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EXHIBIT 10.2
FIVE YEAR CREDIT AGREEMENT
Dated as of July 21, 2003
Among
PACKAGING CORPORATION OF AMERICA
AS BORROWER
and
THE INITIAL LENDERS NAMED HEREIN
AS INITIAL LENDERS
and
CITICORP NORTH AMERICA, INC.
AS SYNDICATION AGENT
and
JPMORGAN CHASE BANK
AS ADMINISTRATIVE AGENT
and
CITIGROUP GLOBAL MARKETS INC.
and
J.P. MORGAN SECURITIES INC.
AS ARRANGERS
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TABLE OF CONTENTS
<Table>
ARTICLE I
SECTION 1.01. CERTAIN DEFINED TERMS 1
SECTION 1.02. COMPUTATION OF TIME PERIODS 12
SECTION 1.03. ACCOUNTING TERMS 12
ARTICLE II
SECTION 2.01. THE ADVANCES AND LETTERS OF CREDIT 12
SECTION 2.02. MAKING THE REVOLVING CREDIT ADVANCES 13
SECTION 2.03. ISSUANCE OF AND DRAWINGS AND REIMBURSEMENT UNDER LETTERS OF CREDIT 14
SECTION 2.04. FEES 15
SECTION 2.05. TERMINATION OR REDUCTION OF THE COMMITMENTS 15
SECTION 2.06. REPAYMENT OF ADVANCES 16
SECTION 2.07. INTEREST ON ADVANCES 17
SECTION 2.08. INTEREST RATE DETERMINATION 18
SECTION 2.09. OPTIONAL CONVERSION OF ADVANCES 18
SECTION 2.10. PREPAYMENTS OF REVOLVING CREDIT ADVANCES 19
SECTION 2.11. INCREASED COSTS 19
SECTION 2.12. ILLEGALITY 20
SECTION 2.13. PAYMENTS AND COMPUTATIONS 20
SECTION 2.14. TAXES 21
SECTION 2.15. SHARING OF PAYMENTS, ETC. 22
SECTION 2.16. EVIDENCE OF DEBT 22
SECTION 2.17. USE OF PROCEEDS 23
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 23
</Table>
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<Table>
SECTION 3.02. CONDITIONS PRECEDENT TO EACH BORROWING AND ISSUANCE. 24
SECTION 3.03. DETERMINATIONS UNDER SECTION 3.01 25
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Borrower 25
ARTICLE V
SECTION 5.01. AFFIRMATIVE COVENANTS 26
SECTION 5.02. NEGATIVE COVENANTS 28
SECTION 5.03. FINANCIAL COVENANTS 31
ARTICLE VI
SECTION 6.01. EVENTS OF DEFAULT 31
SECTION 6.02. ACTIONS IN RESPECT OF THE LETTERS OF CREDIT UPON DEFAULT 33
ARTICLE VII
SECTION 7.01. AUTHORIZATION AND ACTION 33
SECTION 7.02. AGENT'S RELIANCE, ETC. 34
SECTION 7.03. JPMORGAN AND AFFILIATES 34
SECTION 7.04. LENDER CREDIT DECISION 34
SECTION 7.05. INDEMNIFICATION 34
SECTION 7.06. SUCCESSOR AGENT 35
SECTION 7.07. OTHER AGENTS. 35
ARTICLE VIII
SECTION 8.01. AMENDMENTS, ETC. 35
SECTION 8.02. NOTICES, ETC. 36
SECTION 8.03. NO WAIVER; REMEDIES 36
SECTION 8.04. COSTS AND EXPENSES 36
SECTION 8.05. RIGHT OF SET-OFF 37
SECTION 8.06. BINDING EFFECT 37
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<Table>
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS 37
SECTION 8.08. CONFIDENTIALITY 39
SECTION 8.09. GOVERNING LAW 40
SECTION 8.10. EXECUTION IN COUNTERPARTS 40
SECTION 8.11. JURISDICTION, ETC. 40
SECTION 8.12. NO LIABILITY OF THE ISSUING BANKS 40
SECTION 8.13. WAIVER OF JURY TRIAL 42
</Table>
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SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule 2.01(c) - Existing Letters of Credit
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Existing Debt
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Term Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
Exhibit E - Form of Subsidiary Guaranty
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FIVE YEAR CREDIT AGREEMENT
Dated as of July 21, 2003
PACKAGING CORPORATION OF AMERICA, a Delaware corporation (the
"BORROWER"), the banks, financial institutions and other institutional lenders
(the "INITIAL LENDERS") and initial issuing banks (the "INITIAL ISSUING BANKS")
listed on the signature pages hereof, CITIGROUP GLOBAL MARKETS INC. and J.P.
MORGAN SECURITIES INC., as arrangers, CITICORP NORTH AMERICA, INC., as
syndication agent, and JPMORGAN CHASE BANK ("JPMORGAN"), as agent (the "AGENT")
for the Lenders (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADVANCE" means a Revolving Credit Advance or a Term Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 20% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"AGENT'S ACCOUNT" means the account of the Agent maintained by the
Agent at JPMorgan at its office at 1111 Fannin, 10th Floor, Houston, Texas
77002, Account No. 323 256 813, Attention: Jeremy Jones (Telecopy No. (713)
750-2223; E-Mail Address: jeremy.m.jones@jpmorgan.com).
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
"APPLICABLE MARGIN" means (a) for the Revolving Credit Facility as of
any date, a percentage per annum determined by reference to the Public Debt
Rating in effect on such date as set forth below:
<Table>
<Caption>
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Moody's Base Rate Advances Eurodollar Rate Advances
------------------------- ------------------------- ------------------------
LEVEL 1
BBB+ or Baa1 or above 0.000% 0.625%
LEVEL 2
BBB or Baa2 0.000% 0.850%
LEVEL 3
BBB- or Baa3 0.00% 1.050%
LEVEL 4
BB+ and Ba1 0.000% 1.200%
LEVEL 5
Lower than Level 4 0.000% 1.500%
</Table>
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and (b) for the Term Facility as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
<Table>
<Caption>
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Moody's Base Rate Advances Eurodollar Rate Advances
------------------------- ------------------------- ------------------------
LEVEL 1
BBB+ or Baa1 or above 0.000% 0.750%
LEVEL 2
BBB or Baa2 0.000% 1.000%
LEVEL 3
BBB- or Baa3 0.000% 1.250%
LEVEL 4
BB+ and Ba1 0.000% 1.500%
LEVEL 5
Lower than Level 4 0.500% 2.000%
</Table>
"APPLICABLE PERCENTAGE" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
<Table>
<Caption>
Public Debt Rating Applicable
S&P/Moody's Percentage
---------------------- ----------
LEVEL 1
BBB+ or Baa1 or above 0.125%
LEVEL 2
BBB or Baa2 0.150%
LEVEL 3
BBB- or Baa3 0.200%
LEVEL 4
BB+ and Ba1 0.300%
LEVEL 5
Lower than Level 4 0.500%
</Table>
"APPROPRIATE LENDER" means, at any time, with respect to (a) either
the Revolving Credit Facility or the Term Facility, a Lender that has a
Commitment with respect to such Facility at such time and (b) the Letter of
Credit Facility, each Issuing Bank and each Revolving Credit Lender.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"AVAILABLE AMOUNT" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"BASE RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by JPMorgan in New
York, New York, from time to time, as JPMorgan's prime rate;
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(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is
no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1%
per annum, PLUS (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by JPMorgan on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
JPMorgan from three New York certificate of deposit dealers of
recognized standing selected by JPMorgan, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for JPMorgan with
respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in the
United States, PLUS (iii) the average during such three-week period of
the annual assessment rates estimated by JPMorgan for determining the
then current annual assessment payable by JPMorgan to the Federal
Deposit Insurance Corporation (or any successor) for insuring U.S.
dollar deposits of JPMorgan in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means an Advance that bears interest as provided
in Section 2.07(a)(i).
"BORROWER INFORMATION" has the meaning specified in Section 8.08.
"BORROWING" means a Revolving Credit Borrowing or a Term Borrowing.
"BUSINESS DAY" means a day of the year on which the Federal Reserve
Banks or the banks in New York City are not required or authorized by law
to close and, if the applicable Business Day relates to any Eurodollar Rate
Advances, on which dealings are carried on in the London interbank market.
"CHANGE IN CONTROL" means any of (i) any Person or two or more Persons
acting in concert other than the MDP Group shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or
indirectly, of Voting Stock of the Borrower (or other securities
convertible into such Voting Stock) representing more of the combined
voting power of all Voting Stock of the Borrower than that owned, directly
or indirectly, by the MDP Group; or (ii) any Person or two or more Persons
acting in concert other than the MDP Group shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or
indirectly, of Voting Stock of the Borrower (or other securities
convertible into such Voting Stock) representing 50% or more of the
combined voting power of all Voting Stock of the Borrower; or (iii) during
any period of up to 12 consecutive months, commencing after the date of
this Agreement, individuals who at the beginning of such 12-month period
were directors of the Borrower shall cease for any reason (other than due
to death or disability) to constitute a majority of the board of directors
of the Borrower (except to the extent that individuals who at the beginning
of such 12-month period were replaced by individuals (x) elected by a
majority of the remaining members of the board of directors of the Borrower
or (y) nominated for election by a majority of the remaining members of the
board of directors of the Borrower and thereafter elected as directors by
the shareholders of the Borrower); or (iv) 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 that, upon consummation,
will result in its or their acquisition of the power to exercise, directly
or indirectly, a controlling influence over the management or policies of
the Borrower; or (v) a "change in control" or
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similar event shall occur as provided in any instrument or agreement
governing Debt of the Borrower, to the extent the outstanding principal
amount of the Debt outstanding thereunder exceeds $25,000,000.
"COMMITMENT" means a Revolving Credit Commitment, a Letter of Credit
Commitment or a Term Commitment.
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion of
Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.08 or 2.09.
"DEBT" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for
the deferred purchase price of property or services, (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations of
such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of acceptances, letters
of credit or similar extensions of credit, (g) all net obligations of such
Person in respect of Hedge Agreements, (h) all Invested Amounts, (i) all
Debt of others referred to in clauses (a) through (h) above or clause (j)
below (collectively, "GUARANTEED DEBT") guaranteed directly or indirectly
in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (1) to pay or purchase such
Guaranteed Debt or to advance or supply funds for the payment or purchase
of such Guaranteed Debt, (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Guaranteed Debt or
to assure the holder of such Guaranteed Debt against loss, (3) to supply
funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (4) otherwise to
assure a creditor against loss, and (j) all Debt referred to in clauses (a)
through (i) above (including Guaranteed Debt) secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts
and contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt; provided, that
"Debt" shall not include obligations under trade payables, accrued expenses
and other current liabilities (other than as described in clauses (a) or
(c) above) incurred by any Person in accordance with its customary
practices and in the ordinary course of business.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"EBITDA" means, for any period, net income (or net loss) PLUS the sum
of (a) interest expense, (b) income tax expense, (c) depletion and
depreciation expense and (d) amortization expense, in each case without
giving effect to any extraordinary gains or losses or gains or losses from
sales of assets other than inventory sold in the ordinary course of
business, and determined in accordance with GAAP for such period.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
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"ELIGIBLE ASSIGNEE" means (a) with respect to any Facility other than
the Letter of Credit Facility (i) a Lender; (ii) an Affiliate of a Lender;
(iii) a commercial bank organized under the laws of the United States, or
any State thereof; (iv) a commercial bank organized under the laws of any
other country that is a member of the Organization for Economic Cooperation
and Development or has concluded special lending arrangements with the
International Monetary Fund associated with its General Arrangements to
Borrow, or a political subdivision of any such country, so long as such
bank is acting through a branch or agency located in the country in which
it is organized or another country that is described in this clause (iv);
and (v) any other Person approved by the Agent and, unless an Event of
Default has occurred and is continuing at the time any assignment is
effected in accordance with Section 8.07, the Borrower, such approval not
to be unreasonably withheld or delayed and (b) with respect to the Letter
of Credit Facility, a Person that is an Eligible Assignee under subclause
(iii) or (iv) of clause (a) of this definition and is approved by the Agent
and, unless an Event of Default has occurred and is continuing at the time
any assignment is effected pursuant to Section 8.07, the Borrower;
PROVIDED, HOWEVER, that neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, Environmental
Permit or Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment, including, without limitation,
(a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief.
"ENVIRONMENTAL LAW" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance relating to pollution
or protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA EVENT" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are met
with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (b) the application
for a minimum funding waiver with respect to a Plan; (c) the provision by
the administrator of any Plan of a notice of intent to terminate such Plan
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA); (d)
the cessation of operations at a facility of the Borrower or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Borrower or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (f) the conditions for the
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the
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institution by the PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, a Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"EURODOLLAR RATE" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum) appearing on Moneyline Telerate Markets Page 3750 (or any successor
page) as the London interbank offered rate for deposits in U.S. dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period
or, if for any reason such rate is not available, the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rate per annum at which deposits in
U.S. dollars are offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference Bank's
Eurodollar Rate Advance comprising part of such Borrowing to be outstanding
during such Interest Period and for a period equal to such Interest Period
by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period. If the Moneyline Telerate Markets Page
3750 (or any successor page) is unavailable, the Eurodollar Rate for any
Interest Period for each Eurodollar Rate Advance comprising part of the
same Borrowing shall be determined by the Agent on the basis of applicable
rates furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, SUBJECT,
HOWEVER, to the provisions of Section 2.08.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate
Advances is determined) having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by
it.
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"GAAP" has the meaning specified in Section 1.03.
"HAZARDOUS MATERIALS" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements.
"INFORMATION MEMORANDUM" means the information memorandum dated June
23, 2003 used by the Agent in connection with the syndication of the
Commitments.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, as the Borrower may, upon notice received by the Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period, select; PROVIDED, HOWEVER, that:
(a) the Borrower may not select any Interest Period with
respect to any Eurodollar Rate Advance under a Facility that ends
after any principal repayment installment date for such Facility
unless, after giving effect to such selection, the aggregate principal
amount of Base Rate Advances and of Eurodollar Rate Advances having
Interest Periods that end on or prior to such principal repayment
installment date shall be at least equal to the aggregate principal
amount of Advances under such Facility due and payable on or prior to
such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall
be of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, PROVIDED, HOWEVER, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"INVESTED AMOUNTS" means the amounts invested by investors that are
not Affiliates of the Borrower in connection with a Permitted Receivables
Financing and paid to the Borrower or any of its Subsidiaries, as reduced
by the aggregate amounts received by such investors from the payment of
receivables and applied to reduce such invested amounts.
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"ISSUING BANK" means an Initial Issuing Bank or any Eligible Assignee
to which a portion of a Letter of Credit Commitment hereunder has been
assigned pursuant to Section 8.07 so long as such Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Agent of its Applicable
Lending Office (which information shall be recorded by the Agent in the
Register), for so long as the Initial Issuing Bank or Eligible Assignee, as
the case may be, shall have a Letter of Credit Commitment.
"L/C CASH COLLATERAL ACCOUNT" means an interest bearing cash
collateral account to be established and maintained by the Agent, over
which the Agent shall have sole dominion and control, upon terms as may be
satisfactory to the Agent.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.06(b)(i).
"LENDERS" means the Initial Lenders, each Issuing Bank and each Person
that shall become a party hereto pursuant to Section 8.07.
"LETTER OF CREDIT AGREEMENT" has the meaning specified in Section
2.03(a).
"LETTER OF CREDIT COMMITMENT" means as to any Issuing Bank (a) the
amount set forth opposite such Lender's name on Schedule I hereto under the
caption "Letter of Credit Commitment" or (b) if such Issuing Bank has
entered into an Assignment and Acceptance, the amount set forth for such
Issuing Bank in the Register maintained by the Agent pursuant to Section
8.07(d) as such Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced pursuant to Section 2.05.
"LETTER OF CREDIT FACILITY" means, at any time, an amount equal to the
lesser of (a) the aggregate amount of the Issuing Banks' Letter of Credit
Commitments at such time and (b) $35,000,000, as such amount may be reduced
at or prior to such time pursuant to Section 2.05.
"LETTERS OF CREDIT" has the meaning specified in Section 2.01(c).
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"LOAN DOCUMENT" means this Agreement, the Notes, the other L/C Related
Documents and each Guaranty delivered pursuant to Section 5.01(j).
"LOAN PARTIES" means the Borrower and each Subsidiary of the Borrower
party to the Subsidiary Guaranties delivered pursuant to Section 5.01(j).
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries taken as a whole, (b) the
rights and remedies of the Agent or the Lenders under any Loan Document or
(c) the ability of the Loan Parties to perform their obligations under the
Loan Documents.
"MATERIAL SUBSIDIARY" of the Borrower means, at any time, any
Subsidiary of the Borrower (other than Packaging Credit Company LLC and
Packaging Receivables Company LLC) that, together with its Subsidiaries,
has (a) Consolidated assets with a value of not less than 7.5% of the total
value of the assets of the Borrower and its Consolidated Subsidiaries,
taken as a whole, or (b) Consolidated EBITDA not less
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than 7.5% of the Consolidated EBITDA of the Borrower and its Subsidiaries,
taken as a whole, in each case as of the end of or for the most recently
completed fiscal quarter of the Borrower.
"MDP GROUP" means PCA Holdings LLC, Madison Dearborn Capital Partners
III, L.P., Madison Dearborn Special Equity III, L.P., Special Advisors Fund
I, LLC, Randolph Street Partners II, Schwerin Company, L.L.C., Paul J.
Magnell and Northwestern University and their Affiliates or any of their
respective direct or indirect officers, directors, managers, members,
partners, equity owners, employees, agents, representatives, successors or
assigns or immediate family member (in the case of an individual) thereof.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making
or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in respect
of which the Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"NOTE" means a Revolving Credit Note or a Term Note.
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section 2.03(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section
5.01(b) hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's, repairmen's and customs Liens and other
similar Liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 30 days unless
being contested in good faith by proper proceedings and as to which
appropriate reserves are being maintained; (c) pledges or deposits to
secure obligations under workers' compensation laws or similar legislation
or to secure public or statutory obligations; and (d) easements, rights of
way and other encumbrances, restrictions or deficiencies on title to real
property that do not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of such property for
its present purposes.
"PERMITTED RECEIVABLES FINANCING" means any financing pursuant to
which the Borrower or any Subsidiary of the Borrower may sell, convey, or
otherwise transfer to a Receivables Subsidiary or any other Person, or
grant a security interest in, any accounts receivable (and related assets)
of the Borrower or such Subsidiary, provided that such financing shall be
on customary market terms and shall be with limited or no recourse to the
Borrower and its Subsidiaries (other than the Receivables Subsidiary)
except to the extent customary for such transactions.
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
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"PUBLIC DEBT RATING" means, as of any date, the rating that has been
most recently announced by either S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by
the Borrower or, if any such rating agency shall have issued more than one
such rating, the lowest such rating issued by such rating agency. For
purposes of the foregoing, (a) if only one of S&P and Moody's shall have in
effect a Public Debt Rating, the Applicable Margin and the Applicable
Percentage shall be determined by reference to the available rating; (b) if
neither S&P nor Moody's shall have in effect a Public Debt Rating, the
Applicable Margin and the Applicable Percentage will be set in accordance
with Level 5 under the definition of "APPLICABLE MARGIN" or "APPLICABLE
PERCENTAGE", as the case may be; (c) if the ratings established by S&P and
Moody's shall fall within different levels, the Applicable Margin and the
Applicable Percentage shall be based upon the higher rating unless the such
ratings differ by two or more levels, in which case the applicable level
will be deemed to be one level above the lower of such levels; (d) if any
rating established by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is first announced publicly
by the rating agency making such change; and (e) if S&P or Moody's shall
change the basis on which ratings are established, each reference to the
Public Debt Rating announced by S&P or Moody's, as the case may be, shall
refer to the then equivalent rating by S&P or Moody's, as the case may be.
"RATABLE SHARE" of any amount means, with respect to any Lender at any
time, the product of (a) a fraction the numerator of which is the amount of
such Lender's Revolving Credit Commitment at such time and the denominator
of which is the aggregate Revolving Credit Commitments at such time and (b)
such amount.
"RECEIVABLES SUBSIDIARY" means a bankruptcy-remote, special-purpose
wholly owned Subsidiary formed in connection with a Permitted Receivables
Financing.
"REFERENCE BANKS" means JPMorgan, Citicorp North America, Inc. and
Morgan Stanley Senior Funding Inc.
"REGISTER" has the meaning specified in Section 8.07(d).
"REQUIRED LENDERS" means, at any time, Lenders owed or holding at
least a majority in interest of the sum of (a) the aggregate principal
amount of the Advances outstanding at such time, (b) the aggregate
Available Amount of all Letters of Credit outstanding at such time and (c)
the aggregate Unused Revolving Credit Commitments at such time. For
purposes of this definition, the Available Amount of each Letter of Credit
shall be considered to be owed to the Revolving Credit Lenders ratably in
accordance with their respective Revolving Credit Commitments.
"REVOLVING CREDIT ADVANCE" has the meaning specified in Section
2.01(a).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of the
Lenders pursuant to Section 2.01(a).
"REVOLVING CREDIT COMMITMENT" means as to any Revolving Credit Lender
(a) the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Revolving Credit Commitment" or (b) if such Lender has
entered into an Assignment and Acceptance, the amount set forth for such
Lender in the Register maintained by the Agent pursuant to Section 8.07(d)
as such Lender's "Revolving Credit Commitment", as such amount may be
reduced pursuant to Section 2.05.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate of the
Revolving Credit Commitments at such time.
"REVOLVING CREDIT LENDER" means any Lender that has a Revolving Credit
Commitment.
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"REVOLVING CREDIT NOTE" means a promissory note of the Borrower
payable to the order of any Revolving Credit Lender, delivered pursuant to
a request made under Section 2.16 in substantially the form of Exhibit A-1
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Revolving Credit Advances made by such Lender.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no Person other than the Borrower and
the ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay such debts and liabilities as they mature and
(d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability.
"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"SUBSIDIARY GUARANTORS" means the Subsidiaries of the Borrower that
shall be required to execute and deliver a guaranty pursuant to Section
5.01(j).
"SUBSIDIARY GUARANTY" means the guaranty of the Subsidiary Guarantors
delivered pursuant to Section 5.01(j).
"TERM ADVANCE" has the meaning specified in Section 2.01(b).
"TERM BORROWING" means a borrowing consisting of simultaneous Term
Advances of the same Type made by the Term Lenders.
"TERM COMMITMENT" means as to any Term Lender (a) the amount set forth
opposite such Lender's name on Schedule I hereto under the caption "Term
Commitment" or (b) if such Lender has entered into an Assignment and
Acceptance, the amount set forth for such Lender in the Register maintained
by the Agent pursuant to Section 8.07(d) as such Lender's "Term
Commitment", as such amount may be reduced pursuant to Section 2.05.
"TERM FACILITY" means, at any time, the aggregate of the Term
Commitments at such time.
"TERM LENDER" means any Lender that has a Term Commitment.
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"TERM NOTE" means a promissory note of the Borrower payable to the
order of any Term Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
the Term Advance made by such Lender, as amended.
"TERMINATION DATE" means the earlier of July 21, 2008 and the date of
termination in whole of the Revolving Credit Commitments, the Letter of
Credit Commitments and the Term Commitments pursuant to Section 2.05 or
6.01.
"TYPE" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"UNISSUED LETTER OF CREDIT COMMITMENT" means, with respect to any
Issuing Bank, such Issuing Bank's Letter of Credit Commitment MINUS the
aggregate Available Amount of all Letters of Credit issued by such Issuing
Bank.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to each
Revolving Credit Lender at any time, (a) such Lender's Revolving Credit
Commitment at such time MINUS (b) the sum of (i) the aggregate principal
amount of all Revolving Credit Advances made by such Lender (in its
capacity as a Lender) and outstanding at such time, PLUS (ii) such Lender's
Ratable Share of the aggregate Available Amount of all the Letters of
Credit outstanding at such time.
"VOTING STOCK" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. THE ADVANCES AND LETTERS OF CREDIT. (a) REVOLVING CREDIT
ADVANCES. Each Revolving Credit Lender severally agrees, on the terms and
conditions hereinafter set forth, to make advances (each, a "REVOLVING CREDIT
ADVANCE") to the Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an amount not to
exceed such Lender's Unused Revolving Credit Commitment at such time. Each
Revolving Credit Borrowing shall be in an aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and shall consist of Revolving
Credit Advances of the same Type made on the same day by the Revolving Credit
Lenders ratably according to their respective Revolving Credit Commitments.
Within the limits of each Lender's Revolving Credit Commitment, the Borrower may
borrow under this Section 2.01(a), prepay pursuant to Section 2.10 and reborrow
under this Section 2.01(a).
(b) TERM ADVANCES. Each Term Lender severally agrees, on the terms
and conditions hereinafter set forth, to make a single advance (a "TERM
ADVANCE") to the Borrower on the Effective Date in an amount not to exceed such
Lender's Term Commitment. The Term Borrowing shall consist of Term Advances of
the same Type made on the same day by the Lenders ratably according to their
respective Term Commitments. Amount borrowed under this Section 2.01(b) and
repaid or prepaid may not be reborrowed.
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(c) LETTERS OF CREDIT. Each Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (each, a "LETTER OF
CREDIT") for the account of the Borrower from time to time on any Business Day
during the period from the Effective Date until 30 days before the Termination
Date in an aggregate Available Amount (i) for all Letters of Credit issued by
each Issuing Bank not to exceed at any time the lesser of (x) the Letter of
Credit Facility at such time and (y) such Issuing Bank's Letter of Credit
Commitment at such time and (ii) for each such Letter of Credit not to exceed an
amount equal to the Unused Revolving Credit Commitments of the Revolving Credit
Lenders at such time. Other than as specified on Schedule 2.01(c), no Letter of
Credit shall have an expiration date (including all rights of the Borrower or
the beneficiary to require renewal) later than (x) the date that is one year
after the date of issuance thereof and (y) 10 Business Days prior to the
Termination Date. Within the limits of the Letter of Credit Facility and subject
to the limits referred to above, the Borrower may request the issuance of
Letters of Credit under this Section 2.01(c), repay any Advances resulting from
drawings thereunder pursuant to Section 2.03(c) and request the issuance of
additional Letters of Credit under this Section 2.01(c). Each letter of credit
listed on Schedule 2.01(c) shall be deemed to constitute a Letter of Credit
issued hereunder, and each Lender that is an issuer of such a Letter of Credit
shall, for purposes of Section 2.03, be deemed to be an Issuing Bank for each
such letter of credit, PROVIDED than any renewal or replacement of any such
letter of credit shall be issued by an Issuing Bank pursuant to the terms of
this Agreement.
SECTION 2.02. MAKING THE ADVANCES. (a) Except as otherwise provided in
Section 2.03, each Borrowing shall be made on notice, given not later than (x)
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate
Advances or (y) 11:00 A.M. (New York City time) on the date of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the
Borrower to the Agent, which shall give to each Appropriate Lender prompt notice
thereof by telecopier or telex. Each such notice of a Borrowing (a "NOTICE OF
BORROWING") shall be by telephone, confirmed immediately in writing, or
telecopier or telex in substantially the form of Exhibit B hereto, specifying
therein the requested (i) date of such Borrowing, (ii) Facility under which such
Borrowing is to be made, (iii) Type of Advances comprising such Borrowing, (iv)
aggregate amount of such Borrowing, and (iv) in the case of a Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period for each such
Advance. Each Appropriate Lender shall, before 1:00 P.M. (New York City time) on
the date of such Borrowing make available for the account of its Applicable
Lending Office to the Agent at the Agent's Account, in same day funds, such
Lender's ratable portion of such Borrowing in accordance with the respective
Commitments under the applicable Facility of such Lender and the other
Appropriate Lenders. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Agent
will make such funds available to the Borrower at the Agent's address referred
to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than $5,000,000
or if the obligation of the Appropriate Lenders to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) Revolving
Credit Borrowings comprised of Eurodollar Rate Advances may not be outstanding
as part of more than six separate Interest Periods and Term Borrowings comprised
of Eurodollar Rate Advances may note be outstanding as part of more than six
separate Interest Periods.
(c) Each Notice of Borrowing shall be irrevocable and binding on
the Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Appropriate Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Revolving Credit Advance, as a result of such failure, is not made on
such date.
(d) Unless the Agent shall have received notice from an
Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Agent such Lender's ratable portion of such Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date of
such Borrowing in accordance with subsection (a) of this Section 2.02 and the
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to
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the Agent, such Lender and the Borrower severally agree to repay to the Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Agent, at (i) in the case of the Borrower,
the interest rate applicable at the time to Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Advance as part of such Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance
to be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. ISSUANCE OF AND DRAWINGS AND REIMBURSEMENT UNDER LETTERS
OF CREDIT. (a) REQUEST FOR ISSUANCE. (i) Each Letter of Credit shall be issued
upon notice, given not later than 1:00 P.M. (New York City time) on the third
Business Day prior to the date of the proposed issuance of such Letter of Credit
(or on such shorter notice as the applicable Issuing Bank may agree), by the
Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent, prompt
notice thereof by telex, telecopier or cable. Each such notice of issuance of a
Letter of Credit (a "NOTICE OF ISSUANCE") shall be by telephone, confirmed
immediately in writing, or telecopier or telex, specifying therein the requested
(A) date of such issuance (which shall be a Business Day), (B) Available Amount
of such Letter of Credit, (C) expiration date of such Letter of Credit (which
shall not be later that the earlier of (x) one year after the issuance thereof
and (y) ten Business Days prior to the Termination Date), (D) name and address
of the beneficiary of such Letter of Credit and (E) form of such Letter of
Credit, and shall be accompanied by such customary application and agreement for
letter of credit as such Issuing Bank may specify to the Borrower requesting
such issuance for use in connection with such requested Letter of Credit (a
"LETTER OF CREDIT AGREEMENT"). If the requested form of such Letter of Credit is
acceptable to such Issuing Bank in its sole discretion, such Issuing Bank will,
upon fulfillment of the applicable conditions set forth in Article III, make
such Letter of Credit available to the Borrower requesting such issuance at its
office referred to in Section 8.02 or as otherwise agreed with the Borrower in
connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(b) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Lender, and each Revolving Credit Lender
hereby acquires from such Issuing Bank, a participation in such Letter of Credit
equal to such Lender's Ratable Share of the aggregate amount available to be
drawn under such Letter of Credit. The Borrower hereby agrees to each such
participation. In consideration and in furtherance of the foregoing, each
Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to
the Agent, for the account of such Issuing Bank, such Lender's Ratable Share of
each drawing made under a Letter of Credit funded by such Issuing Bank and not
reimbursed by the Borrower on the date made, or of any reimbursement payment
required to be refunded to the Borrower for any reason. Each Revolving Credit
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the
Revolving Credit Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Revolving
Credit Lender further acknowledges and agrees that its participation in each
Letter of Credit will be automatically adjusted to reflect such Lender's Ratable
Share of the Available Amount of such Letter of Credit at each time such
Lender's Revolving Credit Commitment is amended pursuant to an assignment in
accordance with Section 8.07 or otherwise pursuant to this Agreement.
(c) DRAWING AND REIMBURSEMENT. The payment by an Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by any such Issuing Bank of a Revolving Credit Advance,
which shall be a Base Rate Advance, in the amount of such draft. Each Issuing
Bank shall give prompt notice of each drawing under any Letter of Credit issued
by it to the Borrower and the Agent. Upon written demand by such Issuing Bank,
with a copy of such demand to the Agent, each Revolving Credit Lender shall pay
to the Agent such Lender's Ratable Share of such outstanding Advance, by making
available for
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the account of its Applicable Lending Office to the Agent for the account of
such Issuing Bank, by deposit to the Agent's Account, in same day funds, an
amount equal to the portion of the outstanding principal amount of such Advance
to be funded by such Lender. Promptly after receipt thereof, the Agent shall
transfer such funds to such Issuing Bank. Each Revolving Credit Lender agrees to
fund its Ratable Share of an outstanding Advance on (i) the Business Day on
which demand therefor is made by such Issuing Bank, PROVIDED that notice of such
demand is given not later than 11:00 A.M. (New York City time) on such Business
Day, or (ii) the first Business Day next succeeding such demand if notice of
such demand is given after such time. If and to the extent that any Revolving
Credit Lender shall not have so made the amount of such Advance available to the
Agent, such Lender agrees to pay to the Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by any such
Issuing Bank until the date such amount is paid to the Agent, at the Federal
Funds Rate for its account or the account of such Issuing Bank, as applicable.
If such Lender shall pay to the Agent such amount for the account of any such
Issuing Bank on any Business Day, such amount so paid in respect of principal
shall constitute a Revolving Credit Advance made by such Lender on such Business
Day for purposes of this Agreement, and the outstanding principal amount of the
Revolving Credit Advance made by such Issuing Bank shall be reduced by such
amount on such Business Day.
(d) LETTER OF CREDIT REPORTS. Each Issuing Bank shall furnish (i)
to the Agent and each Lender on the first Business Day of each month a written
report summarizing issuance and expiration dates of Letters of Credit during the
preceding month and drawings during such month under all Letters of Credit and
(ii) to the Agent and each Lender on the first Business Day of each calendar
quarter a written report setting forth the average daily aggregate Available
Amount during the preceding calendar quarter of all Letters of Credit.
(e) FAILURE TO MAKE ADVANCES. The failure of any Revolving Credit
Lender to make the Revolving Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Revolving Credit Lender
of its obligation hereunder to make its Revolving Credit Advance on such date,
but no Revolving Credit Lender shall be responsible for the failure of any other
Revolving Credit Lender to make the Revolving Credit Advance to be made by such
other Lender on such date.
SECTION 2.04. FEES. (a) FACILITY FEE. The Borrower agrees to pay to
the Agent for the account of each Revolving Credit Lender a facility fee on the
aggregate amount of such Lender's Revolving Credit Commitment from the Effective
Date in the case of each Initial Lender and from the effective date specified in
the Assignment and Acceptance pursuant to which it became a Revolving Credit
Lender in the case of each other Lender until the Termination Date at a rate per
annum equal to the Applicable Percentage in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December,
commencing September 30, 2003, and on the Termination Date.
(b) LETTER OF CREDIT FEES. (i) The Borrower shall pay to the Agent
for the account of each Revolving Credit Lender a commission on such Lender's
Ratable Share of the average daily aggregate Available Amount of all Letters of
Credit outstanding from time to time at a rate per annum equal to the Applicable
Margin for Eurocurrency Rate Advances in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December,
commencing September 30, 2003, and on the Termination Date, and after the
Termination Date payable upon demand.
(ii) The Borrower shall pay to each Issuing Bank for its own
account a fronting fee equal to 0.125% of the Available Amount of each
Letter of Credit issued by such Issuing Bank on the date of such issuance
and such other reasonable fees as may from time to time be agreed in
writing between the Borrower and such Issuing Bank.
(c) AGENT'S FEES. The Borrower shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Borrower and
the Agent.
SECTION 2.05. TERMINATION OR REDUCTION OF THE COMMITMENTS. (a)
OPTIONAL. The Borrower shall have the right, upon at least three Business Days'
notice to the Agent, to terminate in whole or permanently reduce ratably in part
the Unused Revolving Credit Commitments of the Lenders, PROVIDED that each
partial reduction shall be in the aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof and
<Page>
shall be made ratably among the Appropriate Lenders in accordance with their
Commitments with respect to such Facility.
(b) MANDATORY. On the Effective Date, and from time to time
thereafter upon each prepayment of the Term Advances, the Term Commitments of
the Term Lenders shall be automatically and permanently reduced on a pro rata
basis by an amount equal to the amount by which (i) the aggregate Term
Commitments immediately prior to such reduction EXCEEDS (ii) the aggregate
unpaid principal amount of all Term Advances outstanding at such time.
SECTION 2.06. REPAYMENT OF ADVANCES. (a) REVOLVING CREDIT ADVANCES.
The Borrower shall repay to the Agent for the ratable account of the Revolving
Credit Lenders on the Termination Date the aggregate principal amount of the
Revolving Credit Advances then outstanding.
(b) TERM ADVANCES. The Borrower shall repay to the Agent for the
ratable account of the Term Lenders the aggregate outstanding principal amount
of the Term Advances on the following dates in the amount indicated (which
amounts shall be reduced as a result of the application of prepayment in
accordance with the order of priority set forth in Section 2.10):
<Table>
<Caption>
Date Amount
---- --------
Second Anniversary of the Effective Date $ 10,000,000
Third Anniversary of the Effective Date $ 10,000,000
Fourth Anniversary of the Effective Date $ 10,000,000
Fifth Anniversary of the Effective Date $ 20,000,000
</Table>
(c) LETTER OF CREDIT REIMBURSEMENTS. The obligations of the
Borrower under this Agreement, any Letter of Credit Agreement and any other
agreement or instrument, in each case, relating to any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement, such Letter of Credit Agreement and such other
agreement or instrument under all circumstances, including, without limitation,
the following circumstances (it being understood that any such payment by the
Borrower is without prejudice to, and does not constitute a waiver of, any
rights the Borrower might have or might acquire as a result of the payment by
any Issuing Bank of any draft or the reimbursement by the Borrower thereof):
(i) any lack of validity or enforceability of this Agreement, any
Letter of Credit, any Letter of Credit Agreement or any other agreement or
instrument, in each case, relating thereto (all of the foregoing being,
collectively, the "L/C RELATED DOCUMENTS");
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of the Borrower in respect
of any L/C Related Document or any other amendment or waiver of or any
consent to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right
that the Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank or any
other Person, whether in connection with the transactions contemplated by
the L/C Related Documents or any unrelated transaction;
(iv) any statement or any other document presented under a Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
<Page>
(v) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of the Borrower in respect of
the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
(d) PREPAYMENT OPTION/ADDITIONAL INTEREST OPTION UPON THE
OCCURRENCE OF CERTAIN EVENTS. Upon the occurrence of a Change in Control or an
event prohibited by Section 5.02(b), the Required Lenders shall have the right
(a) to terminate the Commitments in full and to require the Borrower to prepay
all outstanding Advances, all interest thereon and all other amounts payable
under this Agreement (the "PREPAYMENT OPTION") or (b) to require the Borrower to
pay additional interest of 2.0% per annum on the unpaid principal amount of all
Advances (the "ADDITIONAL INTEREST OPTION"). Within 10 days following any Change
in Control or the occurrence of, or public announcement of its entering into a
contractual arrangement that, when consummated will result in, an event
prohibited by Section 5.02(b), the Borrower shall deliver a notice (the "CHANGE
IN CONTROL NOTICE") to the Agent describing the transaction or transactions that
constitute the Change in Control or such event, and, within 10 days of receipt
of the Change in Control Notice, if the Required Lenders have elected either the
Prepayment Option or the Additional Interest Option, the Agent shall deliver a
notice (the "ELECTION NOTICE") to the Borrower informing the Borrower of such
election. If the Required Lenders elect the Prepayment Option, then on or prior
to the date which is the later of (x) 45 days after the receipt by the Borrower
of the Election Notice or (y) the date of occurrence of the Change in Control or
the event prohibited by Section 5.02(b), the Borrower shall prepay all
outstanding Advances, all interest thereon and all other amounts payable under
this Agreement and on the earlier of (1) the date of such prepayment and (2) the
later of the dates referred to in clauses (x) and (y) above, the Commitments
shall automatically terminate. If the Required Lenders elect the Additional
Interest Option, then, from the date of the occurrence of such Change in Control
or event prohibited by Section 5.02(b), the Borrower shall pay interest on the
unpaid principal amount of all Advances at a rate per annum equal at all times
to 2.0% per annum above the rate per annum required to be paid on such Advances
pursuant to Section 2.07(a).
SECTION 2.07. INTEREST ON ADVANCES. (a) SCHEDULED INTEREST. The
Borrower shall pay interest on the unpaid principal amount of each Advance owing
to each Lender from the date of such Advance until such principal amount shall
be paid in full, at the following rates per annum:
(i) BASE RATE ADVANCES. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of (x)
the Base Rate in effect from time to time PLUS (y) the Applicable Margin in
effect from time to time, payable in arrears quarterly on the last day of
each March, June, September and December during such periods and on the
date such Base Rate Advance shall be Converted or paid in full.
(ii) EURODOLLAR RATE ADVANCES. During such periods as such Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (x) the Eurodollar Rate
for such Interest Period for such Advance PLUS (y) the Applicable Margin in
effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more than
three months, on each day that occurs during such Interest Period every
three months from the first day of such Interest Period and on the date
such Eurodollar Rate Advance shall be Converted or paid in full.
(b) DEFAULT INTEREST. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), the Agent may, and
upon the request of the Required Lenders shall, require the Borrower to pay
interest ("DEFAULT INTEREST") on (i) the overdue principal amount of each
Advance owing to each Lender, payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on such Advance pursuant to
clause (a)(i) or (a)(ii) above and
<Page>
(ii) to the fullest extent permitted by law, the amount of any interest, fee or
other amount payable hereunder that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on Base Rate Advances pursuant to clause (a)(i) above, PROVIDED, HOWEVER, that
following acceleration of the Advances pursuant to Section 6.01, Default
Interest shall accrue and be payable hereunder whether or not previously
required by the Agent.
SECTION 2.08. INTEREST RATE DETERMINATION. (a) Promptly after receipt
of a Notice of Borrowing pursuant to Section 2.02(a), a notice of Conversion
pursuant to Section 2.09 or a notice of selection of an Interest Period pursuant
to the terms of the definition of "Interest Period", the Agent shall give prompt
notice to the Borrower and each Appropriate Lender of the applicable interest
rate determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.07(a)(ii). Each Reference Bank agrees to
furnish to the Agent timely information for the purpose of determining each
Eurodollar Rate. If any one or more of the Reference Banks shall not furnish
such timely information to the Agent for the purpose of determining any such
interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks.
(b) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Appropriate Lenders and such
Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(c) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $3,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(d) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
(f) If Moneyline Telerate Markets Page 3750 is unavailable and
fewer than two Reference Banks furnish timely information to the Agent for
determining the Eurodollar Rate for any Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Borrower and the Lenders
that the interest rate cannot be determined for such Eurodollar Rate
Advances,
(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate Advances
or to Convert Advances into Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.09. OPTIONAL CONVERSION OF ADVANCES. The Borrower may on any
Business Day, upon notice given to the Agent not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.08 and 2.12, Convert all
or any portion of the Advances of one Type comprising the same Borrowing into
Advances of the other Type; PROVIDED, HOWEVER, that any Conversion of Eurodollar
Rate Advances into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate
Advances into Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(b), no Conversion of any Advances under
any Facility shall result in more separate Borrowings under such Facility than
permitted under Section 2.02(b) and each Conversion of Advances comprising part
of the same Borrowing under
<Page>
any Facility shall be made ratably among the Appropriate Lenders in accordance
with their Commitments under such Facility. Each such notice of a Conversion
shall, within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advances to be Converted, and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
each such Advance. Each notice of Conversion shall be irrevocable and binding on
the Borrower.
SECTION 2.10. PREPAYMENTS OF REVOLVING CREDIT ADVANCES. The Borrower
may, upon notice at least two Business Days' prior to the date of such
prepayment, in the case of Eurodollar Rate Advances, and not later than 11:00
A.M. (New York City time) on the date of such prepayment, in the case of Base
Rate Advances, to the Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall, prepay
the outstanding principal amount of the Revolving Credit Advances comprising
part of the same Revolving Credit Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; PROVIDED, HOWEVER, that (x) each partial prepayment shall be in
an aggregate principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.11. INCREASED COSTS. (a) If, due to either (i) the
introduction after the date hereof of or any change in or in the interpretation
of any law or regulation or (ii) the compliance with any guideline or request
issued after the date hereof from any central bank or other governmental
authority (whether or not having the force of law), there shall be any increase
in the cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances or agreeing to issue or of issuing or maintaining or
participating in Letters of Credit (excluding for purposes of this Section 2.11
any such increased costs resulting from (i) Taxes or Other Taxes (as to which
Section 2.14 shall govern) and (ii) changes after the date hereof in the basis
of taxation of overall net income or overall gross income by the United States
or by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost; PROVIDED, HOWEVER, that before making any such demand, each
Lender agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Applicable Lending
Office if the making of such a designation would avoid the need for, or reduce
the amount of, such increased cost and would not, in the reasonable judgment of
such Lender, be otherwise disadvantageous to such Lender. A certificate as to
the amount of such increased cost, submitted to the Borrower and the Agent by
such Lender, shall be PRIMA FACIE evidence of the correctness thereof for all
purposes, absent manifest error.
(b) If any Lender reasonably determines that compliance with any
law or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Agent), the Borrower shall pay to the
Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower and the Agent by such Lender shall be PRIMA FACIE
evidence of the correctness thereof for all purposes, absent manifest error.
(c) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; PROVIDED that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than six months prior to the date that such
Lender notifies the Borrower of the change or circumstance giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; PROVIDED FURTHER that, if the change or circumstance
giving rise to such increased costs or reductions is retroactive, then the
six-month period referred to above shall be extended to include the period of
retroactive effect thereof.
<Page>
SECTION 2.12. ILLEGALITY. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender or its Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar
Rate Advances hereunder, (a) each Eurodollar Rate Advance under each Facility
under which such Lender has a Commitment will automatically, on the last day of
the current Interest Period or, if required by law, upon such demand, Convert
into a Base Rate Advance and (b) the obligation of the Appropriate Lenders to
make Eurodollar Rate Advances or to Convert Advances into Eurodollar Rate
Advances shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist;
PROVIDED, HOWEVER, that before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Eurodollar Lending Office if the making
of such a designation would allow such Lender or its Eurodollar Lending Office
to continue to perform its obligations to make Eurodollar Rate Advances or to
continue to fund or maintain Eurodollar Rate Advances and would not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.13. PAYMENTS AND COMPUTATIONS. (a) The Borrower shall make
each payment hereunder, irrespective of any right of counterclaim or set-off,
not later than 11:00 A.M. (New York City time) on the day when due in U.S.
dollars to the Agent at the Agent's Account in same day funds. The Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal or interest or fees or commissions ratably (other than amounts
payable pursuant to Section 2.03, 2.11, 2.14 or 8.04(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may be,
and all computations of interest based on the Eurodollar Rate or the Federal
Funds Rate and of fees and Letter of Credit commissions shall be made by the
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest, fees or commissions are payable. Each
determination by the Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; PROVIDED, HOWEVER, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
<Page>
SECTION 2.14. TAXES. (a) Any and all payments by the Borrower to or
for the account of any Lender or the Agent hereunder or under the Notes or any
other documents to be delivered hereunder shall be made, in accordance with
Section 2.13 or the applicable provisions of such other documents, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, EXCLUDING, in the case of each Lender and the Agent, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction under the laws of which such Lender or the Agent (as
the case may be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its overall net income, and franchise
taxes imposed on it in lieu of net income taxes, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "TAXES"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note or any other documents to be delivered hereunder to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.14) such Lender or the Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
any other documents to be delivered hereunder or from the execution, delivery or
registration of, performing under, or otherwise with respect to, this Agreement
or the Notes or any other documents to be delivered hereunder (hereinafter
referred to as "OTHER TAXES").
(c) The Borrower shall indemnify each Lender and the Agent for and
hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed or asserted by any jurisdiction on
amounts payable under this Section 2.14) imposed on or paid by such Lender or
the Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Lender or the Agent (as the case
may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing such payment to the
extent such a receipt is issued therefor, or other written proof of payment
thereof that is reasonably satisfactory to the Agent. In the case of any payment
hereunder or under the Notes or any other documents to be delivered hereunder by
or on behalf of the Borrower through an account or branch outside the United
States or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect thereof,
the Borrower shall furnish, or shall cause such payor to furnish, to the Agent,
at such address, an opinion of counsel acceptable to the Agent stating that such
payment is exempt from Taxes. For purposes of this subsection (d) and subsection
(e), the terms "UNITED STATES" and "UNITED STATES PERSON" shall have the
meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as reasonably requested in writing by
the Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide each of the Agent and the Borrower with two original Internal
Revenue Service Forms W-8BEN or W-8ECI, as appropriate, or any successor or
other form prescribed by the Internal Revenue Service, certifying that such
Lender is exempt from or entitled to a reduced rate of United States withholding
tax on payments pursuant to this Agreement or the Notes. If the form provided by
a Lender at the time such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such form; PROVIDED, HOWEVER, that,
if at the date of the Assignment and Acceptance pursuant to which a Lender
assignee becomes a party to this Agreement, the Lender assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to
<Page>
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service Form W-8BEN
or W-8ECI, that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Borrower and shall not be obligated to include
in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form, certificate or other document
described in Section 2.14(e) (OTHER THAN if such failure is due to a change in
law, or in the interpretation or application thereof, occurring subsequent to
the date on which a form, certificate or other document originally was required
to be provided, or if such form, certificate or other document otherwise is not
required under subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.14(a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; PROVIDED, HOWEVER, that should a
Lender become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Borrower shall take such
steps as the Lender shall reasonably request to assist the Lender to recover
such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.15. SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances owing to it (other than
pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; PROVIDED, HOWEVER, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered; PROVIDED FURTHER that, so long as the
obligations under the Loan Documents shall not have been accelerated, any excess
payment received by any Appropriate Lender shall be shared on a pro rata basis
only with other Appropriate Lenders. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.16. EVIDENCE OF DEBT. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder in respect of
Advances. The Borrower agrees that upon notice by any Lender to the Borrower
(with a copy of such notice to the Agent) to the effect that a Note under a
Facility is required or appropriate in order for such Lender to evidence
(whether for purposes of pledge, enforcement or otherwise) the Advances owing
to, or to be made by, such Lender under such Facility, the Borrower shall
promptly execute and deliver to such Lender a Revolving Credit Note or a Term
Note payable to the order of such Lender in a principal amount up to the
Revolving Credit Commitment or Term Commitment, as the case may be, of such
Lender.
(b) The Register maintained by the Agent pursuant to Section
8.07(d) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, the Type of Advances comprising such
Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the
terms of each Assignment and Acceptance delivered to and accepted by it, (iii)
the amount of any principal or interest due and payable or to become due and
payable from
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the Borrower to each Lender hereunder and (iv) the amount of any sum received by
the Agent from the Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register
pursuant to subsection (b) above, and by each Lender in its account or accounts
pursuant to subsection (a) above, shall be PRIMA FACIE evidence of the amount of
principal and interest due and payable or to become due and payable from the
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
PROVIDED, HOWEVER, that the failure of the Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of the
Borrower under this Agreement.
SECTION 2.17. USE OF PROCEEDS. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of the Borrower and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO EFFECTIVENESS OF SECTION 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "EFFECTIVE DATE") on which the following conditions precedent have
been satisfied:
(a) There shall have occurred no event or circumstance that could
reasonably be expected to result in a Material Adverse Change since
December 31, 2002.
(b) There shall exist no action, suit, investigation, litigation
or proceeding affecting the Borrower or any of its Subsidiaries pending or,
to the knowledge of the Borrower, threatened before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect or (ii) could be reasonably likely to adversely affect the
legality, validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(c) Nothing shall have come to the attention of the Lenders during
the course of their due diligence investigation to lead them to believe
that the Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect; without limiting the generality of the
foregoing, the Lenders shall have been given such access to the management,
records, books of account, contracts and properties of the Borrower and its
Subsidiaries as they shall have requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are not
acceptable to the Lenders) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Lenders
that restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(e) The Borrower shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(f) The Borrower shall have paid all reasonable and invoiced
accrued fees and expenses of the Agent and the Lenders (including the
accrued fees and expenses of counsel to the Agent).
(g) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated the
Effective Date, stating that:
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(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(h) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to
the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent
requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and the
Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true signatures of
the officers of the Borrower authorized to sign this Agreement and the
Notes and the other documents to be delivered hereunder.
(iv) A favorable opinion of Kirkland & Ellis LLP, counsel
for the Borrower, substantially in the form of Exhibit D hereto and as
to such other matters as any Lender through the Agent may reasonably
request.
(v) A favorable opinion of Shearman & Sterling LLP,
counsel for the Agent, in form and substance satisfactory to the
Agent.
(i) The Borrower shall have terminated the commitments of the
lenders and repaid or prepaid in full all amounts outstanding under the
Credit Agreement dated as of April 12, 1999 and amended and restated as of
June 29, 2000, among the Borrower, certain other borrowers and guarantors
parties thereto, the lenders parties thereto and Morgan Guaranty Trust
Company of New York, as administrative agent. By execution of this
Agreement, each of the Lenders that is a lender under the credit agreement
referred to above hereby waives the requirements set forth in Section 3.02
and 4.01 of such credit agreement of prior notice to the termination of its
commitments and prepayment of advances thereunder.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH BORROWING AND ISSUANCE. The
obligation of each Appropriate Lender to make an Advance (other than an Advance
made by an Issuing Bank or any Revolving Credit Lender pursuant to Section
2.03(c)) on the occasion of each Borrowing and the obligation of each Issuing
Bank to issue a Letter of Credit shall be subject to the conditions precedent
that the Effective Date shall have occurred and on the date of such Borrowing or
issuance (a) the following statements shall be true (and each of the giving of
the applicable Notice of Borrowing, Notice of Issuance and the acceptance by the
Borrower of the proceeds of such Borrowing shall constitute a representation and
warranty by the Borrower that on the date of such Borrowing or issuance such
statements are true):
(i) the representations and warranties contained in Section 4.01
are correct on and as of such date, before and after giving effect to such
Borrowing or issuance and to the application of the proceeds therefrom, as
though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result from
such Borrowing or issuance or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Appropriate Lender through the Agent may reasonably request.
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SECTION 3.03. DETERMINATIONS UNDER SECTION 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes to be delivered by it, and the consummation of
the transactions contemplated hereby, are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action, and do
not contravene (i) the Borrower's charter or by-laws, (ii) law, (iii) any
indenture, deed of trust, credit agreement or loan agreement binding on or
affecting the Borrower or (iv) any other material agreement, contract or
instrument binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Borrower of
this Agreement or the Notes to be delivered by it. No authorization or
approval or other action by, and no notice to or filing with, any third
party is required for the due execution, delivery and performance by the
Borrower of this Agreement or the Notes to be delivered by it, except to
the extent that failure to so obtain or so file could not reasonably be
expected to have a Material Adverse Effect.
(d) This Agreement has been, and each of the Notes to be delivered
by it when delivered hereunder will have been, duly executed and delivered
by the Borrower. This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with their respective terms,
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or moratorium or similar laws affecting the rights of
creditors generally and subject to general principles of equity (regardless
of whether enforcement is sought in a proceeding at law or in equity).
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2002, and the related Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Ernst & Young
LLP, independent public accountants, and the Consolidated balance sheet of
the Borrower and its Subsidiaries as at March 31, 2003, and the related
Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the three months then ended, duly certified by the chief
financial officer of the Borrower, copies of which have been furnished to
each Lender, fairly present in accordance with GAAP, subject, in the case
of said balance sheet as at March 31, 2003, and said statements of income
and cash flows for the three months then ended, to year-end adjustments and
the absence of footnotes, the Consolidated financial condition of the
Borrower and its Subsidiaries as at such dates and the Consolidated results
of the operations of the Borrower and its Subsidiaries for the periods
ended on such dates, all in accordance with generally accepted accounting
principles consistently applied. Since December 31, 2002, no event or
circumstance has occurred and is continuing that could reasonably be
expected to result in a Material Adverse Change.
<Page>
(f) There is no pending or, to the knowledge of the Borrower,
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Borrower or any of its Subsidiaries before any court, governmental agency
or arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect or (ii) could be reasonably likely to adversely affect the
legality, validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(g) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of any Advance will be used to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(h) The Borrower is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(i) The Borrower is, individually and together with its
Subsidiaries, Solvent.
(j) Neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other information furnished
by or on behalf of the Borrower to the Agent or any Lender in connection
with the negotiation of this Agreement or delivered hereunder (as modified
or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they
were made and taken as a whole, not materially misleading; PROVIDED that,
with respect to projected financial information and forward-looking
statements, the Borrower represents only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time
made and PROVIDED, FURTHER, that the Borrower makes no representation or
warranty with respect to general industry information contained in the
Information Memorandum derived from consultants or public or third party
sources except that the Borrower believed, to the best of its knowledge and
on the date of the Information Memorandum, such information to be reliable.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and Environmental Laws, except to the extent that failure to so
comply could not reasonably be expected to have a Material Adverse Effect.
(b) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all material taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all material lawful
claims that, if unpaid, might by law become a Lien upon its property;
PROVIDED, HOWEVER, that neither the Borrower nor any of its Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge or
claim that is being contested in good faith and by proper proceedings and
as to which appropriate reserves are being maintained, unless and until any
Lien resulting therefrom attaches to its property and enforcement actions
are begun.
(c) MAINTENANCE OF INSURANCE. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and
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covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which
the Borrower or such Subsidiary operates.
(d) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
corporate existence, rights (charter and statutory) and franchises;
PROVIDED, HOWEVER, that the Borrower and its Subsidiaries may consummate
any transaction permitted under Section 5.02(b) and PROVIDED FURTHER that
neither the Borrower nor any of its Subsidiaries shall be required to
preserve any right or franchise or, in the case of any Subsidiary, its
corporate existence, if the Borrower shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Borrower or the Borrower and its Subsidiaries taken as a whole, and that
the loss thereof is not disadvantageous in any material respect to the
Borrower, the Borrower and its Subsidiaries taken as a whole or the
Lenders.
(e) VISITATION RIGHTS. At any reasonable time and from time to
time, permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, the
Borrower and any of its Subsidiaries, and to discuss the affairs, finances
and accounts of the Borrower and any of its Subsidiaries with any of their
officers or directors and with their independent certified public
accountants, PROVIDED that, so long as no Default shall have occurred and
be continuing, the Borrower shall have the right to participate in any
discussions of the Agent or any Lender with any independent accountants of
the Borrower.
(f) KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
the Borrower and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(g) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear and loss or damage by
casualty or condemnation excepted.
(h) TRANSACTIONS WITH AFFILIATES. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate, other than (i) transactions by and among the Borrower and its
wholly-owned Subsidiaries and (ii) compensation of, or fees payable to,
officers and directors of the Borrower and its Subsidiaries.
(i) REPORTING REQUIREMENTS. Furnish to the Lenders:
(i) as soon as available and in any event within 50 days
after the end of each of the first three quarters of each fiscal year
of the Borrower, the Consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such quarter and Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, duly certified
(subject to year-end adjustments and the absence of footnotes) by the
chief financial officer of the Borrower as having been prepared in
accordance with generally accepted accounting principles and
certificates of the chief financial officer of the Borrower as to
compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate compliance
with Section 5.03, PROVIDED that in the event of any change in
generally accepted accounting principles used in the preparation of
such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements to
GAAP;
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(ii) as soon as available and in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
annual audit report for such year for the Borrower and its
Subsidiaries, containing the Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the Borrower and
its Subsidiaries for such fiscal year, in each case accompanied by an
opinion reasonably acceptable to the Required Lenders by Ernst & Young
LLP or other independent public accountants reasonably acceptable to
the Required Lenders and certificates of the chief financial officer
of the Borrower as to compliance with the terms of this Agreement and
setting forth in reasonable detail the calculations necessary to
demonstrate compliance with Section 5.03, PROVIDED that in the event
of any change in generally accepted accounting principles used in the
preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial
statements to GAAP;
(iii) as soon as possible and in any event within five
Business Days after the occurrence of each Default continuing on the
date of such statement, a statement of the chief financial officer of
the Borrower setting forth details of such Default and the action that
the Borrower has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies
of all reports that the Borrower sends to its securityholders
generally, and copies of all reports and registration statements that
the Borrower or any Subsidiary files with the Securities and Exchange
Commission or any national securities exchange;
(v) promptly after the commencement thereof, notice of
all actions and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Subsidiaries of the
type described in Section 4.01(f); and
(vi) such other information respecting the Borrower or any
of its Subsidiaries as any Lender through the Agent may from time to
time reasonably request.
(j) NEW MATERIAL SUBSIDIARIES. Promptly and in any event within 30
days following the request of the Required Lenders made after either (i)
the organization or acquisition of any new Material Subsidiary or (ii) the
delivery of audited annual financial statements pursuant to Section 5.01(i)
that indicate that a Subsidiary of the Borrower that is not at such time a
Subsidiary Guarantor is a Material Subsidiary, cause such Material
Subsidiary to execute and deliver a Subsidiary Guaranty in substantially
the form of Exhibit E hereto, together with such documents as the Required
Lenders may request evidencing corporate action taken to authorize such
execution and delivery and the incumbency and signatures of officers of
such Material Subsidiary, PROVIDED that a Material Subsidiary shall not be
required to become a Guarantor if (A) a guaranty by such Material
Subsidiary would result in materially adverse tax consequences to the
Borrower and its Subsidiaries or shareholders of the Borrower or (B) a
guaranty by such Material Subsidiary is prohibited or limited by regulatory
requirements or applicable law.
SECTION 5.02. NEGATIVE COVENANTS. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will not:
(a) LIENS, ETC. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any right to receive income,
other than:
(i) Permitted Liens,
(ii) capital leases and purchase money Liens upon or in
any real or personal property acquired or held by the Borrower or any
Subsidiary in the ordinary course of business to
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secure the purchase price of such property or to secure Debt incurred
solely for the purpose of financing the acquisition of such property,
or Liens existing on such property at the time of its acquisition
(other than any such Liens created in contemplation of such
acquisition that were not incurred to finance the acquisition of such
property) or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, PROVIDED, HOWEVER, that no
such Lien shall extend to or cover any properties of any character
other than the property being acquired, and no such extension, renewal
or replacement shall extend to or cover any properties not theretofore
subject to the Lien being extended, renewed or replaced, PROVIDED
FURTHER that the aggregate principal amount of the indebtedness
secured by the Liens referred to in this clause (ii) shall not exceed
the amount specified therefor in Section 5.02(d)(iii) at any time
outstanding,
(iii) the Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the time
such Person is merged into or consolidated with the Borrower or any
Subsidiary of the Borrower or becomes a Subsidiary of the Borrower;
PROVIDED that such Liens were not created in contemplation of such
merger, consolidation or acquisition and do not extend to any assets
other than those of the Person so merged into or consolidated with the
Borrower or such Subsidiary or acquired by the Borrower or such
Subsidiary,
(v) assignments of the right to receive income or Liens
in connection with any Permitted Receivables Financing, to the extent
permitted under Section 5.02(d)(iv),
(vi) licenses, leases or subleases granted to other
Persons in the ordinary course of business not materially interfering
with the conduct of the business of the Borrower and its Subsidiaries
taken as a whole,
(vii) Liens arising from precautionary UCC financing
statement filings regarding operating leases entered into by the
Borrower or any of its Subsidiaries (other than a Receivables
Subsidiary) in the ordinary course of business,
(viii) Liens arising out of judgments or awards in
circumstances not constituting an Event of Default under Section 6.01
in respect of which the Borrower or any of its Subsidiaries shall in
good faith be prosecuting an appeal or proceedings for review in
respect of which there shall have been secured a subsisting stay of
execution pending such appeal or proceedings, PROVIDED that the
aggregate amount of all such judgments or awards does not exceed
$25,000,000 at any time outstanding,
(ix) statutory, contractual and common law landlords'
liens under leases or subleases permitted by this Agreement,
(x) Liens (other than any Lien imposed by ERISA) (x) to
secure the performance of tenders, statutory obligations (other than
excise taxes), surety, stay, customs and appeal bonds, statutory
bonds, bids, leases, government contracts, trade contracts,
performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money) or (y)
arising by virtue of deposits made in the ordinary course of business
to secure liability for premiums to insurance carriers, PROVIDED that
the aggregate amount of deposits at any time pursuant to sub-clauses
(x) and (y) shall not exceed $15,000,000 in the aggregate,
(xi) any interest or title of a lessor, sublessor,
licensee or licensor under any lease or license agreement permitted by
this Agreement,
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(xii) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for the sale of goods
entered into by the Borrower or any of its Subsidiaries in the
ordinary course of business (excluding any general inventory
financing),
(xiii) other Liens securing Debt (whether incurred by the
Borrower or any of its Subsidiaries) in an aggregate principal amount
not to exceed the amount specified in Section 5.02(d)(iii) at any time
outstanding, and
(xiv) the replacement, extension or renewal of any Lien
permitted by clause (iii) or (iv) above upon or in the same property
theretofore subject thereto or the replacement, extension or renewal
(without increase in the amount or change in any direct or contingent
obligor) of the Debt secured thereby.
(b) MERGERS, ETC. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, or permit any of its
Subsidiaries to do so, except that (i) any Subsidiary of the Borrower may
merge or consolidate with or into, or dispose of assets to, any other
Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower may merge
into or dispose of assets to the Borrower, (iii) the Borrower may merge
with any other Person so long as the Borrower is the surviving corporation
and (iv) any Subsidiary or Subsidiaries of the Borrower may merge or
consolidate with or into, or dispose of assets to, any other Person so long
as the assets of such Subsidiaries, in aggregate, do not constitute all or
substantially all of the assets of the Borrower or of the Borrower and its
Subsidiaries taken as a whole, PROVIDED, in each case, that no Default
shall have occurred and be continuing at the time of such proposed
transaction or would result therefrom.
(c) ACCOUNTING CHANGES. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally accepted
accounting principles.
(d) SUBSIDIARY DEBT. Permit any of its Subsidiaries to create or
suffer to exist, any Debt other than:
(i) Debt owed to the Borrower or to a wholly owned
Subsidiary of the Borrower,
(ii) Debt existing on the Effective Date and described on
Schedule 5.02(d) hereto (the "EXISTING DEBT"), and any Debt extending
the maturity of, or refunding or refinancing, in whole or in part, the
Existing Debt, PROVIDED that the principal amount of such Existing
Debt shall not be increased above the principal amount thereof
outstanding immediately prior to such extension, refunding or
refinancing, and the direct and contingent obligors therefor shall not
be changed, as a result of or in connection with such extension,
refunding or refinancing,
(iii) Debt secured by Liens permitted by Section
5.02(a)(ii) or (xiii) aggregating for all of the Borrower's
Subsidiaries not more than $100,000,000 and $50,000,000, respectively,
at any one time outstanding,
(iv) Debt arising under Permitted Receivables Financings
in an aggregate Invested Amount not to exceed $250,000,000 at any time
outstanding,
(v) unsecured Debt incurred in the ordinary course of
business aggregating for all of the Borrower's Subsidiaries not more
than $35,000,000 at any one time outstanding, and
(v) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business.
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(e) CHANGE IN NATURE OF BUSINESS. Make, or permit any of its
Subsidiaries to make, any material change in the nature of the business of
the Borrower and its Subsidiaries, taken as a whole, as carried on at the
date hereof.
(f) PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or arrangement
limiting the ability of any of its Subsidiaries to declare or pay dividends
or other distributions in respect of its equity interests or repay or
prepay any Debt owed to, make loans or advances to, or otherwise transfer
assets to or invest in, the Borrower or any Subsidiary of the Borrower
(whether through a covenant restricting dividends, loans, asset transfers
or investments, a financial covenant or otherwise), except (i) any
agreement in effect at the time such Subsidiary becomes a Subsidiary of the
Borrower, so long as such agreement was not entered into solely in
contemplation of such Person becoming a Subsidiary of the Borrower, (ii)
any customary agreement restricting subletting or assignment of any lease
governing a leasehold interest, (iii) customary provisions restricting
assignment of any licensing agreement entered into in the ordinary course
of business, (iv) customary provisions restricting the transfer of assets
subject to Liens permitted pursuant to Section 5.02(a), (v) under an
document evidencing a Permitted Receivables Financing and (vi) any
encumbrance or restriction existing under or by reason of applicable law.
SECTION 5.03. FINANCIAL COVENANTS. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will:
(a) NET WORTH. Maintain an excess of Consolidated total assets
over Consolidated total liabilities of not less than $500,000,000.
(b) CAPITALIZATION RATIO. Maintain a ratio of Consolidated Debt to
the sum of Consolidated Debt plus Consolidated shareholders' equity of not
greater than 0.60 to 1.
(c) INTEREST COVERAGE RATIO. Maintain a ratio of Consolidated
EBITDA as at the end of any quarter for the four quarter period then ended
of the Borrower and its Subsidiaries to the sum of interest payable on, and
amortization of debt discount in respect of, all Debt during such period,
in each case, by the Borrower and its Subsidiaries of not less than 3.5 to
1, PROVIDED that interest expense for the purposes of this covenant shall
not include (i) any premium paid in connection with the tender offer for,
or other subsequent prepayment of, the 9 5/8% Senior Subordinated Notes due
2009 issued by the Borrower and (ii) any write-off of financing charges due
to the prepayment of such Senior Subordinated Notes or the Debt outstanding
under the Credit Agreement referred to in Section 3.01(i).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable; or the Borrower shall fail to pay
any interest on any Advance or make any other payment of fees or other
amounts payable under this Agreement or any Note within three Business Days
after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein or
by the Borrower (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d) (as it relates to the
corporate existence of the Borrower), (e), (h) or (i), 5.02(a),
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(c), (d), (e) or (f) or 5.03, or (ii) the Borrower shall fail to perform or
observe any other term, covenant or agreement contained in this Agreement
(other than Section 5.02(b), which shall be governed by clause (a) of this
Section 6.01) on its part to be performed or observed if such failure shall
remain unremedied for 20 days after written notice thereof shall have been
given to the Borrower by the Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal or notional amount of at least $25,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of the Borrower or such Subsidiary
(as the case may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem, purchase
or defease such Debt shall be required to be made, in each case prior to
the stated maturity thereof; or
(e) Any of (x) the Borrower, (y) any of the Material Subsidiaries
or (z) any combination of Subsidiaries of the Borrower that, in aggregate
own assets with a value of 15% or more of the total value of the assets of
the Borrower and its Subsidiaries taken as a whole, shall generally not pay
its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any of its Subsidiaries seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for
it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 30 days, or
any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of
a receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any of
its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); or
(f) Judgments or orders for the payment of money in excess of
$25,000,000 in the aggregate shall be rendered against the Borrower or any
of its Subsidiaries and either (i) unstayed enforcement proceedings shall
have been commenced by any creditor upon such judgment or order or (ii)
there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; PROVIDED, HOWEVER, that any such
judgment or order shall not be an Event of Default under this Section
6.01(f) if and for so long as (i) the amount of such judgment or order is
covered by a valid and binding policy of insurance between the defendant
and the insurer covering payment thereof and (ii) such insurer, which shall
be rated at least "A" by A.M. Best Company, has been notified of, and has
not disputed the claim made for payment of, the amount of such judgment or
order; or
(g) Any non-monetary judgment or order shall be rendered against
the Borrower or any of its Subsidiaries that could be reasonably expected
to have a Material Adverse Effect, and there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(h) The Borrower or any of its ERISA Affiliates shall incur, or
shall be reasonably likely to incur liability in excess of $25,000,000 in
the aggregate as a result of one or more of the following: (i) the
occurrence of any ERISA Event; (ii) the partial or complete withdrawal of
the Borrower or any of its
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ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan; or
(i) any Loan Document after delivery thereof pursuant to Section
3.01 or 5.01(j) shall for any reason cease to be valid and binding on or
enforceable against any Loan Party party to it, or any such Loan Party
shall so state in writing;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances (other than Advances by an Issuing
Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue
Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the Advances, all interest
thereon and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Advances, all such interest and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower; PROVIDED, HOWEVER, that in the event of an actual or deemed
entry of an order for relief with respect to the Borrower under the Federal
Bankruptcy Code, (A) the obligation of each Lender to make Advances (other than
Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and of the
Issuing Banks to issue Letters of Credit shall automatically be terminated and
(B) the Advances, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrower.
SECTION 6.02. ACTIONS IN RESPECT OF THE LETTERS OF CREDIT UPON
DEFAULT. If any Event of Default shall have occurred and be continuing, the
Agent may with the consent, or shall at the request, of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, (a) pay to the Agent on behalf of the Lenders in same
day funds at the Agent's office designated in such demand, for deposit in the
L/C Cash Collateral Account, an amount equal to the aggregate Available Amount
of all Letters of Credit then outstanding or (b) make such other arrangements in
respect of the outstanding Letters of Credit as shall be acceptable to the
Required Lenders; PROVIDED, HOWEVER, that in the event of an actual or deemed
entry of an order for relief with respect to the Borrower under the Federal
Bankruptcy Code, the Borrower will pay to the Agent on behalf of the Lenders in
same day funds for deposit in the L/C Cash Collateral Account an amount equal to
the aggregate Available Amount of all Letters of Credit then outstanding,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower. If at any time the Agent determines
that any funds held in the L/C Cash Collateral Account are subject to any right
or claim of any Person other than the Agent and the Lenders or that the total
amount of such funds is less than the aggregate Available Amount of all Letters
of Credit, the Borrower will, forthwith upon demand by the Agent, pay to the
Agent, as additional funds to be deposited and held in the L/C Cash Collateral
Account, an amount equal to the excess of (a) such aggregate Available Amount
over (b) the total amount of funds, if any, then held in the L/C Cash Collateral
Account that the Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit, to the extent funds are on
deposit in the L/C Cash Collateral Account, such funds shall be applied to
reimburse the Issuing Banks to the extent permitted by applicable law. After all
such Letters of Credit shall have expired or been fully drawn upon and all other
obligations of the Borrower hereunder and under the Notes shall have been paid
in full, the balance, if any, in such L/C Cash Collateral Account shall be
returned to the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. AUTHORIZATION AND ACTION. Each Lender hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of
<Page>
Notes; PROVIDED, HOWEVER, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to this
Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
SECTION 7.02. AGENT'S RELIANCE, ETC. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
Lender that made any Advance as the holder of the Debt resulting therefrom until
the Agent receives and accepts an Assignment and Acceptance entered into by such
Lender, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance, observance or
satisfaction of any of the terms, covenants or conditions of this Agreement on
the part of the Borrower or the existence at any time of any Default or to
inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any other instrument
or document furnished pursuant hereto; and (vi) shall incur no liability under
or in respect of this Agreement by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. JPMORGAN AND AFFILIATES. With respect to its Commitment,
the Advances made by it and the Note issued to it, JPMorgan shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include JPMorgan in its individual
capacity. JPMorgan and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, accept investment banking engagements from
and generally engage in any kind of business with, the Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if JPMorgan were not the Agent and
without any duty to account therefor to the Lenders. The Agent shall have no
duty to disclose any information obtained or received by it or any of its
Affiliates relating to the Borrower or any of its Subsidiaries to the extent
such information was obtained or received in any capacity other than as Agent.
SECTION 7.04. LENDER CREDIT DECISION. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. INDEMNIFICATION. (a) Each Lender severally agrees to
indemnify the Agent (to the extent not reimbursed by the Borrower), from and
against such Lender's Ratable Share of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement
(collectively, the "INDEMNIFIED COSTS"), PROVIDED that no Lender shall be liable
for any portion of the Indemnified Costs resulting from the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its ratable share
of any out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified
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Costs, this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify the Issuing Banks
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender's Ratable Share of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against any such Issuing Bank in any way relating to or arising out of this
Agreement or any action taken or omitted by such Issuing Bank hereunder or in
connection herewith; PROVIDED, HOWEVER, that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Issuing
Bank's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon
demand for its Ratable Share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrower under Section
8.04, to the extent that such Issuing Bank is not promptly reimbursed for such
costs and expenses by the Borrower.
(c) The failure of any Lender to reimburse the Agent or any
Issuing Bank promptly upon demand for its Ratable Share of any amount required
to be paid by the Lenders to the Agent or such Issuing Bank as provided herein
shall not relieve any other Lender of its obligation hereunder to reimburse the
Agent or such Issuing Bank for its Ratable Share of such amount, but no Lender
shall be responsible for the failure of any other Lender to reimburse the Agent
or an Issuing Bank for such other Lender's Ratable Share of such amount. Without
prejudice to the survival of any other agreement of any Lender hereunder, the
agreement and obligations of each Lender contained in this Section 8.05 shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under the Notes.
SECTION 7.06. SUCCESSOR AGENT. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent with, so long as no Event of Default has occurred and is
continuing, the consent of the Borrower, which consent shall not be unreasonably
withheld or delayed. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 7.07. OTHER AGENTS. Each Lender hereby acknowledges that
neither the documentation agent nor any other Lender designated as any "Agent"
on the signature pages hereof has any liability hereunder other than in its
capacity as a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement or the Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; PROVIDED, HOWEVER, that (a) no amendment, waiver or consent shall, unless
in writing and signed by all the Lenders, do any of the following: (i) waive any
of the conditions specified in Section 3.01, (ii) change the number of Lenders
or the percentage of (x) the Commitments, (y) the aggregate unpaid principal
amount of the Advances or (z) the aggregate Available Amount of outstanding
Letters of Credit that, in each case, shall be required for the Lenders or any
of them to take any action
<Page>
hereunder or (iii) amend this Section 8.01 and (b) no amendment, waiver or
consent shall, unless in writing and signed by the Required Lenders and each
Lender that has a Commitment under the Term Facility or Revolving Credit
Facility if such Lender is directly affected by such amendment, waiver or
consent, (i) increase the Commitments of such Lender, (ii) reduce the principal
of, or interest on, the Notes held by such Lender or any fees or other amounts
payable hereunder to such Lender, (iii) postpone any date fixed for any payment
of principal of, or interest on, the Notes held by such Lender or any fees or
other amounts payable hereunder to such Lender, (iv) change the order of
application of any prepayment set forth in Section 2.06 in any manner that
materially affects such Lender; and PROVIDED FURTHER that no amendment, waiver
or consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Agent under this Agreement or any Note and no amendment, waiver or consent
shall, unless in writing and signed by the Issuing Banks in addition to the
Lenders required above to take such action, adversely affect the rights or
obligations of the Issuing Banks in their capacities as such under this
Agreement.
SECTION 8.02. NOTICES, ETC. (a) All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed or delivered, if to the
Borrower, at its address at 1900 West Field Court, Lake Forest, Illinois 60045,
Attention: Chief Financial Officer; if to any Initial Lender, at its Domestic
Lending Office specified opposite its name on Schedule I hereto; if to any other
Lender, at its Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Lender; and if to the Agent, at its
address at 1111 Fannin, 10th Floor, Houston, Texas 77002, Attention: Jeremy
Jones (Telecopy No. (713) 750-2223; E-Mail Address:
jeremy.m.jones@jpmorgan.com), with a copy to 270 Park Avenue, 4th Floor, New
York, New York 10017, Attention: Peter S. Predun (Telecopy No. (212) 270-5100;
E-Mail Address: peter.predun@jpmorgan.com); or, as to the Borrower or the Agent,
at such other address as shall be designated by such party in a written notice
to the other parties and, as to each other party, at such other address as shall
be designated by such party in a written notice to the Borrower and the Agent.
All such notices and communications shall, when mailed, telecopied, telegraphed
or delivered, be effective when deposited in the mails, telecopied, delivered to
the telegraph company or delivered, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
SECTION 8.03. NO WAIVER; REMEDIES. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. COSTS AND EXPENSES. (a) The Borrower agrees to pay on
demand all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all costs and expenses
of the Agent and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent
and each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "INDEMNIFIED PARTY") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances or (ii) the actual or alleged presence of Hazardous Materials on
any property of the Borrower or any of its
<Page>
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 8.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, equityholders or creditors
or an Indemnified Party or any other Person, whether or not any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. The Borrower also agrees not to assert any
claim for special, indirect, consequential or punitive damages against the
Agent, any Lender, any of their Affiliates, or any of their respective
directors, officers, employees, attorneys and agents, on any theory of
liability, arising out of or otherwise relating to the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or
2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, or by an Eligible Assignee to a Lender other than on the last
day of the Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 8.07 as a result of a
demand by the Borrower pursuant to Section 8.07(a), the Borrower shall, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. RIGHT OF SET-OFF. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower
after any such set-off and application, PROVIDED that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Lender and its Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender and its Affiliates may have.
SECTION 8.06. BINDING EFFECT. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender may with
the consent of the Agent, each Issuing Bank and, so long as no Event of Default
has occurred and is continuing, the Borrower (which consents shall not be
unreasonably withheld or delayed), and, if demanded by the Borrower (following a
demand by such Lender pursuant to Section 2.11 or 2.14) upon at least five
Business Days' notice to such Lender and the Agent, will assign to one or more
Persons all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Revolving Credit
Commitment, its Term Commitment, its Unissued Letter
<Page>
of Credit Commitment, the Advances owing to it, its participations in Letters of
Credit and the Note or Notes held by it); PROVIDED, HOWEVER, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all rights
and obligations under this Agreement, (ii) except in the case of an assignment
to a Person that, immediately prior to such assignment, was a Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, the
amount of the Commitment of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than (x) in the case of an
assignment of Revolving Credit Commitment, $5,000,000 or an integral multiple of
$1,000,000 in excess thereof, (y) in the case of an assignment of Term
Commitment, an integral multiple of $1,000,000 and (z) in the case of an
assignment of Unissued Letter of Credit Commitment, $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, in each case unless the Agent and, if
no Default has occurred and is continuing, the Borrower otherwise agree, (iii)
each such assignment shall be to an Eligible Assignee, (iv) each such assignment
made as a result of a demand by the Borrower pursuant to this Section 8.07(a)
shall be arranged by the Borrower after consultation with the Agent and shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrower pursuant to this
Section 8.07(a) unless and until such Lender shall have received one or more
payments from either the Borrower or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement, (vi) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note subject to such
assignment and a processing and recordation fee of $3,500 payable by the parties
to each such assignment, PROVIDED, HOWEVER, that in the case of each assignment
made as a result of a demand by the Borrower, such recordation fee shall be
payable by the Borrower except that no such recordation fee shall be payable in
the case of an assignment made at the request of the Borrower to an Eligible
Assignee that is an existing Lender and (vii) no consent of the Borrower, the
Agent or any Issuing Bank shall be required in the case of an assignment to any
Affiliate of the assigning Lender or in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Sections 2.11, 2.14 and 8.04 to the extent any claim thereunder
relates to an event arising prior to such assignment) and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under any Loan Document
or any other instrument or document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under any Loan Document as are delegated to the Agent by the terms
hereof or thereof, together with such powers and discretion as
<Page>
are reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.
(d) The Agent shall maintain at its address referred to in Section
8.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Advances owing to, each Lender
from time to time (the "REGISTER"). The entries in the Register shall be PRIMA
FACIE evidence of the correctness thereof and binding for all purposes, absent
manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than any Loan Party or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, its participation in
Letters of Credit, the Advances owing to it and any Note or Notes held by it);
PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this Agreement, (iv) each
Loan Party, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by any
Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Loan Parties furnished to such
Lender by or on behalf of the Loan Parties; PROVIDED that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Borrower Information relating
to the Loan Parties received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and any Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. CONFIDENTIALITY. Neither the Agent nor any Lender may
disclose to any Person any confidential, proprietary or non-public information
of the Loan Parties furnished to the Agent or the Lenders by any Loan Party
(such information being referred to collectively herein as the "BORROWER
INFORMATION"), except that each of the Agent and each of the Lenders may
disclose Borrower Information (i) to its and its affiliates' employees,
officers, directors, agents and advisors on a need to know basis (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Borrower Information and instructed to keep such
Borrower Information confidential on substantially the same terms as provided
herein), (ii) to the extent requested by any regulatory authority, (iii) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process, (iv) to any other party to this Agreement, (v) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder, (vi) subject
to an agreement containing provisions substantially the same as those of this
Section 8.08, to
<Page>
any assignee or participant or prospective assignee or participant, (vii) to the
extent such Borrower Information (A) is or becomes generally available to the
public on a non-confidential basis other than as a result of a breach of this
Section 8.08 by the Agent or a Lender, or (B) is or becomes available to the
Agent or such Lender on a nonconfidential basis from a source other than the
Loan Parties and (viii) with the consent of any Loan Party, PROVIDED, that,
prior to any disclosure pursuant to (ii) or (iii) above, the disclosing party
agrees that it will notify the Borrower as soon as practical in the event of any
such request for a disclosure, unless such notification shall be prohibited by
applicable law or legal process. Notwithstanding anything herein to the
contrary, the Borrower, the Agent and the Lenders may disclose to any and all
Persons, without limitation of any kind, the U.S. tax treatment and tax
structure of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the Borrower,
the Agent or any Lender relating to such U.S. tax treatment and tax structure.
SECTION 8.09. GOVERNING LAW. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.10. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. JURISDICTION, ETC. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. The Borrower hereby agrees and consents to the service of
process in any action or proceeding in such courts by the mailing thereof by any
parties hereto by registered or certified mail, postage prepaid, to the Borrower
at its address specified pursuant to Section 8.02. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 8.12. NO LIABILITY OF THE ISSUING BANKS. Neither the Agent,
the Lenders nor any Issuing Bank, nor any of their respective Affiliates or
their respective officers, directors, employees, agents and advisors, shall have
any liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in
Section 2.06(c)), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the applicable Issuing
Bank; provided that the foregoing shall not be construed to excuse such Issuing
Bank from liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by such Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of the
applicable Issuing Bank, such Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented
<Page>
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the applicable Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
<Page>
SECTION 8.13. WAIVER OF JURY TRIAL. Each of the Borrower, the Agent
and the Lenders hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
PACKAGING CORPORATION OF AMERICA
By /s/ Richard B. West
-------------------------------------
Title: Senior Vice President, Chief Executive
Officer and Corporate Secretary
JPMORGAN CHASE BANK,
as Agent
By /s/ Peter S. Prechm
-------------------------------------
Title: Vice President
INITIAL LENDERS
CITICORP NORTH AMERICA, INC.
By /s/ Robert A. Danziger
-------------------------------------
Title: Attorney-In-Fact
JPMORGAN CHASE BANK
By /s/ Peter S. Prechm
-------------------------------------
Title: Vice President
MORGAN STANLEY SENIOR FUNDING, INC.
By /s/ Todd Vannucci
-------------------------------------
Title: Executive Director
LASALLE BANK NATIONAL ASSOCIATION
By /s/ [not legible]
-------------------------------------
Title: First Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ Christine Davis
-------------------------------------
Title: Vice President
<Page>
BANK OF MONTREAL
By /s/ Isabelle Battista
-------------------------------------
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Shawn Janko
-------------------------------------
Title: Vice President
THE NORTHERN TRUST COMPANY
By /s/ [not legible]
-------------------------------------
Title: Vice President
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By /s/ Marco Orlando
-------------------------------------
Title: Director