than 90 days or which are being contested in
compliance with Section 5.03;
(e) pledges and deposits made in the ordinary course of
business in compliance with workmen's compensation,
unemployment insurance and other social security laws or
regulations;
(f) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital
Lease Obligations), statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature,
in each case in the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business which,
in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject thereto
or interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(h) purchase money security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the
case of improvements, constructed) by the Borrower or any
Subsidiary; provided that (i) such security interests secure
Indebtedness permitted by Section 6.01, (ii) such security
interests are incurred, and the Indebtedness secured thereby is
created, within 180 days after such acquisition (or construction)
and (iii) such security interests do not apply to any other property
or assets of the Borrower or any Subsidiary;
(i) Liens in respect of judgments that do not constitute
an Event of Default; and
(j) Liens not otherwise permitted by the foregoing
clauses of this Section 6.02 securing obligations otherwise
permitted by this Agreement in an aggregate principal and face
amount, when combined (without duplication) with the amount
of Indebtedness or preferred stock of Subsidiaries incurred
pursuant to Section 6.01(h), not to exceed $100,000,000 at any
time outstanding.
SECTION 6.03. Sale and Lease-Back Transactions tc \l2
"SECTION 6.03. Sale and Lease-Back Transactions . Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell
or transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property which it intends to use for substantially the
same purpose or purposes as the property being sold or transferred unless
(a) the sale of such property is permitted by Section 6.04 and (b) any
Capital Lease Obligations or Liens arising in connection therewith are
permitted by Sections 6.01 and 6.02, respectively.
SECTION 6.04. Mergers, Consolidations and Sales of
Assets tc \l2 "SECTION 6.04. Mergers, Consolidations and Sales of
Assets . Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all
or substantially all the assets (whether now owned or hereafter acquired)
of the Borrower, except that, if at the time thereof and immediately after
giving effect thereto no Event of Default or Default shall have occurred
and be continuing, (a) any person may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation and (b) any
person, other than the Borrower, may merge into or consolidate with any
Subsidiary in a transaction in which the surviving entity is a Subsidiary.
SECTION 6.05. Restricted Payments tc \l2 "SECTION 6.05.
Restricted Payments . Declare or make, or agree to declare or make,
directly or indirectly, any Restricted Payment (including pursuant to any
Synthetic Purchase Agreement), or incur any obligation (contingent or
otherwise) to do so; provided, however, that (i) any Subsidiary may
declare and pay dividends or make other distributions ratably to holders
of Equity Interests in it, (ii) the Borrower may declare and pay dividends
or make other distributions of its Equity Interests and (iii) so long as no
Default or Event of Default shall have occurred and be continuing or
would result therefrom, the Borrower and the Subsidiaries may declare
and make, directly or indirectly, additional Restricted Payments to the
extent not otherwise permitted by the foregoing clauses of this
Section 6.05 in an aggregate amount not to exceed $300,000,000.
SECTION 6.06. Business of Borrower and Subsidiaries tc \l2
"SECTION 6.06. Business of Borrower and Subsidiaries . Engage to
any material extent in any business or business activity other than
businesses of the type currently conducted by the Borrower and the
Subsidiaries and business activities reasonably related thereto.
SECTION 6.07. Interest Coverage Ratio tc \l2 "SECTION
6.07. Interest Coverage Ratio . Permit the Interest Coverage Ratio for
any period of four consecutive fiscal quarters, in each case taken as one
accounting period, to be less than 5.0 to 1.0.
SECTION 6.08. Maximum Leverage Ratio tc \l2 "SECTION
6.08. Maximum Leverage Ratio . Permit the Leverage Ratio for any
period of four consecutive fiscal quarters, in each case taken as one
accounting period, to be greater than 2.5 to 1.0.
SECTION 6.09. Hedging Agreements tc \l2 "SECTION 6.09.
Hedging Agreements . Enter into any Hedging Agreement other than
non-speculative Hedging Agreements entered into to hedge or mitigate
risks to which the Borrower or a Subsidiary is exposed in the ordinary
course of the conduct of its business or the management of its liabilities.
ARTICLE VII
Events of Default tc \l1 "ARTICLE VIIEvents of Default
In case of the happening of any of the following events ("Events
of Default"):
(a) any representation or warranty made or deemed made in or in
connection with this Agreement or the Borrowings or issuances of Letters
of Credit hereunder, or any representation, warranty, statement or
information contained in any report, certificate, financial statement or
other instrument furnished in connection with or pursuant to this
Agreement, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any
Loan or the reimbursement with respect to any L/C Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration thereof
or otherwise;
(c) default shall be made in the payment of any interest on any
Loan or any Fee or L/C Disbursement or any other amount (other than an
amount referred to in (b) above) due under this Agreement, when and as
the same shall become due and payable, and such default shall continue
unremedied for a period of five Business Days;
(d) default shall be made in the due observance or performance
by the Borrower or any Subsidiary of any covenant, condition or
agreement contained in Section 5.01(a) (with respect to the Borrower),
5.05(a) or 5.07 or in Article VI;
(e) default shall be made in the due observance or performance by
the Borrower or any Subsidiary of any covenant, condition or agreement
contained in this Agreement (other than those specified in (b), (c) or (d)
above) and such default shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent to the Borrower (which
notice will be given at the request of any Lender);
(f) (i) the Borrower or any Material Subsidiary shall (i) fail to pay
any principal or interest, regardless of amount, due in respect of any
Material Indebtedness, when and as the same shall become due and
payable (after giving effect to any applicable grace period), or (ii) any
other event or condition occurs (after giving effect to any applicable grace
period) that results in any Material Indebtedness becoming due prior to its
scheduled maturity or that enables or permits the holder or holders of any
Material Indebtedness or any trustee or agent on its or their behalf to
cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity; provided that this clause (ii) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of the Borrower or any Material Subsidiary, or
of a substantial part of the property or assets of the Borrower or a
Material Subsidiary, under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Material Subsidiary or for a substantial
part of the property or assets of the Borrower or a Material Subsidiary or
(iii) the winding-up or liquidation of the Borrower or any Material
Subsidiary; and such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(h) the Borrower or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or
any other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or the filing of any petition
described in (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Material Subsidiary or for a substantial part of the
property or assets of the Borrower or any Material Subsidiary, (iv) file an
answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take any action for
the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an
amount in excess of $50,000,000 individually or $75,000,000 in the
aggregate shall be rendered against the Borrower, any Material Subsidiary
or any combination thereof and the same shall remain undischarged for a
period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment
creditor to levy upon assets or properties of the Borrower or any Material
Subsidiary to enforce any such judgment; provided, however, that any
such judgment shall not be an Event of Default under this paragraph (i) if
and for so long as (i) the entire amount of such judgment is covered by a
valid and binding policy of insurance between the defendant and the
insurer covering payment thereof and (ii) such insurer, which shall be
rated at least "A" by A.M. Best Company, has been notified of, and has
not disputed the claim made for payment of the amount of such judgment;
(j) one or more ERISA Events shall have occurred that results in
liability of the Borrower and its ERISA Affiliates exceeding $50,000,000
individually or $75,000,000 in the aggregate; or
(k) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the
Borrower described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or
different times: (i) terminate forthwith the Commitments and (ii) declare
the Loans then outstanding to be forthwith due and payable in whole or in
part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued
Fees and all other liabilities of the Borrower accrued hereunder, shall
become forthwith due and payable, without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived
by the Borrower, anything contained hereinto the contrary notwithstand-
ing; and in any event with respect to the Borrower described in para-
graph (g) or (h) above, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or any other notice of any kind, all
of which are hereby expressly waived by the Borrower, anything contained
herein to the contrary notwithstanding.
ARTICLE VIII
The Administrative Agent tc \l1 "ARTICLE VIIIThe Administrative
Agent
Each of the Lenders and the Issuing Bank hereby irrevocably
appoints the Administrative Agent its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise
such powers as are delegated to the Administrative Agent by the terms of
this Agreement, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business
with the Borrower or any Subsidiary or other Affiliate thereof as if it were
not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth in this Agreement. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative
Agent shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers
expressly contemplated by this Agreement that the Administrative Agent
is required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.08), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating
to the Borrower or any of the Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders
as shall be necessary under the circumstances as provided in Section 9.08)
or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall not be deemed to have knowledge of any
Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it
to be genuine and to have been signed or sent by the proper person. The
Administrative Agent may also rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper
person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be counsel
for the Borrower), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by it. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of
the preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of each Administrative Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as
Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the
Borrower. Upon any such resignation, the Required Lenders shall have
the right, with the consent of the Borrower (such consent not to be
unreasonably withheld or delayed), to appoint a successor. If no successor
shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank,
appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank, that is
acceptable to the Borrower (which shall not unreasonably withhold its
approval). Upon the acceptance of its appointment as Administrative
Agent hereunder by a successor, such successor shall succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. The fees payable
by the Borrower to a successor Administrative shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation
hereunder, the provisions of this Article and Section 9.05 shall continue
in effect for the benefit of such retiring Administrative Agent, its sub-
agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while acting as Administrative
Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous tc \l1 "ARTICLE IXMiscellaneous
SECTION 9.01. Notices tc \l2 "SECTION 9.01. Notices .
Notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 231 Maple Avenue,
Burlington, NC 27215, Attention of Wesley R. Elingburg
(Telecopy No. (336) 436-1066);
(b) if to the Administrative Agent, to Credit Suisse First
Boston, Eleven Madison Avenue, New York, NY 10010,
Attention of Ronald Davis, Agency Group (Telecopy No.
(212) 325-8304, with a copy to Credit Suisse First Boston, at
Eleven Madison Avenue, New York, NY 10010, Attention of
Agency Group Manager (Telecopy No. (212) 325- 8304); and
(c) if to a Lender, to it at its address (or telecopy
number) set forth on Schedule 2.01 or in the Assignment and
Acceptance pursuant to which such Lender shall have become a
party hereto.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have
been given on the date of receipt.
SECTION 9.02. Survival of Agreement tc \l2 "SECTION 9.02.
Survival of Agreement . All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this
Agreement shall be considered to have been relied upon by the Lenders
and the Issuing Bank and shall survive the making by the Lenders of the
Loans and the issuance of Letters of Credit by the Issuing Bank,
regardless of any investigation made by the Lenders or the Issuing Bank
or on their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other
amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not
been terminated. The provisions of Sections 2.13, 2.15, 2.19 and 9.05
shall remain operative and in full force and effect regardless of the
expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of any Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement,
or any investigation made by or on behalf of the Administrative Agent,
any Lender or the Issuing Bank.
SECTION 9.03. Binding Effect tc \l2 "SECTION 9.03.
Binding Effect . This Agreement shall become effective when it shall
have been executed by the Borrower and the Administrative Agent and
when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other
parties hereto.
SECTION 9.04. Successors and Assigns tc \l2 "SECTION
9.04. Successors and Assigns . (a) Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, the
Administrative Agent, the Issuing Bank or the Lenders that are contained
in this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time
owing to it); provided, however, that (i) except in the case of an
assignment to a Lender or an Affiliate of a Lender, (x) the Borrower and
the Administrative Agent (and, in the case of any assignment of a
Commitment, the Issuing Bank) must give their prior written consent to
such assignment (which consent shall not be unreasonably withheld or
delayed); provided, however, that the consent of the Borrower shall not
be required to any such assignment during the continuance of any Event
of Default described in paragraph (g) or (h) of Article VII, and (y) the
amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent)
shall not be less than $5,000,000 (or, if less, the entire remaining amount
of such Lender's Commitment), (ii) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Lender's rights
and obligations under this Agreement, (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation
fee of $3,500 and (iv) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire and
applicable tax forms. Upon acceptance and recording pursuant to
paragraph (e) of this Section 9.04, from and after the effective date speci-
fied in each Assignment and Acceptance, (A) the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.13, 2.15, 2.19 and 9.05, as well as to any Fees
accrued for its account and not yet paid). Notwithstanding the foregoing,
any Lender assigning its rights and obligations under this Agreement may
retain any Competitive Loans made by it outstanding at such time, and in
such case shall retain its rights hereunder in respect of any such Loans so
retained until such Loans have been repaid in full in accordance with this
Agreement.
(c) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder shall be
deemed to confirm to and agree with each other and the other parties
hereto as follows: (i) such assigning Lender warrants that it is the legal
and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim and that its Commitment, and the outstanding
balances of its Revolving Loans and Competitive Loans, in each case
without giving effect to assignments thereof which have not become
effective, are as set forth in such Assignment and Acceptance, (ii) except
as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto, or the financial condition of the
Borrower or any Subsidiary or the performance or observance by the
Borrower or any Subsidiary of any of its obligations under this Agreement
or any other instrument or document furnished pursuant hereto; (iii) such
assignee represents and warrants that it is legally authorized to enter into
such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements referred to in Section 3.05 or delivered pursuant to
Section 5.04 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and
without reliance upon the Administrative Agent, such assigning Lender or
any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee
appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as
are delegated to the Administrative Agent by the terms hereof, together
with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of
New York a copy of each Assignment and Acceptance delivered to it and
a register for the recordation of the names and addresses of the Lenders,
and the Commitment of, and principal amount of the Loans owing to, each
Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive and the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders may treat each
person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, an
Administrative Questionnaire completed in respect of the assignee (unless
the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) above and, if required, the
written consent of the Borrower, the Issuing Bank and the Administrative
Agent to such assignment, the Administrative Agent shall (i) accept such
Assignment and Acceptance and (ii) record the information contained
therein in the Register. No assignment shall be effective unless it has been
recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the
Issuing Bank or the Administrative Agent sell participations to one or
more banks or other entities in all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and
the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other
entities shall be entitled to the benefit of the cost protection provisions
contained in Sections 2.13, 2.15 and 2.19 to the same extent as if they
were Lenders (but, with respect to any particular participant, to no greater
extent than the Lender that sold the participation to such participant) and
(iv) the Borrower, the Administrative Agent, the Issuing Bank and the
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to the Loans or L/C Disbursements
and to approve any amendment, modification or waiver of any provision
of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or the amount of principal of or the
rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the
Loans or increasing or extending the Commitments).
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation
pursuant to this Section 9.04, disclose to the assignee or participant or
proposed assignee or participant any information relating to the Borrower
furnished to such Lender by or on behalf of the Borrower; provided that,
prior to any such disclosure of information designated by the Borrower as
confidential, each such assignee or participant or proposed assignee or
participant shall execute an agreement whereby such assignee or
participant shall agree (subject to customary exceptions) to preserve the
confidentiality of such confidential information on terms no less restrictive
than those applicable to the Lenders pursuant to Section 9.16.
(h) Any Lender may at any time assign all or any portion of its
rights under this Agreement to secure extensions of credit to such Lender
or in support of obligations owed by such Lender; provided that no such
assignment shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.
(i) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding
vehicle (an "SPC"), identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower, the option
to provide to the Borrower all or any part of any Loan that such Granting
Lender would otherwise be obligated to make to the Borrower pursuant to
this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to make any Loan and (ii) if an SPC elects not
to exercise such option or otherwise fails to provide all or any part of such
Loan, the Granting Lender shall be obligated to make such Loan pursuant
to the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Each party hereto
hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall
remain with the Granting Lender). In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination
of this Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the
United States or any State thereof. In addition, notwithstanding anything
to the contrary contained in this Section 9.04, any SPC may (i) with notice
to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting Lender
or to any financial institutions (consented to by the Borrower and
Administrative Agent) providing liquidity and/or credit support to or for
the account of such SPC to support the funding or maintenance of Loans
and (ii) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement to
such SPC.
(j) The Borrower shall not assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative
Agent, the Issuing Bank and each Lender, and any attempted assignment
without such consent shall be null and void.
(k) In the event that S&P, Moody's and Thompson's
BankWatch (or InsuranceWatch Ratings Service, in the case of Lenders
that are insurance companies (or Best's Insurance Reports, if such
insurance company is not rated by Insurance Watch Ratings Service))
shall, after the date that any Lender becomes a Lender, downgrade the
long-term certificate deposit ratings of such Lender, and the resulting
ratings shall be below BBB-, Baa3 and C (or BB, in the case of a Lender
that is an insurance company (or B, in the case of an insurance company
not rated by InsuranceWatch Ratings Service)), then the Issuing Bank
shall have the right, but not the obligation, at its own expense, upon notice
to such Lender and the Administrative Agent, to replace (or to request the
Borrower to use its reasonable efforts to replace) such Lender with an
assignee (in accordance with and subject to the restrictions contained in
paragraph (b) above), and such Lender hereby agrees to transfer and
assign without recourse (in accordance with and subject to the restrictions
contained in paragraph (b) above) all its interests, rights and obligations
in respect of its Commitment to such assignee; provided, however, that
(i) no such assignment shall conflict with any law, rule and regulation or
order of any Governmental Authority and (ii) the Issuing Bank or such
assignee, as the case may be, shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest
accrued to the date of payment on the Loans made by such Lender
hereunder and all other amounts accrued for such Lender's account or
owed to it hereunder.
SECTION 9.05. Expenses; Indemnity tc \l2 "SECTION 9.05.
Expenses; Indemnity . (a) The Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by the Administrative Agent and the
Issuing Bank in connection with the syndication of the credit facilities
provided for herein and the preparation and administration of this
Agreement or in connection with any amendments, modifications or
waivers of the provisions hereof (whether or not the transactions hereby
or thereby contemplated shall be consummated) or incurred by the
Administrative Agent or any Lender in connection with the enforcement
or protection of its rights in connection with this Agreement or in
connection with the Loans made or Letters of Credit issued hereunder,
including the reasonable fees, charges and disbursements of Cravath,
Swaine & Moore, counsel for the Administrative Agent, and, in
connection with any such enforcement or protection, the reasonable fees,
charges and disbursements of any other counsel for the Administrative
Agent or any Lender.
(b) The Borrower agrees to indemnify the Administrative Agent,
each Lender, the Issuing Bank and each Related Party of any of the
foregoing persons (each such person being called an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including reasonable
counsel fees, charges and disbursements, incurred by or asserted against
any Indemnitee (other than Taxes, Other Taxes or amounts that would be
Other Taxes if imposed by the United States of America or any political
subdivision thereof) arising out of, in any way connected with, or as a
result of (i) the execution or delivery of this Agreement or any agreement
or instrument contemplated thereby, the performance by the parties thereto
of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby, (ii) the use
of the proceeds of the Loans or issuance of Letters of Credit, or (iii) any
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and
nonappealable judgment (a "Final Judgment") to have resulted from the
gross negligence or wilful misconduct of such Indemnitee or (y) arise from
any legal proceedings commenced against any Lender by any other Lender
(other than legal proceedings against the Administrative Agent or the
Issuing Bank in its capacity as such) or in which a Final Judgment is
rendered in the Borrower's favor against such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent or the Issuing Bank
under paragraph (a) or (b) of this Section, each Lender severally agrees to
pay to the Administrative Agent or the Issuing Bank, as the case may be,
such Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent or the Issuing
Bank in its capacity as such. For purposes hereof, a Lender's "pro rata
share" shall be determined based upon its share of the sum of the
Aggregate Revolving Credit Exposure and unused Commitments at the
time.
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with,
or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or Letter of Credit or the
use of the proceeds thereof.
(e) All amounts due under this Section 9.05 shall be payable not
later than 15 days after written demand therefor.
SECTION 9.06. Right of Setoff tc \l2 "SECTION 9.06. Right
of Setoff . If an Event of Default shall have occurred and be continuing,
each Lender is hereby authorized at any time and from time to time, except
to the extent prohibited 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 to or for the
credit or the account of the Borrower against any of and all the obligations
of the Borrower now or hereafter existing under this Agreement held by
such Lender, irrespective of whether or not such Lender shall have made
any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section 9.06 are in
addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.07. Applicable Law tc \l2 "SECTION 9.07.
Applicable Law . THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED,
THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON
THE DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE
INTERNATIONAL CHAMBER OF COMMERCE (THE "UNIFORM
CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE
UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment tc \l2 "SECTION 9.08.
Waivers; Amendment . (a) No failure or delay of the Administrative
Agent, any Lender or the Issuing Bank in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which
given. No notice or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required
Lenders; provided, however, that no such agreement shall (i) decrease the
principal amount of, or extend the maturity of or any scheduled principal
payment date or date for the payment of any interest on any Loan or any
date for reimbursement of an L/C Disbursement, or waive or excuse any
such payment or any part thereof, or decrease the rate of interest on any
Loan or L/C Disbursement, without the prior written consent of each
Lender affected thereby, (ii) increase or extend the Commitment or
decrease or extend the date for payment of any Fees of any Lender without
the prior written consent of such Lender, (iii) amend or modify the pro rata
requirements of Section 2.16, the provisions of Section 9.04(j), the
provisions of this Section or the definition of the term "Required
Lenders", without the prior written consent of each Lender or (iv) modify
the protections afforded to an SPC pursuant to the provisions of Section
9.04(i) without the written consent of such SPC; provided further that no
such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent or the Issuing Bank hereunder without
the prior written consent of the Administrative Agent or the Issuing Bank.
SECTION 9.09. Interest Rate Limitation tc \l2 "SECTION
9.09. Interest Rate Limitation . Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and
other amounts which are treated as interest on such Loan or participation
in such L/C Disbursement under applicable law (collectively the
"Charges"), shall exceed the maximum lawful rate (the "Maximum
Rate") which may be contracted for, charged, taken, received or reserved
by the Lender holding such Loan or participation in accordance with
applicable law, the rate of interest payable in respect of such Loan or
participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Charges that would have been payable in respect of such
Loan or participation but were not payable as a result of the operation of
this Section 9.09 shall be cumulated and the interest and Charges payable
to such Lender in respect of other Loans or participations or periods shall
be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such
Lender.
SECTION 9.10. Entire Agreement tc \l2 "SECTION 9.10.
Entire Agreement . This Agreement and the Fee Letter dated
November 29, 2001, between the Borrower and Credit Suisse First
Boston, constitute the entire contract between the parties relative to the
subject matter hereof. Any other previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement.
Nothing in this Agreement, expressed or implied, is intended to confer
upon any person (other than the parties hereto, their respective successors
and assigns permitted hereunder (including any Affiliate of the Issuing
Bank that issues any Letter of Credit) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative
Agent, the Issuing Bank and the Lenders) any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
SECTION 9.11. WAIVER OF JURY TRIAL tc \l2 "SECTION
9.11. WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability tc \l2 "SECTION 9.12.
Severability . In the event any one or more of the provisions contained
in this Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected
or impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 9.13. Counterparts tc \l2 "SECTION 9.13.
Counterparts . This Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute
a single contract, and shall become effective as provided in Section 9.03.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed
counterpart of this Agreement.
SECTION 9.14. Headings tc \l2 "SECTION 9.14. Headings .
Article and Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this Agreement and are
not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process tc
\l2 "SECTION 9.15. Jurisdiction; Consent to Service of Process .
(a) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York
State court or Federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. Nothing
in this Agreement shall affect any right that the Administrative Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its proper-
ties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in
any New York State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in
any such court.
(c) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.16. Confidentiality tc \l2 "SECTION 9.16.
Confidentiality . Each of the Administrative Agent, the Issuing Bank and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' officers, directors, employees and agents, including
accountants, legal counsel and other advisors who need to know such
Information in connection with its role as Administrative Agent, Issuing
Bank or Lender (as the case may be) hereunder (it being understood that
the persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority or quasi-regulatory authority (such as the National Association
of Insurance Commissioners) (provided that, to the extent permitted by
applicable law and practicable under the circumstances, such person will
first inform the Borrower of any such request), (c) to the extent required
by applicable laws or regulations or by any subpoena or similar legal
process (provided that, to the extent permitted by applicable law, such
person will promptly notify the Borrower of such requirement as far in
advance of its disclosure as is practicable to enable the Borrower to seek
a protective order and, to the extent practicable, such person will
cooperate with the Borrower in seeking any such order), (d) in connection
with the exercise of any remedies hereunder or any suit, action or
proceeding relating to the enforcement of its rights hereunder, (e) subject
to an agreement containing provisions substantially the same as those of
this Section 9.16, to (i) any actual or prospective assignee of or participant
in any of its rights or obligations under this Agreement or (ii) any actual
or prospective counterparty (or its advisors) to any credit default swap or
similar credit derivative transaction relating to the obligations of the
Borrower under this Agreement, (f) with the consent of the Borrower or
(g) to the extent such Information becomes publicly available other than
as a result of a breach of this Section 9.16. For the purposes of this
Section, "Information" shall mean all information received from the
Borrower and related to the Borrower or its business, other than any such
information that was available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis prior to its disclosure by
the Borrower. Each of the Administrative Agent, the Issuing Bank and the
Lenders agrees that, except as expressly provided in this Section 9.16, it
will use Information only in connection with its role as Administrative
Agent, Issuing Bank or Lender (as the case may be) hereunder.
SECTION 9.17. Termination of Existing Credit Agreement.
The Borrower and each of the Lenders that is also a Lender (as defined in
the Existing Credit Agreement) party to the Existing Credit Agreement
agree that the Commitments (as defined in the Existing Credit Agreement)
shall be terminated in their entirety on the Closing Date in accordance with
the terms thereof, subject only to this Section 9.17. Each of such Lenders
waives (a) any requirement of notice of such termination pursuant to
Section 2.04(a) of the Existing Credit Agreement and (b) any claim to any
facility fees under the Existing Credit Agreement for any day on or after
the Closing Date. The Borrower (i) represents and warrants that (x) after
giving effect to the preceding sentences of this Section 9.17, the
commitments under the Existing Credit Agreement will be terminated
effective not later than the Closing Date and (y) no loans will be, as of the
Closing Date, outstanding under the Existing Credit Agreement and (ii)
covenants that all accrued and unpaid facility fees and other amounts due
and payable under the Existing Credit Agreement shall have been paid on
or prior to the Closing Date.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as
of the day and year first above written.
LABORATORY
CORPORATION OF
AMERICA
HOLDINGS,
by:
__________________
___
Name:
Title:
CREDIT SUISSE
FIRST BOSTON, as
Administrative Agent
and Issuing Bank,
by:
__________________
___
Name:
Title:
by:
__________________
___
Name:
Title:
CREDIT SUISSE
FIRST
BOSTON,
CAYMAN ISLANDS BRANCH,
by:
__________________
__
Name:
Title:
by:
__________________
___
Name:
Title:
SIGNATURE PAGE TO LABORATORY
CORPORATION OF AMERICA HOLDINGS
THREE-YEAR CREDIT AGREEMENT DATED AS
OF FEBRUARY 20, 2002
NAME OF LENDER: ________________________________
by ________________________________
Name:
Title:
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