EXHIBIT 10.94
CREDIT AGREEMENT
Dated as of July 16, 2004
This CREDIT AGREEMENT is dated as of July 16, 2004 and is entered
into by and among Amgen Inc., a Delaware corporation (the "COMPANY"), Citicorp
USA, Inc. ("CUSA"), Barclays Bank PLC ("BARCLAYS") and each other financial
institution whose name is set forth on the signature pages hereof as a Bank,
Citibank, N.A. ("CITIBANK"), as Issuing Bank, CUSA, as Administrative Agent, and
Barclays, as Syndication Agent. In consideration of the mutual covenants and
agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"ADDITIONAL BANK" has the meaning set forth in Section 2.8(b).
"ADMINISTRATIVE AGENT" means CUSA, when acting in its capacity as
the administrative agent under any of the Loan Documents.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's
address as set forth on the signature pages of this Agreement, or such other
address as the Administrative Agent hereafter may designate by written notice to
the Company and the Banks.
"ADVANCE" means any Advance made or to be made by any Bank to any
Borrower as provided in Article 2, and includes each Base Rate Advance and each
EURO Rate Advance.
"AFFILIATE" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled by,
such Person. As used in this definition, "control" (and the correlative terms,
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH") shall mean possession, directly
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise).
"AGENT PARTIES" has the meaning set forth in Section 13.25(c).
"AGREEMENT" means this Credit Agreement, either as originally
executed or as it may from time to time be supplemented, modified, amended,
restated or extended in accordance with Section 13.2.
"AGREEMENT TO PARTICIPATE" means an Agreement to Participate,
substantially in the form of Exhibit A.
"ALTERNATIVE CURRENCY" means Euro.
"ALTERNATIVE CURRENCY EQUIVALENT" means, with respect to any amount
denominated in Dollars on any date of determination, the amount of the
Alternative Currency that could be purchased with such amount of Dollars using
the reciprocal of the foreign exchange rate(s) specified in the definition of
"Dollar Equivalent," as determined by the Administrative Agent.
"ALTERNATIVE CURRENCY LOAN" means any Loan denominated in the
Alternative Currency. Each Alternative Currency Loan must be a EURIBOR Rate
Advance.
"ALTERNATIVE CURRENCY PAYMENT OFFICE" means such office of Citibank
as shall be from time to time selected by the Administrative Agent and notified
by the Administrative Agent to the Company and the Banks.
"ARRANGER" means each of Citigroup Global Markets Inc. and Barclays
Capital, the investment banking division of Barclays, when acting in its
capacity as joint lead arranger and joint book runner under any of the Loan
Documents.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in
substantially the form of Exhibit G, executed by a Bank and an Eligible Assignee
of all or part of that Bank's interest hereunder.
"BANK" means the Persons identified as "Banks" and listed on the
signature pages of this Agreement and each Eligible Assignee that shall become a
party hereto pursuant to Section 13.9.
"BANKING DAY" means any Monday, Tuesday, Wednesday, Thursday or
Friday, other than a day on which banks are authorized or required to be closed
in California or New York.
"BARCLAYS" has the meaning set forth in the introductory paragraph.
"BASE RATE", for any day, means the higher of (i) the rate of
interest in effect on such day as publicly announced by Citibank from time to
time as its base commercial lending rate (such base rate is not intended to be
the lowest rate of interest charged by Citibank) and (ii) the sum of 0.50% per
annum and the rate of interest determined by the Administrative Agent to be the
average overnight federal funds rate.
"BASE RATE ADVANCE" means an Advance made hereunder that bears
interest as set forth in Section 3.1(b) and designated as a Base Rate Advance in
accordance with Article 2.
"BORROWER" means the Company and any Borrowing Subsidiary;
"BORROWERS" means the Company and each other Borrower, collectively.
"BORROWING SUBSIDIARY" means any Eligible Subsidiary that has
executed an Agreement to Participate pursuant to Section 12.1.
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"BORROWING SUBSIDIARY OBLIGATIONS" has the meaning set forth in
Section 11.1.
"CALCULATION DATE" means, in respect of a EURIBOR Rate Advance, (a)
the date falling two Banking Days (or such other period as is customary in the
relevant foreign exchange market for delivery on the date of the relevant
Advance) prior to the date of each Advance, (b) the date falling two Banking
Days (or such other period as is customary in the relevant foreign exchange
market for delivery on the date of the relevant conversion or continuation of a
Loan) prior to the date of conversion or continuation of any Advance pursuant to
Section 2.5, or (c) such additional dates as the Administrative Agent or the
Majority Banks shall specify or as any Borrower may reasonably request, in which
case the Administrative Agent's specification shall prevail.
"CAPITAL LEASE" means, as to any Person, a lease of any Property by
that Person as lessee that is, or should be in accordance with Financial
Accounting Standards Board Statement No. 13, recorded as a "capital lease" on
the balance sheet of that Person prepared in accordance with Generally Accepted
Accounting Principles.
"CASH" means, when used in connection with any Person, all monetary
and non-monetary items owned by that Person that are treated as cash in
accordance with Generally Accepted Accounting Principles, except for amounts
held by, or on deposit with, another Person as cash collateral or other
security.
"CERTIFICATE OF A SENIOR OFFICER" means a certificate signed by a
Senior Officer of the Person providing the certificate.
"CITIBANK" has the meaning set forth in the introductory paragraph.
"CLOSING DATE" means the time and Banking Day on which the
conditions set forth in Section 8.1 are satisfied.
"CODE" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"COMMITMENT" means the aggregate commitment of the Banks (i) to make
Advances pursuant to Section 2.1(a) in an aggregate principal amount up to the
Dollar Equivalent of $1,000,000,000 and (ii) to purchase an undivided interest
in any Letters of Credit issued pursuant to Section 2.6(a), as such Commitment
may be reduced in accordance with Section 2.4 or increased in accordance with
Section 2.8. The respective Pro Rata Shares of the Banks with respect to the
Commitments are set forth in Schedule 2.1.
"COMPANY" has the meaning set forth in the introductory paragraph.
"COMPLIANCE CERTIFICATE" means a certificate in the form of Exhibit
C, properly completed and signed by a Senior Officer of the Company.
"CONSOLIDATED NET WORTH" means, as of any date of determination, the
Shareholders' Equity of the Company and its Consolidated Subsidiaries on that
date.
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"CONSOLIDATED SUBSIDIARY" means, as of any date of determination and
with respect to any Person, any Subsidiary of that Person whose financial data
is, in accordance with Generally Accepted Accounting Principles, reflected in
that Person's consolidated financial statements.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of
any outstanding Securities issued by that Person or of any material agreement,
instrument or undertaking to which that Person is a party or by which it or any
of its Property is bound.
"CONVERT," "CONVERSION" and "CONVERTED" each refers to a conversion
of Advances of one Type into Advances of another Type pursuant to Section 2.5.
"CROSS-DEFAULT AMOUNT" means, as of any date of determination, an
amount equal to the lesser of (i) $100,000,000 or (ii) 5% of Tangible Net Worth
as of the last day of the then most recently ended Fiscal Quarter with respect
to which the Company has delivered (electronically or otherwise) the financial
statements required by Section 7.1(a) or, if the Company is delinquent in the
delivery of such financial statements with respect to the most recently ended
Fiscal Quarter, 5% of Tangible Net Worth as reasonably determined by the
Administrative Agent.
"CURRENT ERISA AFFILIATE", as applied to any Person, means (i) any
corporation which is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Code of which that Person is a member; (ii) any
trade or business (whether or not incorporated) which is a member of a group of
trades or businesses under common control within the meaning of Section 414(c)
of the Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or (o) of the Code
of which that Person, any corporation described in clause (i) above or any trade
or business described in clause (ii) above is a member.
"CUSA" has the meaning set forth in the introductory paragraph.
"DAILY MARGIN" means, for any date of determination, for the
designated Level, the Utilization Ratio applicable to such date of determination
and the Type of Advance, the following interest rates per annum:
Daily Margin when Daily Margin when
Utilization Ratio is equal to Utilization Ratio is greater
or less than 0.50:1.00 than 0.50:1.00
----------------------------- ----------------------------
TYPE OF ADVANCE TYPE OF ADVANCE
----------------------------- ----------------------------
Base Rate EURO Rate Base Rate EURO Rate
Advance Advance Advance Advance
--------- ------------ ---------- -----------
Level 1 0% 0.1500% 0% 0.2500%
Level 2 0% 0.1900% 0% 0.2900%
Level 3 0% 0.2200% 0% 0.3200%
Level 4 0% 0.2600% 0% 0.3600%
Level 5 0% 0.3750% 0% 0.4750%
Level 6 0% 0.4750% 0% 0.6000%
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For purposes of this definition, (a) "UTILIZATION RATIO" means, as of any date
of determination, the ratio of (1) Total Outstandings as of such date to (2) the
aggregate outstanding amount of all Commitments (whether used or unused) in
effect as of such date, (b) if any change in the rating established by S&P or
Moody's with respect to Long-Term Debt shall result in a change in the Level,
the change in the Daily Margin shall be effective as of the date on which such
rating change is publicly announced, and (c) if the ratings established by both
of S&P and Moody's with respect to Long-Term Debt are unavailable for any reason
for any day, then the applicable level for such day shall be deemed to be Level
6 (or, if the Majority Banks consent in writing, such other Level as may be
reasonably determined by the Majority Banks from a rating with respect to
Long-Term Debt for such day established by another rating agency reasonably
acceptable to the Majority Banks).
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States
of America, as amended from time to time, and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws from time to time in
effect affecting the rights of creditors generally.
"DEFAULT" means any Event of Default or any event that, with the
giving of any applicable notice or passage of time specified in Section 9.1, or
both, would be an Event of Default.
"DEFAULT RATE" means the interest rate described in Section 3.9.
"DESIGNATED DEPOSIT ACCOUNT" means a deposit account designated by a
Borrower in its Request for Loan submitted with respect to each Loan.
"DOLLAR EQUIVALENT" means, as of any date of determination (a) with
respect to any amount denominated in Dollars, such amount, and (b) with respect
to any amount denominated in any currency other than Dollars, the amount of
Dollars that would be required to purchase the amount of the Alternative
Currency based on the spot rate for the purchase by Citibank of the Alternative
Currency through its foreign exchange trading office on such date.
"DOLLAR LOAN" means any Loan denominated in Dollars.
"DOLLARS" or "$" means United States Dollars.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; (ii) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economical
Cooperation and Development (the "OECD"), or a political subdivision of any such
country and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
country in which it is organized or another country which is also a member of
the OECD; and (iii) any Person engaged in the business of lending and that is an
Affiliate of a Bank or of a Person of which a Bank is a Subsidiary.
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"ELIGIBLE SUBSIDIARY" means any of the wholly-owned Subsidiaries of
the Company.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as defined
in Section 3(3) of ERISA which is, or was at any time, maintained or contributed
to by the Company or any of its ERISA Affiliates.
"EMU" means the economic and monetary union in accordance with the
Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastrict
Treaty of 1992 and the Amsterdam Treaty of 1998, as amended from time to time.
"EMU LEGISLATION" means the legislative measures of the European
Council for the introduction of, changeover to or operation of a single or
unified European currency (whether known as the "euro" or otherwise).
"ENVIRONMENTAL LAWS" means all plans, policies or decrees binding on
the Company and its Subsidiaries in accordance with applicable statutes,
ordinances, orders, rules or regulations and all statutes, ordinances, orders,
rules or regulations and the like, in each case, relating to (i) environmental
matters, including, without limitation, those relating to fines, injunctions,
penalties, damages, contribution, cost recovery compensation, losses or injuries
resulting from the release or threatened release of hazardous materials, (ii)
the generation, use, storage, transportation or disposal of hazardous materials,
or (iii) occupational safety and health, industrial hygiene, land use or the
protection of human, plant or animal health or welfare, in any manner applicable
to the Company or any of its Subsidiaries or any of their respective properties,
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9601 et seq.), the Hazardous
Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the Federal
Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act
(42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
Section 2601 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7
U.S.C. Section 136 et seq.), the Occupational Safety and Health Act (29 U.S.C.
Section 651 et seq.) and the Emergency Planning and Community Right-to-Know Act
(42 U.S.C. Section 11001 et seq.), each as amended or supplemented, and any
analogous future or present local, state and federal statutes and regulations
promulgated pursuant thereto, each as in effect as of the date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974,
and any regulations issued pursuant thereto, as amended or replaced and as in
effect from time to time.
"ERISA AFFILIATE", as applied to any Person, means (i) any
corporation which is, or was at any time, a member of a controlled group of
corporations within the meaning of Section 414(b) of the Code of which that
Person is, or was at any time, a member; (ii) any trade or business (whether or
not incorporated) which is, or was at any time, a member of a group of trades or
businesses under common control within the meaning of Section 414(c) of the Code
of which that Person is, or was at any time, a member; and (iii) any member of
an affiliated service group within the meaning of Section 414(m) or (o) of the
Code of which that Person, any corporation described in clause (i) above or any
trade or business described in clause (ii) above is, or was at any time, a
member.
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"ERISA EVENT" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the
PBGC, or the penalty for failure to provide such notice, has been waived by
regulation or by PBGC technical update); (ii) the failure to meet the minimum
funding standard of Section 412 of the Code with respect to any Pension Plan
(whether or not waived in accordance with Section 412(d) of the Code) or the
failure to make by its due date a required installment under Section 412(m) of
the Code with respect to any Pension Plan or the failure to make any required
contribution to a Multiemployer Plan; (iii) the provision by the administrator
of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of
intent to terminate such plan in a distress termination described in Section
4041(c) of ERISA; (iv) the withdrawal by the Company or any of its ERISA
Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan resulting in liability pursuant to Sections
4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
might constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of liability
on the Company or any of its ERISA Affiliates pursuant to Section 4062(e) or
4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii)
the withdrawal by the Company or any of its ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from
any Multiemployer Plan if there is any potential liability therefor, or the
receipt by the Company or any of its ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated
under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or
omission which could give rise to the imposition on the Company or any of its
ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43
of the Code or under Section 409 or 502(c), (i) or (l) or 4071 of ERISA in
respect of any Employee Benefit Plan; (ix) the assertion of a material claim
(other than routine claims for benefits) against any Employee Benefit Plan other
than a Multiemployer Plan or the assets thereof, or against Company or any of
its ERISA Affiliates in connection with any such Employee Benefit Plan; (x)
receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Employee Benefit Plan intended to be qualified under
Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the
failure of any trust forming part of any Pension Plan to qualify for exemption
from taxation under Section 501(a) of the Code; or (xi) the imposition of a Lien
pursuant to Section 401(a)(29) or 412(n) of the Code or pursuant to ERISA with
respect to any Pension Plan.
"EURIBOR RATE" means, for any Interest Period for each EURIBOR Rate
Advance, an interest rate per annum equal to (i) the offered quotation which
appears on the page of the Telerate Screen which displays an average rate of the
Banking Federation of the EMU for the Euro (being currently page 248) for such
period at or about 10:00 a.m. (London time) two Eurocurrency Banking Days before
the first day of such Interest Period or, if such page or such service shall
cease to be available, such other page or such other service for the purpose of
displaying an average rate of the Banking Federation of the EMU as the
Administrative Agent, after consultation with the Banks and the Company, shall
reasonably select or (ii) if no quotation for the Euro for the relevant period
is displayed and the Administrative Agent has not selected an alternative
service on which a quotation is displayed, the average (rounded upwards to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the
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rate per annum at which deposits in Euros are offered by each of the Reference
Banks to leading banks in the European interbank market at or about 10:00 a.m.
(London time) two Eurocurrency Banking Days before the first day of such
Interest Period in an amount substantially equal to the respective Reference
Bank's EURIBOR Rate Advance and for a period equal to such Interest Period. For
any Interest Period with respect to any EURIBOR Rate Advance and advanced by a
Bank required to comply with the relevant requirements of the United Kingdom or
any Participating Member State, "EURIBOR Rate" means the sum of (i) the rate
determined in accordance with the preceding sentence of this definition and (ii)
the Mandatory Cost Rate for such Interest Period.
"EURIBOR RATE ADVANCE" means an Advance in Euros which bears
interest at a rate per annum determined on the basis of the EURIBOR Rate. All
EURIBOR Rate Advances shall be denominated in Euros.
"EURO" and "(EURO)" means the lawful currency of the Participating
Member States introduced in accordance with the EMU Legislation.
"EUROCURRENCY BANKING DAY" means (a) if such day relates to any
Eurodollar Rate Advance, any Banking Day on which dealings in Dollar deposits
are conducted by and among banks in the London interbank offer market for Dollar
deposits or (b) if such day relates to any EURIBOR Rate Advance, a TARGET Day.
"EUROCURRENCY LENDING OFFICE" means, as to each Bank, its office or
branch so designated by written notice to the Company and the Administrative
Agent as its Eurocurrency Lending Office. If no Eurocurrency Lending Office is
designated by a Bank, its Eurocurrency Lending Office shall be its office at its
address for purposes of notices hereunder.
"EUROCURRENCY MARKET" means, with respect to any EURO Rate Advance,
the London interbank offer market for Dollar and Euro deposits.
"EUROCURRENCY PERIOD" means, as to each EURO Rate Advance, the
period commencing on the date specified by the Borrower pursuant to Section
2.1(b) and ending 1, 2, 3 or 6 months thereafter, as specified by the applicable
Borrower in the applicable Request for Loan; provided that:
(a) The first day of any Eurocurrency Period shall be a Eurocurrency
Banking Day;
(b) Any Eurocurrency Period that would otherwise end on a day that
is not a Eurocurrency Banking Day shall be extended to the next
succeeding Eurocurrency Banking Day unless such Eurocurrency Banking
Day falls in another calendar month, in which case such Eurocurrency
Period shall end on the next preceding Eurocurrency Banking Day; and
(c) No Eurocurrency Period shall extend beyond the Maturity Date.
"EURODOLLAR RATE" means, for any Interest Period for each Eurodollar
Rate Advance, an interest rate per annum equal to (i) the offered rate (if any)
appearing on the
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Telerate Screen which displays British Bankers' Association Interest Settlement
Rates for deposits of Dollars for a period equal to the Interest Period relating
to that Advance at or about 11:00 a.m. (London time) two Eurocurrency Banking
Days before the first day of such Interest Period with respect to each
Eurodollar Rate Advance, or (ii) if the Administrative Agent is unable to access
the Telerate Screen or if the relevant rate is not displayed, the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rate per annum at which each of the
Reference Banks was offering to leading banks in the London interbank market
deposits in Dollars of an equivalent amount and for such Interest Period at or
about 11:00 a.m. (London time) two Eurocurrency Banking Days before the first
day of such Interest Period with respect to each Eurodollar Rate Advance. For
the purposes of this definition, "Telerate Screen" means the display on the
Telerate Service or such other service as may be nominated by the British
Bankers' Association Interest Settlement Rates for deposits in Dollars.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest based
on the Eurodollar Rate. All Eurodollar Rate Advances shall be denominated in
Dollars.
"EURO RATE ADVANCE" means, as the context may require, a Eurodollar
Rate Advance or a EURIBOR Rate Advance.
"EVENT OF DEFAULT" shall have the meaning provided in Section 9.1.
"FISCAL QUARTER" means the fiscal quarter of the Company consisting
of a three month fiscal period ending on each March 31, June 30, September 30
and December 31.
"FISCAL YEAR" means the fiscal year of the Company consisting of a
twelve month fiscal period ending on each December 31.
"FOREIGN BANK" has the meaning set forth in Section 13.27(a)(i).
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means, as of any date of
determination, accounting principles set forth as "generally accepted" in then
currently effective Statements of the Auditing Standards Board of the American
Institute of Certified Public Accountants, or, if no such Statements are then in
effect, that are then approved by such other entity as may be approved by a
significant segment of the accounting profession in the United States of
America. The term "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" shall be read in
each instance as if the words "CONSISTENTLY APPLIED" followed immediately
thereafter, meaning that the accounting principles applied are consistent in all
material respects (except for changes concurred in by the Company's independent
public accountants) to those applied at prior dates or for prior periods.
"GOVERNMENTAL AGENCY" means (a) any foreign, federal, state, county
or municipal government, or political subdivision thereof, (b) any governmental
or quasi-governmental agency, authority, board, bureau, commission, department,
instrumentality or public body, (c) any court or administrative tribunal or (d)
with respect to any Person, any arbitration tribunal or other nongovernmental
authority to whose jurisdiction that Person has consented.
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"GUARANTY" has the meaning set forth in Section 11.1.
"HOSTILE ACQUISITION" means the acquisition of over 50% of the
capital stock or other equity interests of a Person (the "TARGET") through a
tender offer or similar solicitation of the owners of such capital stock or
other equity interests which has not been approved (prior to such acquisition)
by resolutions of the Board of Directors or shareholders of the Target or by
similar action if the Target is not a corporation and as to which such approval
has not been withdrawn.
"INCREASED COMMITMENTS" has the meaning set forth in Section 2.8(a).
"INDEBTEDNESS" means, as to any Person, (a) all indebtedness of such
Person for borrowed money, (b) that portion of the obligations of such Person
under Capital Leases which is properly recorded as a liability on a balance
sheet of that Person prepared in accordance with Generally Accepted Accounting
Principles, (c) to the extent of the outstanding Indebtedness thereunder, any
obligation of such Person that is evidenced by a promissory note or other
similar instrument representing an extension of credit to such Person, whether
or not for borrowed money, (d) any obligation of such Person for the deferred
purchase price of Property or services (other than trade or other accounts
payable in the ordinary course of business), (e) any obligation of such Person
of the nature described in clauses (a), (b), (c) or (d) above that is secured by
a Lien on assets of such Person, whether or not that Person has assumed such
obligation or whether or not such obligation is non-recourse to the credit of
such Person, but only to the extent of the lesser of the face amount of the
obligation or the fair market value of the assets so subject to the Lien, (f)
obligations of such Person arising under acceptance facilities or under
facilities for the discount of accounts receivable of such Person, (g) any
obligation of such Person to reimburse the issuer of any letter of credit issued
for the account of such Person upon which and only to the extent a draw has been
made and (h) in the case of the Company, any obligations of the Company under a
Swap Agreement. Notwithstanding the provisions listed above, Indebtedness shall
not include any intercompany loans made by the Company to a Subsidiary or by any
Subsidiary to another Subsidiary. As of any date of determination, the amount of
the Company's Indebtedness pursuant to any Swap Agreement shall be equal to the
negative marked-to-market value for the Company.
"INDEMNITEES" has the meaning set forth in Section 13.12.
"INTANGIBLE ASSETS" means assets that are considered intangible
assets under Generally Accepted Accounting Principles, including customer lists,
goodwill, computer software, copyrights, trade names, trademarks, patents,
unamortized deferred charges, unamortized debt discount, capitalized research
and development costs and other intangible assets.
"INTEREST PERIOD" means with respect to any EURO Rate Advance, the
related Eurocurrency Period.
"ISSUE" means the issuance or extension of, or amendment to, any
Letter of Credit.
"ISSUING BANK" means Citibank.
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"LAWS" means, collectively, all foreign, federal, state and local
statutes, treaties, rules, regulations, ordinances, codes and administrative or
controlling precedents of any Governmental Agency.
"LC ISSUANCE FEE" means a fee payable to the Issuing Bank as
provided in Section 3.4.
"LC REIMBURSEMENT FEE" means a fee payable to the Administrative
Agent, for the pro rata benefit of the Banks, as provided in Section 3.5.
"LETTERS OF CREDIT" means any letters of credit issued by the
Issuing Bank pursuant to Section 2.6(a), either as originally executed or as the
same may from time to time be supplemented, modified, reviewed, extended or
supplanted.
"LEVEL" means Level 1, Level 2, Level 3, Level 4, Level 5 or Level
6, as the case may be, provided, however that if, as of any date of
determination, there is more than a one Level difference between (x) the Level
that would be applicable if such Level were determined solely by reference to
the rating assigned by S&P (the "HYPOTHETICAL S&P LEVEL") and (y) the Level that
would be applicable if such Level were determined solely by reference to the
rating assigned by Moody's (the "HYPOTHETICAL MOODY'S LEVEL") then the "Level"
for such date shall be deemed to be the Level immediately above the lower of the
Hypothetical S&P Level and the Hypothetical Moody's Level (for these purposes
Level 1 being higher than Level 2, etc.).
"LEVEL 1" means that, as of any date of determination, the Long-Term
Debt carries either of the following ratings:
"AA-" or higher from S&P
"Aa3" or higher from Moody's.
"LEVEL 2" means that, as of any date of determination, the criteria
of Level 1 are not satisfied and the Long-Term Debt carries either of the
following ratings:
"A+" from S&P
"A1" from Moody's.
"LEVEL 3" means that, as of any date of determination, the criteria
of neither Level 1 nor Level 2 are satisfied and the Long-Term Debt carries
either of the following ratings:
"A" from S&P
"A2" from Moody's.
"LEVEL 4" means that, as of any date of determination, the criteria
of none of Level 1, Level 2 or Level 3 are satisfied and the Long-Term Debt
carries either of the following ratings:
"A-" from S&P
"A3" from Moody's.
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"LEVEL 5" means that, as of any date of determination, the criteria
of none of Level 1, Level 2, Level 3 or Level 4 are satisfied and the Long-Term
Debt carries either of the following ratings:
"BBB+" from S&P
"Baa1" from Moody's.
"LEVEL 6" means that, as of any date of determination, the criteria
of none of Level 1, Level 2, Level 3, Level 4 or Level 5 are satisfied.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, lien or charge of any
kind, whether voluntarily incurred or arising by operation of Law or otherwise,
affecting any Property, including any agreement to grant any of the foregoing,
any conditional sale or other title retention agreement, any lease in the nature
of a security interest, and/or the filing of or agreement to give any financing
statement (other than a precautionary financing statement with respect to a
lease that is not in the nature of a security interest) under the Uniform
Commercial Code or comparable Law of any jurisdiction with respect to any
Property.
"LOAN" means any group of Advances made at any one time by the Banks
pursuant to Article 2.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes, any
Request for Loan, any Agreement to Participate, any Letter of Credit, and any
Request for Letter of Credit, in each case either as originally executed or as
the same may from time to time be supplemented, modified, amended, restated,
extended or supplanted.
"LONG-TERM DEBT" means senior, unsecured, long-term-debt securities
of the Company.
"MAJORITY BANKS" means, as of any date of determination, Banks whose
aggregate Pro Rata Shares are greater than 50% of the Commitment then in effect
or if the Commitment is not then in effect, Banks to which more than 50% of the
aggregate Total Outstandings is owed.
"MANDATORY COST RATE" means, with respect to any period, a rate per
annum determined in accordance with Schedule 1.1.
"MATERIAL ADVERSE EFFECT" means a circumstance or set of
circumstances or events affecting the business, financial condition or
operations of the Company and its Subsidiaries, taken as a whole, that have a
material adverse effect, individually or in the aggregate, upon the ability (i)
of the Company and its Subsidiaries, taken as a whole, to perform under the Loan
Documents or (ii) of the Banks to enforce, the Obligations under the Loan
Documents.
"MATURITY DATE" means July 16, 2009.
"MOODY'S" means Moody's Investors Service, Inc. or any successor
thereto.
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"MULTIEMPLOYER PLAN" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Company or any of its
ERISA Affiliates is contributing, or ever has contributed, or to which the
Company or any of its ERISA Affiliates has, or ever has had, an obligation to
contribute.
"NOTES" means any of the promissory notes made by the Borrowers in
favor of a Bank in accordance with Section 2.1(e) to evidence revolving Advances
made by that Bank under the Commitment, substantially in the form of Exhibit B,
as originally executed or as the same may from time to time be supplemented,
modified, amended, renewed or extended.
"NOTICE OF CONVERSION/CONTINUATION" has the meaning specified in
Section 2.5(a).
"OBLIGATIONS" means all present and future monetary obligations of
every kind or nature of the Borrowers at any time and from time to time owed to
the Arrangers, the Administrative Agent, the Syndication Agent, the Issuing Bank
or the Banks or any one or more of them under any one or more of the Loan
Documents, whether due or to become due, matured or unmatured, liquidated or
unliquidated, or contingent or noncontingent, including interest that accrues
after the commencement of any proceeding under any Debtor Relief Law by or
against the Company or any Subsidiary of the Company.
"ORIGINAL CURRENCY" has the meaning set forth in Section 13.26(a).
"OTHER CURRENCY" has the meaning set forth in Section 13.26(a).
"OTHER TAXES" has the meaning set forth in Section 3.12(d)(ii).
"PARTICIPATING MEMBER STATE" means each state so described in any
EMU Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"PENSION PLAN" means any Employee Benefit Plan other than a
Multiemployer Plan, that is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"PERMITTED ENCUMBRANCES" means:
(a) inchoate Liens incident to construction or maintenance of real
property, or Liens incident to construction or maintenance of real property, now
or hereafter filed of record for sums not yet delinquent or being contested in
good faith, if reserves or other appropriate provisions, if any, as shall be
required by GAAP shall have been made therefor;
(b) Liens for taxes and assessments on real property which are not
yet past due, or Liens for taxes and assessments on real property for which
adequate reserves have been set aside and are being contested in good faith by
appropriate proceedings and have not proceeded to judgment, provided that, by
reason of non-payment of the obligations secured by such Liens, no such material
real property is subject to a material risk of loss or forfeiture;
13
(c) easements, exceptions, reservations, or other agreements granted
or entered into after the date hereof for the purpose of pipelines, conduits,
cables, wire communication lines, power lines and substations, streets, trails,
walkways, drainage, irrigation, water, and sewerage purposes, dikes, canals,
ditches, the removal of oil, gas, coal, or other minerals, and other like
purposes affecting real property which in the aggregate do not materially burden
or impair the fair market value or use of such real property for the purposes
for which it is or may reasonably be expected to be held;
(d) rights reserved to or vested in any Governmental Agency by Law
to control or regulate, or obligations or duties under Law to any Governmental
Agency with respect to, the use of any real property;
(e) rights reserved to or vested in any Governmental Agency by Law
to control or regulate, or obligations or duties under Law to any Governmental
Agency with respect to, any right, power, franchise, grant, license, or permit;
(f) present or future zoning laws and ordinances or other laws and
ordinances restricting the occupancy, use, or enjoyment of real property;
(g) statutory Liens, other than those described in clauses (a) or
(b) above, arising in the ordinary course of business with respect to
obligations which are not delinquent or are being contested in good faith, if
reserves or other appropriate provisions, if any, as shall be required by GAAP
shall have been made therefor;
(h) Liens consisting of pledges or deposits to secure obligations
under workers' compensation laws or similar legislation, including Liens of
judgments thereunder which are not currently dischargeable;
(i) Liens consisting of pledges or deposits of Property to secure
performance in connection with operating leases made in the ordinary course of
business to which the Company or a Subsidiary is a party as lessee, provided the
aggregate value of all such pledges and deposits in connection with any such
lease does not at any time exceed 16-2/3% of the annual fixed rentals payable
under such lease;
(j) Liens consisting of deposits of Property to secure statutory
obligations of the Company or a Subsidiary of the Company in the ordinary course
of its business;
(k) Liens consisting of deposits of Property to secure (or in lieu
of) surety, appeal or customs bonds in proceedings to which the Company or a
Subsidiary of the Company is a party in the ordinary course of its business, but
not in excess of $25,000,000;
(l) purchase money Liens or purchase money security interests upon
or in any property acquired or held by the Company or any Subsidiary in the
ordinary course of business to secure the purchase price of such property or to
secure indebtedness incurred solely for the purpose of financing the acquisition
of such property;
14
(m) Liens on an asset to secure all or any part of the cost of
development or construction of such asset or improvements thereon and which
shall be released or satisfied within 120 days after completion of such
development or construction;
(n) Liens on an asset created in connection with the acquisition,
construction or development of additions, extensions or improvements to such
asset which shall be financed by obligations described in Sections 142, 144(a)
or 144(c) of the Code, as amended, or by obligations entitled to substantially
similar tax benefits under other legislation or regulations in effect from time
to time;
(o) Liens on property subject to escrow or similar arrangements
established in connection with litigation settlements; and
(p) Liens on an asset required in connection with any program, law,
statute or regulation of any state or local authority which provides financial
or tax benefits not available without such Lien, provided that substantially all
of the obligations secured by such Lien are obligations that are in lieu of, or
reduce, a property tax or other payment obligation that itself would have been
secured by a Lien permitted hereunder.
"PERSON" means any entity, whether an individual, trustee,
corporation, general partnership, limited partnership, joint stock company,
trust, estate, unincorporated organization, business association, tribe, firm,
joint venture, Governmental Agency, or otherwise.
"PLATFORM" has the meaning set forth in Section 13.25(b).
"PROPERTY" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"PRO RATA SHARE" means, with respect to each Bank, with respect to
the Commitment, and any Loan made under any portion of the Commitment, the
percentage set forth opposite the name of that Bank and that portion of the
Commitment on Schedule 2.1 as modified from time to time.
"REFERENCE BANKS" means Citibank and Barclays.
"REGISTER" has the meaning set forth in Section 13.9(v).
"REGULATION D" means Regulation D, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other regulation in
substance substituted therefor.
"REGULATION U" means Regulation U, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other regulation in
substance substituted therefor.
"REQUEST FOR LETTER OF CREDIT" means a written request for a Letter
of Credit substantially in the form of Exhibit E, together with the standard
form of application for letter of
15
credit used by the Issuing Bank, signed by a Senior Officer of the applicable
Borrower and properly completed to provide all information required to be
provided therein.
"REQUEST FOR LOAN" means a written request for a Loan substantially
in the form of Exhibit F, signed by a Senior Officer of the applicable Borrower
and properly completed to provide all information required to be included
therein.
"REQUIREMENT OF LAW" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any Law, or judgment, award, decree, writ or
determination of a Governmental Agency, in each case applicable to or binding
upon such Person or any of its Property or to which such Person or any of its
Property is subject.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies or any successor thereto.
"SECURITIES" means any capital stock, share, voting trust
certificate, bond, debenture, note or other evidence of indebtedness, limited
partnership interest, or any warrant, option or other right to purchase or
acquire any of the foregoing.
"SENIOR OFFICER" means the (a) chief executive officer, (b) chief
operating officer, (c) chief financial officer, (d) corporate controller, (e)
treasurer or (f) assistant treasurer, in each case whatever the title
nomenclature may be, of the Person designated.
"SHAREHOLDERS' EQUITY" means, as of any date of determination,
shareholders' equity as of that date determined in accordance with Generally
Accepted Accounting Principles; provided that there shall be excluded from
Shareholders' Equity any amount attributable to capital stock that is, directly
or indirectly, required to be redeemed or repurchased by the issuer thereof at a
specified date or upon the occurrence of specified events or at the election of
the holder thereof.
"SIGNIFICANT SUBSIDIARY" has the meaning set forth in Section 4.4.
"SUBSIDIARY" means, as of any date of determination and with respect
to any Person, any corporation, partnership or joint venture, whether now
existing or hereafter organized or acquired: (a) in the case of a corporation,
of which a majority of the securities having ordinary voting power for the
election of directors or other governing body (other than securities having such
power only by reason of the happening of a contingency) are at the time
beneficially owned by such Person and/or one or more Subsidiaries of such
Person, or (b) in the case of a partnership or joint venture, of which such
Person or a Subsidiary of such Person is a general partner or joint venturer or
of which a majority of the partnership or other ownership interests are at the
time beneficially owned by such Person and/or one or more of its Subsidiaries,
excluding any partnership or joint venture over which the Person or Subsidiary
of such Person does not exercise actual control.
SWAP AGREEMENT" means a written agreement between the Company and
one or more financial institutions providing for "SWAP", "COLLAR" or other
interest rate protection (other than "caps") with respect to any Indebtedness.
16
"SYNDICATION AGENT" means Barclays, when acting in its capacity as
the syndication agent under any of the Loan Documents.
"TANGIBLE NET WORTH" means, as of any date of determination, the
Shareholders' Equity of the Company and its Consolidated Subsidiaries on that
date, minus the book value of any Intangible Assets of the Company and its
Consolidated Subsidiaries on that date.
"TARGET DAY" means any day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer (TARGET) System (or, if such
clearing system ceases to be operative, such other clearing system (if any)
determined by the Administrative Agent to be a suitable replacement) is
operating.
"TAXES" has the meaning set forth in Section 3.12(d)(i).
"TOTAL OUTSTANDINGS" means, as of any date of determination, the sum
on that date of (a) the aggregate Dollar Equivalent of the outstanding principal
amount of the Advances, plus (b) the aggregate then undrawn portion of Letters
of Credit which are issued and outstanding, plus (c) the aggregate unreimbursed
drawings under Letters of Credit.
"TYPE" when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is a Base Rate Advance or a EURO
Rate Advance.
"UNUSED PORTION" means the Commitment, less Total Outstandings as to
the Commitment.
1.2 USE OF DEFINED TERMS. Any defined term used in the plural shall
refer to all members of the relevant class, and any defined term used in the
singular shall refer to any one or more of the members of the relevant class.
1.3 ACCOUNTING TERMS. All accounting terms not specifically defined
in this Agreement shall be construed in conformity with, and all financial data
required to be submitted by this Agreement shall be prepared in conformity with,
Generally Accepted Accounting Principles applied on a consistent basis, except
as otherwise specifically prescribed herein and except for changes concurred in
by the Company's independent public accountants.
1.4 ROUNDING. Any financial ratios required to be maintained by the
Company pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 EXHIBITS AND SCHEDULES. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
17
1.6 REFERENCES TO "THE COMPANY AND ITS SUBSIDIARIES". Any reference
herein to "the Company and its Subsidiaries" or the like shall refer solely to
the Company during such times, if any, as the Company shall have no
Subsidiaries.
1.7 MISCELLANEOUS TERMS. The term "or" is disjunctive; the term
"and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
1.8 EXCHANGE RATES; ALTERNATIVE CURRENCY EQUIVALENTS. On each
Calculation Date, the Administrative Agent shall determine the exchange rate as
of such Calculation Date to be used for calculating relevant Dollar Equivalent
and Alternative Currency Equivalent amounts. The exchange rates so determined
shall become effective on such Calculation Date and shall for all purposes of
this Agreement (other than any provision expressly requiring the use of a
current exchange rate) be the exchange rates employed in converting any amounts
between the applicable currencies. Wherever in this Agreement in connection with
an Advance, conversion or continuation of a Loan, an amount, such as a required
minimum or multiple amount, is expressed in Dollars, but such Advance or Loan is
denominated in the Alternative Currency, such amount shall be the Alternative
Currency Equivalent of such Dollar amount (rounded to the nearest 1,000 units of
the Alternative Currency), as determined by the Administrative Agent. Each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may, with the approval of the Company
(not to be unreasonably withheld), from time to time specify to be appropriate
to reflect the adoption of the Euro by any member state of the European Union
and any relevant market conventions or practices relating to the Euro.
ARTICLE 2
LOANS AND LETTERS OF CREDIT
2.1 ADVANCES - GENERAL.
(a) Subject to the terms and conditions set forth in this Agreement,
at any time and from time to time from the Closing Date through the Maturity
Date, each Bank shall, according to its Pro Rata Share of the Commitment, make
Advances to the Borrowers under the Commitment in such amounts in Dollars or in
the Alternative Currency as the Borrowers may request that do not exceed in the
aggregate at any one time outstanding the amount of that Bank's Pro Rata Share
of the Commitment; provided that, giving effect to the Loan of which such
Advance is a part, (i) the Total Outstandings shall not exceed the Commitment
and (ii) the sum of all Advances then outstanding plus the face amount of all
Letters of Credit then outstanding plus the sum of all unreimbursed drawings
under Letters of Credit shall not exceed the Commitment. Subject to the
limitations set forth herein, the Borrowers may borrow and repay under the
Commitment without premium or penalty.
(b) Subject to the next sentence, each Loan under this Section 2.1
shall be made pursuant to a Request for Loan which shall specify the requested
(i) date of such Loan, (ii) type of Loan, (iii) amount of such Loan and (iv)
Interest Period for such Loan. Unless the Administrative Agent has notified, in
its sole and absolute discretion, the Borrowers to the
18
contrary, a Loan may be requested by telephone by a Senior Officer of the
Borrower, in which case the Borrower shall promptly confirm such request by
transmitting a telecopy of, or at the Administrative Agent's request by mailing,
a Request for Loan executed by a Senior Officer of such Borrower conforming to
the preceding sentence to the Administrative Agent.
(c) Promptly following receipt of a Request for Loan (or the receipt
of a substitute request permitted under the second sentence of Section 2.1(b)),
the Administrative Agent shall notify each Bank by telephone (so long as such
notice by telephone is followed by a notice in writing) or telecopier (the
method of notice shall be at the Administrative Agent's option) of the date and
type of the Loan, the applicable Interest Period and the amount of that Bank's
Pro Rata Share of the Loan. Not later than 2:00 p.m., New York time, on the date
specified for any Loan subject to the provisions of Sections 2.2 and 2.3, each
Bank shall make its Pro Rata Share of the Loan in immediately available funds
available to the Administrative Agent at the Administrative Agent's Office. Upon
fulfillment of the applicable conditions set forth in Article 8 and subject to
the provisions of Sections 2.2 and 2.3, all Advances shall be credited in
immediately available funds to the Designated Deposit Account.
(d) Each Loan under the Commitment shall be in a minimum amount of
$2,000,000 (or (EURO)2,000,000, if the applicable borrowing is in Euros) and
multiples of $1,000,000 or (euro)1,000,000, as applicable, in excess of that
amount.
(e) If so requested by any Bank by written notice to the Company
(with a copy to the Administrative Agent) at least two Banking Days prior to the
Closing Date or at any time thereafter, each Borrower shall execute and deliver
to such Bank (and/or, if applicable and if so specified in such notice, to any
Person who is an assignee of such Bank pursuant to Section 13.9) on the Closing
Date (or, if such notice is delivered after the Closing Date, promptly after the
Company's receipt of such notice) a promissory note or promissory notes to
evidence such Bank's Advances under its Pro Rata Share of the Commitment,
substantially in the form of Exhibit B.
(f) A Request for Loan shall be irrevocable upon the Administrative
Agent's first notification thereof.
2.2 BASE RATE ADVANCES. Each request by a Borrower for a Base Rate
Advance shall be made pursuant to a Request for Loan (or telephonic request for
Loan referred to in the second sentence of Section 2.1(b), if applicable)
received by the Administrative Agent, at the Administrative Agent's Office, not
later than 11:00 a.m., New York time, on the date of a proposed Base Rate
Advance. All Advances denominated in Dollars shall constitute Base Rate Advances
unless properly designated as Eurodollar Rate Advances pursuant to Section 2.3.
2.3 EURO RATE ADVANCES.
(a) Each request by a Borrower for a Eurodollar Rate Advance shall
be made pursuant to a Request for Loan (or telephonic request for Loan referred
to in the second sentence of Section 2.1(b), if applicable) received by the
Administrative Agent, at the Administrative Agent's Office, not later than 1:00
p.m., New York time, at least three (3) Eurocurrency Banking Days before the
first day of the applicable Eurocurrency Period. Each request by a Borrower for
19
a EURIBOR Rate Advance shall be made pursuant to a Request for Loan (or
telephonic request for Loan referred to in the second sentence of Section
2.1(b), if applicable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 9:30 a.m., London time, at least
three (3) Eurocurrency Banking Days before the first day of the applicable
Eurocurrency Period.
(b) On the second Eurocurrency Banking Day before the first day of
the applicable Eurocurrency Period in the case of Eurodollar Rate Advances and
EURIBOR Rate Advances, the Administrative Agent shall determine the applicable
Eurodollar Rate or EURIBOR Rate, as the case may be (which determination shall
be conclusive in the absence of manifest error), and prior to 1:00 p.m., New
York time on that same day shall give notice of the same to the applicable
Borrower and the Banks by telephone or telecopier (the method of notice shall be
at the Administrative Agent's option).
(c) Unless all of the Banks otherwise consent, no EURO Rate Advance
may be requested during the continuance of an Event of Default.
(d) Prior to the submission of a Request for Loan with respect to a
EURO Rate Advance, any Borrower may request the Administrative Agent to provide
a non-binding estimate of the Eurodollar Rate or EURIBOR Rate that would then
apply in the event the Borrower submitted a Request for Loan.
2.4 VOLUNTARY REDUCTION OF COMMITMENT. The Company shall have the
right, at any time and from time to time, without penalty or charge, upon at
least two (2) days' prior written notice to the Administrative Agent, to
voluntarily reduce, permanently and irrevocably, in a minimum amount of
$5,000,000 and multiples of $1,000,000 in excess thereof, or to terminate, all
or a portion of the then Unused Portion of the Commitment; provided that any
such reduction or termination shall be accompanied by payment of all accrued and
unpaid facility fees with respect to the portion of the Commitment being reduced
or terminated.
2.5 VOLUNTARY CONVERSION OR CONTINUATION OF ADVANCES.
(a) The Borrower may on any Banking Day upon notice given to the
Administrative Agent not later than 12:00 noon (New York City time) on the third
Eurocurrency Banking Day prior to the date of the proposed Conversion or
continuance (a "NOTICE OF CONVERSION/CONTINUATION") and subject to the
provisions of Section 2.3, (1) Convert all or any portion of Advances of one
Type into Advances of another Type and (2) upon the expiration of any Interest
Period applicable to Advances which are EURO Rate Advances, continue all (or,
subject to Section 2.3, any portion of) such Advances as EURO Rate Advances and
the succeeding Interest Period(s) of such continued Advances shall commence on
the last day of the Interest Period of the Advances to be continued; provided,
however, that any Conversion of any EURO Rate Advances into Base Rate Advances
shall be made on, and only on, the last day of an Interest Period for such EURO
Rate Advances. Each such Notice of Conversion/Continuation shall, within the
restrictions specified above, specify (i) the date of such continuation or
Conversion, (ii) the Advances (or, subject to Section 2.3, any portion thereof)
to be continued or Converted, (iii) if such continuation is of, or such
Conversion is into, EURO Rate Advances, whether such EURO Rate Advance is a
Eurodollar Advance or a EURIBOR Rate Advance and
20
the duration of the Interest Period of each such Advance, and (iv) in the case
of a continuation of or a Conversion into a EURO Rate Advance, that no Event of
Default has occurred and is continuing. Each Conversion or continuation shall be
in a minimum amount of $2,000,000 or (EURO)2,000,000, as applicable, and
multiples of $1,000,000 or (EURO)1,000,000, as applicable.
(b) If upon the expiration of the then existing Interest Period
applicable to any Advance which is a EURO Rate Advance, the Borrower shall not
have delivered a Notice of Conversion/Continuation in accordance with this
Section 2.5, then such Advance if it is an Advance of Dollars shall upon such
expiration automatically be continued as a Eurodollar Rate Advance with an
Interest Period of one month; provided, however, that in the case of a failure
to timely request a continuation of Advances denominated in the Alternative
Currency, such Advances shall be continued as EURIBOR Rate Advances in the
Alternative Currency with an Interest Period of one month. No Eurodollar Rate
Advance may be converted into or continued as a EURIBOR Rate Advance, but
instead must be prepaid in Dollars and reborrowed in the Alternative Currency,
and no EURIBOR Rate Advance may be converted into or continued as a Eurodollar
Rate Advance, but instead must be prepaid in the Alternative Currency and
reborrowed in Dollars.
(c) After the occurrence of and during the continuation of an Event
of Default, the Borrower may not elect to have an Advance be made or continued
as, or Converted into, a EURO Rate Advance after the expiration of any Interest
Period then in effect for that Advance.
2.6 LETTERS OF CREDIT.
(a) Subject to the terms and conditions hereof, at any time and from
time to time from the Closing Date through the date that is thirty (30) days
before the Maturity Date, the Issuing Bank shall issue such Letters of Credit
denominated in Dollars as a Borrower may request by delivering a Request for
Letters of Credit to the Issuing Bank; provided that, giving effect to such
Letter of Credit, (i) the aggregate effective face amounts of all outstanding
Letters of Credit will not exceed $150,000,000, (ii) the sum of all Advances
then outstanding plus the face amount of all Letters of Credit then outstanding
plus the sum of all unreimbursed drawings under Letters of Credit shall not
exceed the Commitment, and (iii) Total Outstandings will not exceed the
Commitment. Letters of Credit issued under the Commitment may be issued for
terms up to five (5) years from the date of issuance but in no event shall the
term of any such Letter of Credit extend beyond the Maturity Date. Each Letter
of Credit shall be in a minimum amount of $500,000, unless otherwise consented
to by the Issuing Bank. The issuance of any Letter of Credit shall constitute
usage of the Commitment. Subject to the limitations set forth herein, the
Borrowers may request Letters of Credit, reimburse drawings under Letters of
Credit and request further Letters of Credit without premium or penalty.
21
(b) The Issuing Bank shall not Issue any Letter of Credit if it has
received written notice from the Majority Banks, the Administrative Agent or the
Company on or prior to the Banking Day prior to the requested date of issuance
of such Letter of Credit, that one or more of the applicable conditions
contained in Section 8.2 is not then satisfied. The Issuing Bank is under no
obligation to Issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Agency
or arbitrator shall by its terms purport to enjoin or restrain the Issuing
Bank from issuing such Letter of Credit, or any Requirement of Law
applicable to the Issuing Bank or any request or directive (whether or not
having the force of law) from any Governmental Agency with jurisdiction
over the Issuing Bank shall prohibit, or request that the Issuing Bank
refrain from, the issuance of Letters of Credit generally or such Letter
of Credit in particular; or
(ii) any requested Letter of Credit is not in form reasonably
acceptable to the Issuing Bank, or the issuance of a Letter of Credit
shall violate any generally applicable policies of the Issuing Bank.
(c) Each Request for Letter of Credit shall be submitted to the
Issuing Bank at least three (3) Banking Days prior to the date when the issuance
of a Letter of Credit is requested. Upon issuance of a Letter of Credit, the
Issuing Bank shall promptly notify the Banks of the amount and terms thereof.
Any Letter of Credit issued shall conform with the Issuing Bank's generally
applicable policies regarding form and substance.
(d) Upon the issuance of a Letter of Credit, each Bank shall be
deemed to have irrevocably purchased from the Issuing Bank, without recourse to
or warranty from the Issuing Bank, a pro rata undivided participation in the
Letter of Credit, in an amount equal to that Bank's Pro Rata Share of the
Commitment. Without limiting the scope and nature of each Bank's participation
in any Letter of Credit, to the extent that the Issuing Bank has not been
reimbursed by the Borrower, in accordance with Section 2.6(e), for any payment
made by the Issuing Bank under any Letter of Credit, each Bank shall reimburse
the Issuing Bank promptly upon demand for the amount of such payment in
accordance with its Pro Rata Share of the Commitment, as the case may be. The
obligation of each Bank to so reimburse the Issuing Bank shall be absolute and
unconditional and shall not be affected by the occurrence of an Event of Default
or any other occurrence or event. Any such reimbursement shall not relieve or
otherwise impair the obligation of the Borrower to reimburse the Issuing Bank
for the amount of any payment made by the Issuing Bank under any Letter of
Credit together with interest as hereinafter provided.
(e) After any drawing on a Letter of Credit, the Issuing Bank shall
notify the applicable Borrower and the Administrative Agent by telephone or
telecopier of such drawing by 2:00 p.m., New York time, on the date such payment
is to be made and the Borrower shall reimburse the Issuing Bank, in immediately
available funds for any amount paid or to be paid by the Issuing Bank under such
Letter of Credit by 4:00 p.m., New York time on the date of such notice.
22
(f) If the applicable Borrower fails to make the payment required by
Section 2.6(e), the Administrative Agent shall notify the Banks by telephone or
telecopier (the method of notification shall be at the Administrative Agent's
option) of the unreimbursed amount of such payment. Each Bank irrevocably and
unconditionally agrees (irrespective of the occurrence of an Event of Default or
any other circumstance) that it shall make available to the Administrative Agent
(for the account of the applicable Issuing Bank) an amount equal to its
respective participation in same day funds, at the Administrative Agent's
Office, not later than the close of business (New York time) on the date
notified by the Administrative Agent. In the event that any Bank fails to make
available to the Administrative Agent the amount of such Bank's participation in
such Letter of Credit as provided above, the Issuing Bank (through the
Administrative Agent) shall be entitled to recover such amount on demand from
such Bank together with interest thereon, for each day from the date of such
payment until the date such amount is paid to the Issuing Bank, at the rate per
annum equal to the Base Rate plus 1%; provided that if such failure is solely
the result of an administrative error (which determination shall be made by the
Administrative Agent in its sole discretion) or is solely the result of the Bank
receiving notice too late in the day to make payment to the Administrative Agent
on that day, then the interest rate for the first day of such delay shall be the
overnight federal funds rate. Any amount made available by a Bank to the
Administrative Agent as such Bank's participation in such Letter of Credit shall
constitute a demand loan to the Borrower bearing interest at a rate per annum
equal to (i) from the date of any payment made by the Issuing Bank through the
date ten days after such payment, the Base Rate, and (ii) thereafter, the Base
Rate plus 2%; provided, that if a Bank is prevented from making such demand
loans by the provisions of the United States Bankruptcy Code or otherwise, the
amount so paid to the Issuing Bank by such Bank shall constitute a funding and
purchase by it of a participation in such Letter of Credit disbursement by the
Issuing Bank and all obligations of the Borrower with respect thereto, including
interest thereon to the extent accruing from the date of such purchase. The
Administrative Agent shall promptly pay to the Issuing Bank all funds paid by
the Banks to reimburse the Issuing Bank for the payment made by it under the
Letter of Credit.
(g) The issuance of any supplement, modification, amendment,
renewal, or extension to or of any Letter of Credit shall be treated for the
purposes of Article 8 the same as the issuance of a new Letter of Credit.
(h) If, for any reason, a Bank fails to pay its liability on a
Letter of Credit in accordance with the provisions of Section 2.6(f), then the
Issuing Bank shall be automatically subrogated to the right of such defaulting
Bank to any prepayment, in full, of any loan created by virtue of a drawing on
such Letter of Credit, or such defaulting Bank's right to any reimbursement by
the Borrower with respect to any drawing, or any other right of such defaulting
Bank in connection with or resulting from the drawing on such Letter of Credit,
prior to distribution of any payments hereunder to the defaulting Bank.
(i) The obligation of the Borrowers to reimburse the Issuing Bank
for the amount of any payment made by the Issuing Bank under any Letter of
Credit, and the obligations of the Banks under their respective participations
under the Letters of Credit, shall be absolute, unconditional, and irrevocable
and shall not be affected by any of the following circumstances:
23
(i) any lack of validity or enforceability of the Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) any amendment or waiver of or any consent to departure
from the Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(iii) the existence of any claim, setoff, defense, or other
rights which any Borrower may have at any time against any Bank, any
beneficiary of the Letter of Credit (or any persons or entities for whom
any such beneficiary may be acting) or any other Person, whether in
connection with the Letter of Credit, this Agreement, or any other
agreement or instrument relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any other document presented
under the 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 whatsoever so long as any such document appeared
to comply with the terms of the Letter of Credit;
(v) the solvency or financial responsibility of any party
issuing any documents in connection with a Letter of Credit;
(vi) any failure or delay in notice of shipments or arrival of
any property;
(vii) any error in the transmission of any message relating to
a Letter of Credit not caused by the Issuing Bank, or any delay or
interruption in any such message;
(viii) any error, neglect or default of any correspondent of
any Bank in connection with a Letter of Credit;
(ix) any consequence arising from acts of God, war,
insurrection, disturbances, labor disputes, emergency conditions or other
causes beyond the control of the Issuing Bank;
(x) so long as the Issuing Bank in good faith determines that
the draft, contract or document appears to comply with the terms of the
Letter of Credit, the form, accuracy, genuineness or legal effect of any
contract or document referred to in any document submitted to the Issuing
Bank in connection with a Letter of Credit; and
(xi) where the Issuing Bank has acted in good faith and
without gross negligence or willful misconduct and observed general
banking usage, any other circumstance whatsoever.
(j) the Issuing Bank shall be entitled to the protection accorded to
the Administrative Agent pursuant to Section 10.6, mutatis mutandis.
(k) As between the Borrower and the Issuing Bank, the Borrower
assumes all risks of the acts and omissions of, or misuse of any Letter of
Credit by, the respective beneficiaries of the Letters of Credit. In furtherance
and not in limitation of the foregoing, the
24
Issuing Bank shall not be responsible: (1) for the validity, genuineness or
legal effect of any document submitted by any party in connection with the
issuance of or any drawing under the Letters of Credit, even if it should in
fact prove to be in any or all respects invalid, fraudulent or forged; (2) for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (3) for errors in interpretation of
technical terms; (4) for the misapplication by the beneficiary of any Letter of
Credit of the proceeds of any drawing under such Letter of Credit; provided that
none of the events set forth in the foregoing clauses (1) through (4) shall have
been caused by the gross negligence or willful misconduct of the Issuing Bank;
and (5) for any consequences arising from causes beyond the control of the
Issuing Bank. None of the above shall affect, impair, or prevent the vesting of
any of the Issuing Bank's rights or powers hereunder. In furtherance and
extension and not in limitation of the specific provisions hereinabove set
forth, any action taken or omitted by an Issuing Bank under or in connection
with the Letters of Credit, if taken or omitted in good faith, without gross
negligence or willful misconduct, shall not put the Issuing Bank under any
resulting liability to the Borrowers or the Banks.
(l) The Issuing Bank shall have no obligation whatsoever to make any
factual or legal determinations as to the correctness of any demand or payment
under any Letter of Credit strictly complying with the terms of such Letter of
Credit before the Issuing Bank makes any payment under the Letter of Credit. The
Borrowers and the Banks hereby waive (A) diligence, presentment, demand, protest
or notice of any kind, (B) any requirement that the Issuing Bank exhaust any
right or remedy against the Borrowers, the Administrative Agent, any other
participant in the credit, or any other Person, and (C) any claim or defense
based on any time or other indulgence granted to the Borrower, the
Administrative Agent or any other Person and any right of subrogation to any
rights or remedies of the Issuing Bank in respect of any of the Letters of
Credit or any defense that the Issuing Bank has impaired any such right of
subrogation.
(m) In the event that any payment made by or on behalf of the
Borrower pursuant to or in connection with any Letter of Credit is rescinded or
must otherwise be restored or returned to the Borrower or other relevant party,
as applicable, including as a result of any insolvency, bankruptcy or
reorganization or similar proceedings in respect of the Borrower, the
obligations of the Banks under this Section 2.6(m) in respect of such rescinded,
restored or returned payment shall be reinstated in full and the Banks shall be
liable to indemnify the Issuing Bank hereunder as fully as if such payment had
never been made. The provision of this Section 2.6(m) shall survive the payment
of the obligations of the Borrowers under the Letters of Credit.
(n) All amounts to be paid to the Issuing Bank by the Banks under
this Agreement shall be paid by the Banks to the Administrative Agent for the
account of the Issuing Bank, without any set-off or counterclaim whatsoever and
free and clear of any without deduction for or on account of any taxes, duties
or other charges whatsoever, and without any liability therefor.
2.7 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME FUNDS AVAILABLE FOR
ADVANCES. Unless the Administrative Agent shall have been notified by any Bank
no later than
25
the Banking Day prior to the funding by the Administrative Agent of any Loan
that such Bank does not intend to make available to the Administrative Agent
such Bank's Pro Rata Share of the total amount of such Loan, the Administrative
Agent may assume that such Bank has made such amount available to the
Administrative Agent on the date of the Loan and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If the Administrative Agent has made funds available to the Borrower
based on such assumptions and such corresponding amount is not in fact made
available to the Administrative Agent by such Bank, the Administrative Agent
shall be entitled to recover such corresponding amount on demand from such Bank,
which demand shall be made in a reasonably prompt manner. If such Bank does not
pay such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent promptly shall notify the Borrower and the
Borrower shall pay such corresponding amount to the Administrative Agent. The
Administrative Agent also shall be entitled to recover from such Bank interest
on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to the actual cost to the
Administrative Agent of funding such amount as notified by the Administrative
Agent to such Bank. Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its Pro Rata Share of the Commitment or to prejudice any
rights that the Administrative Agent or the Borrower may have against any Bank
as a result of any default by such Bank hereunder.
2.8 INCREASED COMMITMENTS; ADDITIONAL BANKS.
(a) On a single occasion during each year subsequent to the Closing
Date, the Company may, upon at least thirty (30) days' notice to the
Administrative Agent (which shall promptly provide a copy of such notice to the
Banks), propose to increase the amount of the Commitments in an aggregate
minimum amount of $10,000,000 and an aggregate maximum amount not to exceed
$200,000,000 (the amount of any such increase, the "INCREASED COMMITMENTS")
provided that (i) at the time of and after giving effect to such Increased
Commitments, the Company maintains at least a Level 4 and (ii) the
Administrative Agent shall have received a Certificate of a Senior Officer from
the Company dated as of the date of such increase in form and substance
satisfactory to the Administrative Agent stating that the representations and
warranties contained in Section 5 are true and correct in all material respects
on and as of such date and that no Default or Event of Default has occurred and
is continuing. Each Bank party to this Agreement at such time shall have the
right (but no obligation), for a period of fifteen (15) days following receipt
of such notice, to elect by notice to the Company and the Administrative Agent
to increase its Commitment by a principal amount which bears the same ratio to
the Increased Commitments as its then Commitment bears to the aggregate
Commitments then existing.
(b) If any Bank party to this Agreement shall not elect to increase
its Commitment pursuant to subsection (a) of this Section, the Company may
designate another bank or other banks (which may be, but need not be, one or
more of the existing Banks, but which shall be an Eligible Assignee), which at
the time agree to (i) in the case of any such Bank that is an existing Bank,
increase its Commitment and (ii) in the case of any other such Bank (an
"ADDITIONAL BANK"), become a party to this Agreement, provided that the
Commitment of each such bank or banks equals or exceeds $10,000,000. The sum of
the increases in the
26
Commitments of the existing Banks pursuant to this subsection (b) plus the
Commitments of the Additional Banks shall not in the aggregate exceed the
unsubscribed amount of the Increased Commitments.
(c) An increase in the aggregate amount of the Commitments pursuant
to this Section 2.8 shall become effective upon the receipt by the
Administrative Agent of an agreement in form and substance satisfactory to the
Administrative Agent signed by the Company, by each Additional Bank and by each
other Bank whose Commitment is to be increased, setting forth the new
Commitments of such Banks and setting forth the agreement of each Additional
Bank to become a party to this Agreement and to be bound by all the terms and
provisions hereof, together with such evidence of appropriate corporate
authorization on the part of the Company with respect to the Increased
Commitments and such opinions of counsel for the Company with respect to the
Increased Commitments as the Administrative Agent may reasonably request.
ARTICLE 3
PAYMENTS AND FEES
3.1 PRINCIPAL AND INTEREST.
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Loan from the date thereof until payment in full is
made and shall accrue and be payable at the rates set forth herein before and
after default, before and after maturity, before and after judgment, and before
and after the commencement of any proceeding under any Debtor Relief Law, with
interest on overdue interest to bear interest at the Default Rate to the fullest
extent permitted by applicable Laws.
(b) Interest accrued on each Base Rate Advance shall be payable
quarterly in arrears on the last day of each March, June, September and December
commencing on the first such date to occur after the Closing Date. Except as
otherwise provided in Section 3.9, the unpaid principal amount of any Base Rate
Advance shall bear interest at a fluctuating rate per annum equal to the Base
Rate. Each change in the interest rate hereunder shall take effect
simultaneously with the corresponding change in the Base Rate. Each change in
the Base Rate shall be effective as of 12:01 a.m., New York time, on the Banking
Day on which the change in the Base Rate is announced, unless otherwise
specified in such announcement, in which case the change shall be effective as
so specified.
(c) Interest accrued on each EURO Rate Advance the Eurocurrency
Period for which is three months or less shall be due and payable on the last
day of the applicable Eurocurrency Period. Interest accrued on each other EURO
Rate Advance shall be due and payable on every three month anniversary of the
date which is three months after the date such EURO Rate Advance was made,
converted or continued pursuant to Section 2.5 and on the last day of the
Eurocurrency Period. Except as otherwise provided in Section 3.9, (i) the unpaid
principal amount of any Eurodollar Rate Advance shall bear interest at a rate
per annum equal to the Eurodollar Rate for that Eurodollar Rate Advance plus the
weighted average of the Daily Margin for each day during the applicable period
and (ii) the unpaid principal amount of any EURIBOR Rate Advance shall bear
interest at a rate per annum equal to the EURIBOR Rate for
27
that EURIBOR Rate Advance plus the weighted average of the Daily Margin for each
day during the applicable period.
(d) If not sooner paid, the principal amount of each Loan shall be
payable on the Maturity Date.
(e) If the Administrative Agent notifies the Company at any time
that the Dollar Equivalent of the Total Outstandings exceeds the Commitment, by
reason of fluctuations in exchange rates or otherwise, the Borrowers shall,
within two Business Days after receipt of such notice, prepay Loans in an
aggregate amount sufficient to reduce the Dollar Equivalent thereof as of the
date of such payment to an amount not to exceed the Commitment then in effect.
(f) The Loans may, at any time and from time to time, voluntarily be
paid or prepaid in whole or in part without premium or penalty, except that with
respect to any voluntary prepayment under this subsection, (i) any partial
prepayment shall be in minimum amount of $2,000,000 and (euro)2,000,000 and
multiples of $1,000,000 and (euro)1,000,000, as applicable, in excess thereof,
(ii) the Administrative Agent shall have received written notice of any
prepayment by (x) 11:00 a.m. (New York time) on the date of prepayment (which
shall be a Banking Day), in the case of a Base Rate Advance, (y) by 1:00 p.m.
(New York time) three (3) Banking Days before the date of prepayment, in the
case of a Eurodollar Rate Advance, and (z) by 9:30 a.m. (London time) three (3)
Banking Days before the date of prepayment, in the case of a EURIBOR Rate
Advance, which notice shall identify the date and amount of the prepayment and
the Loan(s) being prepaid, (iii) each prepayment of principal shall be
accompanied by payment of interest accrued through the date of payment on the
amount of principal paid and (iv) in any event, any payment or prepayment of all
or any part of any EURO Rate Advance on a day other than the last day of the
applicable Interest Period shall be subject to Section 3.8(c).
3.2 FACILITY FEE. The Company agrees to pay to the Administrative
Agent for the account of each Bank a facility fee on such Bank's daily average
Commitment, whether used or unused, from the Closing Date in the case of each
Bank and from the effective date specified in the Assignment Agreement pursuant
to which it became a Bank in the case of each other Bank until the Maturity
Date, payable quarterly in arrears on the last day of each March, June,
September and December, commencing on September 30, 2004, in an amount equal to
the product of (i) such Bank's daily average Commitment, whether such Commitment
is used or unused, in effect during the period for which such payment that is to
be made times (ii) the weighted average rate per annum that is derived from the
following rates: (a) a rate of 0.05% per annum with respect to each day during
such period that the ratings with respect to Long-Term Debt were at Level 1, (b)
a rate of 0.06% per annum with respect to each day during such period that such
ratings were at Level 2, (c) a rate of 0.08% per annum with respect to each day
during such period that such ratings were at Level 3, (d) a rate of 0.09% per
annum with respect to each day during such period that such ratings were at
Level 4, (e) at the rate of 0.125% per annum with respect to each day during
such period that such ratings were at Level 5 and (f) at the rate of 0.150% per
annum with respect to each day during such period that such ratings were at
Level 6. If any change in the rating established by S&P or Moody's with respect
to Long-Term Debt shall result in a change in the Level, the change in the
facility fee shall be effective as of the date on which such rating change is
publicly announced. If the ratings established by S&P or Moody's
28
with respect to Long-Term Debt are unavailable for any reason for any day, then
the applicable Level for purposes of calculating the facility fee for such day
shall be deemed to be Level 6 (or, if the Majority Banks consent in writing,
such other Level as may be reasonably determined by the Majority Banks from a
rating with respect to Long-Term Debt for such day established by another rating
agency reasonably acceptable to the Majority Banks).
3.3 ARRANGER FEES AND AGENCY FEES. On the Closing Date, the Company
shall pay to the Arrangers fees in the amounts agreed upon by a letter agreement
dated the date hereof among the Company and the Arrangers. Such fees are for the
sole account of the Arrangers and are fully earned upon receipt and
non-refundable. The Company shall pay to the Administrative Agent, agency fees
in the amounts agreed upon by letter agreements dated the date hereof between
the Company and the Administrative Agent. Such agency fees shall be payable
quarterly in advance as set forth in such letter agreements. The agency fees are
for the sole account of the Administrative Agent and are fully earned upon
receipt and non-refundable; provided, however that in the event the facilities
hereunder are terminated, the agency fees deemed earned shall be pro rated over
the number of days from the last quarterly date on which the agency fees were
paid to the termination date of the facilities.
3.4 LC ISSUANCE FEE. The Company shall pay, on the last day of each
Fiscal Quarter, a LC Issuance Fee to the Administrative Agent for the account of
the Issuing Bank, in the amounts agreed upon by letter agreements dated the date
hereof between the Company and the Issuing Bank. The LC Issuance Fees are for
the sole account of the applicable Issuing Bank and are fully earned upon
receipt and non-refundable.
3.5 LC REIMBURSEMENT FEE. The Company shall pay, on the last day of
each Fiscal Quarter, a LC Reimbursement Fee to the Administrative Agent, for the
pro rata benefit of the Banks in accordance with their respective Pro Rata
Shares of the Commitment, in an amount equal to the average daily face amount of
Letters of Credit outstanding during such Fiscal Quarter times the weighted
average of the Daily Margin for EURO Rate Advances (as if the Utilization Ratio
were greater than 0.50:1.00) for each day during such period.
3.6 LC DRAWING FEE. The Company shall pay a drawing fee to the
Issuing Bank in the amount of $250 for each drawing under any of its Letters of
Credit, payable on the date of such drawing or promptly upon notice to the
Company of the draw under any Letter of Credit.
3.7 CAPITAL ADEQUACY. If any Bank (including an Issuing Bank)
determines in good faith that compliance with any Law or regulation or with any
guideline or request (excluding any published as of the date hereof or currently
scheduled to take effect) from any central bank or other Governmental Agency
(whether or not having the force of Law), in each case adopted or effective
after the date hereof has or would have the effect of reducing the rate of
return on the capital of such Bank or any corporation controlling such Bank as a
consequence of, or with reference to, such Bank's Pro Rata Share of any portion
of the Commitment or its making or maintaining of Advances, or its issuance of
any Letter of Credit, below the rate which such Bank or such other corporation
could have achieved but for such compliance (taking into account the policies of
such Bank or corporation with regard to capital), then the Company shall from
time to time, upon demand by such Bank (with a copy of such demand to the
29
Administrative Agent), immediately pay to such Bank additional amounts
sufficient to compensate such Bank or other corporation for such reduction. A
certificate as to such amounts, setting forth in reasonable detail the basis for
such calculations, submitted to the Company and the Administrative Agent by such
Bank, shall be conclusive and binding for all purposes, absent manifest error.
Each Bank agrees promptly to notify the Company and the Administrative Agent of
any circumstances that would cause the Company to pay additional amounts
pursuant to this Section 3.7. If any Bank shall have been compensated pursuant
to this Section 3.7, the Company shall have the right, upon 30 days prior notice
to the Administrative Agent, with the assistance (but not the obligation) of the
Administrative Agent, to seek a substitute bank or banks (which may be one or
more of the Banks) satisfactory to the Company, the Administrative Agent and the
Issuing Bank to assume the Commitment of such Bank and to purchase the Notes of
such Bank and all amounts owing to such Bank in respect of Advances and Letters
of Credit under this Agreement pursuant to Section 13.9.
3.8 INCREASED COSTS.
(a) If, after the date hereof, by reason of (i) the adoption of any
Law by any Governmental Agency, central branch or comparable authority with
respect to activities in the Eurocurrency Market, or (ii) any change in the
interpretation or administration of any existing Law by any Governmental Agency,
central bank or comparable authority charged with the interpretation or
administration thereof, or (iii) compliance by any Bank or its Eurocurrency
Lending Office or the Issuing Bank with any request or directive (whether or not
having the force of Law) of any such Governmental Agency, central bank or
comparable authority, or (iv) the existence or occurrence of circumstances
affecting the Eurocurrency Market generally that are beyond the reasonable
control of the Banks:
(1) (A) any reserve (including, without limitation, any
reserve imposed by the Board of Governors of the Federal Reserve
System), special deposit or similar requirements shall be imposed,
modified or deemed applicable against assets of, deposits with or
for the account of, or credit extended by, any Bank or its
Eurocurrency Lending Office or the Issuing Bank; or
(B) any Bank or its Eurocurrency Lending Office or the
Eurocurrency Market or the Issuing Bank shall have imposed on it any
other condition affecting any Advance, any of its Notes, its
obligation to make Advances or this Agreement, or its obligation to
make or maintain Letters of Credit hereunder, or any of the same
shall otherwise be adversely affected;
and the result of any of the foregoing, as determined by such Bank,
increases the cost to such Bank or its Eurocurrency Lending Office of
making or maintaining any Advance or in respect of any Advance, any of its
Notes or its obligation to make Advances or the issuance or maintenance of
any Letter of Credit or reduces the amount of any sum received or
receivable by such Bank or its Eurocurrency Lending Office with respect to
any Advance, any of its Notes or its obligation to make Advances (assuming
such Bank's Eurocurrency Lending Office had funded 100% of its EURO Rate
Advance in the Eurocurrency Market) or in respect of Letters of Credit or
its participation therein, then, upon demand by such Bank or the Issuing
Bank (with a copy to the Administrative
30
Agent), the Company shall pay to such Bank or the Issuing Bank, as the
case may be, such additional amount or amounts as will compensate such
Bank or the Issuing Bank, as the case may be, for such increased cost or
reduction. A statement of any Bank or the Issuing Bank claiming
compensation under this subsection and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. Each Bank and the Issuing Bank agree to endeavor
promptly to notify the Company of any event of which it has actual
knowledge (and, in any event, within 90 days from the date on which it
obtained such knowledge), occurring after the Closing Date, which will
entitle such Bank or the Issuing Bank to compensation pursuant to this
Section, and agrees to designate a different Eurocurrency Lending Office
if such designation will avoid the need for or reduce the amount of such
compensation and will not, in the judgment of such Bank or the Issuing
Bank, otherwise be disadvantageous to such Bank or the Issuing Bank. If
any Bank claims compensation under this Section, the Company may at any
time, upon at least four (4) Banking Days' prior notice to the
Administrative Agent and Banks and upon payment in full of the amounts
provided for in this Section through the date of such payment plus any fee
required by Section 3.8(c), pay in full all Advances or request that all
EURO Rate Advances be converted to Base Rate Advances or all Base Rate
Advances be converted to EURO Rate Advances. If any Bank shall have been
compensated pursuant to this Section 3.8(a), the Company shall have the
right, upon 30 days prior notice to the Administrative Agent, with the
assistance (but not the obligation) of the Administrative Agent, to seek a
substitute bank or banks (which may be one or more of the Banks)
satisfactory to the Company, the Administrative Agent and the Issuing Bank
to assume the Commitment of such Bank and to purchase the Notes of such
Bank and all amounts owing to such Bank in respect of Advances and Letters
of Credit under this Agreement pursuant to Section 13.9.
(2) If any Bank shall have reasonably determined that it
shall be unlawful for such Bank or its Eurocurrency Lending Office
to make, maintain or fund its portion of any EURO Rate Advance, or
the authority of such Bank to purchase or sell, or to take deposits
of, Dollars or Euros in the Eurocurrency Market, or to determine or
charge interest rates based upon the Eurodollar Rate or EURIBOR Rate
has become unlawful, then such Bank shall so notify the
Administrative Agent and the other Banks, and such Bank's obligation
to make EURO Rate Advances shall be suspended for the duration of
such illegality and the Administrative Agent forthwith shall give
notice thereof to the Company and such Bank shall make a Base Rate
Advance as part of any successive EURO Rate Advance. Upon receipt of
such notice, the outstanding principal amount of all EURO Rate
Advances made by such Bank, together with accrued interest thereon,
automatically shall be converted to Base Rate Advances with Interest
Periods corresponding to the EURO Rate Advances of which such EURO
Rate Advances were a part and, if, on the date of any such
conversion, any such EURO Rate Advance is an Alternative Currency
Loan, it shall be redenominated into a Dollar Loan in a principal
amount equal to the Dollar Equivalent of the amount of such
Alternative Currency Loan on either (A) the last day of the
Eurocurrency Period(s) applicable to such EURO Rate Advances if the
affected Bank may lawfully continue to maintain and fund such EURO
Rate Advances to such day(s) or (B) immediately if the affected Bank
may not lawfully continue to fund and
31
maintain such EURO Rate Advances to such day(s), provided that in
such event the conversion shall not be subject to payment of a fee
under Section 3.8(c).
(b) If, with respect to any proposed EURO Rate Advance:
(i) the Reference Banks reasonably determine that, by reason
of circumstances affecting the Eurocurrency Market generally that are
beyond the reasonable control of the Banks, deposits in Dollars or Euros
(in the applicable amounts) are not being offered to each of the Banks in
the Eurocurrency Market for the applicable Eurocurrency Period; or
(ii) the Reference Banks advise the Administrative Agent that
the Eurodollar Rate or EURIBOR Rate, as the case may be, as determined by
the Administrative Agent (1) does not represent the effective pricing to
such Banks for deposits in Dollars or Euros, as the case may be, in the
Eurocurrency Market in the relevant amount for the applicable Eurocurrency
Period, or (2) will not adequately and fairly reflect the cost to such
Banks of making the applicable EURO Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to the
Company and the Banks, whereupon until the Administrative Agent notifies
the Company that the circumstances giving rise to such suspension no
longer exist, the obligation of the Banks to make any future EURO Rate
Advances shall be suspended. If at the time of such notice there is then
pending a Request for Loan that specifies a EURO Rate Advance, such
Request for Loan shall be deemed to specify a Base Rate Advance in
Dollars.
(c) The Company shall compensate each Bank for any loss sustained by
that Bank in connection with the liquidation or re-employment of funds,
excluding any loss of margin, and, without duplication, all actual out-of-pocket
expenses (excluding allocations of any expense internal to such Bank) reasonably
attributable thereto that such Bank may sustain: (i) if for any reason (other
than a default by that Bank) a borrowing of any EURO Rate Advance does not occur
on a date or in the amount specified therefor in a Request for Loan or a
telephonic request for loan or a Conversion to or continuation of any EURO Rate
Advance does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephone request for Conversion or continuation;
(ii) if any prepayment or other principal payment or any conversion (other than
as a result of a conversion required under Section 3.8(a)(2)) of any of its EURO
Rate Advances occurs on a date prior to the last day of an Interest Period
applicable to that Loan, or (iii) if any prepayment of any of its EURO Rate
Advances is not made on any date specified in a notice of prepayment given by
the Company. Each Bank's determination of any amount payable under this Section
3.8(c) shall be conclusive in the absence of manifest error. Each Bank shall
submit an invoice to the Administrative Agent of the amount payable by the
Company under this Section 3.8(c) setting forth in reasonable detail the basis
for such amount and the Administrative Agent shall notify the Company of such
amount. The Company shall pay such amount to the Administrative Agent for the
account of the relevant Bank, and the Administrative Agent shall promptly pay
each relevant Bank the portion of the amount owed to it.
(d) Anything in this Agreement to the contrary notwithstanding, to
the extent any notice under Section 3.7, 3.8 or 3.12 is given by any Bank more
than 180 days after such
32
Bank has knowledge (or should have had knowledge) of the occurrence of the event
giving rise to the additional cost, reduction in amounts, loss, tax or other
additional amounts described in such Section 3.7, 3.8 or 3.12, as the case may
be, such Bank shall not be entitled to compensation under such Section for any
such amounts incurred or accruing prior to the giving of such notice.
3.9 DEFAULT RATE. Upon the occurrence and during the continuation of
any Event of Default under Section 9.1(a) or (b), the outstanding principal
amount of all Advances and, to the extent permitted by applicable law, any
interest payments thereon not paid when due and any fees and other amounts then
due and payable hereunder, shall thereafter bear interest at a fluctuating
interest rate per annum at all times equal to 2% in excess of the interest rate
otherwise payable under this Agreement with respect to the applicable Advances
(or, in the case of any such fees and other amounts, at a rate which is 2% per
annum in excess of the interest rate otherwise payable under this Agreement for
Base Rate Advances), to the fullest extent permitted by applicable Laws;
provided that, in the case of EURO Rate Advances, upon the expiration of the
Eurocurrency Period in effect at the time any such increase in interest rate is
effective such EURO Rate Advances shall thereupon become Base Rate Advances and
shall thereafter bear interest payable upon demand at a rate which is 2% per
annum in excess of the interest rate otherwise payable under this Agreement for
Base Rate Advances. Accrued and unpaid interest on past due amounts (including,
without limitation, interest on past due interest) shall be compounded daily and
shall be payable on demand, to the fullest extent permitted by applicable Laws.
3.10 COMPUTATION OF INTEREST AND FEES. Computation of interest on
Base Rate Advances when the Base Rate is calculated by reference to Citibank's
base commercial lending rate shall be calculated on the basis of a year of 365
or 366 days, as the case may be, and actual days elapsed. Computation of all
fees and other interest shall be calculated on the basis of a year of 360 days
and the actual number of days elapsed. Any Advance that is repaid on the same
day on which it is made shall bear interest for one day.
3.11 NON-BANKING DAYS. If any payment to be made by a Borrower or
any other party under any Loan Document shall come due on a day other than a
Banking Day, payment shall instead be considered due on the next succeeding
Banking Day and the extension of time shall be reflected in computing the amount
of such payment.
3.12 MANNER AND TREATMENT OF PAYMENTS.
(a) Except as set forth in the next sentence, each payment hereunder
or on the Notes or under any other Loan Document in Dollars shall be made to the
Administrative Agent, at the Administrative Agent's Office, for the account of
each of the appropriate Banks or the Issuing Bank, as the case may be, in
immediately available funds, without any set-off or counterclaim, not later than
2:00 p.m., New York time, on the day of payment (which must be a Banking Day).
Each Borrower shall make each payment hereunder with respect to amounts
denominated in the Alternative Currency not later than 2:00 p.m. (local time)
(at the Alternative Currency Payment Office) on the day when due in such
currency to the Administrative Agent in same day funds by deposit of such funds
to the Administrative Agent's account maintained at the Alternative Currency
Payment Office. All payments received after 2:00 p.m., New York time or local
time (as the case may be), on any particular Banking Day, shall be deemed
received on the
33
next succeeding Banking Day. The amount of all payments received by the
Administrative Agent for the account of each Bank or Issuing Bank shall be
promptly paid by the Administrative Agent to the applicable Bank or the Issuing
Bank, as the case may be, in immediately available funds. All payments of
principal and interest shall be made in the currency of the applicable Advance.
All other payments shall be made in Dollars.
(b) Prior to the occurrence of any Event of Default, each payment or
prepayment received by the Administrative Agent on account of any Loan shall be
applied:
(i) To the Loans, pro rata in accordance with the aggregate
principal amount thereof owed to each Bank,
(ii) Any mandatory prepayment of Loans shall be applied first
to Base Rate Advances to the full extent thereof before application to
EURO Rate Advances as determined by Administrative Agent, in each case in
a manner which minimizes the amount of any payments required to be made by
Company pursuant to Section 3.8(c).
(c) Each Bank shall use its best efforts to keep a record of
Advances made by it and payments received by it with respect to its Loans and,
subject to Section 10.6(g), such record shall be presumptive evidence of the
amounts owing. Notwithstanding the foregoing sentence, no Bank shall be liable
to any party for any failure to keep such a record.
(d) (i) Any and all payments by any Borrower to or for the account
of the Administrative Agent or any Bank under this Agreement or any other
Loan Document and by the Company acting in its capacity as guarantor under
Article 11 shall be made free and clear of and without deduction for any
and all present or future taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and all liabilities
with respect thereto, excluding, in the case of the Administrative Agent
and each Bank, taxes imposed on or measured by its overall net income, and
franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of
which the Administrative Agent or such Bank, as the case may be, is
organized or maintains a lending office and, if the forms provided by a
Foreign Bank pursuant to Section 13.27(a) at the time such Foreign Bank
first becomes a party to this Agreement indicate a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall
be considered excluded from Taxes unless and until such Foreign Bank
provides new forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from
Taxes for periods governed by such forms (all such non-excluded taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and liabilities being hereinafter referred to as
"TAXES"). If any Borrower or the Company acting in its capacity as
guarantor under Article 11 shall be required by any Laws to deduct any
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Bank, (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
3.12(d)), each of the Administrative Agent and such Bank receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) such Borrower or the Company shall make such deductions, (iii)
such
34
Borrower or the Company shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable Laws,
and (iv) within 30 days after the date of such payment, such Borrower or
the Company shall furnish to the Administrative Agent (which shall forward
the same to such Bank) the original or a certified copy of a receipt
evidencing payment thereof (to the extent available).
(ii) In addition, any Borrower or the Company acting in its
capacity as guarantor under Article 11 agrees to pay any and all present
or future stamp, court or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any payment
made under any Loan Document or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, any Loan
Document (hereinafter referred to as "OTHER TAXES").
(iii) If any Borrower or the Company acting in its capacity as
guarantor under Article 11 shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document
to the Administrative Agent or any Bank, such Borrower or the Company
shall also pay to the Administrative Agent or to such Bank, as the case
may be, at the time interest is paid, such additional amount that the
Administrative Agent or such Bank specifies is necessary to preserve the
after-tax yield (after factoring in all taxes, including taxes imposed on
or measured by net income) that the Administrative Agent or such Bank
would have received if such Taxes or Other Taxes had not been imposed.
(iv) Each Borrower and the Company acting in its capacity as
guarantor under Article 11 agrees to indemnify the Administrative Agent
and each Bank for (i) the full amount of Taxes and Other Taxes (including
any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 3.12) paid by the Administrative Agent
and such Bank, (ii) amounts payable under Section 3.12(d)(iii) and (iii)
any liability (including additions to tax, penalties, interest and
expenses) arising therefrom or with respect thereto, in each case whether
or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Agency. Payment under this Section
3.12(d)(iv) shall be made within 30 days after the date the Bank or the
Administrative Agent makes a demand therefor.
(v) If a Borrower or the Company acting in its capacity as
guarantor under Article 11 is required to pay additional amounts to or for
the account of any Bank pursuant to this Section 3.12, then such Bank will
change the jurisdiction of its applicable lending office if, in the
judgment of such Bank, such change (i) will eliminate or reduce any such
additional payment that may thereafter accrue and (ii) is not otherwise
disadvantageous to such Bank.
3.13 FUNDING SOURCES. Nothing in this Agreement shall be deemed to
obligate any Bank to obtain the funds for any Loan or Advance in any particular
place or manner or to constitute a representation by any Bank that it has
obtained or will obtain the funds for any Loan or Advance in any particular
place or manner. Each of the Borrowers agrees that, for the purposes of any
determination to be made under Section 3.8, each Bank shall be deemed to have
35
funded its EURO Rate Advances with Dollar or Euro deposits, as the case may be,
in the London interbank market.
3.14 FAILURE TO CHARGE NOT SUBSEQUENT WAIVER. Any decision by any
Bank not to require payment of any interest (including interest arising under
Section 3.9), fee, cost or other amount payable under any Loan Document, or to
calculate any amount payable by a particular method, on any occasion shall in no
way limit or be deemed a waiver of such Bank's right to require full payment of
any interest (including interest arising under Section 3.9), fee, cost or other
amount payable under any Loan Document, or to calculate an amount payable by
another method, on any other or subsequent occasion.
3.15 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME PAYMENTS WILL BE MADE BY
BORROWER. Unless the Administrative Agent shall have been notified by a Borrower
prior to the date on which any payment to be made by that Borrower hereunder is
due that such Borrower does not intend to remit such payment, the Administrative
Agent may, in its discretion, assume that such Borrower has remitted such
payment when so due and the Administrative Agent may, in its discretion and in
reliance upon such assumption, make available to each Bank on such payment date
an amount equal to such Bank's share of such assumed payment. If a Borrower has
not in fact remitted such payment to the Administrative Agent, each Bank shall
forthwith on demand repay to the Administrative Agent the amount of such assumed
payment made available to such Bank, together with interest thereon in respect
of each day from and including the date such amount was made available by the
Administrative Agent to such Bank to the date such amount is repaid to the
Administrative Agent at a rate per annum equal to the actual cost to the
Administrative Agent of funding such amount as notified by the Administrative
Agent to such Bank.
3.16 FEE DETERMINATION DETAIL. The Administrative Agent, the Issuing
Bank and any Bank, shall provide reasonable detail to the Company regarding the
manner in which the amount of any payment to the Banks, or that Bank, under
Article 3 has been determined.
3.17 SURVIVABILITY. All of the Company's obligations under Sections
3.7 and 3.8 shall survive for thirty (30) days following the termination of this
Agreement; provided, however, that such obligations shall not, from and after
the termination of this Agreement, be deemed Obligations for any purpose under
the Loan Documents.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Banks and each other
Borrower represents and warrants to the Banks (with respect to itself only)
that:
4.1 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. Each
Borrower is an organization duly formed, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation. Each Borrower is duly
qualified to transact business, and is in good standing, in any jurisdiction in
which the conduct of its business or the ownership or leasing of its Properties
makes such qualification or registration necessary, except where the failure so
to qualify or register and to be in good standing would not constitute a
Material
36
Adverse Effect. Each Borrower has all requisite corporate power and authority to
conduct its business and to own and lease its Properties. Each Borrower has all
requisite corporate power and authority to execute and deliver each Loan
Document to which it is a party and to perform its Obligations. Each Borrower
has obtained all authorizations, consents, approvals, orders, licenses and
permits from, and has accomplished all filings, registrations and qualifications
with, or obtained exemptions from any of the foregoing from, any Governmental
Agency that are necessary for the transaction of its business, except where the
failure so to comply, file, register, qualify or obtain exemptions does not
constitute a Material Adverse Effect.
4.2 AUTHORITY; COMPLIANCE WITH OTHER AGREEMENTS AND INSTRUMENTS AND
GOVERNMENT REGULATIONS. The execution, delivery and performance of the Loan
Documents by such Borrower have been duly authorized by all necessary corporate
action, and do not:
(a) Require any consent or approval not heretofore obtained of any
partner, director, stockholder, security holder or creditor of such Borrower;
(b) Result in or require the creation or imposition of any Lien upon
or with respect to any Property now owned or leased or hereafter acquired by
such Borrower;
(c) Violate, to the best knowledge of such Borrower, any Requirement
of Law applicable to such Borrower;
(d) Result (or, with the giving of notice or passage of time or
both, would result) in a breach of or default under, or cause or permit the
acceleration of any obligation owed under any Contractual Obligation to which
such Borrower is a party or by which such Borrower or any of its Property is
bound or affected;
except where failure to receive such consent or approval or creation of such
Lien or violation of, or default under, any such Requirement of Law or
Contractual Obligation would not constitute a Material Adverse Effect.
4.3 NO GOVERNMENTAL APPROVALS REQUIRED. Subject to the
representations of the Banks contained in Section 13.9, no authorization,
consent, approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is required to authorize or permit
under applicable Laws the execution, delivery and performance of the Loan
Documents by such Borrower.
4.4 SUBSIDIARIES. Schedule 4.4 hereto correctly sets forth as of the
Closing Date the names of each Subsidiary of the Company that would constitute a
Significant Subsidiary ("SIGNIFICANT SUBSIDIARY") under Rule 1-02(w) of
Regulation S-X as adopted by the SEC under the provisions of the Securities Act
of 1933 and the Securities Exchange Act of 1934 as in force on the date of this
Agreement.
4.5 FINANCIAL STATEMENTS. The Company has furnished or made
available to the Banks the audited consolidated financial statements of the
Company and its Consolidated Subsidiaries as of December 31, 2003 and unaudited
consolidated financial statements of the Company and its Subsidiaries as of
March 31, 2004 and for the three months then ended. Such financial statements
(including the footnotes thereto) fairly present in all material respects the
37
consolidated financial condition and the consolidated results of operations of
the Company as of such dates and for such periods in accordance with Generally
Accepted Accounting Principles (other than, in the case of the March 31, 2004
statements, any requirement for footnote disclosures and subject to normal
year-end accruals and audit adjustments).
4.6 NO OTHER LIABILITIES; NO MATERIAL ADVERSE EFFECT. As of the
Closing Date, the Company and its Consolidated Subsidiaries do not have any
material liability or material contingent liability not reflected or disclosed
in the consolidated balance sheet or notes thereto described in Section 4.5,
other than liabilities and contingent liabilities arising in the ordinary course
of business subsequent to December 31, 2003. There has been no event or
circumstance that constitutes a Material Adverse Effect with respect to the
Company and its Subsidiaries taken as a whole since December 31, 2003.
4.7 GOVERNMENTAL REGULATION. No Borrower is subject to regulation
under the Investment Company Act of 1940.
4.8 LITIGATION. Except for (a) any matter fully covered (subject to
applicable deductibles and retentions) by insurance for which the insurance
carrier has assumed full responsibility, (b) matters described in public
documents filed with Governmental Agencies and delivered to the Banks prior to
the Closing Date, and (c) matters disclosed on Schedule 4.8 hereto, there are no
actions, suits, proceedings or investigations pending as to which the Company or
any of its Subsidiaries have been served or have received written notice or, to
the best knowledge of the Company, threatened against or affecting the Company
or any of its Subsidiaries or any Property of any of them before any
Governmental Agency which could reasonably be expected to constitute a Material
Adverse Effect.
4.9 BINDING OBLIGATIONS. Each of the Loan Documents will, when
executed and delivered by such Borrower, constitute the legal, valid and binding
obligation of such Borrower, enforceable against such Borrower in accordance
with its terms, except as enforcement may be limited by Debtor Relief Laws or
equitable principles relating to the granting of specific performance and other
equitable remedies as a matter of judicial discretion.
4.10 NO DEFAULT. No event has occurred and is continuing that is a
Default or Event of Default.
4.11 EMPLOYEE BENEFIT PLANS.
(a) The Company and each of its ERISA Affiliates are in compliance
with all applicable provisions and requirements of ERISA and the regulations and
published interpretations thereunder with respect to each Employee Benefit Plan,
and have performed all their obligations under each Employee Benefit Plan,
except where the failure to be in such compliance or to perform such obligation
would not constitute a Material Adverse Effect.
(b) No ERISA Event that would constitute a Material Adverse Effect
has occurred or is reasonably expected to occur.
(c) Except to the extent required under Section 4980B of the Code,
no Employee Benefit Plan maintained by the Company or any of its Current ERISA
Affiliates
38
provides health or welfare benefits (through the purchase of insurance or
otherwise) for any retired or former employees of the Company or any of its
Current ERISA Affiliates.
(d) As of the most recent valuation date for any Pension Plan with
respect to which the Company or a Subsidiary has any financial liability
(including potential joint and several liability) in the event any such Pension
Plan were to terminate, the amount of unfunded benefit liabilities (as defined
in Section 4001(a)(18) of ERISA), individually or in the aggregate for all
Pension Plans (excluding for purposes of such computation any Pension Plans with
respect to which assets exceed benefit liabilities), does not exceed
$60,000,000.
4.12 REGULATION U. No part of the proceeds of any Advance hereunder
will be used to purchase or carry, or to extend credit to others for the purpose
of purchasing or carrying, any "margin stock" (as such term is defined in
Regulation U) in violation of Regulation U. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying any
such "margin stock."
4.13 DISCLOSURE. All written information heretofore supplied by the
Company to the Administrative Agent for the purposes of this Agreement is true
and accurate in all material respects on the date as of which such information
is stated. The Company has disclosed to the Administrative Agent all facts which
materially and adversely may, in the good faith opinion of the Company, affect
(to the extent the Company can reasonably foresee) the financial condition of
the Company and its Subsidiaries, taken as a whole, or the ability of the
Company to perform its obligations under this Agreement.
4.14 TAX LIABILITY. Each of the Company and its Subsidiaries has
filed or caused to be filed all tax returns which are required to have been
filed by it, and has paid or caused to be paid, or made provision for the
payment of, all taxes with respect to the periods, Property or transactions
covered by said returns, or pursuant to any assessment received by the Company
or any of its Subsidiaries, except (a) taxes for which the Company has been
fully indemnified, (b) such taxes, if any, as are being contested in good faith
by appropriate proceedings and as to which adequate reserves have been
established and maintained or (c) where the failure to so file or pay would not
reasonably be expected to have a Material Adverse Effect.
4.15 ENVIRONMENTAL MATTERS. As of the Closing Date, except as set
forth in the Company's annual report on Form 10-K for the year ended December
31, 2003 to the Securities and Exchange Commission, or as disclosed in Schedule
4.15 annexed hereto, (a) the Company and each Subsidiary have complied with all
Environmental Laws, except to the extent that the failure to so comply would not
be reasonably expected to result in a Material Adverse Effect, (b) the Company's
and its Subsidiaries' facilities do not manage any hazardous wastes, hazardous
substances, hazardous materials, toxic substances or toxic pollutants in any
manner that would result in a violation of any Environmental Law, except for
violations that would not be reasonably expected to result in a Material Adverse
Effect and (c) the Company is aware of no events, conditions or circumstances
involving environmental pollution or contamination or public or employee health
or safety, in each case applicable to it or its Subsidiaries, that has resulted
or would be reasonably expected to result in a Material Adverse Effect.
39
ARTICLE 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any other Obligation
remains unpaid or unperformed, or any portion of the Commitment remains in
force, each Borrower shall, and shall cause each of its Subsidiaries to, unless
the Administrative Agent (acting on the direction of the Majority Banks)
otherwise consents in writing:
5.1 PAYMENT OF TAXES AND OTHER POTENTIAL LIENS. Pay and discharge
promptly all taxes, assessments and governmental charges or levies imposed upon
any of them, upon their respective Property or any part thereof, or upon their
respective income or profits or any part thereof, except that the Company and
its Subsidiaries shall not be required to pay or cause to be paid any tax,
assessment, charge or levy (a) that is not yet past due, or is being contested
in good faith by appropriate proceedings, so long as the relevant entity has
established and maintains adequate reserves for the payment of the same and by
reason of such nonpayment and contest no material item or portion of Property of
the Company and its Subsidiaries, taken as a whole, is in jeopardy of being
seized, levied upon or forfeited or (b) the nonpayment of which in the aggregate
could not reasonably be expected to have a Material Adverse Effect.
5.2 PRESERVATION OF EXISTENCE. Preserve and maintain their
respective existences in the jurisdiction of their formation and all
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business, and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties except where the failure to maintain
such preservation or maintenance of existence, authorizations, rights,
franchises, privileges, consents, approvals, orders, licenses, permits or
registration or to do so qualify would not constitute a Material Adverse Effect
and; provided that a merger permitted under Section 6.2 shall not constitute a
violation of this covenant. Nothing herein contained shall prevent the
termination of the business or corporate existence of any Subsidiary (other than
a Borrower) that, in the judgment of the Company, is no longer necessary or
desirable, as long as immediately after giving effect to any such transaction,
no Default shall have occurred and be continuing.
5.3 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect all of
their respective depreciable Properties in good order and condition, subject to
wear and tear in the ordinary course of business, and not permit any waste of
their respective Properties, except that any failure to so maintain, preserve or
protect such Properties that does not constitute a Material Adverse Effect shall
not constitute a violation of this covenant.
5.4 MAINTENANCE OF INSURANCE. Maintain liability, casualty and other
insurance (subject to customary deductibles and retentions), with responsible
insurance companies in such amounts and against such risks as is carried by
responsible companies engaged in similar businesses and owning similar assets in
the general areas in which the Company and its Subsidiaries operate; provided
that, notwithstanding the foregoing, the Company may self-insure if reasonable
and consistent with sound business practice.
40
5.5 COMPLIANCE WITH LAWS. Comply with all Requirements of Law
noncompliance with which constitutes a Material Adverse Effect, except that the
Company and its Subsidiaries need not comply with a Requirement of Law then
being contested by any of them in good faith by appropriate proceedings.
5.6 VISITATION. Upon reasonable notice permit the Administrative
Agent or representatives of any Bank at the Administrative Agent's or such
Bank's expense to visit any of its major properties, during normal business
hours, to inspect and make abstracts from its financial and accounting records
(other than materials protected by the attorney-client privilege and materials
which are proprietary in nature or which may not be disclosed without violation
of a binding confidentiality obligation), and to discuss its affairs and
finances with its officers and independent public accountants, all at such
reasonable times and as often as may reasonably be requested; provided that so
long as no Default or Event of Default has occurred and is continuing,
visitation by representatives of the Banks shall be limited to not more than one
visit in any calendar year for each Bank.
5.7 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Keep adequate records
and books of account reflecting all financial transactions in conformity with
Generally Accepted Accounting Principles, and in material conformity with all
applicable requirements of any Governmental Agency having regulatory
jurisdiction over the Company or any of its Subsidiaries.
5.8 USE OF PROCEEDS. Use the proceeds of Advances only for general
corporate purposes of the Borrowers; provided that proceeds of Advances shall
not be used for any Hostile Acquisition. Use the Letters of Credit only for
trade, commercial and standby letters of credit in the ordinary course of
business.
ARTICLE 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid or unperformed, or any portion of the Commitment remains in
force, the Company shall not, and shall not permit any of its Subsidiaries to,
unless the Administrative Agent (acting on the direction of the Majority Banks)
otherwise consents in writing:
6.1 CHANGE IN NATURE OF BUSINESS. Make any material change in the
nature of the business of the Company and its Subsidiaries, taken as a whole, as
at present conducted.
6.2 MERGERS. Merge, consolidate or amalgamate with or into any
Person, or convey substantially all of its Properties and assets to another
Person, unless each of the following conditions are met:
(a) no Default or Event of Default exists or would exist immediately
following the consummation of such merger, consolidation, amalgamation or
conveyance;
(b) in a merger, consolidation or amalgamation of the Company with
another Person or Persons, the Company is the surviving entity; and
41
(c) in the case of a conveyance of Properties and assets, the
Properties and assets conveyed do not consist of substantially all of the
Properties and assets of the Company and its Subsidiaries taken as a whole.
6.3 LIENS; NEGATIVE PLEDGES; SALES AND LEASEBACKS. Create, incur,
assume or suffer to exist any Lien of any nature upon or with respect to any of
their respective Properties, whether now owned or hereafter acquired, or engage
in any sale and leaseback transaction with respect to its Property, except:
(a) Permitted Encumbrances;
(b) Liens in favor of the Administrative Agent or the Banks under
the Loan Documents;
(c) Liens existing on the date hereof and listed on Schedule 6.3 and
Liens on the same Property which secure Indebtedness which replaces or
refinances the Indebtedness (or commitment) originally secured by those Liens;
provided that the obligations secured thereby are not increased;
(d) pre-existing Liens on assets acquired by the Company or any of
its Subsidiaries after the Closing Date; and
(e) Liens securing Indebtedness or obligations (including sale and
leaseback transactions to which the Company or any Subsidiary is a party as
vendor and lessee) incurred after the date hereof the outstanding amount of
which Indebtedness or obligation does not in the aggregate exceed 35% of
Consolidated Net Worth (measured as of the last day of the most recently ended
Fiscal Quarter).
6.4 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any
kind which is material to the Company and its Subsidiaries taken as a whole with
any Affiliate of the Company other than (a) transactions between or among the
Company and its Subsidiaries or between or among its Subsidiaries; provided
that, for the purposes of this section, the term "Subsidiary" shall include any
partnership and joint venture that is excluded from the definition of the term
"Subsidiary" but as to which the Company or Subsidiary owns 50% or more of the
ownership interests, (b) transactions on terms at least as favorable to the
Company or its Subsidiaries as would be the case in an arm's-length transaction
between unrelated parties of equal bargaining power, and (c) transactions
approved by a majority of the disinterested members of the Board of Directors of
Company or the applicable Subsidiary.
6.5 SUBSIDIARY INDEBTEDNESS. Permit Indebtedness of the Company's
Subsidiaries (other than under this Agreement) at any time to exceed in the
aggregate 35% of Consolidated Net Worth (measured as of the last day of the most
recently ended Fiscal Quarter).
ARTICLE 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 FINANCIAL AND BUSINESS INFORMATION. So long as any Advance
remains unpaid, or any other Obligation remains unpaid or unperformed, or any
portion of the
42
Commitment remains in force, the Company shall, unless the Administrative Agent
(with the approval of the Majority Banks) otherwise consents in writing, deliver
to the Banks and the Administrative Agent, at the Company's sole expense:
(a) As soon as practicable, and in any event within 45 days after
the end of each Fiscal Quarter (other than the fourth Fiscal Quarter in any
Fiscal Year), (i) the consolidated balance sheets of the Company and its
Subsidiaries as at the end of such Fiscal Quarter, (ii) consolidated statements
of income and (iii) consolidated statements of cash flow, in each case described
in clauses (ii) and (iii) of the Company and its Subsidiaries for such Fiscal
Quarter and for the portion of the Fiscal Year ended with such Fiscal Quarter,
all in reasonable detail. Such financial statements shall be certified by a
Senior Officer of the Company as fairly presenting the financial condition,
results of operations and changes in financial position of the Company and its
Subsidiaries in accordance with Generally Accepted Accounting Principles (other
than any requirement for footnote disclosures), as at such date and for such
periods, subject only to normal year-end accruals and audit adjustments;
(b) As soon as practicable, and in any event within 90 days after
the end of each Fiscal Year, (i) the consolidated balance sheets of the Company
and its Subsidiaries as at the end of such Fiscal Year, (ii) consolidated
statements of income of the Company and its Subsidiaries for such Fiscal Year
and (iii) consolidated statements of cash flow of the Company and its
Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial
statements shall be prepared in accordance with Generally Accepted Accounting
Principles, and such consolidated balance sheet and consolidated statements
shall be accompanied by a report and opinion of Ernst & Young or other
independent public accountants of recognized national standing selected by the
Company, which report and opinion shall be prepared in accordance with generally
accepted auditing standards as at such date;
(c) Promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the shareholders of the Company generally, and copies of all annual, regular,
periodic and special reports and registration statements which the Company or a
Subsidiary of the Company may file or be required to file under Sections 13 or
15(d) of the Securities Exchange Act of 1934;
(d) Promptly, and in any event within five (5) Banking Days after a
Senior Officer of the Company obtains actual knowledge of the existence of any
condition or event which constitutes a Default or Event of Default, written
notice specifying the nature and period of existence thereof and specifying what
action the Company or any of its Subsidiaries is taking or proposes to take with
respect thereto;
(e) Promptly upon becoming aware of the occurrence of or forthcoming
occurrence of any ERISA Event defined in clauses (i) through (vii) or (xi) of
the definition thereof involving Title IV or ERISA that could reasonably be
expected to result in material liability to the Company or its Subsidiaries or
any ERISA Event that could reasonably be expected to result in a Material
Adverse Effect, a written notice specifying the nature thereof, what action the
Company or any of its ERISA Affiliates has taken, is taking or proposes to take
with respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with respect
thereto;
43
(f) With reasonable promptness, copies of (a) each Schedule B
(Actuarial Information) to the annual report, if any (Form 5500 Series), filed
by the Company or any of its Current ERISA Affiliates with the Internal Revenue
Service with respect to each Pension Plan; (b) all notices received by the
Company or any of its Current ERISA Affiliates from the sponsor of a
Multiemployer Plan to which a Current ERISA Affiliate contributes concerning an
ERISA Event defined in clauses (i) through (vii) or (xi) of the definition
thereof; and (c) such other documents or governmental reports or filings
relating to any Employee Benefit Plan as the Administrative Agent shall
reasonably request; and
(g) Such other material information related to any Borrower's
ability to meet its Obligations hereunder as from time to time may be reasonably
requested by the Administrative Agent or the Majority Banks.
Documents required to be delivered pursuant to Section 7.1 (to the
extent any such documents are included in materials otherwise filed with the
SEC) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the Company posts such documents,
or provides a link thereto on the Company's website on the Internet at the
website address listed on Schedule 13.7; or (ii) on which such documents are
posted on the Company's behalf on IntraLinks/IntraAgency or another relevant
website (including, without limitation, the EDGAR System), if any, to which each
Bank and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided that: (i)
the Company shall deliver paper copies of any such document to the
Administrative Agent or any Bank that requests the Company to deliver such paper
copies until a written request to cease delivering paper copies is given by the
Administrative Agent or such Bank and (ii) the Company shall notify (which may
be by facsimile or electronic mail) the Administrative Agent and each Bank of
the posting of any such documents. Notwithstanding anything contained herein, in
every instance the Company shall be required to provide paper copies of the
Compliance Certificates required by Section 7.2 to the Administrative Agent.
Except for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Company with any such request for delivery, and each Bank
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.
7.2 COMPLIANCE CERTIFICATES. So long as any Advance remains unpaid,
or any other Obligation remains unpaid or unperformed, or any portion of the
Commitment remains outstanding, the Company shall, unless the Majority Banks
otherwise consent, deliver to the Administrative Agent, at the Company's sole
expense, concurrently with the financial statements required pursuant to
Sections 7.1(a) and 7.1(b), a Compliance Certificate signed by a Senior Officer
of the Company, including calculations as set forth therein.
ARTICLE 8
CONDITIONS
8.1 CONDITIONS TO EFFECTIVENESS. The Credit Agreement and the
Commitments of the Banks hereunder shall be effective on the date on which each
of the
44
following conditions precedent, (unless the Administrative Agent, acting at the
direction of the Banks, otherwise consents in writing) shall have been
satisfied:
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified, each in
form and substance satisfactory to the Administrative Agent, the Issuing Bank
and the Banks:
(1) executed counterparts of this Agreement, sufficient in
number for distribution to the Banks and the Company;
(2) the Notes dated the Closing Date and executed by the
Company in favor of each Bank, each in a principal amount equal to
that Bank's Pro Rata Share of the Commitment if requested in
accordance with Section 2.1(e);
(3) a certified copy of the Certificate of Incorporation of
the Company, together with a good standing certificate from the
Secretary of State of the State of incorporation of the Company and,
to the extent generally available, a certificate or other evidence
of good standing as to payment of any applicable franchise or
similar taxes from the appropriate taxing authority of such state,
each dated a recent date prior to the Closing Date;
(4) copies of the Company's Bylaws, certified as of the
Closing Date by the corporate secretary or an assistant secretary of
the Company;
(5) resolutions of the Board of Directors of the Company
approving and authorizing the execution, delivery and performance of
this Agreement and the other Loan Documents to which the Company is
a party, certified as of the Closing Date by the corporate secretary
or an assistant secretary of the Company as being in full force and
effect without modification or amendment;
(6) signature and incumbency certificates of the officers of
the Company executing this Agreement and the other Loan Documents;
(7) the favorable written opinion of David J. Scott, Esq.,
Senior Vice President, General Counsel and Secretary to the Company,
substantially in the form of Exhibit D-1, together with copies of
any officer's certificate or opinion of another counsel or law firm
specifically identified and expressly relied upon by such counsel in
its opinion;
(8) the favorable written opinion of Latham & Watkins LLP,
counsel to the Borrowers, substantially in the form of Exhibit D-3;
(9) the favorable written opinion of O'Melveny & Myers LLP,
counsel to the Administrative Agent, substantially in the form of
Exhibit D-2;
(10) a Certificate of a Senior Officer of the Company
certifying that the conditions specified in Sections 8.1(b), 8.1(c),
and 8.1(d) have been satisfied; and
45
(11) such other assurances, certificates, documents, consents
or opinions as the Administrative Agent reasonably may require.
(b) The representations and warranties of the Borrowers contained in
Article 4 shall be true and correct.
(c) Each Borrower shall be in compliance with all the terms and
provisions of the Loan Documents.
(d) The Company shall have paid to the Arrangers and the
Administrative Agent the fees payable on the date of this Agreement referred to
in Section 3.3 and the fees, costs and expenses referred to in Section 13.3(a).
If the Closing Date has not occurred on or before August 15, 2004,
no Bank shall have any obligation to make any Advances and the Issuing Bank
shall have no obligation to issue any Letter of Credit under this Agreement.
8.2 ANY ADVANCE AND ANY LETTER OF CREDIT. The obligation of each
Bank to make any Advance (including the initial Advance), and the obligation of
the Issuing Bank to issue, amend or extend any Letter of Credit (including the
initial Letter of Credit), is subject to the following conditions precedent
(unless the Administrative Agent, acting at the direction of the Majority Banks,
otherwise consents in writing):
(a) except as disclosed by the Company and approved in writing by
the Administrative Agent, acting at the direction of the Majority Banks, the
representations and warranties contained in Article 4, other than Sections 4.4,
4.6 and 4.8, shall be true and correct in all material respects on and as of the
date of the Advance or the issuance, amendment or extension of the Letter of
Credit, as the case may be, as though made on that date (except to the extent
such representations and warranties specifically relate to an earlier date in
which case they shall be true and correct in all material respects as of such
earlier date) and no state of facts constituting a Default or an Event of
Default shall have occurred and be continuing; and
(b) the Administrative Agent shall have timely received a Request
for Loan in compliance with Article 2 (or telephonic request for loan referred
to in the second sentence of Section 2.1(b), if applicable) or Request for
Letter of Credit in compliance with Article 2, if applicable.
ARTICLE 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 EVENTS OF DEFAULT. The existence or occurrence of any one or
more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an "EVENT OF DEFAULT":
(a) Any Borrower fails to pay any principal of any of the Loans, or
any portion thereof, on the date when due; or
46
(b) Any Borrower (i) fails to pay any interest on any of the Loans,
or any portion thereof, or (ii) fails to pay any other fee or amount payable to
the Administrative Agent, the Banks or the Issuing Bank under any Loan Document,
or any portion thereof, in each case within five (5) Banking Days after demand
therefor; or
(c) Any failure to comply with Section 7.1(d); or
(d) Any Borrower fails to perform or observe any other covenant or
agreement contained in any Loan Document on its part to be performed or observed
within thirty (30) days after the giving of notice by the Administrative Agent
or the Majority Banks of such Default; provided, however, that any failure to
observe any of the covenants contained in Section 6.2 shall constitute an
immediate Event of Default hereunder; provided, further, that any failure to
observe any of the covenants contained in Section 6.3 shall constitute an Event
of Default upon notice from the Administrative Agent (acting on the direction of
the Majority Banks) to the Company; and provided further that any failure to
observe any of the covenants contained in Section 6.5 shall constitute an Event
of Default five (5) Banking Days after knowledge by the Company of such Default
(other than as a result of the giving of notice by the Administrative Agent or
the Majority Banks as hereinafter provided) or, if earlier, the giving of notice
by the Administrative Agent or the Majority Banks of such Default; or
(e) Any representation or warranty made in this Agreement, any
Notes, any Request for Loan, any Agreement to Participate or any Request for
Letter of Credit was incorrect in any material respect when made or reaffirmed;
or
(f) The Company or any of its Subsidiaries (i) fails to pay the
principal, or any principal installment, or any interest or fees or any other
amount of any present or future Indebtedness (other than under the Loan
Documents) in an amount in excess of the Cross-Default Amount, or any guaranty
of present or future Indebtedness in an aggregate amount in excess of the
Cross-Default Amount, on its part to be paid, when due (and after expiration of
any stated grace or notice period), whether at the stated maturity, upon
acceleration, by reason of required prepayment or otherwise or (ii) fails to
perform or observe any other material term, covenant or agreement on its part to
be performed or observed, or suffers any event to occur, and such failure or
event continues after the applicable grace period, if any, and is not waived, in
connection with any present or future Indebtedness in an amount in excess of the
Cross-Default Amount, or of any guaranty of present or future Indebtedness in
excess of the Cross-Default Amount, if as a result of such failure or sufferance
any holder or holders thereof (or an agent or trustee on its or their behalf)
has the right to declare such Indebtedness or guaranty due before the date on
which it otherwise would become due; or
(g) Any Loan Document, at any time after its execution and delivery
and for any reason other than the agreement of the Banks or satisfaction in full
of all the Obligations, ceases to be in full force and effect or is declared by
a court of competent jurisdiction to be null and void, invalid or unenforceable
in any respect which, in any such event in the reasonable opinion of the
Majority Banks, is materially adverse to the interests of the Banks; or any
Borrower denies that it has any or further liability or obligation under any
Loan Document, or purports to revoke, terminate or rescind same; or
47
(h) A judgment against the Company or any of its Subsidiaries is
entered for the payment of money in excess of $100,000,000 (to the extent not
adequately covered by insurance as to which a solvent and unaffiliated insurance
company has acknowledged coverage) and, absent procurement of a stay of
execution, such judgment remains unstayed, unbonded or unsatisfied for sixty
(60) calendar days after the date of entry of judgment; or
(i) The Company, any Borrower or any other Subsidiary of the Company
the Shareholder's Equity of which, as shown on the most recent consolidated
balance sheet, equals or exceeds 10% of the Shareholder's Equity of the Company
and its Consolidated Subsidiaries as shown on such consolidated balance sheet,
institutes or consents to any proceeding under a Debtor Relief Law relating to
it or to all or any substantial part of its Property, or is unable or admits in
writing its inability to pay its debts as they mature, or makes an assignment
for the benefit of creditors; or applies for or consents to the appointment of
any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any substantial part of its Property; or
any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of that Person
and the appointment continues undischarged or unstayed for sixty (60) calendar
days; or any proceeding under a Debtor Relief Law relating to any such Person or
to all or any part of its Property is instituted without the consent of that
Person and continues undismissed or unstayed for sixty (60) calendar days; or
any judgment, writ, warrant of attachment or execution or similar process is
issued or levied against all or any material part of the Property of any such
Person and is not released, vacated or fully bonded within sixty (60) calendar
days after its issue or levy; or any order for relief shall be entered in
respect of the Company or any Borrower or any such Subsidiary; or
(j) (i) Any Person or two or more Persons acting in concert shall
acquire beneficial ownership (within the meaning of Rule 13d-3 of the Securities
and Exchange Commission under the Securities Exchange Act of 1934) directly or
indirectly, of securities of the Company (or other securities convertible into
such securities) representing 30% or more of the combined voting power of all
securities of the Company entitled to vote in the election of directors, other
than securities having such power only by reason of the happening of a
contingency; or (ii) during any period of up to 12 consecutive months,
commencing before or after the date of this Agreement, individuals who at the
beginning of such 12-month period were directors of the Company, or whose
nomination for election to the Board of Directors of the Company was recommended
or approved by a vote of at least a majority of the directors then still in
office who were directors of the Company on the first day of such period, shall
cease for any reason to constitute a majority of the Board of Directors of the
Company; or (iii) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement which upon consummation will result in its or their acquisition of,
control over securities of the Company (or other securities convertible into
such securities) representing 30% or more of the combined voting power of all
securities of the Company entitled to vote in the election of directors, other
than securities having such power only by reason of the happening of a
contingency; provided, however, that there shall not be an Event of Default
pursuant to subsections (i) or (iii) above with respect to any Persons who on
the date hereof meet the requirements set forth in said subsections (i) or
(iii); or
48
(k) there shall occur one or more ERISA Events which individually or
in the aggregate results in or might reasonably be expected to result in
liability of the Company, a Subsidiary or any of their ERISA Affiliates in
excess of $100,000,000 during the term of this Agreement; or there shall exist
an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans with respect to
which the Company or a Subsidiary has any financial liability, including
potential joint and several liability in the event any such Pension Plan were to
terminate (excluding for purposes of such computation any Pension Plans with
respect to which assets exceed benefit liabilities), which exceeds $100,000,000
and Majority Banks determine that such event could reasonably be expected to
have a Material Adverse Effect.
9.2 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other
rights or remedies of the Administrative Agent, the Issuing Bank or the Banks
provided for elsewhere in this Agreement, or the Loan Documents, or by
applicable Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any Event of
Default other than an Event of Default described in Section 9.1(i):
(1) the commitment to make Advances, Issue Letters of Credit
and all other obligations of the Administrative Agent, the Banks or
the Issuing Bank and all rights of the Borrowers and any other
Parties under the Loan Documents shall be suspended without notice
to or demand upon any Borrower, which are expressly waived by the
Borrowers, except, subject to Section 9.2(a)(3), that the Majority
Banks (or all of the Banks to the extent required by Section 13.2)
may waive the Event of Default or, without waiving, determine, upon
terms and conditions satisfactory to the Majority Banks (or all of
the Banks, as the case may be), to reinstate the Commitment and make
further Advances and issue additional Letters of Credit, which
waiver or determination shall apply equally to, and shall be binding
upon, all the Banks and the Issuing Bank; and
(2) the Majority Banks may request the Issuing Bank to, and
the Issuing Bank thereupon shall, demand immediate deposit by the
Borrowers into an account designated by the applicable Issuing Bank
of Cash in an amount equal to the aggregate effective face amount of
all outstanding Letters of Credit issued by it; and
(3) the Majority Banks may request the Administrative Agent
to, and the Administrative Agent thereupon shall, terminate the
Commitment and declare all or any part of the unpaid principal of
all Loans, all interest accrued and unpaid thereon and all other
amounts payable under the Loan Documents to be forthwith due and
payable, whereupon the same shall become and be forthwith due and
payable, without protest, presentment, notice of dishonor, demand or
further notice of any kind, all of which are expressly waived by the
Borrowers.
49
(b) Upon the occurrence of any Event of Default described in Section
9.1(i):
(1) the commitment to make Advances, issue Letters of Credit
and all other obligations of the Administrative Agent or the Banks
and all rights of the Borrowers and any other Parties under the Loan
Documents shall terminate without notice to or demand upon any
Borrower, which are expressly waived by the Borrowers; and
(2) an amount equal to the aggregate effective face amount of
all outstanding Letters of Credit shall be forthwith due and payable
to the Issuing Bank, without protest, presentment, notice of
dishonor, demand or further notice of any kind, all of which are
waived by the Borrowers; and
(3) the unpaid principal of all Loans, all interest accrued
and unpaid thereon and all other amounts payable under the Loan
Documents shall be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any
kind, all of which are expressly waived by the Borrowers.
(c) Upon the occurrence of any Event of Default, subject to clause
(d) below, the Banks and the Administrative Agent, or any of them, without
notice to or demand upon any Borrower, which are expressly waived by the
Borrowers, may proceed to protect, exercise and enforce their rights and
remedies under the Loan Documents against the Borrowers and any other party and
such other rights and remedies as are provided by Law or equity.
(d) The order and manner in which the Banks' rights and remedies are
to be exercised shall be determined by the Majority Banks in their sole
discretion, and all payments received by the Administrative Agent and the Banks,
or any of them, shall be applied first to the costs and expenses (including
attorneys' fees and disbursements covered by Section 13.3) of the Administrative
Agent, acting as Administrative Agent, and of the Banks (to the extent covered
by Section 13.3), and thereafter paid pro rata to the Banks in the same
proportions that the aggregate Obligations owed to each Bank under the Loan
Documents bear to the aggregate Obligations owed under the Loan Documents to all
the Banks, without priority or preference among the Banks. Regardless of how
each Bank may treat payments for the purpose of its own accounting, for the
purpose of computing the Borrowers' Obligations hereunder and under the Notes,
payments shall be applied first, to the costs and expenses of the Administrative
Agent, acting as Administrative Agent, and the Banks, as set forth above,
second, to the payment of accrued and unpaid interest due under any Loan
Documents to and including the date of such application (ratably, and without
duplication, according to the accrued and unpaid interest due under each of the
Loan Documents), and third, to the payment of all other amounts (including
principal and fees) then owing to the Administrative Agent or the Banks under
the Loan Documents. No application of payments will cure any Event of Default,
or prevent acceleration, or continued acceleration, of amounts payable under the
Loan Documents, or prevent the exercise, or continued exercise, of rights or
remedies of the Banks hereunder or thereunder or at law or in equity.
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(e) Upon the occurrence of an Event of Default resulting from or
resulting in the default by the Company in the repayment of its EURO Rate
Advances when required by the terms of this Agreement, the Company shall
compensate each Bank in accordance with Section 3.8(c).
Any amounts described in Section 9.2(a) and Section 9.2(b) above,
when received by the Issuing Bank, shall be held by the Issuing Bank in a
collateral account, which shall be established and maintained by the Issuing
Bank and shall be under its sole dominion and control, as collateral security
for the payment of all Obligations and applied as set forth below. If such
collateral is provided pursuant hereto, the Issuing Bank, for the benefit of the
Banks, shall have a security interest in such collateral account and all amounts
at any time held in or acquired in connection with such collateral account,
together with all proceeds thereof. Upon any drawing under any outstanding
Letter of Credit, the Issuing Bank shall apply any amount in the collateral
account to reimburse the Issuing Bank for the amount of such drawing. In the
event of cancellation or expiration of any Letter of Credit, or in the event of
any reduction in the maximum amount available under such Letter of Credit, the
Issuing Bank shall apply the excess of any amount then on deposit in the
collateral account over the maximum available amount that may at any time be
drawn under all Letters of Credit immediately after such cancellation,
expiration or reduction as provided in Section 9.2(d).
ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1 APPOINTMENT AND AUTHORIZATION. Each Bank and the Issuing Bank
hereby irrevocably appoints and authorizes the Administrative Agent and its
Affiliates to take such action as agent on its behalf and to exercise such
powers under the Loan Documents as are delegated to the Administrative Agent by
the terms thereof or are reasonably incidental, as determined by it, thereto.
This appointment and authorization is intended solely for the purpose of
facilitating the servicing of the Advances and does not constitute appointment
of the Administrative Agent as trustee for any Bank or the Issuing Bank or as
representative of any Bank or the Issuing Bank for any other purpose and, except
as specifically set forth in the Loan Documents to the contrary, the
Administrative Agent shall take such action and exercise such powers only in an
administrative and ministerial capacity. The Administrative Agent is the agent
of the Banks and the Issuing Bank only and does not assume any agency
relationship with any Borrower, express or implied.
10.2 ADMINISTRATIVE AGENT AND AFFILIATES. The Administrative Agent
and its Affiliates (and each successor Administrative Agent) have the same
rights and powers under the Loan Documents as any other Bank and may exercise
the same as though it were not the Administrative Agent to the extent either the
Administrative Agent or an Affiliate has executed this Agreement as a Bank or
has executed an Assignment Agreement as Assignee. The Administrative Agent and
its Affiliates (and each successor Administrative Agent) may make loans to,
issue letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with any Borrower, any Subsidiary
thereof, or any Affiliate of the Company or any Subsidiary thereof, without any
duty to account therefor to the Banks. The Banks acknowledge that, pursuant to
such activities, the Administrative Agent or its Affiliates may receive
51
information regarding the Borrowers, the Company or their respective Affiliates
(including information that may be subject to confidentiality obligations in
favor of such Borrowers, the Company or such Affiliates) and acknowledge that
the Administrative Agent shall be under no obligation to provide such
information to them. CUSA (and each successor Administrative Agent) need not
account to any Bank for any monies received by it for reimbursement of its costs
and expenses as Administrative Agent hereunder, or for any monies received by it
or any Affiliate in its capacity as a Bank hereunder. The Administrative Agent
shall not be deemed to hold a fiduciary relationship with any Bank and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent.
10.3 PROPORTIONATE INTEREST OF THE BANKS IN ANY COLLATERAL. The
Administrative Agent, on behalf of all the Banks, shall hold in accordance with
the Loan Documents all items of any collateral or interests therein received or
held by the Administrative Agent. Subject to the Administrative Agent's and the
Banks' rights to reimbursement for their costs and expenses hereunder (including
attorneys' fees and disbursements and other professional services) and subject
to the application of payments in accordance with Section 9.2(d), each Bank
shall have an interest in any collateral or interests therein in the same
proportions that the aggregate Obligations owed such Bank under the Loan
Documents bear to the aggregate Obligations owed under the Loan Documents to all
the Banks, without priority or preference among the Banks.
10.4 BANKS' CREDIT DECISIONS; DISCLOSURE OF INFORMATION BY THE
ADMINISTRATIVE AGENT. Each Bank agrees that it has, independently and without
reliance upon either Arranger, the Administrative Agent, the Syndication Agent,
any other Bank or the directors, officers, agents, employees, attorneys or
Affiliates of either Arranger, the Administrative Agent, the Syndication Agent
or of any other Bank, and instead in reliance upon information supplied to it by
or on behalf of the Borrowers and upon such other information as it has deemed
appropriate, made its own independent credit analysis and decision to enter into
this Agreement. Each Bank also agrees that it shall, independently and without
reliance upon either Arranger, the Administrative Agent, the Syndication Agent,
any other Bank or the directors, officers, agents, employees, attorneys or
Affiliates of either Arranger, the Administrative Agent, the Syndication Agent,
or of any other Bank, continue to make its own independent credit analyses and
decisions in acting or not acting under the Loan Documents. Except for notices,
reports and other documents expressly required to be furnished to the Banks by
the Administrative Agent herein, none of the Arrangers, the Administrative
Agent, the Syndication Agent, any other Bank or the directors, officers, agents,
employees, attorneys or Affiliates of such Person shall have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any Borrower or the Company or any of their
respective Affiliates which may come into the possession of any such Person.
10.5 ACTION BY THE ADMINISTRATIVE AGENT.
(a) The Administrative Agent may assume that no Default has occurred
and is continuing, unless the Administrative Agent has failed to receive any
payment due from any Borrower hereunder within the time required under Section
9.1(a) or Section 9.1(b), or the
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Administrative Agent has received notice from the Company stating the nature of
the Default or has received notice from a Bank stating the nature of the Default
and that such Bank considers the Default to have occurred and to be continuing.
(b) The Administrative Agent has only those obligations under the
Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Loan
Documents and as long as the Administrative Agent may assume that no Event of
Default has occurred and is continuing, the Administrative Agent may, but shall
not be required to, exercise its discretion to act or not act, except that the
Administrative Agent shall be required to act or not act upon the instructions
of the Majority Banks (or of all the Banks, to the extent required by Section
13.2) and those instructions shall be binding upon the Administrative Agent and
all the Banks, provided that the Administrative Agent shall not be required to
act or not act if to do so would be contrary to any Loan Document or to
applicable Law or would result, in the reasonable judgment of the Administrative
Agent, in substantial risk of liability to the Administrative Agent.
(d) If the Administrative Agent has received a notice specified in
clause (a), the Administrative Agent shall give notice thereof to the Banks and
shall act or not act upon the instructions of the Majority Banks (or of all the
Banks, to the extent required by Section 13.2), provided that the Administrative
Agent shall not be required to act or not act if to do so would be contrary to
any Loan Document or to applicable Law or would result, in the reasonable
judgment of the Administrative Agent, in substantial risk of liability to the
Administrative Agent, and except that if the Majority Banks (or all the Banks,
if required under Section 13.2) fail, for five (5) Banking Days after the
receipt of notice from the Administrative Agent, to instruct the Administrative
Agent, then the Administrative Agent, in its sole discretion, may act or not act
as it deems advisable for the protection of the interests of the Banks.
(e) The Administrative Agent shall have no liability to any Bank for
acting, or not acting, as instructed by the Majority Banks (or all the Banks, if
required under Section 13.2), notwithstanding any other provision hereof.
10.6 LIABILITY OF THE ADMINISTRATIVE AGENT. Neither the
Administrative Agent, nor any of its directors, officers, agents, employees,
attorneys or Affiliates shall be liable for any action taken or not taken by
them under or in connection with the Loan Documents, except for their own gross
negligence or willful misconduct. Without limitation on the foregoing, the
Administrative Agent and its directors, officers, agents, employees, attorneys
and Affiliates:
(a) May treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment Agreement entered into
by the Bank which is the payee of such Advance, as assignor, and an Eligible
Assignee, as assignee, as provided in Section 13.9, and may treat each Bank as
the owner of that Bank's interest in the Obligations for all purposes of this
Agreement until the Administrative Agent receives and accepts such Assignment
Agreement.
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(b) May consult with legal counsel (including in-house legal
counsel), accountants (including in-house accountants) and other professionals
or experts selected by it, or with legal counsel, accountants or other
professionals or experts for the Company and/or its subsidiaries or the Banks,
and shall not be liable for any action taken or not taken by it in good faith in
accordance with any advice of such legal counsel, accountants or other
professionals or experts.
(c) Shall not be responsible to any Bank for any statement, warranty
or representation made in any of the Loan Documents or in any notice,
certificate, report, request or other statement (written or oral) given or made
in connection with any of the Loan Documents.
(d) Shall have no duty to ask or inquire as to the performance or
observance by the Company or its Subsidiaries of any of the terms, conditions or
covenants of any of the Loan Documents or to inspect any collateral or the
Property, books or records of the Company or its Subsidiaries.
(e) Will not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, effectiveness, sufficiency or
value of any Loan Document, any other instrument or writing furnished pursuant
thereto or in connection therewith, or any collateral.
(f) Will not incur any liability by acting or not acting in reliance
upon any Loan Document, notice, consent, certificate, statement, request or
other instrument or writing believed by it to be genuine and signed or sent by
the proper party or parties.
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by the Company or any Subsidiary or
Affiliate thereof or paid or payable to or received or receivable from any Bank
under any Loan Document, including, without limitation, principal, interest,
facility fees, Advances and other amounts; provided that, promptly upon
discovery of such an error in computation, the Administrative Agent, the Banks
and (to the extent applicable) the Company and/or its Subsidiaries or Affiliates
shall make such adjustments as are necessary to correct such error and to
restore the parties to the position that they would have occupied had the error
not occurred; provided further that, the obligations of Borrowers under this
Section 10.6(g) shall survive for sixty (60) days following the termination of
this Agreement and such obligations shall not, from and after the termination of
this Agreement, be deemed Obligations for any purpose under the Loan Documents.
10.7 INDEMNIFICATION. Each Bank shall, ratably in accordance with
its Pro Rata Share of the Commitment, indemnify and hold the Administrative
Agent, its directors, officers, agents, employees, attorneys and Affiliates
harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including, without limitation, reasonable attorneys'
fees and disbursements) that may be imposed on, incurred by or asserted against
them in any way relating to or arising out of the Loan Documents (other than
losses incurred by reason of the failure of the Borrowers to pay the Obligations
represented by the Loan Documents) or any action taken or not taken by it as
Administrative Agent thereunder, except such as result from its own gross
negligence or willful misconduct. Without limitation on the foregoing, each
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Bank shall reimburse the Administrative Agent upon demand for that Bank's
ratable share of any cost or expense incurred by the Administrative Agent in
connection with the negotiation, preparation, execution, delivery, amendment,
waiver, restructuring, reorganization (including a bankruptcy reorganization),
enforcement or attempted enforcement of the Loan Documents, to the extent that
the Company or any other party is required by Section 13.3 to pay that cost or
expense but fails to do so upon demand. Nothing in this Section shall entitle
the Administrative Agent to recover any amount from the Banks if and to the
extent that such amount has theretofore been recovered from the Company or any
of its Subsidiaries. The undertaking in this Section shall survive termination
of the Commitments, the payment of all other Obligations and the resignation of
the Administrative Agent.
10.8 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as such at any time upon prior written notice to the Company and the
Banks, to be effective upon a successor's acceptance of appointment as
Administrative Agent. The Majority Banks at any time may remove the
Administrative Agent by written notice to that effect to be effective on such
date as the Majority Banks designate. In either event: (a) the Majority Banks,
with the written consent of the Company (such consent not to be unreasonably
withheld), shall appoint a successor Administrative Agent, who must be from
among the Banks, provided that any resigning Administrative Agent shall be
entitled to appoint a successor Administrative Agent from among the Banks,
subject to acceptance of appointment by that successor Administrative Agent, if
the Majority Banks have not appointed a successor Administrative Agent within
thirty (30) days after the date the resigning Administrative Agent gave notice
of resignation; (b) upon a successor acceptance of appointment as Administrative
Agent, the successor will thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning Administrative Agent or
the removed Administrative Agent; and (c) upon the effectiveness of any
resignation or removal, the resigning Administrative Agent or the removed
Administrative Agent thereupon will be discharged from its duties and
obligations thereafter arising under the Loan Documents other than obligations
arising as a result of any action or inaction of the resigning Administrative
Agent or the removed Administrative Agent prior to the effectiveness of such
resignation or removal. Notwithstanding the foregoing, no consent of the Company
shall be required under this Section 10.8 in connection with any change in the
Administrative Agent at any time when an Event of Default has occurred and is
continuing under this Agreement.
10.9 NO OBLIGATIONS OF BORROWERS. Nothing contained in this Article
10 shall be deemed to impose upon the Borrowers any obligation in respect of the
due and punctual performance by the Administrative Agent of its obligations to
the Banks under any provision of this Agreement, and the Borrowers shall have no
liability to the Administrative Agent or any of the Banks in respect of any
failure by the Administrative Agent or any Bank to perform any of its
obligations to the Administrative Agent or the Banks under this Agreement.
Without limiting the generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing under the Loan
Documents provides that such payments shall be made by a Borrower to the
Administrative Agent for the account of the Banks, such Borrower's obligations
to the Banks in respect of such payments shall be deemed to be satisfied upon
the making of such payments to the Administrative Agent in the manner provided
by this Agreement.
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10.10 OTHER AGENTS. Neither the Syndication Agent, the Arrangers,
nor any of the Banks or other Persons identified on the facing page or signature
pages of this Agreement as a "documentation agent," "co-documentation agent,"
"joint book runner," or "joint lead arranger" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than,
in the case of such Banks, those applicable to all Banks as such. Without
limiting the foregoing, none of the Syndication Agent, the Arrangers, the Banks
or other Persons so identified shall have or be deemed to have any fiduciary
relationship with any Bank. Each Bank acknowledges that it has not relied, and
will not rely, on any of the Bank or other Persons so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
ARTICLE 11
COMPANY GUARANTY
11.1 THE GUARANTY. The Company hereby unconditionally guaranties the
due and punctual payment of all obligations (including, without limitation, the
obligation to pay the principal amount of and interest on each Advance) of each
Borrowing Subsidiary arising under this Agreement when due, whether by required
prepayment, declaration, demand or otherwise (including amounts which would
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. Section 362(a)) (the "BORROWING SUBSIDIARY
OBLIGATIONS"), and agrees to pay any and all costs and expenses (including
reasonable fees and disbursements of counsel and allocated costs of internal
counsel) incurred by the Administrative Agent and the Banks in enforcing any
rights under this Article 11 (to the extent covered by Section 13.3). The
obligations of the Company under this Article 11, as they may be amended,
modified or supplemented from time to time, are sometimes referred to in this
Article 11 as this "GUARANTY".
The Company agrees that this Guaranty constitutes a guaranty of
payment when due and not of collection and waives any right to require that any
resort be had by the Administrative Agent or any Bank to any security held for
payment of the Borrowing Subsidiary Obligations or to any balance of any deposit
account or credit on the books of the Administrative Agent or any Bank in favor
of the Company or any Borrowing Subsidiary or any other Person.
The Company agrees, in furtherance of the foregoing and not in
limitation of any other right which the Administrative Agent or any Bank may
have at law or in equity against the Company by virtue hereof, upon the failure
of any Borrowing Subsidiary to pay any of its Borrowing Subsidiary Obligations
when and as the same shall become due, whether by required prepayment,
declaration, demand or otherwise (including amounts which would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. Section 362(a)), the Company will forthwith pay, or cause to be
paid, in cash, to the Administrative Agent for the ratable benefit of the Banks
an amount equal to the sum of the unpaid principal amount of such Borrowing
Subsidiary Obligations then due as aforesaid, accrued and unpaid interest on
such Borrowing Subsidiary Obligations (including, without limitation, interest
which, but for the filing of a petition in bankruptcy with respect to such
Borrowing Subsidiary (including without limitation, the Company), would accrue
on such Borrowing Subsidiary Obligations).
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11.2 GUARANTY UNCONDITIONAL. The obligations of the Company under
this Guaranty shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of any Borrowing Subsidiary under this
Agreement, by operation of law or otherwise;
(b) any modification or amendment of or supplement to this
Agreement;
(c) any release, non-perfection or invalidity of any direct or
indirect security for any obligation of any Borrowing Subsidiary under this
Agreement;
(d) the failure of the Administrative Agent or any Bank to assert
any claim or demand or to enforce any right or remedy against any Borrowing
Subsidiary, the Company or any other Person under the provisions of this
Agreement or any other agreement or otherwise;
(e) any change in the corporate existence, structure or ownership of
any Borrowing Subsidiary or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting any Borrowing Subsidiary or its assets or any
resulting release or discharge of any obligation of any Borrowing Subsidiary
contained in this Agreement;
(f) the existence of any claim, set-off or other rights which the
Company may have at any time against any other Borrower, the Administrative
Agent, any Bank or any other Person, whether in connection herewith or any
unrelated transactions;
(g) the invalidity or unenforceability relating to or against any
Borrowing Subsidiary for any reason of this Agreement, or any provision of
applicable law or regulation purporting to prohibit the payment by any Borrowing
Subsidiary of the principal of or interest on any Advance or any other amount
payable by any Borrowing Subsidiary under this Agreement, or the termination of
any Borrowing Subsidiary's status as a Borrowing Subsidiary hereunder;
(h) the termination of a Borrowing Subsidiary's status hereunder as
a "Borrower" pursuant to Section 12.2; or
(i) any other act or omission to act or delay of any kind by any
Borrowing Subsidiary, the Administrative Agent, any Bank or any other Person or
any other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the obligations of the
Company hereunder.
The obligations of the Company under this Guaranty shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise of any of the Borrowing Subsidiary Obligations, and
shall not be subject to any defense or set-off, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Borrowing Subsidiary Obligations, discharge of
any Borrowing Subsidiary from any of the Borrowing Subsidiary Obligations in a
bankruptcy or similar proceeding, or otherwise. Without limiting the generality
of the foregoing, the obligations of the Company
57
under this Guaranty shall not be discharged or impaired or otherwise affected by
the failure of the Administrative Agent or any Bank to assert any claim or
demand or to enforce any remedy under this Agreement or any document or
instrument executed by any Borrowing Subsidiary in connection herewith, by any
waiver or modification of any thereof, by any default, failure or delay, willful
or otherwise, in the performance of the Borrowing Subsidiary Obligations, or by
any other act or thing or omission or delay to do any other act or thing which
may or might in any manner or to any extent vary the risk of the Company or
which would otherwise operate as a discharge of the Company as a matter of law
or equity.
11.3 DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. The obligations of the Company under this Article 11 shall remain
in full force and effect until the Commitments shall have terminated, all
Letters of Credit have expired and the principal of and interest on the Advances
and all other amounts payable by the Borrowers under this Agreement shall have
been paid in full. If at any time any payment of the principal of or interest on
any Advance or any other amount payable by the Borrowers under this Agreement is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of any Borrower or otherwise, the obligations of
the Company under this Article 11 shall be reinstated as though such payment had
been due but not made at such time.
11.4 WAIVERS BY THE COMPANY. With respect to this Article 11, the
Company hereby waives for the benefit of the Administrative Agent and the Banks:
(a) any right to require the Administrative Agent or any Bank, as a
condition of payment or performance by the Company under this Guaranty to (i)
proceed against any Borrowing Subsidiary, any other guarantor of the obligations
of any Borrowing Subsidiary under any other agreement or guaranty or any other
Person, (ii) proceed against or exhaust any security held from any Borrowing
Subsidiary, any other guarantor or any other Person, or (iii) pursue any other
remedy in the power of the Administrative Agent or any Bank whatsoever;
(b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of any Borrowing Subsidiary
including, without limitation, any defense based on or arising out of the lack
of validity or unenforceability of the Borrowing Subsidiary Obligations or any
agreement or instrument relating thereto or by reason of the cessation from any
cause of the liability of any Borrowing Subsidiary other than indefeasible
payment in full of the Borrowing Subsidiary Obligations;
(c) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal, or based upon the
Administrative Agent's or any Bank's errors or omissions in the administration
of the Borrowing Subsidiary Obligations, except behavior which amounts to bad
faith;
(d) any (i) principles or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms of this Guaranty, any legal or
equitable discharge of its obligations hereunder and the benefit of any statute
of limitations affecting its liability hereunder or the enforcement thereof,
(ii) rights to set-offs, recoupments and counterclaims, (iii) rights to deferral
or modification of the Company's obligations hereunder by reason of any
bankruptcy,
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reorganization, arrangement, moratorium or other debtor relief proceeding, (iv)
promptness, diligence and any requirement that the Administrative Agent or any
Bank protect, secure, perfect or insure any security interest or lien or any
property subject thereto or exhaust any right or take any action against any
Borrowing Subsidiary or any other Person or any collateral;
(e) notice, demand, presentment, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including acceptance
of this Guaranty, notices of default under this Agreement or any agreement or
instrument related thereto, notice of any renewal, extension or modification of
the Borrowing Subsidiary Obligations or any agreement related thereto, notice of
any other extension of credit to any Borrowing Subsidiary; and
(f) any defenses or benefits that may be derived from or afforded by
law which limit the liability of or exonerates guarantors or sureties, or which
may conflict with the terms of this Guaranty including, without limitation, the
provisions of California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2846,
2847, 2848, 2849, 2850, 2899 and 3433. In accordance with Section 13.22 below,
this Agreement shall be governed by, and shall be construed and enforced in
accordance with, the internal laws of the State of New York, without regard to
conflicts of laws principles. This clause (f) is included solely out of an
abundance of caution, and shall not be construed to mean that any of the
above-referenced provisions of California law are in any way applicable to this
Agreement or to any of the Borrowing Subsidiary Obligations.
11.5 SUBROGATION, ETC. Upon payment by the Company of any sum to the
Administrative Agent for the ratable benefit of any Bank as provided above, so
long as any of the Borrowing Subsidiary Obligations of a Borrowing Subsidiary
shall remain outstanding hereunder, all rights of the Company against such
Borrowing Subsidiary arising as a result thereof, by way of right of subrogation
or otherwise, shall in all respects be subordinate and junior in right of
payment to the prior indefeasible payment in full of all the Borrowing
Subsidiary Obligations of that Borrowing Subsidiary to the Administrative Agent
and the Banks. In furtherance of the foregoing, and not in limitation thereof,
the Company agrees that until the Borrowing Subsidiary Obligations of a
Borrowing Subsidiary shall have been paid in full, the Commitment has terminated
and all Letters of Credit issued for the account of such Borrowing Subsidiary
have expired, the Company shall withhold exercise of any right of subrogation,
or any right to enforce any remedy which the Administrative Agent or any Bank
may have against that Borrowing Subsidiary. If any amount shall be paid to the
Company on account of such subrogation rights at any time prior to the date when
the Borrowing Subsidiary Obligations of such Borrowing Subsidiary have been paid
in full, the Commitment has terminated and all Letters of Credit issued for the
account of such Borrowing Subsidiary have expired, such amount shall be held in
trust for the benefit of the Banks and shall be paid to the Administrative Agent
for the benefit of the Banks to be credited and applied upon the Borrowing
Subsidiary Obligations of such Borrowing Subsidiary, whether matured or
unmatured, in accordance with the terms of the Credit Agreement or to be held by
the Administrative Agent for the benefit of the Banks as collateral security for
any Obligations thereafter existing.
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ARTICLE 12
ADDITIONAL BORROWERS; TERMINATION OF BORROWERS
12.1 AGREEMENT TO PARTICIPATE. Any Eligible Subsidiary may become a
party to this Agreement and become a "Borrower" for all purposes hereof on any
date after the date hereof upon the satisfaction of the following conditions:
(a) receipt by the Administrative Agent on or before such date of an
Agreement to Participate executed by such Eligible Subsidiary and acknowledged
and consented to by the Administrative Agent (which consent shall not be
unreasonably withheld);
(b) receipt by the Administrative Agent of a certificate dated such
date from a Senior Officer of such Eligible Subsidiary to the effect that (i) no
Default has occurred and is continuing on such date, (ii) the representations
and warranties of such Eligible Subsidiary and its Subsidiaries contained in the
Agreement to Participate executed by such Eligible Subsidiary are true, correct
and complete in all material respects on and as of such date, and (iii) such
Eligible Subsidiary is a wholly-owned Subsidiary;
(c) receipt by the Administrative Agent on or before such date of
such additional documents it may reasonably request relating to the existence of
such Eligible Subsidiary, the organizational power and authority of such
Eligible Subsidiary, the validity of such Eligible Subsidiary's obligations
under the Agreement to Participate executed by such Eligible Subsidiary and
under this Agreement, and other matters relevant thereto and hereto, all in form
and substance satisfactory to the Administrative Agent; and
(d) if requested in accordance with Section 2.1(e), receipt by the
Administrative Agent on or before such date of the Notes dated such date and
executed by such Eligible Subsidiary, one Note in favor of each Bank in a
principal amount equal to that Bank's Pro Rata Share of the Commitment.
Each Bank hereby authorizes the Administrative Agent to sign on such
Bank's behalf an Agreement to Participate delivered pursuant to clause (a)
above, and the Company and each Bank hereby agree that, upon satisfaction by any
Eligible Subsidiary of the conditions set forth in the preceding clauses (a),
(b) and (c), such Eligible Subsidiary shall become a "Borrower" hereunder for
all purposes hereof. The Administrative Agent shall promptly notify the Banks of
whenever an Eligible Subsidiary becomes a Borrower.
12.2 NOTICE OF TERMINATION. Any Borrower, other than the Company,
that has no Advances outstanding to any Bank and is not the account party on any
Letter of Credit, may cease to be a "Borrower" for the purposes of this
Agreement (and all commitments as to such Borrower shall thereupon terminate)
upon notice, in form and substance satisfactory to the Administrative Agent, by
such Borrower to the Administrative Agent; provided that such notice shall not
affect any obligation of such Borrower theretofore incurred. The Administrative
Agent shall send prompt written notice to each Bank of any Borrower ceasing,
pursuant to this subsection, to be a Borrower.
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ARTICLE 13
MISCELLANEOUS
13.1 CUMULATIVE REMEDIES; NO WAIVER. The rights, powers, privileges
and remedies of the Administrative Agent, the Issuing Bank and the Banks
provided herein or in any Note or other Loan Document are cumulative and not
exclusive of any right, power, privilege or remedy provided by Law or equity. No
failure or delay on the part of the Administrative Agent, the Issuing Bank or
any Bank in exercising any right, power, privilege or remedy may be, or may be
deemed to be, a waiver thereof; nor may any single or partial exercise of any
right, power, privilege or remedy preclude any other or further exercise of the
same or any other right, power, privilege or remedy. The terms and conditions of
Article 8 hereof are inserted for the sole benefit of the Administrative Agent,
the Issuing Bank and the Banks; the same may be waived in whole or in part, with
or without terms or conditions, in respect of any Loan or Letter of Credit
without prejudicing the Administrative Agent's, either Issuing Bank's or the
Banks' rights to assert them in whole or in part in respect of any other Loan or
Letter of Credit.
13.2 AMENDMENTS; CONSENTS. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by any Borrower or any other party therefrom, may in any event be
effective unless the same shall be in writing and signed by the Majority Banks
(or signed by the Administrative Agent at the direction of the Majority Banks)
(and, in the case of amendments, modifications or supplements of or to any Loan
Document to which a Borrower is a party, the approval in writing of such
Borrower), and then only in the specific instance and for the specific purpose
given; and, without the approval in writing of all the Banks directly affected
by such amendment, modification, supplement, termination, waiver or consent, no
amendment, modification, supplement, termination, waiver or consent may be
effective:
(a) To extend scheduled payment dates of any Loan or Note beyond the
Maturity Date, or reduce the rate of interest (other than any waiver of any
increase in the interest rate applicable to any of the Loans pursuant to Section
3.9) or fees in respect of the Commitment, the Loans or the Letters of Credit,
or extend the time of payment of interest or fees in respect thereof, or reduce
the principal amount of the Obligations;
(b) To increase the Commitment of such Bank (except to the extent
permitted by Section 2.8), or to amend or modify the provisions of the
definitions of "Maturity Date", or "Majority Banks" or of this Section;
(c) To release the Company as guarantor; or
(d) To amend or modify any provision of this Agreement that
expressly requires the consent or approval of all the Banks.
In addition, no amendment, modification, supplement, termination,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Banks required above to take such action, affect the
rights or duties of the Administrative Agent acting in such capacity under this
Agreement or any Note. No amendment, modification, supplement, termination,
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waiver or consent shall, unless in writing and signed by the Issuing Bank,
affect any provisions hereof relating to the Letters of Credit. Any amendment,
modification, supplement, termination, waiver or consent pursuant to this
Section shall apply equally to, and shall be binding upon, all the Banks, the
Issuing Bank, the Administrative Agent and each Borrower. Copies of all
amendments, modifications, supplements, terminations, waivers and consents shall
be distributed to the Administrative Agent, each Bank, the Issuing Bank and each
Borrower.
13.3 COSTS, EXPENSES AND TAXES. The Company shall pay on demand the
reasonable costs and expenses (a) of each Arranger, the Administrative Agent and
the Syndication Agent in connection with the negotiation, preparation, execution
and delivery of the Loan Documents (including, without limitation, the
reasonable legal fees and out-of-pocket expenses of O'Melveny & Myers LLP), and,
(b) if a Borrower requests the amendment, waiver, supplement or modification the
Loan Documents, of the Administrative Agent and the Issuing Bank in connection
with any such amendment, waiver, supplement or modification (including, without
limitation, the reasonable legal fees and out-of-pocket expenses of counsel to
the Administrative Agent and the Issuing Bank), and (c) if any Event of Default
has occurred and is continuing, of the Administrative Agent, the Issuing Bank
and the Banks in connection with any workout, restructuring, reorganization
(including a bankruptcy reorganization) and in any event enforcement or
attempted enforcement of the Loan Documents, and any matter related thereto,
including, without limitation, out-of-pocket expenses and the reasonable fees
and out-of-pocket expenses of any legal counsel, independent public accountants
and other outside experts retained by the Administrative Agent, the Issuing Bank
or any Bank, and including, without limitation, any costs, expenses or fees
incurred or suffered by the Administrative Agent, the Issuing Bank or any Bank
in connection with or during the course of any bankruptcy or insolvency
proceedings of the Company or any Subsidiary thereof. The Company shall pay any
and all costs, expenses, fees and charges payable or determined to be payable in
connection with the filing or recording of this Agreement, any other Loan
Document or any other instrument or writing to be delivered hereunder or
thereunder, or in connection with any transaction pursuant hereto or thereto,
and shall reimburse, hold harmless and indemnify the Arrangers, the
Administrative Agent, the Syndication Agent, the Issuing Bank and the Banks from
and against any and all loss, liability or legal or other expense with respect
to or resulting from any delay in paying or failure to pay any tax, cost,
expense, fee or charge or that any of them may suffer or incur by reason of the
failure of any party (other than any Arranger, the Administrative Agent, the
Syndication Agent, the Issuing Bank or any Bank) to perform any of its
Obligations.
13.4 OBLIGATION TO MAKE PAYMENTS IN DOLLARS OR ALTERNATIVE CURRENCY.
The obligation of the Borrowers to make payments in Dollars or the Alternative
Currency of the principal and interest becoming due and payable on each Loan,
and to pay all other Obligations hereunder in Dollars, (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment,
which is expressed in or converted into any currency other than Dollars or the
Alternative Currency, as applicable, except to the extent that such tender or
recovery shall result in the actual receipt by the Administrative Agent, the
Banks and the Issuing Bank of the full amount of Dollars or the Alternative
Currency, as applicable, expressed to be payable in respect of the principal and
interest of each Loan and in respect of each other Obligation, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in Dollars or the Alternative Currency, as
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applicable, the amount, if any, by which such actual receipt shall fall short of
the full amount of Dollars or the Alternative Currency, as applicable, so
expressed to be payable and (c) shall not be affected by judgment being obtained
for any other sum due under this Agreement.
13.5 NATURE OF BANKS' OBLIGATIONS. The obligations of the Banks
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by the
Administrative Agent, the Issuing Bank or the Banks or any of them pursuant
hereto or thereto may, or may be deemed to, make the Banks a partnership, an
association, a joint venture or other entity, either among themselves or with
the Company or any Affiliate of the Company. Each Bank's obligation to make any
Advance pursuant hereto is several and not joint or joint and several, and is
not conditioned upon the performance by all other Banks of their obligations to
make Advances. If any Bank defaults in its obligation to make any Advance to a
Borrower after the fulfillment of all conditions precedent to that Advance, then
the Company may terminate this Agreement with respect to that Bank upon
fulfillment of each of the following conditions:
(i) the Borrower shall have paid to the affected Bank the
principal amount of all outstanding Advances made by that Bank, together
with all accrued but unpaid interest, costs, fees and expenses related
thereto; and
(ii) the Company shall have notified the Administrative Agent
and each of the Banks of the termination.
A default by any Bank will not increase the amount of the Commitment
attributable to any other Bank. If any Bank shall default as set forth above,
the Company shall have the right to seek a substitute bank or banks (which may
be one or more of the Banks) satisfactory to the Company, the Administrative
Agent and the Issuing Bank to assume the Commitment of such defaulting Bank and
to purchase the Notes of such Bank and all amounts owing to such Bank in respect
of Advances and Letters of Credit under this Agreement pursuant to Section 13.9.
Should the Company elect, as aforesaid, to terminate this Agreement with respect
to any Bank, then the Commitment shall automatically be reduced by a percentage
equal to the Pro Rata Share of the Commitment of the affected Bank, and the
remaining Bank or Banks shall have that Pro Rata Share in the reduced Commitment
which is allocable to their Advances.
13.6 SURVIVAL. All representations and warranties contained herein
or in any other Loan Document, or in any certificate or other writing delivered
by or on behalf of any one or more of the Parties to any Loan Document, will
survive the making of the Advances hereunder and the execution and delivery of
the Notes, and have been or will be relied upon by the Administrative Agent, the
Issuing Bank and each Bank, notwithstanding any investigation made by the
Administrative Agent, the Issuing Bank or any Bank or on their behalf. The
obligations of the Company under Sections 3.7 and 3.8 shall survive for thirty
(30) days following the termination of this Agreement and the repayment of the
Notes.
13.7 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document shall be in writing
(including by facsimile transmission). All
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such written notices shall be mailed, faxed or delivered to the applicable
address, facsimile number or (subject to Section 13.25) electronic mail address,
and all notices and other communications expressly permitted hereunder to be
given by telephone shall be made to the applicable telephone number, as follows:
(i) if to any Borrower or the Company, the Administrative
Agent or the Issuing Bank, to the address, facsimile number, electronic
mail address or telephone number specified for such Person on Schedule
13.7 or to such other address, facsimile number, electronic mail address
or telephone number as shall be designated by such party in a notice to
the other parties; and
(ii) if to any other Bank, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by such
party in a notice to the Borrowers, the Company, the Administrative Agent
and the Issuing Bank.
(b) Timing. All such notices and other communications shall be
deemed to be given or made upon the earlier to occur of (i) actual receipt by
the relevant party hereto and (ii) (A) if delivered by hand or by courier, when
signed for by or on behalf of the relevant party hereto; (B) if delivered by
mail, four Banking Days after deposit in the United States mail, postage
prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed
by telephone; and (D) if delivered by electronic mail, (subject to the
provisions of Sections 13.25(d) and (e)) when received; provided, however, that
notices and other communications to the Administrative Agent and the Issuing
Bank pursuant to Article 2 shall not be effective until actually received by
such Person. In no event shall a voicemail message be effective as a notice,
communication or confirmation hereunder.
(c) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on all
Borrowers, the Company, the Administrative Agent and the Banks. The
Administrative Agent may also require that any such documents and signatures be
confirmed by a manually-signed original thereof; provided, however, that the
failure to request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.
(d) Reliance by the Administrative Agent and Banks. The
Administrative Agent and the Banks shall be entitled to rely and act upon any
notices purportedly given by or on behalf of a Borrower or the Company even if
(i) such notices were not made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Company shall indemnify each Indemnitee from all
losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of any Borrower or the
Company. All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
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13.8 EXECUTION OF LOAN DOCUMENTS. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, this Agreement and any
other Loan Document may be executed in any number of counterparts and any party
hereto or thereto may execute any counterpart, each of which when executed and
delivered will be deemed to be an original and all of which counterparts of this
Agreement or any other Loan Document, as the case may be, when taken together
will be deemed to be but one and the same instrument. The execution of this
Agreement or any other Loan Document by any party hereto or thereto will not
become effective until counterparts hereof or thereof, as the case may be, have
been executed by all the parties hereto or thereto.
13.9 BINDING EFFECT; ASSIGNMENT; ENTIRE AGREEMENT.
(i) This Agreement and the other Loan Documents shall be
binding upon and shall inure to the benefit of the parties hereto and
thereto and their respective successors and assigns, except that a
Borrower, the Company and/or their respective Affiliates may not assign
their rights hereunder or thereunder or any interest herein or therein
without the prior written consent of all the Banks.
(ii) Each Bank may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment and the
Advances owing to it); provided, however, that (i) each such assignment
shall be of a constant, and not a varying, percentage of all of the
assigning Bank's rights and obligations under this Agreement, (ii) after
giving effect to any such assignment, (1) the assigning Bank shall no
longer have any Commitment or (2) the amount of the Commitment of both the
assigning Bank and the Eligible Assignee party to such assignment (in each
case determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall not be less than $15,000,000 and
assigned amounts must be in increments of $1,000,000, (iii) each such
assignment shall be to an Eligible Assignee, (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment Agreement, and a
processing and recordation fee of $3,500 to the Administrative Agent, and
(v) the Company and the Administrative Agent shall have consented to such
assignment, which consent shall not be unreasonably withheld; except that
such consent shall not be required for an assignment to another Bank or an
Affiliate of a Bank (but the assigning Bank shall give the Administrative
Agent and the Company written notice thereof) and such consent by the
Company shall not be required if an Event of Default has occurred and is
continuing. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment Agreement, (y)
the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment Agreement, have the rights and obligations of a Bank hereunder
and (z) the Bank assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment
Agreement, relinquish its rights and be released from its obligations
under this Agreement (and, in the case of an Assignment Agreement covering
all or the remaining portion of an assigning Bank's rights and obligations
under this Agreement, such Bank shall cease to be a party hereto). The Pro
Rata Share of each Bank of the Commitments hereunder shall be modified to
reflect the Pro Rata Share of the
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Commitment of such assignee and, if any such assignment occurs while any
Loan is outstanding and if requested in accordance with Section 2.1(e),
new Notes shall, upon surrender of the assigning Bank's Notes, be issued
to such assignee and to the assigning Bank as necessary to reflect the new
Pro Rata Share of the Commitments of the Bank and of assignee.
Notwithstanding any other provision set forth in this Agreement, any Bank
may assign or pledge, as collateral or otherwise, all or any portion of
its rights under this Agreement (including without limitation, rights to
payments of principal and/or interest under the Notes held by it), but not
its obligations, to any Federal Reserve Bank or any Affiliate in order
that such Affiliate may assign or pledge such rights to any Federal
Reserve Bank, in each case, without notice to or consent from any Borrower
or the Administrative Agent; provided, however, that such Federal Reserve
Bank or Affiliate shall not, by reason of such assignment, become a "Bank"
hereunder for any purpose whatsoever and any such Bank shall not be
released from any of its obligations hereunder as a result of such
assignment or pledge.
(iii) By executing and delivering an Assignment Agreement, the
Bank assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment Agreement, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with any of the Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of the Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto; (ii) such assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers or the Company or the performance or observance by the Borrowers
or the Company of any of their obligations under any of the Loan Documents
or any other instrument or document furnished pursuant hereto or thereto;
(iii) such assignee confirms that it has received a copy of the Loan
Documents, together with copies of such financial statements and other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment Agreement; (iv)
such assignee will, independently and without reliance upon the
Administrative Agent, the Syndication Agent or either Arranger, such
assigning Bank or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Loan
Documents; (v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under
the Loan Documents 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 of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Bank.
(iv) Within five (5) days of its receipt of an Assignment
Agreement executed by an assigning Bank and an assignee representing that
it is an Eligible Assignee (together with a processing and recordation fee
of $3,500 with respect thereto) and upon evidence of consent of the
Company (to the extent required) and the Administrative Agent thereto,
which consent shall not be unreasonably withheld, the
66
Administrative Agent shall, if such Assignment Agreement has been
completed and is in substantially the form of Exhibit G hereto,
(1) accept such Assignment Agreement and (2) record the information
contained therein in the - Register. All communications with the Company
with respect to such consent of the Company shall be sent pursuant to
Section 13.7.
(v) The Administrative Agent shall maintain at its address
referred to in Section 13.7 a copy of each Assignment Agreement delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Banks and the Commitment of, the Maturity Date of, and
with respect to each Borrower, the principal amount of the Advances owing
to, each such Bank from time to time (the "REGISTER"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrowers, the Company, the Administrative Agent and the
Banks may treat each Person whose name is recorded in the Register as a
Bank hereunder for all purposes of the Loan Documents. The Register shall
be available for inspection by the Borrowers, the Company or any Bank at
any reasonable time and from time to time upon reasonable prior notice.
(vi) Each Bank may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of
its Commitment and the Advances owing to it); provided, however, that (a)
such Bank's obligations under this Agreement (including, without
limitation, its Commitment to the Borrowers hereunder) shall remain
unchanged, (b) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations, (c) such Bank
shall remain the holder of any such Advance for all purposes of this
Agreement, (d) the Borrowers, the Company, the Administrative Agent and
the other Banks shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under the Loan
Documents, (e) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Borrower therefrom,
except to the extent that such amendment, waiver or consent would reduce
the principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such
participation, postpone the Maturity Date, or date fixed for payment of
interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or release the
Company from its Obligations under Article 11 hereof, (f) no Borrower
shall be subject to any increased liability to any Bank pursuant to this
Agreement by virtue of such participation and (g) the Person purchasing
such participation shall not have any rights under this Agreement or any
other Loan Document and shall agree to customary provisions relating to
the confidentiality of non-public information received by such Person in
connection with its purchase of the participation. A participant that
would be a Foreign Bank if it were a Bank shall not be entitled to the
benefits of Sections 3.08 and 3.12 unless each Borrower and the Company is
notified of the participation sold to such participant and such
participant agrees, for the benefit of the each Borrower and the Company,
to comply with Section 13.27 as though it were a Bank.
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(vii) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 13.9, disclose to the assignee or participant or proposed assignee
or participant, any information relating to the Borrowers or the Company
furnished to such Bank by or on behalf of the Borrowers or the Company;
provided that, prior to any such disclosure, the assignee or participant
or proposed assignee or participant shall agree in writing to preserve the
confidentiality of any confidential information relating to the Borrowers
or the Company received by it from such Bank.
13.10 SETOFF RIGHTS. If an Event of Default has occurred and is
continuing, the Administrative Agent, the Issuing Bank and each Bank and each of
its Affiliates (but only with the consent of the Majority Banks) is hereby
authorized to the fullest extent permitted by law to setoff and apply any funds
in any deposit account maintained with it by any Borrower and/or any Property of
any Borrower in its possession against the Obligations; provided that no funds
in any deposit account maintained by any Borrowing Subsidiary and/or any
Property of any Borrowing Subsidiary shall be setoff or applied against the
Obligations of the Company or any other Borrower.
13.11 SHARING OF SETOFFS. Each Bank severally agrees that if it,
through the exercise of any right of setoff, banker's lien or counterclaim
against any Borrower, or otherwise, receives payment, through any means, of the
Obligations held by it that is in excess of that Bank's proportionate share of
the Total Outstandings as applied to such payment, then: (a) The Bank exercising
the right of setoff, banker's lien or counterclaim or otherwise receiving such
payment shall purchase, and shall be deemed to have simultaneously purchased,
from the other Bank a participation in the Obligations held by the other Bank
and shall pay to the other Bank a purchase price in an amount so that the share
of the Obligations held by each Bank after the exercise of the right of setoff,
banker's lien or counterclaim or receipt of payment shall be in the same
proportion that existed prior to the exercise of the right of setoff, banker's
lien or counterclaim or receipt of payment; and (b) such other adjustments and
purchases of participations shall be made from time to time as shall be
equitable to ensure that all of the Banks share any payment obtained in respect
of the Obligations ratably in accordance with each Bank's share of the
Obligations immediately prior to, and without taking into account, the payment;
provided that, if all or any portion of a disproportionate payment obtained as a
result of the exercise of the right of setoff, banker's lien, counterclaim or
otherwise is thereafter recovered from the purchasing Bank by any Borrower or
any Person claiming through or succeeding to the rights of any Borrower, the
purchase of a participation shall be rescinded and the purchase price thereof
shall be restored to the extent of the recovery, but without interest. Each Bank
that purchases a participation in the Obligations pursuant to this Section shall
from and after the purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Bank were the original owner of the Obligations purchased. Each
Borrower expressly consents to the foregoing arrangements and agrees that any
Bank holding a participation in an Obligation so purchased may exercise any and
all rights of setoff, banker's lien or counterclaim with respect to the
participation as fully as if the Bank were the original owner of the Obligation
purchased; provided, however, that each Bank agrees that it shall not exercise
any right of setoff, banker's lien or counterclaim without first obtaining the
consent of the Majority Banks.
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13.12 INDEMNITY BY THE COMPANY. The Company agrees to indemnify,
save and hold harmless each Arranger, the Issuing Bank, the Administrative
Agent, the Syndication Agent and each Bank and their Affiliates, directors,
officers, agents, attorneys, advisors and employees (collectively the
"INDEMNITEES") from and against: (a) any and all claims, demands, actions or
causes of action asserted by any third party or by the Company or any Borrower
if the claim, demand, action or cause of action arises out of or relates to the
Commitment, the use or contemplated use of proceeds of any Advance, any drawing
under any Letter of Credit, any transaction contemplated by this Agreement, or
any relationship or relationship alleged to exist by any Borrower, its
Affiliates or any other third party of any Indemnitee to any Borrower related to
this Agreement; (b) any administrative or investigative proceeding by any
Governmental Agency arising out of or related to a claim, demand, action or
cause of action described in clause (a) above; and (c) any and all liabilities,
losses, costs or expenses (including reasonable attorneys' fees and
disbursements and other professional services) that any Indemnitee suffers or
incurs as a result of the assertion of any foregoing claim, demand, action or
cause of action; provided that no Indemnitee shall be entitled to
indemnification for any loss caused by its own gross negligence or willful
misconduct. If any claim, demand, action or cause of action is asserted against
any Indemnitee, such Indemnitee shall promptly notify the Company, but the
failure to so promptly notify the Company shall not affect the Company's
obligations under this Section unless such failure materially prejudices the
Company's right to participate in the contest of such claim, demand, action or
cause of action, as hereinafter provided. If requested by the Company in
writing, such Indemnitee shall in good faith contest the validity, applicability
and amount of such claim, demand, action or cause of action and shall permit the
Company to participate in such contest. Any Indemnitee that proposes to settle
or compromise any claim or proceeding for which the Company may be liable for
payment of indemnity hereunder shall give the Company written notice of the
terms of such proposed settlement or compromise reasonably in advance of
settling or compromising such claim or proceeding and shall obtain the Company's
prior written consent. In connection with any claim, demand, action or cause of
action covered by this Section against more than one Indemnitee, all such
Indemnitees shall be represented by the same legal counsel selected by the
Indemnitees and reasonably acceptable to the Company; provided that, if such
legal counsel determines in good faith that representing all such Indemnitees
would or could result in a conflict of interest under Laws or ethical principles
applicable to such legal counsel or that a defense or counterclaim is available
to an Indemnitee that is not available to all such Indemnitees, then to the
extent reasonably necessary to avoid such a conflict of interest or to permit
unqualified assertion of such a defense or counterclaim, each Indemnitee shall
be entitled to separate representation by legal counsel selected by that
Indemnitee and reasonably acceptable to the Company, with all such legal counsel
using reasonable efforts to avoid unnecessary duplication of effort by counsel
for all Indemnitees; provided further that the amount of the legal fees to be
reimbursed by the Company shall be limited to an amount reasonably determined
following consultation among the Company, the Administrative Agent, the Banks
and their respective legal counsel, to be equal to the amount that would have
been expended if the Indemnitees have been represented by one counsel. Any
obligation or liability of the Company to any Indemnitee under this Section
shall survive the expiration or termination of this Agreement and the repayment
of all Advances and the payment and performance of all other Obligations owed to
the Banks.
13.13 NO THIRD PARTIES BENEFITED. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
the Borrowers, the
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Administrative Agent, the Issuing Bank and the Banks in connection with the
Loans, Advances and Letters of Credit, and is made for the sole benefit of the
Borrowers, the Administrative Agent, the Issuing Bank and the Banks, and the
Administrative Agent's, the Issuing Bank's and the Banks' successors and
assigns. Except as provided in Sections 13.9, 13.11 and 13.12, no other Person
shall have any rights of any nature hereunder or by reason hereof.
13.14 CONFIDENTIALITY. Each of the Administrative Agent, the Issuing
Bank and each Bank agrees to hold any confidential information that it may
receive from any Borrower pursuant to this Agreement in confidence: except for
disclosure: (a) to other Banks; (b) to legal counsel, accountants and other
professional advisors to any Borrower or the Administrative Agent, the Issuing
Bank or any Bank; (c) to regulatory officials having jurisdiction over the
Administrative Agent, the Issuing Bank or a Bank; (d) as required by Law or
legal process or in connection with any legal proceeding to which the
Administrative Agent, the Issuing Bank or a Bank and that Borrower are adverse
parties; (e) to Affiliates of the Administrative Agent by the Administrative
Agent and (f) to Affiliates of a Bank or to another financial institution, in
each case, in connection with a disposition or proposed disposition to that
financial institution of all or part of that Bank's interests hereunder or a
participation interest in its Loans or Letters of Credit, provided that such
disclosure is made subject to an appropriate confidentiality agreement on terms
substantially similar to this Section. For purposes of the foregoing,
"confidential information" shall mean any information respecting the Company or
its Subsidiaries reasonably considered by the Company to be confidential, other
than (i) information previously filed with any Governmental Agency and available
to the public, (ii) information previously published in any public medium from a
source other than, directly or indirectly, that Bank, and (iii) information
previously disclosed by a Borrower to any Person not associated with that
Borrower without a written confidentiality agreement substantially similar to
this Section. Nothing in this Section shall be construed to create or give rise
to any fiduciary duty on the part of the Administrative Agent, the Issuing Bank
or the Banks to the Borrowers.
13.15 FURTHER ASSURANCES. The Company and its Subsidiaries shall, at
their expense and without expense to the Banks, the Issuing Bank or the
Administrative Agent, do, execute and deliver such further acts and documents as
any Bank, the Issuing Bank or the Administrative Agent from time to time
reasonably requires for the assuring and confirming unto the Banks, the Issuing
Bank or the Administrative Agent of the rights hereby created or intended now or
hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
13.16 REMOVAL OF BANK. As of the date any Bank is removed at the
request of the Company, whether pursuant to Section 3.7, Section 3.8, Section
13.27 or otherwise, (i) all obligations of such Bank under this Agreement shall
be released and terminated and (ii) such Bank's Pro Rata Share of the Commitment
shall be terminated, including such Bank's participation in any Letter of
Credit. The removal of any such Bank shall be subject to the satisfaction of the
following conditions:
(a) The Company shall compensate any such Bank so replaced for (i)
any breakage costs incurred due to the removal of such Bank, as determined by
such Bank in good faith, and (ii) all accrued interest and fees owing to such
Bank pursuant to this Agreement as of the date such Bank is so replaced;
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(b) Such Bank shall receive payment of principal of all Advances
made to any Borrower hereunder; and
(c) A substitute bank or banks (which may be one or more of the
Banks) satisfactory to the Company, the Administrative Agent and the Issuing
Bank shall assume the Commitment of such Bank and purchase the Notes of such
Bank and all amounts owing to such Bank in respect of Advances and Letters of
Credit under this Agreement pursuant to Section 13.9.
13.17 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and supersedes all prior agreements, written or oral, on
the subject matter hereof. In the event of any conflict between the provisions
of this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; provided that the inclusion of supplemental
rights or remedies in favor of the Administrative Agent, the Issuing Bank or the
Banks in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
13.18 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable or invalid as to any party or in
any jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
13.19 INDEPENDENT COVENANTS. Each covenant in Articles 5, 6 and 7 is
independent of the other covenants in those Articles; the breach of any such
covenant shall not be excused by the fact that the circumstances underlying such
breach would be permitted by another such covenant.
13.20 HEADINGS. Article and Section headings in this Agreement and
the other Loan Documents are included for convenience of reference only and are
not part of this Agreement or the other Loan Documents for any other purpose.
13.21 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents.
13.22 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK) WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
13.23 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST THE BORROWERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
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OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK, BY EXECUTING
AND DELIVERING THIS AGREEMENT, EACH BORROWER, FOR ITSELF AND IN CONNECTION WITH
ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE COMPANY AT ITS ADDRESS PROVIDED IN
ACCORDANCE WITH SECTION 13.7;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH BORROWER IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT THE ADMINISTRATIVE AGENT, THE BANKS, AND THE
ISSUING BANK RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH BORROWER IN THE
COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION 13.23 RELATING
TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402
OR OTHERWISE.
13.24 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING
ESTABLISHED. The scope of this waiver is intended to be all-encompassing of any
and all disputes that may be filed in any court and that relate to the subject
matter of this transaction, including contract claims, tort claims, breach of
duty claims and all other common law and statutory claims. Each party hereto
acknowledges that this waiver is a material inducement to enter into a business
relationship, that each has already relied on this waiver in entering into this
Agreement, and that each will continue to rely on this waiver in their related
future dealings. Each party hereto further warrants and represents that it has
reviewed this waiver with its legal counsel and that it knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
72
MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SECTION 13.24 AND EXECUTED BY EACH OF THE PARTIES
HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE
HEREUNDER. In the event of litigation, this Agreement may be filed as a written
consent to a trial by the court.
13.25 WEBSITE COMMUNICATIONS.
(a) The Company hereby agrees that it will provide to the
Administrative Agent the Compliance Certificates that it is obligated to furnish
to the Administrative Agent pursuant hereto by transmitting the Compliance
Certificates in an electronic/soft medium in a format acceptable to the
Administrative Agent to oploanswebadmin@citigroup.com.
(b) Each of the Borrowers and the Company further agrees that the
Administrative Agent may make the Compliance Certificates available to the Banks
by posting the Compliance Certificates on Intralinks or a substantially similar
electronic transmission systems (the "PLATFORM").
(c) THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE". THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
COMPLIANCE CERTIFICATES, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS OR OMISSIONS IN THE COMPLIANCE CERTIFICATES. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
THE AGENT PARTIES IN CONNECTION WITH THE COMPLIANCE CERTIFICATES OR THE
PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR
ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR
REPRESENTATIVES (COLLECTIVELY, "AGENT PARTIES") HAVE ANY LIABILITY TO THE
COMPANY, ANY BORROWER, ANY BANK OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY
KIND, INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR
OTHERWISE) ARISING OUT OF ANY BORROWER'S, THE COMPANY'S OR THE ADMINISTRATIVE
AGENT'S TRANSMISSION OF COMPLIANCE CERTIFICATES THROUGH THE INTERNET, EXCEPT TO
THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE
JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM
SUCH AGENT PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) The Administrative Agent agrees that the receipt of the
Compliance Certificates by the Administrative Agent at its e-mail address set
forth above shall constitute
73
effective delivery of the Compliance Certificates to the Administrative Agent
for purposes of the Loan Documents. Each Bank agrees that notice to it (as
provided in the next sentence) specifying that the Compliance Certificates have
been posted to the Platform shall constitute effective delivery of the
Compliance Certificates to such Bank for purposes of the Loan Documents. Each
Bank agrees to notify the Administrative Agent in writing (including by
electronic communication) from time to time of such Bank's e-mail address to
which the foregoing notice may be sent by electronic transmission and (ii) that
the foregoing notice may be sent to such e-mail address.
Nothing herein shall prejudice the right of the Administrative Agent
or any Bank to give any notice or other communication pursuant to any Loan
Document in any other manner specified in such Loan Document.
13.26 JUDGMENT CURRENCY.
(a) If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder in any currency (the "ORIGINAL
CURRENCY") into another currency (the "OTHER CURRENCY"), the parties hereto
agree, to the fullest extent permitted by law, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Administrative Agent or a Bank could purchase the Original Currency with such
Other Currency in New York, New York on the Banking Day immediately preceding
the day on which any such judgment, or any relevant part thereof, is given.
(b) The obligations of each Borrower and the Company in respect of
any sum due from it to any agent or Bank hereunder shall, notwithstanding any
judgment in such Other Currency, be discharged only to the extent that on the
Banking Day following receipt by such agent or Bank of any sum adjudged to be so
due in such Other Currency such agent or Bank may in accordance with normal
banking procedures purchase the Original Currency with such Other Currency; if
the Original Currency so purchased is less than the sum originally due such
agent or Bank in the Original Currency, each of the Borrowers and the Company
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such agent or Bank against such loss, and if the Original Currency so
purchased exceeds the sum originally due to such agent or Bank in the Original
Currency, such agent or Bank shall remit such excess to such Borrower or the
Company.
13.27 TAX FORMS.
(a) (i) Each Bank that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "FOREIGN BANK") shall deliver to
the Administrative Agent, prior to receipt of any payment subject to withholding
under the Code (or upon accepting an assignment of an interest herein), two duly
signed completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Foreign Bank and entitling it to an exemption from, or
reduction of, withholding tax on all payments to be made to such Foreign Bank by
any Borrower or the Company acting in its capacity as guarantor under Article 11
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Foreign Bank by such Borrower or
the Company pursuant to this Agreement) or such other evidence satisfactory to
such Borrower or the Company and the Administrative Agent that
74
such Foreign Bank is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of the Code.
Thereafter and from time to time, each such Foreign Bank shall (A) promptly
submit to the Administrative Agent such additional duly completed and signed
copies of one of such forms (or such successor forms as shall be adopted from
time to time by the relevant United States taxing authorities) as may then be
available under then current United States laws and regulations to avoid, or
such evidence as is satisfactory to each Borrower, the Company and the
Administrative Agent of any available exemption from or reduction of, United
States withholding taxes in respect of all payments to be made to such Foreign
Bank by such Borrower or the Company pursuant to this Agreement, (B) promptly
notify the Administrative Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (C) take such
steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Bank, and as may be reasonably necessary (including the
re-designation of its lending office) to avoid any requirement of applicable
Laws that such Borrower or the Company make any deduction or withholding for
taxes from amounts payable to such Foreign Bank.
(ii) Each Foreign Bank, to the extent it does not act or
ceases to act for its own account with respect to any portion of any sums paid
or payable to such Bank under any of the Loan Documents (for example, in the
case of a typical participation by such Bank), shall deliver to the
Administrative Agent on the date when such Foreign Bank ceases to act for its
own account with respect to any portion of any such sums paid or payable, and at
such other times as may be necessary in the determination of the Administrative
Agent (in the reasonable exercise of its discretion), (A) two duly signed
completed copies of the forms or statements required to be provided by such Bank
as set forth above, to establish the portion of any such sums paid or payable
with respect to which such Bank acts for its own account that is not subject to
U.S. withholding tax, and (B) two duly signed completed copies of IRS Form
W-8IMY (or any successor thereto), together with any information such Bank
chooses to transmit with such form, and any other certificate or statement of
exemption required under the Code, to establish that such Bank is not acting for
its own account with respect to a portion of any such sums payable to such Bank.
(iii) Neither any Borrower nor the Company shall be required
to pay any additional amount to any Foreign Bank under Section 3.12 (A) with
respect to any Taxes required to be deducted or withheld on the basis of the
information, certificates or statements of exemption such Bank transmits with an
IRS Form W-8IMY pursuant to this Section 13.27(a) or (B) if such Bank shall have
failed to satisfy the foregoing provisions of this Section 13.27(a); provided
that if such Bank shall have satisfied the requirement of this Section 13.27(a)
on the date such Bank became a Bank or ceased to act for its own account with
respect to any payment under any of the Loan Documents, nothing in this Section
13.27(a) shall relieve any Borrower or the Company of its obligation to pay any
amounts pursuant to Section 3.12 in the event that, as a result of any change in
any applicable law, treaty or governmental rule, regulation or order, or any
change in the interpretation, administration or application thereof, such Bank
is no longer properly entitled to deliver forms, certificates or other evidence
at a subsequent date establishing the fact that such Bank or other Person for
the account of which such Bank receives any sums payable under any of the Loan
Documents is not subject to withholding or is subject to withholding at a
reduced rate. If pursuant to this Section 13.27(a)(iii) any Borrower shall be
required to pay any such amounts due to any such change in any applicable law,
treaty or
75
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof with respect to any Bank, the Company
shall have the right, upon 30 days prior notice to the Administrative Agent,
with the assistance (but not the obligation) of the Administrative Agent, to
seek a substitute bank or banks (which may be one or more of the Banks)
satisfactory to the Company, the Administrative Agent and the Issuing Bank to
assume the Commitment of such Bank and to purchase the Notes of such Bank and
all amounts owing to such Bank in respect of Advances and Letters of Credit
under this Agreement pursuant to Section 13.9.
(iv) The Administrative Agent may, without reduction, withhold
any Taxes required to be deducted and withheld from any payment under any of the
Loan Documents with respect to which the Borrower or the Company is not required
to pay additional amounts under this Section 13.27(a).
(b) Upon the request of the Administrative Agent, each Bank that is
a "United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Bank fails to deliver such forms, then the Administrative
Agent may withhold from any interest payment to such Bank an amount equivalent
to the applicable back-up withholding tax imposed by the Code, without
reduction.
(c) The Company, upon the request of the Administrative Agent, any
Bank or the Issuing Bank, agrees to repay any amount paid over to the Company or
any Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Agencies) to the Administrative Agent, such Bank or the
Issuing Bank in the event the Administrative Agent, such Bank or the Issuing
Bank is required to repay such refund to such Governmental Agency. The
obligation of the Company under this Section shall survive the termination of
the Commitments, repayment of all other Obligations hereunder and the
resignation of the Administrative Agent.
13.28 LIMITATION ON BORROWING SUBSIDIARY OBLIGATIONS.
Notwithstanding anything herein to the contrary, no provision of this Agreement
shall render any Borrowing Subsidiary liable for the Obligations of the Company
or any other Borrower.
13.29 WAIVER OF DAMAGES. To the extent permitted by applicable law,
no party to this Agreement shall assert, and each party to this Agreement 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
contemplated hereby, any Loan or Letter of Credit or the use of the proceeds
thereof.
[Signature Pages Begin On Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
THE COMPANY:
AMGEN INC.
By: /s/ Richard D. Nanula
---------------------------------
Title: Executive Vice President and
Chief Financial Officer
Address:
Amgen Inc.
One Amgen Center Drive
Thousand Oaks, California 91320-1799
Attn: Treasurer
cc: Secretary
Telecopier: (805) 499-2863
Telephone: (805) 447-1000
[Schedules and Exhibits on file with the Company
and the Administrative Agent]