[EXECUTION COPY]
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CREDIT AGREEMENT
Dated as of August 24, 2004
among
PALL CORPORATION,
as the Borrower,
JPMORGAN CHASE BANK,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
The Other Lenders Party Hereto,
FLEET NATIONAL BANK,
as Syndication Agent,
WACHOVIA BANK NATIONAL ASSOCIATION and UBS SECURITIES LLC,
as Co-Documentation Agents,
and
BANC OF AMERICA SECURITIES LLC
AND
J.P.MORGAN SECURITIES INC.,
as
Co-Lead Arrangers and Co-Book Managers.
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...........................................................1
1.01 Defined Terms..................................................................................1
1.02 Other Interpretive Provisions.................................................................21
1.03 Accounting Terms..............................................................................22
1.04 Rounding......................................................................................23
1.05 Times of Day..................................................................................23
1.06 Letter of Credit Amounts......................................................................23
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS.....................................................23
2.01 Committed Loans...............................................................................23
2.02 Borrowings, Conversions and Continuations of Committed Loans..................................23
2.03 Bid Loans.....................................................................................25
2.04 Letters of Credit.............................................................................28
2.05 Swing Line Loans..............................................................................36
2.06 Prepayments...................................................................................39
2.07 Termination or Reduction of Commitments.......................................................40
2.08 Repayment of Loans............................................................................40
2.09 Interest......................................................................................41
2.10 Fees..........................................................................................41
2.11 Computation of Interest and Fees..............................................................42
2.12 Evidence of Debt..............................................................................42
2.13 Payments Generally; Administrative Agent's Clawback...........................................43
2.14 Sharing of Payments by Lenders................................................................44
2.15 Increase in Commitments.......................................................................45
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY....................................................46
3.01 Taxes.........................................................................................46
3.02 Illegality....................................................................................48
3.03 Inability to Determine Rates..................................................................49
3.04 Increased Costs; Reserves on Eurodollar Rate Loans............................................49
3.05 Compensation for Losses.......................................................................51
3.06 Mitigation Obligations; Replacement of Lenders................................................51
3.07 Survival......................................................................................52
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.................................................52
4.01 Conditions of Initial Credit Extension........................................................52
4.02 Conditions to all Credit Extensions...........................................................54
ARTICLE V REPRESENTATIONS AND WARRANTIES............................................................55
5.01 Existence, Qualification and Power; Compliance with Laws......................................55
5.02 Authorization; No Contravention...............................................................55
5.03 Governmental Authorization; Other Consents....................................................55
5.04 Binding Effect................................................................................55
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5.05 Financial Statements; No Material Adverse Effect..............................................56
5.06 Litigation....................................................................................56
5.07 No Default....................................................................................56
5.08 Ownership of Property; Liens..................................................................56
5.09 Environmental Compliance......................................................................57
5.10 Insurance.....................................................................................57
5.11 Taxes.........................................................................................57
5.12 ERISA Compliance..............................................................................57
5.13 Subsidiaries; Equity Interests................................................................58
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act................58
5.15 Disclosure....................................................................................58
5.16 Compliance with Laws..........................................................................58
5.17 Permits and Licenses, Etc.....................................................................59
5.18 Labor Disputes and Acts of God................................................................59
5.19 Specially Designated Nationals or Blocked Persons List........................................59
ARTICLE VI AFFIRMATIVE COVENANTS.....................................................................59
6.01 Financial Statements..........................................................................59
6.02 Certificates; Other Information...............................................................60
6.03 Notices.......................................................................................62
6.04 Payment of Obligations........................................................................62
6.05 Preservation of Existence, Etc................................................................63
6.06 Maintenance of Properties.....................................................................63
6.07 Maintenance of Insurance......................................................................63
6.08 Compliance with Laws..........................................................................63
6.09 Books and Records.............................................................................63
6.10 Inspection Rights.............................................................................64
6.11 Use of Proceeds...............................................................................64
6.12 Additional Guarantors.........................................................................64
6.13 Environmental Laws............................................................................64
6.14 Borrower Rating...............................................................................64
ARTICLE VII NEGATIVE COVENANTS........................................................................65
7.01 Liens.........................................................................................65
7.02 Investments...................................................................................66
7.03 Indebtedness..................................................................................67
7.04 Fundamental Changes...........................................................................68
7.05 Dispositions..................................................................................69
7.06 Restricted Payments...........................................................................70
7.07 Change in Nature of Business..................................................................70
7.08 Transactions with Affiliates..................................................................70
7.09 Burdensome Agreements.........................................................................70
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7.10 Use of Proceeds...............................................................................70
7.11 Financial Covenants...........................................................................70
7.12 Hazardous Materials...........................................................................71
7.13 Subordinated Indebtedness.....................................................................71
7.14 Negative Pledge...............................................................................71
7.15 Senior Notes..................................................................................71
7.16 Senior Notes..................................................................................71
7.17 Inactive Domestic Subsidiaries................................................................71
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES............................................................71
8.01 Events of Default.............................................................................71
8.02 Remedies Upon Event of Default................................................................73
8.03 Application of Funds..........................................................................74
ARTICLE IX ADMINISTRATIVE AGENT......................................................................75
9.01 Appointment and Authority.....................................................................75
9.02 Rights as a Lender............................................................................75
9.03 Exculpatory Provisions........................................................................75
9.04 Reliance by Administrative Agent..............................................................76
9.05 Delegation of Duties..........................................................................76
9.06 Resignation of Administrative Agent...........................................................77
9.07 Non-Reliance on Administrative Agent and Other Lenders........................................77
9.08 No Other Duties, Etc..........................................................................78
9.09 Administrative Agent May File Proofs of Claim.................................................78
9.10 Guaranty Matters..............................................................................78
ARTICLE X MISCELLANEOUS.............................................................................79
10.01 Amendments, Etc...............................................................................79
10.02 Notices; Effectiveness; Electronic Communication..............................................80
10.03 No Waiver; Cumulative Remedies................................................................81
10.04 Expenses; Indemnity; Damage Waiver............................................................81
10.05 Payments Set Aside............................................................................83
10.06 Successors and Assigns........................................................................84
10.07 Treatment of Certain Information; Confidentiality.............................................87
10.08 Right of Setoff...............................................................................88
10.09 Interest Rate Limitation......................................................................89
10.10 Counterparts; Integration; Effectiveness......................................................89
10.11 Survival of Representations and Warranties....................................................89
10.12 Severability..................................................................................89
10.13 Replacement of Lenders........................................................................89
10.14 Governing Law; Jurisdiction; Etc..............................................................90
10.15 Waiver of Jury Trial..........................................................................91
10.16 USA PATRIOT Act Notice........................................................................91
SIGNATURES.....................................................................................................S-1
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SCHEDULES
1.0 Existing Letters of Credit
2.01 Commitments and Applicable Percentages
4.01 Guarantors
5.06 Litigation
5.09 Environmental Matters
5.11 Tax Sharing Agreements
5.13 Subsidiaries; Other Equity Investments; Equity Interests in
the Borrower
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
7.03(d) Existing Guarantees
10.02 Administrative Agent's Office; Certain Addresses for Notices
EXHIBITS
FORM OF
A Committed Loan Notice
B-1 Bid Request
B-2 Competitive Bid
B-3 Letter of Credit Application
C Swing Line Loan Notice
D Note
E Compliance Certificate
F Assignment and Assumption
G Guaranty
H Opinion Matters
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of August 24,
2004, among PALL CORPORATION, a New York corporation (the "Borrower"), each
lender from time to time party hereto (collectively, the "Lenders" and
individually, a "Lender"), JPMORGAN CHASE BANK, as Administrative Agent, Swing
Line Lender and L/C Issuer, FLEET NATIONAL BANK, as Syndication Agent, WACHOVIA
BANK NATIONAL ASSOCIATION and UBS SECURITIES LLC, as Co-Documentation Agents,
and BANC OF AMERICA SECURITIES LLC and J.P. MORGAN SECURITIES INC., as
Co-Arrangers.
The Borrower has requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Absolute Rate" means a fixed rate of interest expressed in multiples
of 1/100th of one basis point.
"Absolute Rate Loan" means a Bid Loan that bears interest at a rate
determined with reference to an Absolute Rate.
"Administrative Agent" means JPMorgan in its capacity as administrative
agent under any of the Loan Documents, or any successor administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.02, or such
other address or account as the Administrative Agent may from time to time
notify to the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Credit Agreement as originally in effect on the
Closing Date and as amended, supplemented, amended and restated or otherwise
modified from time to time and in effect on such date.
1
"Applicable Percentage" means with respect to any Lender at any time,
the percentage (carried out to the ninth decimal place) of the Aggregate
Commitments represented by such Lender's Commitment at such time. If the
commitment of each Lender to make Loans and the obligation of the L/C Issuer to
make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if
the Aggregate Commitments have expired, then the Applicable Percentage of each
Lender shall be determined based on the Applicable Percentage of such Lender
most recently in effect, giving effect to any subsequent assignments. The
initial Applicable Percentage of each Lender is set forth opposite the name of
such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable.
"Applicable Rate" means, from time to time, the following percentages
per annum, based upon the Debt Rating as set forth below:
APPLICABLE RATE
EURODOLLAR RATE
+ ALL-IN DRAWN
DEBT RATINGS ---------------- PRICING
PRICING LEVEL S&P/MOODY'S FACILITY FEE LETTER OF CREDIT +
- -------------- --------------------- ------------------- ------------------- -------------------
1 A/A2 .08% .32% .40%
2 A-/A3 .10% .40% .50%
3 BBB+/Baa1 .125% .50% .625%
4 BBB/Baa2 .15% .60% .75%
5 BBB-/Baa3 .20% .80% 1.00%
6 BBB-/Baa3 .30% 1.20% 1.50%
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or Moody's (collectively, the "Debt Ratings") of the
Borrower's non-credit-enhanced, senior unsecured long-term debt; provided that
if a Debt Rating is issued by each of the foregoing rating agencies, then the
higher of such Debt Ratings shall apply (with the Debt Rating for Pricing Level
1 being the highest and the Debt Rating for Pricing Level 6 being the lowest),
unless there is a split in Debt Ratings of more than one level, in which case
the Pricing Level that is one level higher than the Pricing Level of the lower
Debt Rating shall apply.
Initially, the Applicable Rate shall be determined based upon the Debt
Rating specified in the certificate delivered pursuant to Section 4.01(a)(vi).
Thereafter, each change in the Applicable Rate resulting from a publicly
announced change in the Debt Rating shall be effective, in the case of an
upgrade or a downgrade, during the period commencing on the date of the public
announcement thereof and ending on the date immediately preceding the effective
date of the next such change.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
2
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b), and accepted by the Administrative
Agent, in substantially the form of Exhibit F or any other form approved by the
Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a Capital Lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries as at August 2, 2003, and the related
consolidated statements of earnings, shareholders' equity and cash flows of the
Borrower and its Subsidiaries for the Fiscal Year then ended, including the
notes thereto.
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Maturity Date, (b) the date of termination of
the Aggregate Commitments pursuant to Section 2.07, and (c) the date of
termination of the commitment of each Lender to make Loans and of the obligation
of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by JPMorgan as
its "prime rate." The "prime rate" is a rate set by JPMorgan based upon various
factors including JPMorgan's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by JPMorgan shall take effect at the opening of business
on the day specified in the public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Bid Borrowing" means a borrowing consisting of simultaneous Bid Loans
of the same Type from each of the Lenders whose offer to make one or more Bid
Loans as part of such borrowing has been accepted under the auction bidding
procedures described in Section 2.03.
"Bid Loan" has the meaning specified in Section 2.03(a).
"Bid Loan Lender" means, in respect of any Bid Loan, the Lender making
such Bid Loan to the Borrower.
"Bid Loan Sublimit" means an amount equal to $75,000,000. The Bid Loan
Sublimit is part of, and not in addition to, the Aggregate Commitments.
3
"Bid Request" means a written request for one or more Bid Loans
substantially in the form of Exhibit B-1.
"Borrower" has the meaning specified in the introductory paragraph
hereto.
"Borrowing" means a Committed Borrowing, a Bid Borrowing or a Swing
Line Borrowing, as the context may require.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office is located
and, if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
"Capital Lease" means with respect to any Person, as of the date of
determination, any lease the obligations of which are required to be capitalized
on the balance sheet of such Person in accordance with GAAP applied on a
consistent basis.
"Cash Collateralize" has the meaning specified in Section 2.04(g).
"Change in Law" means the occurrence, after the date of this Agreement,
of any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its subsidiaries,
and any person or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of any such plan) becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be
deemed to have "beneficial ownership" of all securities that such
person or group has the right to acquire (such right, an "option
right"), whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of 30% or more of the
equity securities of the Borrower entitled to vote for members of the
board of directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities that
such person or group has the right to acquire pursuant to any option
right);
(b) during any period of 12 consecutive months, a majority of
the members of the board of directors or other equivalent governing
body of the Borrower ceases to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of
such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in
clause (i) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of
an actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by
or on behalf of the board of directors); or
4
(c) 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 thereof, 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 control over the equity securities of the Borrower
entitled to vote for members of the board of directors or equivalent
governing body of the Borrower on a fully-diluted basis (and taking
into account all such securities that such Person or group has the
right to acquire pursuant to any option right) representing 30% or more
of the combined voting power of such securities.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01.
"Co-Arrangers" means Banc of America Securities LLC and J.P.Morgan
Securities Inc., each in its capacity as co-lead arranger and co-book manager.
"Co-Documentation Agents" means Wachovia Bank, N.A. and UBS Securities
LLC, each in its capacity as co-documentation agent.
"Code" means the Internal Revenue Code of 1986, as amended (or any
successor statute thereto) and the regulations promulgated thereunder.
"Commitment" means, as to each Lender, its obligation to (a) make
Committed Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and, in the case of Eurodollar Rate Committed
Loans, having the same Interest Period made by each of the Lenders pursuant to
Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing,
(b) a conversion of Committed Loans from one Type to the other, or (c) a
continuation of Eurodollar Rate Committed Loans, pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit A.
5
"Competitive Bid" means a written offer by a Lender to make one or more
Bid Loans, substantially in the form of Exhibit B-2, duly completed and signed
by a Lender.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit E.
"Consolidated EBITDA" means, for any four consecutive fiscal quarter
period, for the Borrower and its Subsidiaries on a consolidated basis, an amount
equal to the Consolidated Net Income (Net Loss) of the Borrower and its
Subsidiaries for such period, plus the sum, without duplication, for such period
of (a) Consolidated Interest Charges, (b) depreciation and amortization expenses
or charges, (c) income taxes to any government or governmental instrumentality
expensed on the Borrower's or its Subsidiaries' books (whether paid or accrued)
and (d) non-cash non-recurring charges or losses, if any, minus the sum, without
duplication, for such period of (a) non-cash non-recurring gains, if any and (b)
interest income, determined in accordance with GAAP applied on a consistent
basis. All of the foregoing categories shall be calculated with respect to the
Borrower and its Subsidiaries on a consolidated basis. At any time Consolidated
EBITDA is required to be calculated hereunder, the Borrower shall use the
amounts set forth in the financial statement or statements delivered to the
Administrative Agent covering the last four consecutive fiscal quarters pursuant
to the terms hereof.
"Consolidated Funded Indebtedness" means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated basis,
the sum of (a) the outstanding principal amount of all obligations, whether
current or long-term, for borrowed money (including Obligations hereunder) and
all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar instruments, (d)
all obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business),
(e) Attributable Indebtedness in respect of Capital Leases and Synthetic Lease
Obligations, (f) without duplication, all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (a) through (e) above of Persons
other than the Borrower or any Subsidiary, and (g) all Indebtedness of the types
referred to in clauses (a) through (f) above of any partnership or joint venture
(other than a joint venture that is itself a corporation or limited liability
company) in which the Borrower or a Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to the
Borrower or such Subsidiary.
"Consolidated Interest Charges" means, for any four fiscal quarter
period, for the Borrower and its Subsidiaries on a consolidated basis, the sum,
for such period, of (a) all interest, premium payments, debt discount, fees,
charges and related expenses of the Borrower and its Subsidiaries in connection
with borrowed money (including capitalized interest) or in connection with the
deferred purchase price of assets, in each case to the extent treated as
interest in accordance with GAAP, and (b) the portion of rent expense of the
Borrower and its Subsidiaries with respect to such period under Capital Leases
that is treated as interest in accordance with GAAP.
6
"Consolidated Leverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness to (b) Consolidated EBITDA.
"Consolidated Net Income (Net Loss)" means, for any period, the net
income (or net loss) of the Borrower and its Subsidiaries on a consolidated
basis for such period determined in accordance with GAAP applied on a consistent
basis.
"Consolidated Net Interest Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest
Charges less interest income earned by the Borrower and its Subsidiaries during
the corresponding four fiscal quarter period.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extension" means each of the following: (a) a Borrowing and (b)
an L/C Credit Extension.
"Debt Rating" has the meaning specified in the definition of
"Applicable Rate."
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other
than Letter of Credit Fees, an interest rate for Base Rate Loans and Absolute
Rate Loans equal to the interest rate otherwise applicable to such Loans plus 2%
per annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b)
when used with respect to Letter of Credit Fees, a rate equal to the Applicable
Rate plus 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
7
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Eligible Investments" means (a) direct obligations of the U.S. or any
governmental agency thereof which are fully guaranteed or insured by the U.S.;
provided that such obligations mature within two years from the date of
acquisition thereof; or (b) Dollar denominated certificates of time deposit
maturing within one year issued by any bank organized and existing under the
laws of the U.S. or any state thereof and having aggregate capital and surplus
in excess of $1,000,000,000; or (c) money market mutual funds having assets in
excess of $1,000,000,000; or (d) commercial paper rated not less than P-1 or A-1
or their equivalent by Moody's or S&P, respectively; or (e) tax exempt
securities of a U.S. issuer rated A or better by Moody's or S&P; or (f)
repurchase agreements entered into with any bank, trust company or financial
institution organized under the laws of the U.S. or any state thereof or under
the laws of Puerto Rico, having capital and surplus in an aggregate amount not
less than $1,000,000,000 and relating to any of the obligations referred to in
clause (a) above; or (g) short-term investments by any non-Domestic Subsidiary
made in the ordinary course of its business and in accordance with the
Borrower's guidelines and procedures, provided that the aggregate amount of such
investments by the non-Domestic Subsidiaries shall not exceed $30,000,000, at
any one time outstanding; or (h) cash.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
8
"Equity Interests" means, with respect to any Person, all of the shares
of capital stock of (or other ownership or profit interests in) such Person, all
of the warrants, options or other rights for the purchase or acquisition from
such Person of shares of capital stock of (or other ownership or profit
interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other interests), and all
of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting,
and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan for which notice thereof has not been waived pursuant to the regulations
under Section 4043(c) of ERISA as in effect on the date hereof; (b) a withdrawal
by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section
4063 of ERISA during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in reorganization; (d) the
filing of a notice of intent to terminate, the treatment of a Plan amendment as
a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Borrower or any ERISA Affiliate if such liability, taken
together with any other such liabilities then existing, would reasonably be
expected to have a Material Adverse Effect.
"Eurodollar Bid Margin" means the margin above or below the Eurodollar
Rate to be added to or subtracted from the Eurodollar Rate, which margin shall
be expressed in multiples of 1/100th of one basis point.
"Eurodollar Margin Bid Loan" means a Bid Loan that bears interest at a
rate based upon the Eurodollar Rate.
9
"Eurodollar Rate" means for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by JPMorgan (or, in the case of a Bid Loan, the
applicable Bid Loan Lender) and with a term equivalent to such Interest Period
would be offered by JPMorgan's (or such Bid Lender's) London Branch to major
banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Rate Committed Loan" means a Committed Loan that bears
interest at a rate based on the Eurodollar Rate.
"Eurodollar Rate Loan" means a Eurodollar Rate Committed Loan or a
Eurodollar Margin Bid Loan.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 10.13), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 3.01(a).
"Existing Credit Agreement" means, collectively, (a) the Credit
Agreement, dated as of August 30, 2000, among the Borrower, a syndicate of
lenders, Fleet Bank, National Association, as administrative agent, The Chase
Manhattan Bank, as syndication agent and Wachovia Bank, N.A., as documentation
agent and (b) the Term Loan Agreement, dated as of October 18, 2002, among the
Borrower, a syndicate of lenders and Fleet National Bank, as administrative
agent, each as amended or otherwise modified prior to the date hereof.
10
"Existing Letters of Credit" means the Letters of Credit existing on
the date hereof and listed on Schedule 1.0.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to JPMorgan on
such day on such transactions as determined by the Administrative Agent.
"Fee Letter" means the amended and restated letter agreement, dated as
of August 23, 2004 (amending and restating the letter agreement, dated July 23,
2004), among the Borrower, the Administrative Agent, the Syndication Agent and
the Co-Arrangers.
"Fleet" means Fleet National Bank and its successors.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on July 31st; references to a Fiscal Year with a number corresponding to
any calendar year (e.g., the "2004 Fiscal Year") refer to the Fiscal Year ending
on July 31st of such calendar year; provided that for purposes of 2003 it shall
be the period of fifty-two consecutive calendar weeks ending on August 2nd.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or
any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
11
"Guarantee" means, as to any Person, any (a) any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Guarantors" means each Domestic Subsidiary that is not an Inactive
Domestic Subsidiary.
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders, substantially in the form of Exhibit G, as
may be amended, amended and restated or otherwise modified from time to time.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Inactive Domestic Subsidiaries" means each Domestic Subsidiary
identified as such on Schedule 5.13 hereto or hereafter acquired or formed by
the Borrower upon notice of such designation to the Administrative Agent.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
12
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person
arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar
instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred
purchase price of property or services (other than trade accounts
payable in the ordinary course of business and, in each case, not past
due for more than 60 days after the date on which such trade account
payable was created);
(e) indebtedness (excluding prepaid interest thereon) secured
by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;
(f) Capital Leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any Equity
Interest in such Person or any other Person, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends;
and
(h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any Capital Lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Indenture" means the Indenture, dated as of August 1, 2002, naming the
Borrower, as issuer, certain Subsidiaries, as guarantors and The Bank of New
York, as trustee, under which certain of the Senior Notes were issued.
"Intangible Assets" means assets that are considered to be intangible
assets under GAAP, including customer lists, goodwill, computer software,
copyrights, trade names, trademarks, patents, franchises, licenses, unamortized
deferred charges, unamortized debt discount and capitalized research and
development costs.
13
"Interest Payment Date" means, (a) as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),
the last Business Day of each March, June, September and December and the
Maturity Date.
"Interest Period" means (a) as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or (in the case of
any Eurodollar Rate Committed Loan) converted to or continued as a Eurodollar
Rate Loan and ending on the date one, two, three or six months thereafter, as
selected by the Borrower in its Committed Loan Notice or Bid Request, as the
case may be; and (b) as to each Absolute Rate Loan, a period of not less than 14
days and not more than 180 days as selected by the Borrower in its Bid Request;
provided that:
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business
Day unless, in the case of a Eurodollar Rate Loan, such Business Day
falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate Loan
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(iii) no Interest Period shall extend beyond the Maturity
Date.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of capital stock or other securities of another Person, (b)
a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
14
"Issuer Documents" means with respect to any Letter of Credit, the
Letter of Credit Application, and any other document, agreement and instrument
entered into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor
the L/C Issuer and relating to any such Letter of Credit.
"JPMorgan" means JPMorgan Chase Bank, and its successors.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Applicable
Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means (i) JPMorgan in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder and
(ii) Fleet Bank, National Association in its capacity as issuer of Existing
Letters of Credit.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder
and shall include the Existing Letters of Credit.
15
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit substantially in the form of
Exhibit B-3.
"Letter of Credit Expiration Date" means the day that is seven days
prior to the Maturity Date then in effect (or, if such day is not a Business
Day, the next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.04(i).
"Letter of Credit Sublimit" means an amount equal to $50,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Committed Loan, a Bid Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Note, each Issuer Document,
the Fee Letter, the Guaranty and each other agreement, certificate, document or
instrument delivered in connection with any Loan Document, whether or not
specifically mentioned herein or therein.
"Loan Parties" means, collectively, the Borrower and each Guarantor.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of the
Borrower or the Borrower and its Subsidiaries taken as a whole; (b) a material
impairment of the ability of any Loan Party to perform its obligations under any
Loan Document to which it is a party; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against any Loan Party of
any Loan Document to which it is a party.
"Maturity Date" means the fifth anniversary of the Closing Date.
"Moody's" means Moody's Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Note" means a promissory note made by the Borrower in favor of a
Lender evidencing Loans made by such Lender, substantially in the form of
Exhibit D, as may be amended, amended and restated or otherwise modified from
time to time.
16
"Note Purchase Agreement" means the Note Purchase Agreement, dated as
of July 28, 2000, among the Borrower and the Purchasers identified therein,
pursuant to which the Borrower issued certain of the Senior Notes due August 29,
2010, as amended, restated, supplemented or otherwise modified from time to
time.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to Committed Loans and
Swing Line Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of Committed
Loans and Swing Line Loans, as the case may be, occurring on such date; and (ii)
with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements by the
Borrower of Unreimbursed Amounts.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
17
"Permitted Acquisition" means an acquisition (whether pursuant to an
acquisition of Equity Interests, assets or otherwise) by the Borrower or any of
its Subsidiaries from any Person of a business that is substantially similar (i)
to any line of business conducted by the Borrower and/or its Subsidiaries on the
date hereof or (ii) to any business substantially related to or incidental to
those lines of business conducted by the Borrower and/or its Subsidiaries on the
date hereof and in which the following conditions are satisfied:
(a) the acquisition shall have been approved by the board of
directors or other appropriate governing body of the Person whose
business is to be acquired;
(b) immediately before and after giving effect to such
acquisition, no Default shall have occurred and be continuing or would
result therefrom;
(c) if the acquisition is of Equity Interests of a Person such
Person becomes a Subsidiary;
(d) after giving pro forma effect (in a manner satisfactory to
the Administrative Agent) to the consummation of such acquisition and
the incurrence of any Indebtedness in connection with such acquisition,
the Consolidated Leverage Ratio shall not exceed 2.5 to 1.0; and
(e) the Borrower shall have delivered to the Administrative
Agent a Compliance Certificate for the period of four full fiscal
quarters immediately preceding such acquisition for which financial
statements have been delivered pursuant to the terms hereof (prepared
in good faith and in a manner and using such methodology which is
consistent with the most recent financial statements delivered pursuant
to Section 6.01) giving pro forma effect to the consummation of such
acquisition and the incurrence of any Indebtedness in connection with
such acquisition and evidencing compliance with the covenants set forth
in Section 7.11.
"Permitted Liens" means Liens permitted by Section 7.01.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Register" has the meaning specified in Section 10.06(c).
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
18
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to a Bid Loan, a Bid Request, (c) with respect to an L/C Credit
Extension, a Letter of Credit Application, and (d) with respect to a Swing Line
Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders
having more than 50% of the Aggregate Commitments (exclusive of Commitments in
respect of Bid Loans) or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02, Lenders holding in the aggregate more than 50% of the
Total Outstandings (with the aggregate amount of each Lender's risk
participation and funded participation in L/C Obligations and Swing Line Loans
being deemed "held" by such Lender for purposes of this definition); provided
that the Commitment of, and the portion of the Total Outstandings held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president,
vice-president-finance and controller, chief financial officer, treasurer or
director of treasury operations of a Loan Party or any other person authorized
by the Board of Directors of a Loan Party to sign Loan Documents on its behalf.
Any document delivered hereunder that is signed by a Responsible Officer of a
Loan Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.
"Restricted Payment" has the meaning set forth in Section 7.06.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Senior Notes" means collectively, (a) the 7.83% Senior Notes, in the
aggregate principal amount of $100,000,000, issued by the Borrower pursuant to
the Note Purchase Agreement and (b) the 6.00% Senior Notes, in the aggregate
principal amount of $280,000,000 issued by the Borrower pursuant to the
Indenture.
"Shareholders' Equity" means, as of any date of determination,
consolidated shareholders' equity of the Borrower and its Subsidiaries as of
that date determined in accordance with GAAP.
"Solvent" shall mean with respect to any Person as of the date of
determination thereof that (a) the amount of the "present fair saleable value"
of the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise," as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required on its debts as such debts become absolute
and matured, (c) such Person will not have as of such date, an unreasonably
small amount of capital with which to conduct its business, and (d) such Person
will be able to pay its debts as they mature in each case after giving effect to
any right of indemnification and contribution of such Person from or to any
Affiliate.
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"SPC" has the meaning specified in Section 10.6(h).
"Subordinated Indebtedness" means all Indebtedness which is
subordinated in right of payment to the prior final payment in full of the
obligations of the Borrower and/or of its Subsidiaries to the Lenders hereunder
and under any other Loan Document on subordination terms satisfactory to and
approved in writing by the Required Lenders (not to be unreasonably withheld or
delayed).
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
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"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.05.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant
to Section 2.05.
"Swing Line Lender" means JPMorgan in its capacity as provider of Swing
Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.05(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.05(b), which, if in writing, shall be substantially in the
form of Exhibit C.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$10,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Syndication Agent" means Fleet in its capacity as syndication agent
under any of the Loan Documents.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Threshold Amount" means $5,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of all
Loans and all L/C Obligations.
"Type" means (a) with respect to a Committed Loan, its character as a
Base Rate Loan or a Eurodollar Rate Loan, and (b) with respect to a Bid Loan,
its character as an Absolute Rate Loan or a Eurodollar Margin Bid Loan.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.04(c)(i).
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement
and each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
21
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without
limitation." The word "will" shall be construed to have the same
meaning and effect as the word "shall." Unless the context requires
otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document)
shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein or in any other Loan Document), (ii)
any reference herein to any Person shall be construed to include such
Person's successors and assigns, (iii) the words "herein," "hereof" and
"hereunder," and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all
references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, the Loan Document in which such references
appear, (v) any reference to any law shall include all statutory and
regulatory provisions consolidating, amending replacing or interpreting
such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words "asset"
and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including;" the words "to" and "until" each mean "to but excluding;"
and the word "through" means "to and including."
(c) Section headings herein and in the other Loan Documents
are included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) Generally. All accounting terms not
specifically or completely defined herein shall be construed to be in conformity
with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP, as in effect from time to time, applied on a
consistent basis and in a manner consistent with that used in preparing the
Audited Financial Statements, except as otherwise specifically prescribed
herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders
and the Borrower).
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1.04 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.06 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such
time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 COMMITTED LOANS. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a "Committed
Loan") to the Borrower from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Commitment; provided, however, that
after giving effect to any Committed Borrowing, (i) the Total Outstandings shall
not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount
of the Committed Loans of any Lender, plus such Lender's Applicable Percentage
of the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment. Within the limits of each Lender's Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.01, prepay under Section 2.06, and reborrow under this Section
2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Each Committed Borrowing, each conversion of Committed Loans from
one Type to the other, and each continuation of Eurodollar Rate Committed Loans
shall be made upon the Borrower's irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Committed Loans or of any conversion of Eurodollar Rate
Committed Loans to Base Rate Committed Loans, and (ii) on the requested date of
any Borrowing of Base Rate Committed Loans. Each telephonic notice by the
Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery
to the Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Borrowing
of, conversion to or continuation of Eurodollar Rate Committed Loans shall be in
a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Except as provided in Sections 2.04(c) and 2.05(c), each Borrowing of
or conversion to Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan
Notice (whether telephonic or written) shall specify (i) whether the Borrower is
requesting a Committed Borrowing, a conversion of Committed Loans from one Type
to the other, or a continuation of Eurodollar Rate Committed Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Committed Loans
to be borrowed, converted or continued, (iv) the Type of Committed Loans to be
borrowed or to which existing Committed Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or
if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed Loans shall be made as, or converted
to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be
effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurodollar Rate Committed Loans. If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Committed Loans
in any such Committed Loan Notice, but fails to specify an Interest Period, it
will be deemed to have specified an Interest Period of one month.
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(b) Following receipt of a Committed Loan Notice, the Administrative
Agent shall promptly notify each Lender of the amount of its Applicable
Percentage of the applicable Committed Loans, and if no timely notice of a
conversion or continuation is provided by the Borrower, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base Rate
Loans described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan available to
the Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section 4.02 (and, if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the
Administrative Agent by crediting the account of the Borrower on the books of
JPMorgan (or any other bank upon written notice from a Responsible Officer of
the Borrower) with the amount of such funds; provided, however, that if, on the
date the Committed Loan Notice with respect to such Borrowing is given by the
Borrower, there are L/C Borrowings outstanding, then the proceeds of such
Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and second, shall be made available to the Borrower as provided
above.
(c) Except as otherwise provided herein, a Eurodollar Rate Committed
Loan may be continued or converted only on the last day of an Interest Period
for such Eurodollar Rate Committed Loan. During the existence of a Default, no
Loans may be requested as, converted to or continued as Eurodollar Rate
Committed Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Committed Loans upon determination of such interest rate. At any time that
Base Rate Loans are outstanding, the Administrative Agent shall notify the
Borrower and the Lenders of any change in JPMorgan's prime rate used in
determining the Base Rate promptly following the public announcement of such
change.
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(e) After giving effect to all Committed Borrowings, all conversions of
Committed Loans from one Type to the other, and all continuations of Committed
Loans as the same Type, there shall not be more than ten Interest Periods in
effect with respect to Committed Loans.
2.03 BID LOANS.
(a) General. Subject to the terms and conditions set forth herein, each
Lender agrees that the Borrower may from time to time request the Lenders to
submit offers to make loans (each such loan, a "Bid Loan") to the Borrower prior
to the Maturity Date pursuant to this Section 2.03; provided, however, that
after giving effect to any Bid Borrowing, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of
all Bid Loans shall not exceed the Bid Loan Sublimit. There shall not be more
than ten different Interest Periods in effect with respect to Bid Loans at any
time.
(b) Requesting Competitive Bids. The Borrower may request the
submission of Competitive Bids by delivering a Bid Request to the Administrative
Agent not later than 12:00 noon (i) one Business Day prior to the requested date
of any Bid Borrowing that is to consist of Absolute Rate Loans, or (ii) three
Business Days prior to the requested date of any Bid Borrowing that is to
consist of Eurodollar Margin Bid Loans. Each Bid Request shall specify (i) the
requested date of the Bid Borrowing (which shall be a Business Day), (ii) the
aggregate principal amount of Bid Loans requested (which must be $10,000,000 or
a whole multiple of $1,000,000 in excess thereof), (iii) the Type of Bid Loans
requested, and (iv) the duration of the Interest Period with respect thereto,
and shall be signed by a Responsible Officer of the Borrower. No Bid Request
shall contain a request for (i) more than one Type of Bid Loan, (ii) Bid Loans
having more than three different Interest Periods or (iii) Bid Loans having
maturities less than fourteen days. Unless the Administrative Agent otherwise
agrees in its sole and absolute discretion, the Borrower may not submit a Bid
Request if it has submitted another Bid Request within the prior five Business
Days.
(c) Submitting Competitive Bids.
(i) The Administrative Agent shall promptly notify each Lender
of each Bid Request received by it from the Borrower and the contents
of such Bid Request.
(ii) Each Lender may (but shall have no obligation to) submit
a Competitive Bid containing an offer to make one or more Bid Loans in
response to such Bid Request. Such Competitive Bid must be delivered to
the Administrative Agent not later than 10:30 a.m. (A) on the requested
date of any Bid Borrowing that is to consist of Absolute Rate Loans,
and (B) two Business Days prior to the requested date of any Bid
Borrowing that is to consist of Eurodollar Margin Bid Loans; provided,
however, that any Competitive Bid submitted by JPMorgan in its capacity
as a Lender in response to any Bid Request must be submitted to the
Administrative Agent not later than 10:15 a.m. on the date on which
Competitive Bids are required to be delivered by the other Lenders in
response to such Bid Request. Each Competitive Bid shall specify (A)
the proposed date of the Bid Borrowing; (B) the principal amount of
each Bid Loan for which such Competitive Bid is being made, which
principal amount (x) may be equal to, greater than or less than the
Commitment of the bidding Lender, (y) must be $10,000,000 or a whole
multiple of $1,000,000 in excess thereof, and (z) may not exceed the
principal amount of Bid Loans for which Competitive Bids were
requested; (C) if the proposed Bid Borrowing is to consist of Absolute
Rate Bid Loans, the Absolute Rate offered for each such Bid Loan and
the Interest Period applicable thereto; (D) if the proposed Bid
Borrowing is to consist of Eurodollar Margin Bid Loans, the Eurodollar
Bid Margin with respect to each such Eurodollar Margin Bid Loan and the
Interest Period applicable thereto; and (E) the identity of the bidding
Lender.
25
(iii) Any Competitive Bid shall be disregarded if it (A) is
received after the applicable time specified in clause (ii) above, (B)
is not substantially in the form of a Competitive Bid as specified
herein, (C) contains qualifying, conditional or similar language, (D)
proposes terms other than or in addition to those set forth in the
applicable Bid Request, or (E) is otherwise not responsive to such Bid
Request. Any Lender may correct a Competitive Bid containing a manifest
error by submitting a corrected Competitive Bid (identified as such)
not later than the applicable time required for submission of
Competitive Bids. Any such submission of a corrected Competitive Bid
shall constitute a revocation of the Competitive Bid that contained the
manifest error. The Administrative Agent may, but shall not be required
to, notify any Lender of any manifest error it detects in such Lender's
Competitive Bid.
(iv) Subject only to the provisions of Sections 3.02, 3.03 and
4.02 and clause (iii) above, each Competitive Bid shall be irrevocable.
(d) Notice to Borrower of Competitive Bids. Not later than 11:00 a.m.
(i) on the requested date of any Bid Borrowing that is to consist of Absolute
Rate Loans, or (ii) two Business Days prior to the requested date of any Bid
Borrowing that is to consist of Eurodollar Margin Bid Loans, the Administrative
Agent shall notify the Borrower of the identity of each Lender that has
submitted a Competitive Bid that complies with Section 2.03(c) and of the terms
of the offers contained in each such Competitive Bid.
(e) Acceptance of Competitive Bids. Not later than 11:30 a.m. (i) on
the requested date of any Bid Borrowing that is to consist of Absolute Rate
Loans, and (ii) two Business Days prior to the requested date of any Bid
Borrowing that is to consist of Eurodollar Margin Bid Loans, the Borrower shall
notify the Administrative Agent of its acceptance or rejection of the offers
notified to it pursuant to Section 2.03(d). The Borrower shall be under no
obligation to accept any Competitive Bid and may choose to reject all
Competitive Bids. In the case of acceptance, such notice shall specify the
aggregate principal amount of Competitive Bids for each Interest Period that is
accepted. The Borrower may accept any Competitive Bid in whole or in part;
provided that:
(i) the aggregate principal amount of each Bid Borrowing may
not exceed the applicable amount set forth in the related Bid Request;
26
(ii) the principal amount of each Bid Loan must be $10,000,000
or a whole multiple of $1,000,000 in excess thereof;
(iii) the acceptance of offers may be made only on the basis
of ascending Absolute Rates or Eurodollar Bid Margins within each
Interest Period; and
(iv) the Borrower may not accept any offer that is described
in Section 2.03(c)(iii) or that otherwise fails to comply with the
requirements hereof.
(f) Procedure for Identical Bids. If two or more Lenders have submitted
Competitive Bids at the same Absolute Rate or Eurodollar Bid Margin, as the case
may be, for the same Interest Period, and the result of accepting all of such
Competitive Bids in whole (together with any other Competitive Bids at lower
Absolute Rates or Eurodollar Bid Margins, as the case may be, accepted for such
Interest Period in conformity with the requirements of Section 2.03(e)(iii))
would be to cause the aggregate outstanding principal amount of the applicable
Bid Borrowing to exceed the amount specified therefor in the related Bid
Request, then, unless otherwise agreed by the Borrower, the Administrative Agent
and such Lenders, such Competitive Bids shall be accepted as nearly as possible
in proportion to the amount offered by each such Lender in respect of such
Interest Period, with such accepted amounts being rounded to the nearest whole
multiple of $1,000,000.
(g) Notice to Lenders of Acceptance or Rejection of Bids. The
Administrative Agent shall promptly notify each Lender having submitted a
Competitive Bid whether or not its offer has been accepted and, if its offer has
been accepted, of the amount of the Bid Loan or Bid Loans to be made by it on
the date of the applicable Bid Borrowing. Any Competitive Bid or portion thereof
that is not accepted by the Borrower by the applicable time specified in Section
2.03(e) shall be deemed rejected.
(h) Notice of Eurodollar Rate. If any Bid Borrowing is to consist of
Eurodollar Margin Loans, the Administrative Agent shall determine the Eurodollar
Rate for the relevant Interest Period, and promptly after making such
determination, shall notify the Borrower and the Lenders that will be
participating in such Bid Borrowing of such Eurodollar Rate.
(i) Funding of Bid Loans. Each Lender that has received notice pursuant
to Section 2.03(g) that all or a portion of its Competitive Bid has been
accepted by the Borrower shall make the amount of its Bid Loan(s) available to
the Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the date of the requested Bid
Borrowing. Upon satisfaction of the applicable conditions set forth in Section
4.02, the Administrative Agent shall make all funds so received available to the
Borrower in like funds as received by the Administrative Agent.
(j) Notice of Range of Bids. After each Competitive Bid auction
pursuant to this Section 2.03, the Administrative Agent shall notify each Lender
that submitted a Competitive Bid in such auction of the ranges of bids submitted
(without the bidder's name) and accepted for each Bid Loan and the aggregate
amount of each Bid Borrowing.
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2.04 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A)
the L/C Issuer agrees, in reliance upon the agreements of the Lenders
set forth in this Section 2.04, (1) from time to time on any Business
Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of the
Borrower or its Subsidiaries, and to amend or extend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and
(2) to honor drawings under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the
account of the Borrower or its Subsidiaries and any drawings
thereunder; provided that after giving effect to any L/C Credit
Extension with respect to any Letter of Credit, (x) the Total
Outstandings shall not exceed the Aggregate Commitments, (y) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus
such Lender's Applicable Percentage of the Outstanding Amount of all
L/C Obligations, plus such Lender's Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each
request by the Borrower for the issuance or amendment of a Letter of
Credit shall be deemed to be a representation by the Borrower that the
L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Borrower's
ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or
that have been drawn upon and reimbursed. All Existing Letters of
Credit shall be deemed to have been issued pursuant hereto, and from
and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.04(b)(iii), the expiry date
of such requested Letter of Credit would occur more than
twelve months after the date of issuance or last extension,
unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date,
unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to
issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain the L/C Issuer from issuing such Letter of Credit,
or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the L/C Issuer
shall prohibit, or request that the L/C Issuer refrain from,
the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost
or expense which was not applicable on the Closing Date and
which the L/C Issuer in good faith deems material to it;
28
(B) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer;
(C) such Letter of Credit is to be denominated in a
currency other than Dollars;
(D) such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder; or
(E) a default of any Lender's obligations to fund
under Section 2.04(c) exists or any Lender is at such time a
Defaulting Lender hereunder, unless the L/C Issuer has entered
into satisfactory arrangements with the Borrower or such
Lender to eliminate the L/C Issuer's risk with respect to such
Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if
the L/C Issuer would not be permitted at such time to issue such Letter
of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at such
time to issue such Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/C Issuer shall have all of the benefits
and immunities (A) provided to the Administrative Agent in Article IX
with respect to any acts taken or omissions suffered by the L/C Issuer
in connection with Letters of Credit issued by it or proposed to be
issued by it and Issuer Documents pertaining to such Letters of Credit
as fully as if the term "Administrative Agent" as used in Article IX
included the L/C Issuer with respect to such acts or omissions, and (B)
as additionally provided herein with respect to the L/C Issuer.
(vii) The L/C Issuer shall, on a monthly basis, provide the
Lenders with a summary of all Letters of Credit outstanding as of the
date such summary is provided.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
29
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Borrower delivered to the L/C
Issuer (with a copy to the Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and signed by a
Responsible Officer of the Borrower. Promptly upon the Administrative
Agent's receipt of notice from the Borrower of its request for a Letter
of Credit, the Administrative Agent will notify each Lender of such
request. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 11:00 a.m. at least
two Business Days (or such later date and time as the Administrative
Agent and the L/C Issuer may agree in a particular instance in their
sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall
be a Business Day); (B) the amount thereof; (C) the expiry date
thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by
such beneficiary in case of any drawing thereunder; and (G) such other
matters as the L/C Issuer may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C
Issuer (A) the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which shall be a Business Day); (C) the nature of
the proposed amendment; and (D) such other matters as the L/C Issuer
may require. Additionally, the Borrower shall furnish to the L/C Issuer
and the Administrative Agent such other documents and information
pertaining to such requested Letter of Credit issuance or amendment,
including any Issuer Documents, as the L/C Issuer or the Administrative
Agent may require.
(ii) Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received
a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy
thereof. Unless the L/C Issuer has received written notice from any
Lender, the Administrative Agent or any Loan Party, prior to the
requested issuance or amendment of the applicable Letter of Credit,
that one or more applicable conditions contained in Article IV shall
not then be satisfied, then, subject to the terms and conditions
hereof, the L/C Issuer shall, on the requested date, issue a Letter of
Credit for the account of the Borrower (or the applicable Subsidiary)
or enter into the applicable amendment, as the case may be, in each
case in accordance with the L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such
Letter of Credit in an amount equal to the product of such Lender's
Applicable Percentage times the amount of such Letter of Credit.
30
(iii) If the Borrower so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an "Auto-Extension Letter of Credit");
provided that any such Auto-Extension Letter of Credit must permit the
L/C Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not
later than a day (the "Non-Extension Notice Date") in each such
twelve-month period to be agreed upon at the time such Letter of Credit
is issued. Unless otherwise directed by the L/C Issuer, the Borrower
shall not be required to make a specific request to the L/C Issuer for
any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the extension of such Letter of
Credit at any time to an expiry date not later than the Letter of
Credit Expiration Date; provided, however, that the L/C Issuer shall
not permit any such extension if (A) the L/C Issuer has determined that
it would not be permitted, or would have no obligation, at such time to
issue such Letter of Credit in its revised form (as extended) under the
terms hereof (by reason of the provisions of clause (ii) or (iii) of
Section 2.04(a) or otherwise), or (B) it has received notice (which may
be by telephone or in writing) on or before the day that is five
Business Days before the Non-Extension Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to
permit such extension or (2) from the Administrative Agent, any Lender
or the Borrower that one or more of the applicable conditions specified
in Section 4.02 is not then satisfied, and in each such case directing
the L/C Issuer not to permit such extension.
(iv) If the Borrower so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that permits the
automatic reinstatement of all or a portion of the stated amount
thereof after any drawing thereunder (each, an "Auto-Reinstatement
Letter of Credit"). Unless otherwise directed by the L/C Issuer, the
Borrower shall not be required to make a specific request to the L/C
Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter
of Credit has been issued, except as provided in the following
sentence, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to reinstate all or a portion of the stated
amount thereof in accordance with the provisions of such Letter of
Credit. Notwithstanding the foregoing, if such Auto-Reinstatement
Letter of Credit permits the L/C Issuer to decline to reinstate all or
any portion of the stated amount thereof after a drawing thereunder by
giving notice of such non-reinstatement within a specified number of
days after such drawing (the "Non-Reinstatement Deadline"), the L/C
Issuer shall not permit such reinstatement if it has received a notice
(which may be by telephone or in writing) on or before the day that is
five Business Days before the Non-Reinstatement Deadline (A) from the
Administrative Agent that the Required Lenders have elected not to
permit such reinstatement or (B) from the Administrative Agent, any
Lender or the Borrower that one or more of the applicable conditions
specified in Section 4.02 is not then satisfied (treating such
reinstatement as an L/C Credit Extension for purposes of this clause)
and, in each case, directing the L/C Issuer not to permit such
reinstatement.
(v) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also deliver
to the Borrower and the Administrative Agent a true and complete copy
of such Letter of Credit or amendment.
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(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit
of any notice of a drawing under such Letter of Credit, the L/C Issuer
shall notify the Borrower and the Administrative Agent thereof. Not
later than 11:00 a.m. on the date of any payment by the L/C Issuer
under a Letter of Credit (each such date, an "Honor Date"), the
Borrower shall reimburse the L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing. If the Borrower
fails to so reimburse the L/C Issuer by such time, the Administrative
Agent shall promptly notify each Lender of the Honor Date, the amount
of the unreimbursed drawing (the "Unreimbursed Amount"), and the amount
of such Lender's Applicable Percentage thereof. In such event, the
Borrower shall be deemed to have requested a Committed Borrowing of
Base Rate Loans to be disbursed on the Honor Date in an amount equal to
the Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.02 for the principal amount of Base Rate Loans,
but subject to the amount of the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02 (other than
the delivery of a Committed Loan Notice). Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.04(c)(i)
may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section
2.04(c)(i) make funds available to the Administrative Agent for the
account of the L/C Issuer at the Administrative Agent's Office in an
amount equal to its Applicable Percentage of the Unreimbursed Amount
not later than 1:00 p.m. on the Business Day specified in such notice
by the Administrative Agent, whereupon, subject to the provisions of
Section 2.04(c)(iii), each Lender that so makes funds available shall
be deemed to have made a Base Rate Committed Loan to the Borrower in
such amount. The Administrative Agent shall remit the funds so received
to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Committed Borrowing of Base Rate Loans because
the conditions set forth in Section 4.02 cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount
that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the
Default Rate. In such event, each Lender's payment to the
Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.04(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under
this Section 2.04.
(iv) Until each Lender funds its Committed Loan or L/C Advance
pursuant to this Section 2.04(c) to reimburse the L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such
Lender's Applicable Percentage of such amount shall be solely for the
account of the L/C Issuer.
32
(v) Each Lender's obligation to make Committed Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.04(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any setoff, counterclaim, recoupment, defense or other right which
such Lender may have against the L/C Issuer, the Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of
a Default; (C) any reduction or termination of the Commitment; or (D)
any other occurrence, event or condition, whether or not similar to any
of the foregoing; provided, however, that each Lender's obligation to
make Committed Loans pursuant to this Section 2.04(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by the
Borrower of a Committed Loan Notice). No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.04(c) by the time specified in Section 2.04(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the L/C Issuer
at a rate per annum equal to the greater of the Federal Funds Rate and
a rate determined by the L/C Issuer in accordance with banking industry
rules on interbank compensation. A certificate of the L/C Issuer
submitted to any Lender (through the Administrative Agent) with respect
to any amounts owing under this clause (vi) shall be conclusive absent
manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under
any Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 2.04(c),
if the Administrative Agent receives for the account of the L/C Issuer
any payment in respect of the related Unreimbursed Amount or interest
thereon (whether directly from the Borrower or otherwise, including
proceeds of Cash Collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Lender its
Applicable Percentage thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
Lender's L/C Advance was outstanding) in the same funds as those
received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the account of the L/C Issuer pursuant to Section 2.04(c)(i) is
required to be returned under any of the circumstances described in
Section 10.05 (including pursuant to any settlement entered into by the
L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable
Percentage thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds
Rate from time to time in effect. The obligations of the Lenders under
this clause shall survive the payment in full of the Obligations and
the termination of this Agreement.
33
(e) Obligations Absolute. The obligation of the Borrower to reimburse
the L/C Issuer for each drawing under each Letter of Credit and to repay each
L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense
or other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or
any Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter
of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such 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; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by
the L/C Issuer under such Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of
or successor to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any proceeding under
any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, the Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
34
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer shall
be liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.04(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in substantial compliance, without responsibility for further
investigation, regardless of any notice or information to the contrary, and the
L/C Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent or
the Required Lenders, (i) if the L/C Issuer has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in an
L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrower shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations. Sections 2.06 and 8.02(c) set forth certain additional requirements
to deliver Cash Collateral hereunder. For purposes of this Section 2.04, Section
2.06 and Section 8.02(c), "Cash Collateralize" means to pledge and deposit with
or deliver to the Administrative Agent, for the benefit of the L/C Issuer and
the Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Lenders). Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing. Cash Collateral
shall be maintained in blocked, non-interest bearing deposit accounts at
JPMorgan.
(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by
the L/C Issuer and the Borrower when a Letter of Credit is issued (including any
such agreement applicable to an Existing Letter of Credit), (i) the rules of the
ISP shall apply to each standby Letter of Credit, and (ii) the rules of the
Uniform Customs and Practice for Documentary Credits, as most recently published
by the International Chamber of Commerce at the time of issuance shall apply to
each commercial Letter of Credit.
35
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage a Letter of Credit fee (the "Letter of Credit Fee") for each Letter
of Credit equal to the Applicable Rate times the daily amount available to be
drawn under such Letter of Credit. For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06. Letter of Credit
Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and
payable on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the later of the Letter of Credit Expiration Date and the date on
which there ceases to be any L/C Obligations and thereafter on demand. If there
is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein, upon the request of the Required Lenders, while any
Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account,
upon issuance of any Letter of Credit hereunder, a one-time fronting fee equal
to 0.125% of the amount available to be drawn under such Letter of Credit (such
amount to be determined in accordance with Section 1.06). In addition, the
Borrower shall pay directly to the L/C Issuer for its own account the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the L/C Issuer relating to letters of credit as from time
to time in effect. Such customary fees and standard costs and charges are due
and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrower shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the
Borrower, and that the Borrower's business derives substantial benefits from the
businesses of such Subsidiaries.
2.05 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees, in reliance upon the agreements of the
other Lenders set forth in this Section 2.05, to make loans (each such loan, a
"Swing Line Loan") to the Borrower from time to time on any Business Day during
the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Applicable Percentage of the
Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting
as Swing Line Lender, may exceed the amount of such Lender's Commitment;
provided, however, that after giving effect to any Swing Line Loan, (i) the
Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender's Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing
Line Loans shall not exceed such Lender's Commitment, and provided, further,
that the Borrower shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section
2.05, prepay under Section 2.06, and reborrow under this Section 2.05. Each
Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Lender's Applicable Percentage times the amount of such Swing Line Loan.
36
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon
the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $100,000 and whole multiples of
$100,000 in excess thereof, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the proviso to the first sentence of Section
2.05(a), or (B) that one or more of the applicable conditions specified in
Article IV is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Borrower at its office by crediting the account of the
Borrower on the books of the Swing Line Lender in immediately available funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby
irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Lender make a Base Rate Committed Loan in an amount
equal to such Lender's Applicable Percentage of the amount of Swing
Line Loans then outstanding. Such request shall be made in writing
(which written request shall be deemed to be a Committed Loan Notice
for purposes hereof) and in accordance with the requirements of Section
2.02, without regard to the minimum and multiples specified therein for
the principal amount of Base Rate Loans, but subject to the unutilized
portion of the Aggregate Commitments and the conditions set forth in
Section 4.02. The Swing Line Lender shall furnish the Borrower with a
copy of the applicable Committed Loan Notice promptly after delivering
such notice to the Administrative Agent. Each Lender shall make an
amount equal to its Applicable Percentage of the amount specified in
such Committed Loan Notice available to the Administrative Agent in
immediately available funds for the account of the Swing Line Lender at
the Administrative Agent's Office not later than 1:00 p.m. on the day
specified in such Committed Loan Notice, whereupon, subject to Section
2.05(c)(ii), each Lender that so makes funds available shall be deemed
to have made a Base Rate Committed Loan to the Borrower in such amount.
The Administrative Agent shall remit the funds so received to the Swing
Line Lender.
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(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Committed Borrowing in accordance with Section
2.05(c)(i), the request for Base Rate Committed Loans submitted by the
Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Lenders fund its risk
participation in the relevant Swing Line Loan and each Lender's payment
to the Administrative Agent for the account of the Swing Line Lender
pursuant to Section 2.05(c)(i) shall be deemed payment in respect of
such participation.
(iii) If any Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any
amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.05(c) by the time specified in Section
2.05(c)(i), the Swing Line Lender shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available
to the Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by the Swing Line Lender
in accordance with banking industry rules on interbank compensation. A
certificate of the Swing Line Lender submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Committed Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to
this Section 2.05(c) shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, the Borrower or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a
Default; (C) any reduction or termination of the Commitment; or (D) any
other occurrence, event or condition, whether or not similar to any of
the foregoing; provided, however, that each Lender's obligation to make
Committed Loans pursuant to this Section 2.05(c) is subject to the
conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided
herein.
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(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a
risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing Line
Lender will distribute to such Lender its Applicable Percentage of such
payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's risk
participation was funded) in the same funds as those received by the
Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required to
be returned by the Swing Line Lender under any of the circumstances
described in Section 10.05 (including pursuant to any settlement
entered into by the Swing Line Lender in its discretion), each Lender
shall pay to the Swing Line Lender its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date
of such demand to the date such amount is returned, at a rate per annum
equal to the Federal Funds Rate. The Administrative Agent will make
such demand upon the request of the Swing Line Lender. The obligations
of the Lenders under this clause shall survive the payment in full of
the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing Line
Loans. Until each Lender funds its Base Rate Committed Loan or risk
participation pursuant to this Section 2.05 to refinance such Lender's
Applicable Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.06 PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Committed Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior
to any date of prepayment of Eurodollar Rate Committed Loans and (B) on the date
of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurodollar
Rate Committed Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate
Committed Loans shall be in a principal amount of $500,000 or a whole multiple
of $100,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Committed Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender's Applicable Percentage of such
prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05. Each such
prepayment shall be applied to the Committed Loans of the Lenders in accordance
with their respective Applicable Percentages.
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(b) No Bid Loan may be prepaid without the prior consent of the
applicable Bid Loan Lender.
(c) The Borrower may, upon notice to the Swing Line Lender (with a copy
to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and
(ii) any such prepayment shall be in a minimum principal amount of $250,000.
Each such notice shall specify the date and amount of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein.
(d) If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, the Borrower shall immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal
to such excess; provided, however, that the Borrower shall not be required to
Cash Collateralize the L/C Obligations pursuant to this Section 2.06(d) unless
after the prepayment in full of the Committed Loans and Swing Line Loans the
Total Outstandings exceed the Aggregate Commitments then in effect.
2.07 TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments, or from
time to time permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00
a.m. five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments, and (iv) if, after giving effect to any reduction of
the Aggregate Commitments, the Bid Loan Sublimit, the Letter of Credit Sublimit
or the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such
Sublimit shall be automatically reduced by the amount of such excess. The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Applicable Percentage. All fees accrued until the effective
date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination.
2.08 REPAYMENT OF LOANS.
(a) The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Committed Loans outstanding on such date.
(b) The Borrower shall repay each Bid Loan on the last day of the
Interest Period in respect thereof.
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(c) The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the date ten Business Days after such Loan is made and (ii) the
Maturity Date.
2.09 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Committed Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each
Base Rate Committed Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base
Rate; (iii) each Bid Loan shall bear interest on the outstanding principal
amount thereof for the Interest Period therefor at a rate per annum equal to the
Eurodollar Rate for such Interest Period plus (or minus) the Eurodollar Bid
Margin, or at the Absolute Rate for such Interest Period, as the case may be;
and (iv) each Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate.
(b) (i) If any amount of principal of any Loan is not paid
when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall
thereafter bear interest at an interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable
Laws.
(ii) If any amount (other than principal of any Loan) payable
by the Borrower under any Loan Document is not paid when due (without
regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, then upon the request of the Required
Lenders, such amount shall thereafter bear interest at an interest rate
per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(iii) Upon the request of the Required Lenders, while any
Event of Default exists, the Borrower shall pay interest on the
principal amount of all outstanding Obligations hereunder at an
interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts
(including interest on past due interest) shall be due and payable upon
demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.10 FEES. In addition to certain fees described in subsections (i) and
(j) of Section 2.04:
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(a) Facility Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Applicable Percentage, a
facility fee equal to the Applicable Rate times the actual daily amount of the
Aggregate Commitments (or, if the Aggregate Commitments have terminated, on the
Outstanding Amount of all Committed Loans, Swing Line Loans and L/C
Obligations), regardless of usage. The facility fee shall accrue at all times
during the Availability Period (and thereafter so long as any Committed Loans,
Swing Line Loans or L/C Obligations remain outstanding), including at any time
during which one or more of the conditions in Article IV is not met, and shall
be due and payable quarterly in arrears on the last Business Day of each March,
June, September and December, commencing with the first such date to occur after
the Closing Date, and on the Maturity Date (and, if applicable, thereafter on
demand). The facility fee shall be calculated quarterly in arrears, and if there
is any change in the Applicable Rate during any quarter, the actual daily amount
shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.
(b) Other Fees. (i) The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letter. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall
have been separately agreed upon in writing in the amounts and at the
times so specified. Such fees shall be fully earned when paid and shall
not be refundable for any reason whatsoever.
2.11 COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by JPMorgan's "prime rate"
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest shall be made
on the basis of a 360-day year and actual days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan for the day on which the Loan
is made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall, subject to Section 2.13(a), bear
interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
2.12 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.
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(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.13 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) General. All payments to be made by the Borrower shall be made
without condition or deduction for any counterclaim, defense, recoupment or
setoff. Except as otherwise expressly provided herein, all payments by the
Borrower hereunder shall be made to the Administrative Agent, for the account of
the respective Lenders to which such payment is owed, at the Administrative
Agent's Office in Dollars and in immediately available funds not later than 2:00
p.m. on the date specified herein. The Administrative Agent will promptly
distribute to each Lender its Applicable Percentage (or other applicable share
as provided herein) of such payment in like funds as received by wire transfer
to such Lender's Lending Office. All payments received by the Administrative
Agent after 2:00 p.m. shall be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue. If any payment
to be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Committed Borrowing that such Lender will not make
available to the Administrative Agent such Lender's share of such Committed
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.02 and may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Committed Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount in immediately available
funds with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation and (B) in the case of a payment to be made by the Borrower, the
interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Committed Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender's
Committed Loan included in such Committed Borrowing. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender
that shall have failed to make such payment to the Administrative Agent.
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(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the account
of the Lenders or the L/C Issuer hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the
amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees
to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the L/C Issuer, in immediately available funds
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes
available to the Administrative Agent funds for any Loan to be made by such
Lender as provided in the foregoing provisions of this Article II, and such
funds are not made available to the Borrower by the Administrative Agent because
the conditions to the applicable Credit Extension set forth in Article IV are
not satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall promptly return such funds (in like funds as received from such
Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Committed Loans, to fund participations in Letters of Credit
and Swing Line Loans and to make payments pursuant to Section 10.04(c) are
several and not joint. The failure of any Lender to make any Committed Loan, to
fund any such participation or to make any payment under Section 10.04(c) on any
date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Committed Loan, to purchase its
participation or to make its payment under Section 10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any
Lender to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
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2.14 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of the Committed Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in
such Lender's receiving payment of a proportion of the aggregate amount of such
Committed Loans or participations and accrued interest thereon greater than its
pro rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and
(b) purchase (for cash at face value) participations in the Committed Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Committed Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations or subparticipations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest; and
(ii) the provisions of this Section shall not be construed to
apply to (x) any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Committed Loans or subparticipations in
L/C Obligations or Swing Line Loans to any assignee or participant,
other than to the Borrower or any Subsidiary thereof (as to which the
provisions of this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
2.15 INCREASE IN COMMITMENTS.
(a) Request for Increase. Provided there exists no Default, upon notice
to the Administrative Agent (which shall promptly notify the Lenders), the
Borrower may request an increase in the Aggregate Commitments by an amount (for
all such requests) not exceeding $50,000,000; provided that any such request for
an increase shall be in a minimum amount of $5,000,000. At the time of sending
such notice, the Borrower (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which
shall in no event be less than ten Business Days from the date of delivery of
such notice to the Lenders).
(b) Lender Elections to Increase. Each Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Commitment and, if so, whether by an amount equal to, greater than,
or less than its Applicable Percentage of such requested increase. Any Lender
not responding within such time period shall be deemed to have declined to
increase its Commitment.
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(c) Notification by Administrative Agent; Additional Lenders. The
Administrative Agent shall notify the Borrower and each Lender of the Lenders'
responses to each request made hereunder. To achieve the full amount of a
requested increase and subject to the approval of the Administrative Agent and
the L/C Issuer (which approvals shall not be unreasonably withheld), the
Borrower may also invite additional Eligible Assignees to become Lenders
pursuant to a joinder agreement in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) Effective Date and Allocations. If the Aggregate Commitments are
increased in accordance with this Section, the Administrative Agent and the
Borrower shall determine the effective date (the "Increase Effective Date") and
the final allocation of such increase. The Administrative Agent shall promptly
notify the Borrower and the Lenders of the final allocation of such increase and
the Increase Effective Date.
(e) Conditions to Effectiveness of Increase. As a condition precedent
to such increase, the Borrower shall deliver to the Administrative Agent a
certificate of each Loan Party dated as of the Increase Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of such Loan
Party (i) certifying and attaching the resolutions adopted by such Loan Party
approving or consenting to such increase, and (ii) in the case of the Borrower,
certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other Loan
Documents are true and correct on and as of the Extension Effective Date, except
to the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date,
and except that for purposes of this Section 2.15, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed
to refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 6.01, and (B) no Default exists. The Borrower
shall prepay any Committed Loans outstanding on the Increase Effective Date (and
pay any additional amounts required pursuant to Section 3.05) to the extent
necessary to keep the outstanding Committed Loans ratable with any revised
Applicable Percentages arising from any nonratable increase in the Commitments
under this Section.
(f) Conflicting Provisions. This Section shall supersede any provisions
in Sections 2.14 or 10.01 to the contrary.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Loan Document shall
be made free and clear of and without reduction or withholding for any
Indemnified Taxes or Other Taxes, provided that if the Borrower shall be
required by applicable law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or L/C Issuer, 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 timely pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
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(b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of subsection (a) above, the Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
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(i) duly completed copies of Internal Revenue Service Form
W-8BEN claiming eligibility for benefits of an income tax treaty to
which the United States is a party,
(ii) duly completed copies of Internal Revenue Service Form
W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under section 881(c) of the Code,
(x) a certificate to the effect that such Foreign Lender is not (A) a
"bank" within the meaning of section 881(c)(3)(A) of the Code, (B) a
"10 percent shareholder" of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis
for claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the
Borrower to determine the withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent, any
Lender or the L/C Issuer determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section, it shall pay to the Borrower an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or the L/C Issuer, as the case
may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that the Borrower,
upon the request of the Administrative Agent, such Lender or the L/C Issuer,
agrees to repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make available
its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, any obligation of such Lender
to make or continue Eurodollar Rate Loans or to convert Base Rate Committed
Loans to Eurodollar Rate Committed Loans shall be suspended until such Lender
notifies the Administrative Agent and the Borrower that the circumstances giving
rise to such determination no longer exist. Upon receipt of such notice, the
Borrower shall, upon demand from such Lender (with a copy to the Administrative
Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such
Lender to Base Rate Loans, either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate
Loans to such day, or immediately, if such Lender may not lawfully continue to
maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted.
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3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine
that for any reason in connection with any request for a Eurodollar Rate Loan or
a conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the London interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Committed
Loan, or (c) the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Rate Committed Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, the Administrative Agent
will promptly so notify the Borrower and each Lender. Thereafter, the obligation
of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended
until the Administrative Agent (upon the instruction of the Required Lenders)
revokes such notice. Upon receipt of such notice, the Borrower may revoke any
pending request for a Borrowing of, conversion to or continuation of Eurodollar
Rate Committed Loans or, failing that, will be deemed to have converted such
request into a request for a Committed Borrowing of Base Rate Loans in the
amount specified therein.
3.04 INCREASED COSTS; RESERVES ON EURODOLLAR RATE LOANS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve
requirement contemplated by Section 3.04(e)) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any
kind whatsoever with respect to this Agreement, any Letter of Credit,
any participation in a Letter of Credit or any Eurodollar Loan made by
it, or change the basis of taxation of payments to such Lender or the
L/C Issuer in respect thereof (except for Indemnified Taxes or Other
Taxes covered by Section 3.01 and the imposition of, or any change in
the rate of, any Excluded Tax payable by such Lender or the L/C
Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London
interbank market any other condition, cost or expense affecting this
Agreement or Eurodollar Loans made by such Lender or any Letter of
Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, the Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.
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(b) Capital Requirements. If any Lender or the L/C Issuer determines
that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such Lender's or the L/C Issuer's holding company, if
any, regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the L/C Issuer's capital or on the capital of
such Lender's or the L/C Issuer's holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or the L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer or
such Lender's or the L/C Issuer's holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the
L/C Issuer setting forth the amount or amounts necessary to compensate such
Lender or the L/C Issuer or its holding company, as the case may be, as
specified in subsection (a) or (b) of this Section and delivered to the Borrower
shall be conclusive absent manifest error. The Borrower shall pay such Lender or
the L/C Issuer, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or
the L/C Issuer to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender's or the L/C Issuer's
right to demand such compensation, provided that the Borrower shall not be
required to compensate a Lender or the L/C Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or reductions
suffered more than nine months prior to the date that such Lender or the L/C
Issuer, as the case may be, notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender's or the L/C
Issuer's intention to claim compensation therefor (except that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period of
retroactive effect thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional interest
on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall
be due and payable on each date on which interest is payable on such Loan,
provided the Borrower shall have received at least 10 days' prior notice (with a
copy to the Administrative Agent) of such additional interest from such Lender.
If a Lender fails to give notice 10 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 10 days from receipt of
such notice.
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3.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy to
the Administrative Agent) from time to time, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day of
the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in the
amount notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other
than the last day of the Interest Period therefor as a result of a
request by the Borrower pursuant to Section 10.13;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Committed Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Committed Loan was in fact so funded.
3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, the Borrower may replace such Lender in accordance with Section
10.13.
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3.07 SURVIVAL. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each
of which shall be originals or telecopies (followed promptly by
originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Closing
Date (or, in the case of certificates of governmental officials, a
recent date before the Closing Date) and each in form and substance
satisfactory to the Administrative Agent and each of the Lenders:
(i) counterparts of this Agreement and the Guaranty
executed by the Borrower and each Guarantor, respectively,
sufficient in number for distribution to the Administrative
Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each
Lender requesting a Note;
(iii) (A) a certificate of good standing for the
Borrower and each Guarantor from the secretary of state of the
states of their organizational jurisdiction; (B) certified
copies of the Certificate of Incorporation and By-laws or
other organizational documents, as applicable of the Borrower
and each Guarantor; and (C) a certificate of the Secretary or
an Assistant Secretary of the Borrower and each Guarantor
certifying: (1) that neither the Certificates of Incorporation
nor the By-laws of the Borrower nor of any Guarantor has been
amended since the date of their certification (or if there has
been any such amendment, attaching a certified copy thereof);
(2) that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors of the Borrower
and by the board of directors or other governing body or
Persons of each Guarantor authorizing the execution, delivery
and performance of each Loan Document to which it is a party
and, with respect to the Borrower, the borrowings and other
extensions of credit hereunder; and (3) the incumbency and
specimen signature of each Responsible Officer of the Borrower
and of each Responsible Officer of each Guarantor executing
each Loan Document to which the Borrower or any Guarantor is a
party and any certificates or instruments furnished pursuant
hereto or thereto, and a certification by another officer of
the Borrower and each Guarantor as to the incumbency and
signature of the Secretary or Assistant Secretary of the
Borrower and each Guarantor;
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(iv) a favorable opinion of (A) Carter Ledyard &
Milburn LLP, counsel to the Loan Parties and (B) local
Michigan counsel to Gelman Sciences, Inc., in each case
addressed to the Administrative Agent and each Lender;
(v) a certificate of a Responsible Officer of each
Loan Party either (A) attaching copies of all consents,
licenses and approvals required in connection with the
execution, delivery and performance by such Loan Party and the
validity against such Loan Party of the Loan Documents to
which it is a party, and such consents, licenses and approvals
shall be in full force and effect, or (B) stating that no such
consents, licenses or approvals are so required;
(vi) a certificate signed by a Responsible Officer of
the Borrower certifying (A) that the conditions specified in
Sections 4.02(a) and (b) have been satisfied, (B) that there
has been no event or circumstance since the date of the
Audited Financial Statements that has had or could be
reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect; (C) the current Debt
Ratings; (D) as to the solvency of the Borrower on the Closing
Date; (E) that there have been no material changes in Laws or
governmental policies affecting the Borrower and its
Subsidiaries; and (F) that no default or event of default (or
analogous condition) exists under any material Indebtedness of
the Borrower or any of its Subsidiaries;
(vii) a duly completed Compliance Certificate as of
the last day of the fiscal quarter of the Borrower ended April
30, 2004, signed by a Responsible Officer of the Borrower;
(viii) evidence that all insurance required to be
maintained pursuant to the Loan Documents has been obtained
and is in effect;
(ix) evidence that the Existing Credit Agreement has
been or concurrently with the Closing Date is being terminated
and all Liens securing obligations under the Existing Credit
Agreement have been or concurrently with the Closing Date are
being released; and
(x) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent, the L/C
Issuer, the Swing Line Lender or the Required Lenders
reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall
have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have
paid all fees, charges and disbursements of counsel to the Administrative Agent
to the extent invoiced prior to or on the Closing Date, plus such additional
amounts of such fees, charges and disbursements as shall constitute its
reasonable estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Borrower
and the Administrative Agent).
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(d) 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
arbiter that could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(e) There shall not have occurred any material adverse change in the
business, operations, properties, prospects or condition (financial or
otherwise) of the Borrower and its Subsidiaries or the Borrower and the
Guarantors, taken as a whole, since August 2, 2003.
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement 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 a Lender unless the Administrative Agent shall have (i)
received notice from such Lender prior to the proposed Closing Date specifying
its objection thereto or (ii) consented to, approved or accepted or been
satisfied with a document or other matter required hereunder in a manner that is
determined to have been gross negligence or willful misconduct.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender
to honor any Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type, or a
continuation of Eurodollar Rate Committed Loans) is subject to the following
conditions precedent:
(a) The representations and warranties of the Borrower and
each other Loan Party contained in Article V or any other Loan
Document, or which are contained in any document furnished at any time
under or in connection herewith or therewith, shall be true and correct
on and as of the date of such Credit Extension, except to the extent
that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct as of such
earlier date, and except that for purposes of this Section 4.02, the
representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section
6.01.
(b) No Default shall exist, or would result from such proposed
Credit Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C
Issuer or the Swing Line Lender shall have received a Request for
Credit Extension (which the Administrative Agent will promptly forward
on to the Lenders) in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurodollar Rate Committed Loans) submitted by the Borrower shall
be deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
the Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each
Loan Party and each Subsidiary thereof (a) is duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents to which it is a party, (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws; except in each case referred to in clause (b)(i), (c)
or (d), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any Contractual Obligation to which such Person is
a party or affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject;
or (c) violate any Law. Each Loan Party and each Subsidiary thereof is in
compliance with all Contractual Obligations referred to in clause (b)(i), except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No registration with
or consent or approval of, or other action by, any Governmental Authority or any
other Person is required in connection with the execution, delivery and
performance of this Agreement by the Borrower or any Guarantor, or with the
execution and delivery of other Loan Documents to which it is a party or, with
respect to the Borrower, the borrowings and each other extension of credit
hereunder other than registrations, consents and approvals received prior to the
date hereof and disclosed to the Lenders and which are in full force and effect
or such registrations, consents and approvals required pursuant to Section 5.01
hereof.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms except to the extent that
enforcement may be limited by applicable bankruptcy, reorganization, moratorium,
insolvency and similar laws affecting creditors' rights generally or by
equitable principles of general application, regardless of whether considered in
a proceeding in equity or at law. Notwithstanding anything to the contrary, this
Section shall not be deemed to restrict the ability of the Borrower and its
Subsidiaries to create or permit to exist Permitted Liens.
55
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated balance sheet of the Borrower and its
Subsidiaries dated April 30, 2004, and the related consolidated statements of
earnings and cash flows for the nine-month period ended on that date (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein, and (ii) fairly
present the financial condition of the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby,
subject, in the case of clauses (i) and (ii), to the absence of footnotes and to
normal year-end audit adjustments.
(c) Since the date of the Audited Financial Statements, there has been
no event or circumstance, either individually or in the aggregate, that has had
or could reasonably be expected to have a Material Adverse Effect. The Borrower
and each of the Guarantors is Solvent.
5.06 LITIGATION. Except as disclosed in Schedule 5.06 hereto, (a) there
are no actions, suits or proceedings (whether or not purportedly on behalf of
the Borrower or any Subsidiary of the Borrower) pending or, to the knowledge of
the Borrower, threatened against or affecting the Borrower or any such
Subsidiary at law or in equity or before or by any Governmental Authority, which
involve any of the transactions contemplated herein or which could reasonably be
expected to result in a Material Adverse Effect; and (b) neither the Borrower
nor any Subsidiary of the Borrower is in default with respect to any judgment,
writ, injunction, decree, rule or regulation of any Governmental Authority which
could reasonably be expected to result in a Material Adverse Effect.
5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is a party to
any agreement, indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any charter or other corporate restriction
or any judgment, order, writ, injunction, decree or regulation which could
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any Subsidiary is in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any agreement or
instrument to which it is a party, which default could reasonably be expected to
have a Material Adverse Effect.
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5.08 OWNERSHIP OF PROPERTY; LIENS. The Borrower and each Subsidiary of
the Borrower has good title to its respective properties and assets reflected on
the financial statements referred to in Section 5.05 hereof, except for such
properties and assets as have been disposed of since the date of such financial
statements as no longer used or useful in the conduct of their respective
businesses or as have been disposed of in the ordinary course of business, and
all such properties and assets are free and clear of all Liens other than
Permitted Liens.
5.09 ENVIRONMENTAL COMPLIANCE. Except as disclosed in Schedule 5.09
hereto, the Borrower and each Subsidiary are in compliance in all material
respects with all applicable Environmental Laws and neither the Borrower nor any
Subsidiary has used Hazardous Materials on, from, or affecting any property now
owned or occupied or hereafter owned or occupied by the Borrower or any such
Subsidiary in any manner which violates any applicable Environmental Law. To the
best actual knowledge of any officer of the Borrower, no prior owner of any such
property or any tenant, subtenant, prior tenant or prior subtenant have used
Hazardous Materials on, from, or affecting such property in any manner which
violates any applicable Environmental Law.
5.10 INSURANCE. The properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Borrower, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or the applicable Subsidiary
operates.
5.11 TAXES. The Borrower and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except (a) where the failure to file such tax
returns or pay such taxes, charges or levies could not reasonably be expected to
have a Material Adverse Effect and (b) taxes, assessments and governmental
charges and levies being contested in good faith by appropriate proceedings and
with respect to which adequate reserves in conformity with GAAP consistently
applied shall have been provided on the books of the Borrower and its
Subsidiaries. There is no proposed tax assessment against the Borrower or any
Subsidiary that would, if made, have a Material Adverse Effect. Except as set
forth in Schedule 5.11 hereto, neither any Loan Party nor any Subsidiary thereof
is a party to any tax sharing agreement.
5.12 ERISA COMPLIANCE. Each Pension Plan is in compliance in all
material respects with ERISA; no Plan is insolvent or in reorganization (as
defined in Section 4241 of ERISA) and no Pension Plan has an accumulated or
waived funding deficiency within the meaning of Section 412 of the Code; neither
the Borrower nor any ERISA Affiliate has incurred any material liability to or
on account of a Plan pursuant to Section 515 (as to a proceeding which was not
dismissed within 30 days), 4062, 4063 or 4064 of ERISA or reasonably expects to
incur any liability under any of the foregoing Sections on account of the prior
termination of participation in or contributions to any such Pension Plan; no
proceedings have been instituted to terminate any Pension Plan; to the best of
its knowledge, no condition exists which could reasonably be expected to present
a risk to the Borrower or any ERISA Affiliate of incurring a liability to or on
account of a Plan pursuant to the foregoing provisions of ERISA and the Code;
and no lien imposed under the Code or ERISA on the assets of the Borrower or any
of its ERISA Affiliates exists or to the knowledge of the Borrower is likely to
arise on account of any Plan. The Borrower has no multi-employer plans. The
present value of all projected benefit obligations under each Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed the fair market value of the assets of such Plan in an
amount that could have a Material Adverse Effect. The present value of all
projected benefit obligations of all underfunded Plans (based on the assumptions
used for purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such
amounts, exceed the fair market value of the assets of all such underfunded
Plans in an amount that could have a Material Adverse Effect.
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5.13 SUBSIDIARIES; EQUITY INTERESTS. Attached hereto as Schedule 5.13
is a correct and complete list of each of the Borrower's Subsidiaries and
Affiliates as of the Closing Date showing as to each (a) Subsidiary, its name,
the jurisdiction of its incorporation, its shareholders or other owners of an
interest in each Subsidiary and the number of outstanding shares or other
ownership interest owned by each shareholder or other owner of an interest and
(b) Affiliate in which the Borrower or any of its Subsidiaries owns an interest,
the number of shares or other ownership interests of such Affiliate owned
directly or indirectly by the Borrower.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) The Borrower is not engaged and will not engage, principally or as
one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock.
Following the application of the proceeds of each Borrowing or drawing under
each Letter of Credit, not more than 25% of the value of the assets (either of
the Borrower only or of the Borrower and its Subsidiaries on a consolidated
basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to
any restriction contained in any agreement or instrument between the Borrower
and any Lender or any Affiliate of any Lender relating to Indebtedness and
within the scope of Section 8.01(e) will be margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
5.15 DISCLOSURE. Neither this Agreement, any other Loan Document, nor
any other document, certificate or written statement furnished to the
Administrative Agent, the L/C Issuer, or any Lender by or on behalf of the
Borrower or any of its Subsidiaries for use in connection with the transactions
contemplated by this Agreement contains any untrue statement of material fact or
omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which they were made.
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5.16 COMPLIANCE WITH LAWS. The Borrower and each Subsidiary of the
Borrower are each in compliance, with all laws, rules, regulations, orders and
decrees which are applicable to the Borrower or any such Subsidiary, or to any
of their respective properties, which the failure to comply with could
reasonably be expected to have a Material Adverse Effect.
5.17 PERMITS AND LICENSES, ETC. The Borrower and each Subsidiary of the
Borrower each has all permits, licenses, certifications, authorizations and
approvals required for it lawfully to own and operate their respective
businesses except those the failure of which to have could not reasonably be
expected to have a Material Adverse Effect.
5.18 LABOR DISPUTES AND ACTS OF GOD. Neither the business nor the
properties of the Borrower or any Subsidiary of the Borrower are affected by any
fire, explosion, accident, strike, lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance), which could reasonably be
expected to have a Material Adverse Effect.
5.19 SPECIALLY DESIGNATED NATIONALS OR BLOCKED PERSONS LIST. None of
the Borrower, Subsidiaries of the Borrower or Affiliates of the Borrower are
named on the United States Department of the Treasury's Specially Designated
Nationals or Blocked Persons list available through
http://www.treas.gov/offices/eotffc/ofac/sdn/index.html or as otherwise
published from time to time.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall, and shall (except in the
case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each
Subsidiary to:
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent, in form
and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days
after the end of each Fiscal Year of the Borrower or such shorter
period as the SEC may require the Borrower to deliver its Form 10-K
(commencing with the Fiscal Year ended July 31, 2004), a consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of
such Fiscal Year, and the related consolidated statements of earnings,
shareholders' equity and cash flows for such Fiscal Year, setting forth
in each case in comparative form the figures for the previous Fiscal
Year, all in reasonable detail and prepared in accordance with GAAP,
audited and accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion
shall be prepared in accordance with generally accepted auditing
standards and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the
scope of such audit; provided that the requirements of this Section
6.01(a) shall be deemed satisfied by delivery within the time period
specified above of (A) copy the Borrower's Annual Report on Form 10-K
for such Fiscal Year (together with the Borrower's annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act) ("Form 10-K")prepared in accordance with the requirements
therefor and filed with the SEC, or (B) a notice setting forth a
written reference to a website that contains such Form 10K (together
with the Borrower's annual report to shareholders, if any, prepared
pursuant to Rule 14a-3 under the Exchange Act); and
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(b) as soon as available, but in any event within 45 days
after the end of the first three fiscal quarters of the Borrower or
such shorter period as the SEC may require the Borrower to deliver its
Form 10-Q (commencing with the fiscal quarter ended October 31, 2004),
(i) a consolidated balance sheet of the Borrower and its Subsidiaries
as at the end of such quarter, and (ii) consolidated statements of
earnings of the Borrower and its Subsidiaries for such quarter and (in
the case of the second and third quarters) for the portion of the
Fiscal Year ending with such quarter, and a statement of cash flows for
the portion of the Fiscal Year ending with such quarter, setting forth
in each case in comparative form the figures for the corresponding
periods in the previous Fiscal Year, all in reasonable detail, prepared
in accordance with GAAP applicable to quarterly financial statements
generally, and certified by a Responsible Officer of the Borrower as
fairly presenting, in all material respects, the financial position of
the Borrower and its Subsidiaries being reported on and their results
of operations and cash flows, subject to the changes resulting from
year-end adjustments, provided that the requirements of this Section
6.01(b) shall be deemed satisfied by delivery within the time period
specified above of (A) a copy of the Borrower's Quarterly Report on
Form 10-Q ("Form 10-Q") prepared in compliance with the requirements
therefor and filed with the SEC, or (B) a notice setting forth a
written reference to a website that contains such Form 10-Q.
As to any information contained in materials furnished pursuant to Section
6.02(b), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative
Agent, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent
certified public accountants certifying such financial statements and
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or, if any such Default shall exist,
stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower;
(c) promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration
statements which the Borrower may file or be required to file with the
SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934,
and not otherwise required to be delivered to the Administrative Agent
pursuant hereto;
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(d) promptly after the furnishing thereof, copies of any
statement or report furnished to any holder of debt securities of any
Loan Party or any Subsidiary thereof pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise
required to be furnished to the Lenders pursuant to Section 6.01 or any
other clause of this Section 6.02;
(e) promptly, and in any event within five Business Days after
receipt thereof by any Loan Party or any Subsidiary thereof, copies of
each notice or other correspondence received from the SEC or the U.S.
Department of Justice concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or
other operational results of any Loan Party or any Subsidiary thereof;
and
(f) promptly, such additional information regarding the
business, financial or corporate affairs of the Borrower or any
Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender may from time to time reasonably
request.
Documents required to be delivered pursuant to Section 6.01(a) or (b)
or Section 6.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Borrower's behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Borrower shall deliver paper
copies of such documents to the Administrative Agent until a written request to
cease delivering paper copies is given by the Administrative Agent and (ii) the
Borrower shall notify the Administrative Agent (by telecopier or electronic
mail) of the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance the
Borrower shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(b) to the Administrative Agent. Except for
such Compliance Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery.
The Borrower hereby acknowledges that (a) the Administrative Agent
and/or the Arranger will make available to the Lenders and the L/C Issuer
materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, "Borrower Materials") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the "Platform") and (b) certain
of the Lenders may be "public-side" Lenders (i.e., Lenders that do not wish to
receive material non-public information with respect to the Borrower or its
securities) (each, a "Public Lender"). The Borrower hereby agrees that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that
the word "PUBLIC" shall appear prominently on the first page thereof; (x) by
marking Borrower Materials "PUBLIC," the Borrower shall be deemed to have
authorized the Administrative Agent, the Arranger, the L/C Issuer and the
Lenders to treat such Borrower Materials as either publicly available
information or not material information (although it may be sensitive and
proprietary) with respect to the Borrower or its securities for purposes of
United States Federal and state securities laws; (y) all Borrower Materials
marked "PUBLIC" are permitted to be made available through a portion of the
Platform designated "Public Investor;" and (z) the Administrative Agent and the
Arranger shall be entitled to treat any Borrower Materials that are not marked
"PUBLIC" as being suitable only for posting on a portion of the Platform not
designated "Public Investor."
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6.03 NOTICES. Promptly notify the Administrative Agent:
(a) of the occurrence of any Default or Event of Default which
shall have occurred or the occurrence or existence of any event or
circumstance that in the reasonable judgment of the Borrower is likely
to become a Default or Event of Default;
(b) of any matter that has resulted or could reasonably be
expected to result in a Material Adverse Effect, including (i) breach
or non-performance of, or any default under, a Contractual Obligation
of the Borrower or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Borrower or any
Subsidiary and any Governmental Authority; or (iii) the commencement
of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any
applicable Environmental Laws;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial
reporting practices by the Borrower or any Subsidiary not mandated by
GAAP; and
(e) of any announcement by Moody's or S&P of any change in a
Debt Rating.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. Each notice pursuant to Section
6.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. (a) Pay all material indebtedness and
obligations, now existing or hereafter arising, as and when due and payable
except where (i) the validity or amount thereof is being contested in good faith
and by appropriate proceedings, which proceedings shall include good faith
negotiations, and (ii) the Borrower or any Subsidiary of the Borrower has set
aside on its books adequate reserves with respect thereto in accordance with
GAAP, and (iii) the failure to make such payment pending such contest could not
reasonably be expected to have a Material Adverse Effect, and (b) pay and
discharge or cause to be paid and discharged promptly all taxes, assessments and
government charges or levies imposed upon it or upon its income and profits, or
upon any of its property, real, personal or mixed, or upon any part thereof, as
and when due and payable, as well as all lawful claims for labor, materials and
supplies or otherwise which, if unpaid, might become a lien or charge upon such
properties or any part thereof or except where the failure to make such payment
could not reasonably be expected to have a Material Adverse Effect; provided,
however, that neither the Borrower nor any Subsidiary of the Borrower shall be
required to pay and discharge or cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as the validity thereof shall be
contested in good faith by appropriate proceedings, and the Borrower or such
Subsidiary, as the case may be, shall have set aside on its books adequate
reserves determined in accordance with GAAP with respect to any such tax,
assessment, charge, levy or claim so contested; provided, further that, subject
to the foregoing proviso, the Borrower and each Subsidiary of the Borrower will
pay or cause to be paid all such taxes, assessments, charges, levies or claims
upon the commencement of proceedings to foreclose any lien which has attached as
security therefor.
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6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain
in full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 7.04 or 7.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises (other than as expressly permitted
herein) necessary or desirable in the normal conduct of its business, except to
the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all
of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted;
(b) make all necessary repairs and improvements thereto and renewals and
replacements thereof so that the business carried on in connection therewith may
be properly and advantageously conducted in the ordinary course at all times in
the manner and custom of similar businesses; and (c) use the standard of care
typical in the industry in the operation and maintenance of its facilities.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, or through self
insurance, if adequate reserves are maintained with respect thereto, insurance
with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types (including hazard, business interruption, public liability and
product liability) and in such amounts (including deductibles and co-insurance,
if adequate reserves are maintained with respect thereto) as are customarily
carried under similar circumstances by such other Persons.
6.08 COMPLIANCE WITH LAWS. Comply with the requirements of all
applicable laws, rules, regulations and orders of any Governmental Authority,
the breach of which could reasonably be expected to have a Material Adverse
Effect, including, without limitation, the rules and regulations of the Board of
Governors of the Federal Reserve System.
6.09 BOOKS AND RECORDS. Maintain adequate records and proper books of
record and account in which full, true and correct entries will be made in a
manner to enable the preparation of financial statements in accordance with
GAAP, and which shall reflect all financial transactions of the Borrower and
each of its Subsidiaries and matters involving the assets and business of the
Borrower and such Subsidiaries.
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6.10 INSPECTION RIGHTS. At any time during normal business hours and
upon reasonable advance notice, permit the Administrative Agent or any agents or
representatives thereof to examine and make copies of and abstracts from the
books and records of such information which such Lender reasonably deems
necessary or desirable (including the financial records of the Borrower and its
Subsidiaries) and to visit the properties of the Borrower or any of its
Subsidiaries and to discuss the affairs, finances and accounts of the Borrower
or any of its Subsidiaries with any of their respective executive officers or
the Borrower's independent accountants.
6.11 USE OF PROCEEDS. Use the proceeds of the Credit Extensions to
refinance the Existing Credit Agreement, for working capital and other general
corporate purposes, including Permitted Acquisitions, not in contravention of
any Law or of any Loan Document.
6.12 ADDITIONAL GUARANTORS. Notify the Administrative Agent at the time
that any Person becomes a Domestic Subsidiary, and promptly thereafter (and in
any event within 30 days), cause such Person to (a) become a Guarantor by
executing and delivering to the Administrative Agent a counterpart of the
Guaranty or such other document as the Administrative Agent shall deem
appropriate for such purpose, and (b) deliver to the Administrative Agent
documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a)
and favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (a)), all in form, content and scope
reasonably satisfactory to the Administrative Agent.
6.13 ENVIRONMENTAL LAWS. Comply in all material respects with the
requirements of all applicable Environmental Laws, provide to the Lenders all
documentation in connection with such compliance that the Lenders may reasonably
request, and defend, indemnify, and hold harmless the Administrative Agent and
each Lender and their respective employees, agents, officers, and directors,
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs, or expenses of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of, or in any way related to, (a)
the presence, disposal, or release of any Hazardous Materials on any property at
any time owned or occupied by the Borrower or any Subsidiary; (b) any personal
injury (including wrongful death) or property damage (real or personal) arising
out of or related to such Hazardous Materials; (c) any lawsuit brought or
threatened, settlement reached, or government order relating to such Hazardous
Materials, and/or (d) any violation of applicable Environmental Laws, including
reasonable attorney and consultant fees, investigation and laboratory fees,
court costs, and litigation expenses.
6.14 BORROWER RATING. Arrange for an annual reassessment and review of
the Borrower's Debt Rating by S&P and Moody's and maintain a Debt Rating at all
times.
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ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon any
of its property, assets or revenues, whether now owned or hereafter acquired,
other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and either listed on
Schedule 7.01 or constituting purchase money liens on property of
non-Domestic Subsidiaries and any renewals or extensions thereof,
provided that (i) the property covered thereby is not changed, (ii) the
amount secured or benefited thereby is not increased, (iii) the direct
or any contingent obligor with respect thereto is not changed, and (iv)
any renewal or extension of the obligations secured or benefited
thereby is permitted by Section 7.03(b);
(c) Liens for taxes, assessments or other governmental charges
(i) not yet due or (ii) which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not yet due and payable or the payment of which is
not at the time required;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure (or obtain letters of credit that
secure) the performance of tenders, statutory obligations, surety
bonds, appeal bonds, bids, leases (other than Synthetic Lease
Obligations), performance bonds, purchase, construction or sales
contracts and other similar obligations, in each case not incurred or
made in connection with the borrowing of money, the obtaining of
advances or credit or the payment of the deferred purchase price of
property;
(g) leases or subleases granted to others, easements,
rights-of-way, restrictions (including zoning restrictions) and other
similar encumbrances affecting real property which, in the aggregate do
not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of
the business of the applicable Person;
(h) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 8.01(h) or securing
appeal or other surety bonds related to such judgments, unless the
judgment it secures shall not, within 60 days after the entry thereof,
have been discharged or execution thereof stayed pending appeal, or
shall not have been discharged within 60 days after the expiration of
any stay;
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(i) Liens securing Indebtedness permitted under Section
7.03(f); provided that (i) any such Lien shall extend solely to the
item or items of such fixed assets or (improvements thereon) so
acquired or constructed and, if required by the terms of the instrument
originally creating such Lien, other fixed assets (or improvements
thereon) which is (A) an improvement to, or is acquired for specific
use in connection with, such acquired or constructed fixed assets (or
improvement thereon) or (B) real property being improved by such
acquired or constructed fixed assets (or improvement thereon), (ii) the
principal amount of the Indebtedness secured by any such Lien shall at
no time exceed an amount equal to 100% of the cost to the Borrower or
such Subsidiary of the fixed assets (or improvements thereon) so
acquired or constructed, (iii) such Lien does not secure any
Indebtedness other than in respect of the purchase price of the fixed
assets (or improvements thereof) so acquired, and (iv) any such Lien
shall be either (A) created contemporaneously with, or within 180 days
after, the acquisition or construction of such fixed assets or (B) in
respect of land on which such fixed assets or improvements are located.
(j) Liens securing leases (other than Synthetic Lease
Obligations); and
(k) other Liens on the property and assets of the Borrower and
of its Subsidiaries, which Liens secure Indebtedness permitted pursuant
to Section 7.03(m) hereof.
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the
form of Eligible Investments;
(b) Investments of the Borrower in any Subsidiary and
Investments of any Subsidiary in the Borrower or in another Subsidiary;
(c) Investments consisting of extensions of credit in the
nature of accounts receivable or notes receivable arising from the
grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof
from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss;
(d) Guarantees permitted by Section 7.03;
(e) Investments constituting Permitted Acquisitions;
(f) Investments (including by the purchase of equity
securities), other than Investments of this type listed on Schedule
7.02 hereto, by the Borrower in any Person which is not a Subsidiary of
the Borrower, provided that such entities are engaged in a business
which is related to the business of the Borrower, and provided further
that the aggregate amount of all Investments made pursuant to this
subsection (f), calculated at the time of the incurrence of such
Investment, is in an amount not in excess of 5% of the consolidate
tangible assets of the Borrower and its Subsidiaries;
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(g) Investments in the Borrower's benefits protection trust,
established for the purpose of satisfying certain supplemental
retirement benefit obligations for eligible executives in the event of
a change of control of the Borrower, consistent with past practices;
and
(h) those Investments not otherwise specified in clauses (a)
through (g) hereof, as described on Schedule 7.02 hereto.
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on
Schedule 7.03 and any refinancings, refundings, renewals or extensions
thereof; provided that (i) the amount of such Indebtedness is not
increased at the time of such refinancing, refunding, renewal or
extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing
commitments unutilized THEREUNDER and (ii) the terms relating to
principal amount, amortization, maturity, collateral (if any) and
subordination (if any), and other material terms taken as a whole, of
any such refinancing, refunding, renewing or extending Indebtedness,
and of any agreement entered into and of any instrument issued in
connection therewith, are no less favorable in any material respect to
the Loan Parties or the Lenders than the terms of any agreement or
instrument governing the Indebtedness being refinanced, refunded,
renewed or extended and the interest rate applicable to any such
refinancing, refunding, renewing or extending Indebtedness does not
exceed the then applicable market interest rate;
(c) Indebtedness for trade payables incurred in the ordinary
course of business; provided such payables shall be paid or discharged
when due;
(d) Guarantees of the Borrower or any Subsidiary (i) in
respect of Indebtedness otherwise permitted hereunder of the Borrower
or any other Subsidiary, (ii) Guarantees executed or committed prior to
the date hereof as listed in Schedule 7.03(d) including renewals and
extensions thereof; provided that such renewals or extensions do not
increase the maximum exposure pursuant to the Guaranty and (iii)
endorsements of negotiable instruments for collection or deposit in the
ordinary course of business;
(e) Subordinated Indebtedness; provided, however, that no
Default or Event of Default shall have occurred and be continuing at
the time of incurrence thereof or would occur after giving effect to
the incurrence of such Subordinated Indebtedness;
(f) Indebtedness secured by purchase money liens as permitted
under Section 7.01(i) hereof and Indebtedness arising under Capital
Leases; provided that the aggregate amount of such Indebtedness
incurred in any fiscal year of the Borrower shall not exceed
$40,000,000; provided further that no Default or Event of Default shall
have occurred and be continuing or would occur after giving effect to
the incurrence of such Indebtedness;
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(g) Indebtedness with respect to Swap Contracts entered into
by the Borrower; provided that such Swap Contracts shall be entered
into in the ordinary course of its business with respect to its
business needs and not for speculative purposes;
(h) Indebtedness for taxes, assessments or other governmental
charges or levies not yet delinquent or which are being contested in
good faith by appropriate proceedings; provided, however, that adequate
reserves with respect thereto are maintained on the books of the
Borrower or any Subsidiary of the Borrower in accordance with GAAP;
(i) Indebtedness owing by (i) the Borrower to any of its
Subsidiaries or (ii) any Subsidiary of the Borrower to the Borrower or
any Subsidiary of the Borrower;
(j) Additional Indebtedness of the non-Domestic Subsidiaries;
provided that such Indebtedness shall not be secured; provided further
that no Event of Default has occurred and is continuing or would occur
after giving effect to the incurrence of such additional Indebtedness;
(k) Indebtedness of the Borrower or a Subsidiary incurred in
connection with or as a result of a Permitted Acquisition;
(l) unsecured Indebtedness of the Borrower or a Subsidiary in
respect of performance, surety or appeal bonds provided in the ordinary
course of business in an aggregate amount not to exceed $150,000,000 at
any time outstanding;
(m) Indebtedness in an aggregate principal amount not to
exceed $5,000,000 at any time outstanding secured by Liens permitted
pursuant to Section 7.01(k);
provided, however, that no Indebtedness otherwise permitted by clauses (f), (i)
(but only Indebtedness owing to a Loan Party), (k) or (m) shall be assumed,
created or otherwise incurred if a Default has occurred and is then continuing
or would result therefrom.
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with
or into another Person, or 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 or in favor of any Person or purchase or otherwise
acquire all or substantially all of the assets of any Person (or any division
thereof) whether in one transaction or a series of transactions, except that, so
long as no Default exists or would result therefrom:
(a) any Domestic Subsidiary may merge with (i) the Borrower,
provided that the Borrower shall be the continuing or surviving Person,
or (ii) any one or more other Domestic Subsidiaries, provided that when
any Guarantor is merging with another Domestic Subsidiary, the
Guarantor shall be the continuing or surviving Person;
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(b) any non-Domestic Subsidiary may merge with any one or more
other non-Domestic Subsidiaries;
(c) any Subsidiary may Dispose of all or substantially all of
its assets (upon voluntary liquidation or otherwise) to the Borrower or
to another Subsidiary; provided that if the transferor in such a
transaction is a Guarantor, then the transferee must either be the
Borrower or a Guarantor;
(d) the Borrower and any Subsidiary may make Investments
permitted under Section 7.02 and Permitted Acquisitions; and
(e) the Borrower may merge with and into a Domestic
Subsidiary, provided that (i) the Borrower shall notify the
Administrative Agent not less than thirty days prior to such event and
(ii) the surviving entity shall, if applicable, assume the obligations
of the merged entity pursuant to this Agreement or any of the other
Loan Documents and shall execute such documents and agreements as may
be reasonably required by the Administrative Agent.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of properties or assets no longer used or
useful in the conduct of their respective businesses;
(b) Dispositions of inventory in the ordinary course of
business;
(c) Dispositions of property by any Subsidiary to the Borrower
or to a wholly-owned Subsidiary; provided that if the transferor of
such property is a Guarantor, the transferee thereof must either be the
Borrower or a Guarantor;
(d) Dispositions permitted by Section 7.04;
(e) Dispositions of notes, accounts receivable or other
obligations owing to the Borrower or any Subsidiary of the Borrower,
with or without recourse, except for collections in the ordinary course
of business; and
(f) Dispositions by the Borrower and its Subsidiaries not
otherwise permitted under this Section 7.05; provided that (i) at the
time of such Disposition, no Default shall exist or would result from
such Disposition and (ii) the aggregate book value of all property
Disposed of in reliance on this clause (h) in any Fiscal Year shall not
exceed the amount expressed in Dollars which is equal to 15% multiplied
by the Dollar value of the aggregate book value of the assets of the
Borrower and its Subsidiaries on a consolidated basis calculated at the
time such Disposition is made;
provided, however, that any Disposition pursuant to clauses (a) through (e)
shall be for fair market value.
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7.06 RESTRICTED PAYMENTS. If a Default shall have occurred and is
continuing, declare any dividend on, or make any payment on account of, or set
apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of any shares or any
class of stock of the Borrower whether now or hereafter outstanding, or make any
other distribution in respect thereof, either directly or indirectly, whether in
cash, securities or property or in obligations of the Borrower or in any
combination thereof (each of the foregoing being a "Restricted Payment").
7.07 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business which is substantially different (i) from those lines of business
conducted by the Borrower and its Subsidiaries on the date hereof and (ii) from
any business substantially related or incidental to those lines of business
conducted by the Borrower and its Subsidiaries on the date hereof.
7.08 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any
kind with any Affiliate of the Borrower, except in the ordinary course of and
pursuant to the reasonable requirements of the Borrower's or any of its
Subsidiaries' business and on fair and reasonable terms substantially as
favorable to the Borrower or such Subsidiary as would be obtainable by the
Borrower or such Subsidiary at the time in a comparable arm's length transaction
with a Person other than an Affiliate, provided that the foregoing restriction
shall not apply (i) to transactions between or among the Borrower and any
Guarantor or between and among any Guarantors and (ii) the tax sharing
agreements set forth on Schedule 5.11 hereto.
7.09 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document) that (a) limits the
ability (i) of any Subsidiary to make Restricted Payments to the Borrower or any
Guarantor or to otherwise transfer property to the Borrower or any Guarantor,
(ii) of any Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of
the Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens
on property of such Person; provided, however, that this clause (iii) shall not
prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under Section 7.03(f) solely to the extent any such
negative pledge relates to the property financed by or the subject of such
Indebtedness; or (b) requires the grant of a Lien to secure an obligation of
such Person if a Lien is granted to secure another obligation of such Person.
7.10 USE OF PROCEEDS. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
7.11 FINANCIAL COVENANTS.
(a) Consolidated Net Interest Coverage Ratio. Permit the Consolidated
Net Interest Coverage Ratio as of the end of any fiscal quarter of the Borrower
to be less than 5.0 to 1.0.
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio
at any time to be greater than 3.0 to 1.0.
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7.12 HAZARDOUS MATERIALS. Cause or permit any of its properties or
assets to be used to generate, manufacture, refine, transport, treat, store,
handle, dispose of, transfer, produce or process Hazardous Materials, except in
compliance with all applicable federal, state and local laws or regulations, or
cause or permit, as a result of any intentional or negligent act or omission on
the part of the Borrower or any of its Subsidiaries, a release of Hazardous
Materials onto such property or asset or onto any other property, except in
compliance with such laws and regulations.
7.13 SUBORDINATED INDEBTEDNESS. (i) Directly or indirectly prepay,
defease, purchase, redeem, or otherwise acquire any Subordinated Indebtedness or
(ii) amend, supplement or otherwise modify any of the subordinated terms thereof
in any way which would materially affect the interests of the Lenders, without
the prior written consent of the Required Lenders.
7.14 NEGATIVE PLEDGE. Enter into any agreement with any Person other
than the Lenders pursuant to this Agreement or any of the other Loan Documents
which prohibits or limits the ability of the Borrower or any of its Subsidiaries
to create, incur, assume or suffer to exist any Lien upon its property, assets
or revenues, whether now owned or hereafter acquired.
7.15 SENIOR NOTES. Amend, restate, supplement or otherwise modify the
Senior Notes, the Note Purchase Agreement or Indenture if the effect thereof
would make the covenants or restrictions therein more restrictive than the
covenants and restrictions contained herein.
7.16 SENIOR NOTES. Directly or indirectly make any prepayment or
repayment of principal of any Senior Note.
7.17 INACTIVE DOMESTIC SUBSIDIARIES. No more than $1,000,000 of assets
will be held by Inactive Domestic Subsidiaries in the aggregate.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event
of Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to
pay (i) when and as required to be paid herein, any amount of principal
of any Loan or any L/C Obligation, or (ii) within five days after the
same becomes due, any interest on any Loan or on any L/C Obligation, or
any fee due hereunder, or any other amount payable hereunder or under
any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or
observe any term, covenant or agreement contained in any of Section
6.01, 6.02, 6.03, 6.05, 6.10, 6.11 or 6.12 or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b)
above) contained in any Loan Document on its part to be performed or
observed and such failure continues unremedied for 30 days; or
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(d) Representations and Warranties. Any representation,
warranty, certification or statement of fact made or deemed made by or
on behalf of the Borrower or any other Loan Party herein, in any other
Loan Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A)
fails to make any payment when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) in respect of
any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount, or (B) fails to observe
or perform any other agreement or condition relating to any such
Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs,
the effect of which default or other event is to cause, or to permit
the holder or holders of such Indebtedness or the beneficiary or
beneficiaries of such Guarantee (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to be demanded or
to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in
respect thereof to be demanded; or (ii) there occurs under any Swap
Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to
which the Borrower or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so
defined) under such Swap Contract as to which the Borrower or any
Subsidiary is an Affected Party (as so defined) and, in either event,
the Swap Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of
any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part
of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under
any Debtor Relief Law relating to any such Person or to all or any
material part of its property is instituted without the consent of such
Person and continues undismissed or unstayed for 60 calendar days, or
an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or
any Subsidiary becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any writ
or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such
Person and is not released, vacated or fully bonded within 30 days
after its issue or levy; or
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(h) Judgments. There is entered against the Borrower or any
Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not
covered by independent third-party insurance as to which the insurer
does not dispute coverage), or (ii) any one or more non-monetary final
judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 30 consecutive
days during which a stay of enforcement of such judgment, by reason of
a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Borrower under Title IV of ERISA
to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate
amount in excess of the Threshold Amount, or (ii) the Borrower or any
ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any provision of any Loan
Document, at any time after its execution and delivery and for any
reason other than as expressly permitted hereunder or thereunder or
satisfaction in full of all the Obligations, ceases to be in full force
and effect; or any Loan Party contests in any manner the validity or
enforceability of any provision of any Loan Document; or any Loan Party
denies that it has any or further liability or obligation under any
Loan Document, or purports to revoke, terminate or rescind any
provision of any Loan Document; or
(k) Change of Control. There occurs any Change of Control.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and
is continuing unremedied, the Administrative Agent shall, at the request of, or
may, with the consent of, the Required Lenders, take any or all of the following
actions:
(a) declare the commitment of each Lender to make Loans and
any obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts
owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
the Borrower;
(c) require that the Borrower Cash Collateralize the L/C
Obligations (in an amount equal to the then Outstanding Amount
thereof); and
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(d) exercise on behalf of itself and the Lenders all rights
and remedies available to it and the Lenders under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
8.03 APPLICATION OF FUNDS. After an Event of Default, any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations
constituting fees, indemnities, expenses and other amounts (including
fees, charges and disbursements of counsel to the Administrative Agent
and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;
Second, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts (other than principal
and interest) payable to the Lenders and the L/C Issuer (including
fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer (including fees and time charges for attorneys who
may be employees of any Lender or the L/C Issuer) and amounts payable
under Article III), ratably among them in proportion to the amounts
described in this clause Second payable to them;
Third, to payment of that portion of the Obligations
constituting accrued and unpaid interest on the Loans, L/C Borrowings
and other Obligations, ratably among the Lenders and the L/C Issuer in
proportion to the respective amounts described in this clause Third
payable to them;
Fourth, to payment of that portion of the Obligations
constituting unpaid principal of the Loans and L/C Borrowings, ratably
among the Lenders and the L/C Issuer in proportion to the respective
amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the L/C
Issuer, to Cash Collateralize that portion of L/C Obligations comprised
of the aggregate undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have
been indefeasibly paid in full, to the Borrower or as otherwise
required by Law.
Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
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ARTICLE IX
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORITY. Each of the Lenders and the L/C Issuer
hereby irrevocably appoints JPMorgan to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower
nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions.
9.02 RIGHTS AS A LENDER. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have
any duties or obligations except those expressly set forth herein and in the
other Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action
or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents
that the Administrative Agent is required to exercise as directed in
writing by the Required Lenders (or such other number or percentage of
the Lenders as shall be expressly provided for herein or in the other
Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its
counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the
other Loan Documents, have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the
Borrower or any of its Affiliates that is communicated to or obtained
by the Person serving as the Administrative Agent or any of its
Affiliates in any capacity.
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The Administrative Agent shall not be liable to any Lender for any
action taken or not taken by it (i) with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or
(ii) in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until notice describing such Default is given to the Administrative Agent by
the Borrower, a Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall
be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or
other writing (including any electronic message, Internet or intranet website
posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Lender or the L/C
Issuer, the Administrative Agent may presume that such condition is satisfactory
to such Lender or the L/C Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or the L/C Issuer prior to the
making of such Loan or the issuance of such Letter of Credit. The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in good faith and in accordance
with the advice of any such counsel, accountants or experts.
9.05 DELEGATION OF DUTIES. The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
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9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may
at any time give notice of its resignation to the Lenders, the L/C Issuer and
the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, with the consent of the Borrower (which shall not
be unreasonably withheld or delayed and shall not be required so long as a
Default has occurred and continues unremedied), to appoint a successor, which
shall be a bank with an office in the United States, or an Affiliate of any such
bank with an office in the United States. If no such successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the Lenders
and the L/C Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall
notify the Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents and (2) all payments, communications and determinations provided to be
made by, to or through the Administrative Agent shall instead be made by or to
each Lender and the L/C Issuer directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Administrative
Agent's resignation hereunder and under the other Loan Documents, the provisions
of this Article and Section 10.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.
Any resignation by JPMorgan as Administrative Agent pursuant to this
Section shall also constitute its resignation as L/C Issuer and Swing Line
Lender. Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line
Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged
from all of their respective duties and obligations hereunder or under the other
Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangement satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender and the L/C Issuer acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
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9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Syndication Agent, Co-Arrangers or Co-Documentation
Agents listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents.
9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer and the Administrative
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuer and the Administrative
Agent under Sections 2.04(i) and (j), 2.10 and 10.04) allowed in such
judicial proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.10
and 10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment
or composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
9.10 GUARANTY MATTERS. The Lenders and the L/C Issuer irrevocably
authorize the Administrative Agent, at its option and in its discretion, to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder. Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent's authority to release any Guarantor
from its obligations under the Guaranty pursuant to this Section 9.10.
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ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without
the written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 8.02) without
the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any
other Loan Document without the written consent of each Lender directly
affected thereby;
(d) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the
second proviso to this Section 10.01) any fees or other amounts payable
hereunder or under any other Loan Document without the written consent
of each Lender directly affected thereby;
(e) change Section 2.14 or Section 8.03 in a manner that would
alter the pro rata sharing of payments required thereby without the
written consent of each Lender;
(f) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number
or percentage of Lenders required to amend, waive or otherwise modify
any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; or
(g) subject to Section 9.10, release all or substantially all
of the Guarantors from the Guaranty without the written consent of each
Lender;
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and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; (iv)
Section 10.06(h) may not be amended, waived or otherwise modified without the
consent of each Granting Lender all or any part of whose Loans are being funded
by an SPC at the time of such amendment, waiver or other modification; and (v)
the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.
10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to the Borrower, the Administrative Agent, the L/C
Issuer or the Swing Line Lender, to the address, telecopier number,
electronic mail address or telephone number specified for such Person
on Schedule 10.02; and
(ii) if to any other Lender, to the address, telecopier
number, electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices
or communications.
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Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing
Line Lender.
(d) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Committed Loan Notices and Swing
Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i)
such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer,
each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower. All telephonic notices
to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, the L/C
Issuer or the Administrative Agent to exercise, and no delay by any such Person
in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees and
time charges for attorneys who may be employees of the Administrative Agent, any
Lender or the L/C Issuer, in connection with the enforcement or protection of
its rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans
made or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
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(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses (including
the fees, charges and disbursements of any counsel for any Indemnitee), and
shall indemnify and hold harmless each Indemnitee from all fees and time charges
and disbursements for attorneys who may be employees of any Indemnitee, incurred
by any Indemnitee or asserted against any Indemnitee by any third party or by
the Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the
Borrower or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto, in all cases, whether or not caused by or arising, in whole or in
part, out of the comparative, contributory or sole negligence of the Indemnitee;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.13(d).
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(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section 10.04 shall be payable
not later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the
resignation of the Administrative Agent and the L/C Issuer, the replacement of
any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or
any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.
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10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the
Borrower nor any other Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section,
(ii) by way of participation in accordance with the provisions of subsection (d)
of this Section, (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC
in accordance with the provisions of subsection (h) of this Section. (and any
other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the L/C Issuer and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided that
(i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the Loans at
the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the Commitment is not then in
effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000 unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or
delayed);
(ii) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loans or the
Commitment assigned, except that this clause (ii) shall not apply to
rights in respect of Bid Loans or Swing Line Loans;
(iii) any assignment must be approved by the Administrative
Agent, the L/C Issuer and the Swing Line Lender; and
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(iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500, and the Eligible Assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender upon delivery to the Borrower of any Note
issued to the assignor Lender, and the Borrower shall have authority to mark
said original Note to reflect partial payment in the amount of the Note being
issued to the assignee Lender. Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this subsection
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d)
of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at the Administrative Agent's Office
a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each of the Borrower and the L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or substantive change to
the Loan Documents is pending, any Lender wishing to consult with other Lenders
in connection therewith may request and receive from the Administrative Agent a
copy of the Register.
(d) Participations. Any Lender may at any time in the ordinary course
of its banking business and in accordance with applicable law, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to one or more banks or other lenders (other than a natural
person or the Borrower or any of the Borrower's Affiliates or Subsidiaries)
(each, a "Participant") in all or a portion of such Lender's rights and/or
obligations under this Agreement (including all or a portion of its Commitment
and/or the Loans (including such Lender's participations in L/C Obligations
and/or Swing Line Loans) owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Lenders
and the L/C Issuer shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement.
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Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were a
Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 3.01(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and Assumption
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
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(h) Special Purpose Funding Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle (an "SPC") identified as such in writing from
time to time by the Granting Lender to the Administrative Agent and the Borrower
the option to provide all or any part of any Committed Loan that such Granting
Lender would otherwise be obligated to make pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund any
Committed Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Committed Loan, the Granting
Lender shall be obligated to make such Committed Loan pursuant to the terms
hereof or, if it fails to do so, to make such payment to the Administrative
Agent as is required under Section 2.13(b)(ii). Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such option
shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrower under this Agreement (including its obligations
under Section 3.04), (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be liable, and
(iii) the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Committed Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Committed Loan were made by such Granting Lender. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any SPC, it will not institute against, or join
any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United States or any State thereof. Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without prior
consent of the Borrower and the Administrative Agent and with the payment of a
processing fee of $3,000, assign all or any portion of its right to receive
payment with respect to any Committed Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its
funding of Committed Loans to any rating agency, commercial paper dealer or
provider of any surety or Guarantee or credit or liquidity enhancement to such
SPC.
(i) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time
JPMorgan assigns all of its Commitment and Loans pursuant to subsection (b)
above, JPMorgan may, (i) upon 30 days' notice to the Borrower and the Lenders,
resign as L/C Issuer and/or (ii) upon 30 days' notice to the Borrower, resign as
Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing
Line Lender, the Borrower shall be entitled to appoint from among the Lenders a
successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no
failure by the Borrower to appoint any such successor shall affect the
resignation of JPMorgan as L/C Issuer or Swing Line Lender, as the case may be.
If JPMorgan resigns as L/C Issuer, it shall retain all the rights and
obligations of the L/C Issuer hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as L/C Issuer and all
L/C Obligations with respect thereto (including the right to require the Lenders
to make Base Rate Committed Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.04(c)). If JPMorgan resigns as Swing Line Lender,
it shall retain all the rights of the Swing Line Lender provided for hereunder
with respect to Swing Line Loans made by it and outstanding as of the effective
date of such resignation, including the right to require the Lenders to make
Base Rate Committed Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c).
87
10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.
For purposes of this Section, "Information" means all information
received from the Borrower or any Subsidiary relating to the Borrower or any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the L/C
Issuer on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary, provided that, in the case of information received from the Borrower
or any Subsidiary after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
10.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and
be continuing, each Lender, the L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, the L/C Issuer or any such Affiliate to or for the
credit or the account of the Borrower or any other Loan Party against any and
all of the obligations of the Borrower or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or the
L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall
have made any demand under this Agreement or any other Loan Document and
although such obligations of the Borrower or such Loan Party may be contingent
or unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
the Borrower and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
88
10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the Borrower. In determining
whether the interest contracted for, charged, or received by the Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.
10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
89
10.13 REPLACEMENT OF LENDERS. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, if any Lender is a Defaulting Lender or if any other circumstance
exists hereunder that gives the Borrower the right to replace a Lender as a
party hereto, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 10.06), all of its interests,
rights and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent
the assignment fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal
to the outstanding principal of its Loans and L/C Advances, accrued
interest thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents (including any amounts
under Section 3.05) from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower
(in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim
for compensation under Section 3.04 or payments required to be made
pursuant to Section 3.01, such assignment will result in a reduction in
such compensation or payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
10.14 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, ITSELF AND ITS PROPERTY TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING
ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.
90
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, AT THE ADDRESS FOR
NOTICES PROVIDED FOR IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.
10.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act
(as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender or
the Administrative Agent, as applicable, to identify the Borrower in accordance
with the Act.
91
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
PALL CORPORATION
By: /s/ Lisa McDermott
---------------------------------------
Name: LISA McDERMOTT
---------------------------------------
Title: VICE PRESIDENT - FINANCE
---------------------------------------
S-1
JPMORGAN CHASE BANK, as Administrative Agent
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
S-2
JPMORGAN CHASE BANK, as a Lender, L/C Issuer
and Swing Line Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
S-3
FLEET NATIONAL BANK, as Syndication Agent and
as a Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
S-4
WACHOVIA BANK NATIONAL ASSOCIATION, as
Co-Documentation Agent and as a Lender
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
S-5
UBS SECURITIES LLC, as Co-Documentation Agent
By:
------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
UBS LOAN FINANCE LLC, as a Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
S-6
UFJ BANK LIMITED, as a Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
S-7
NORTH FORK BANK, as a Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
S-8
THE BANK OF NEW YORK, as a Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
S-9
HSBC BANK USA, NATIONAL ASSOCIATION, as a
Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
S-10
SUMITOMO MITSUI BANKING CORPORATION, as a
Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
S-11
BANCA NAZIONALE DEL LAVORO SPA, NEW YORK
BRANCH, as a Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
S-12
COMERICA BANK, as a Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
S-13
KBC BANK N.V., as a Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
S-14
BANCA POPOLARE DI MILANO, NEW YORK BRANCH, as a
Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
S-15
THE NORINCHUKIN BANK, NEW YORK BRANCH, as a
Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
S-16
SCHEDULE 1.0
EXISTING LETTERS OF CREDIT
Reference Date Beneficiary Expiration Amount
--------- ---- ----------- ---------- ------
YS1343452 1-Aug-02 The Travelers Indemnity Company 31-Jul-05 $8,915,000
YS1415188 5-Aug-03 State of New York Department of Labor 23-Sep-04 $75,000
YS1415190 5-Aug-03 Insurance Company of North America 1-Aug-05 $561,000
A1: Pacific Employers Insurance
Company
YS1415192 5-Aug-03 HSBC Bank Malaysia Berhad 23-Nov-04 $1,319,000
YS1457989 05-Feb-04 JGC USA, Inc 05-Nov-04 $759,278
YS64132536 29-Jul-04 ABN AMRO Bank N.V. 15-Nov-04 $198,000
---------
-----------
$11,827,278
===========
1
SCHEDULE 2.01
COMMITMENTS AND APPLICABLE PERCENTAGES
LENDER COMMITMENT APPLICABLE PERCENTAGE
- -----------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank $40,000,000 13.33%
Fleet National Bank $40,000,000 13.33%
Wachovia Bank National Association $30,000,000 10.00%
UBS Loan Finance LLC $30,000,000 10.00%
UFJ Bank Limited $20,000,000 6.67%
North Fork Bank $20,000,000 6.67%
The Bank of New York $15,000,000 5.00%
HSBC Bank USA, National Association $15,000,000 5.00%
Sumitomo Mitsui Banking Corporation $15,000,000 5.00%
Banca Nazionale del Lavoro SpA, New York Branch $15,000,000 5.00%
Comerica Bank $15,000,000 5.00%
KBC Bank N.V. $15,000,000 5.00%
Banca Popolare di Milano, New York Branch $15,000,000 5.00%
The Norinchukin Bank, New York Branch $15,000,000 5.00%
----------- -------
$300,000,000 100.00%
1
SCHEDULE 4.01
GUARANTORS
1. Gelman Sciences, Inc. (Michigan)
2. Medsep Corporation (Delaware)
3. Memtec Finance, Inc. (Delaware)
4. Pall Acquisition LLC (Delaware)
5. Pall Aeropower Corporation (Delaware)
6. Pall Biomedical, Inc. (Delaware)
7. Pall International Corporation (Delaware)
8. Pall Puerto Rico, Inc. (Delaware)
9. Pall-PASS US, Inc. (Delaware)
10. Pall Filtration and Separations Group Inc. (Delaware)
11. Russell Associates Inc. (Maryland)
12. Schenk Filter Systems, Inc. (California)
1
SCHEDULE 5.06
LITIGATION
None.
1
SCHEDULE 5.09
ENVIRONMENTAL MATTERS
ANN ARBOR GROUNDWATER REMEDIATION
In February 1988, an action was filed in the Circuit Court for Washtenaw County,
Michigan ("Court") by the State of Michigan ("State") against Gelman Sciences,
Inc. ("Gelman"), a subsidiary acquired by the Pall Corporation (the "Company" or
"Pall") in February 1997. The action sought to compel Gelman to investigate and
remediate contamination near Gelman's Ann Arbor facility and requested
reimbursement of costs the State had expended in investigating the
contamination, which the State alleged was caused by Gelman's disposal of waste
water from its manufacturing process. Pursuant to a consent judgment entered
into by Gelman and the State in October 1992 (amended September 1996 and October
1999), which resolved that litigation, Gelman is remediating the contamination
without admitting wrongdoing. In February 2000, the State Assistant Attorney
General filed a Motion to Enforce Consent Judgment in the Court seeking
approximately $4,900,000 in stipulated penalties for the alleged violations of
the consent judgment and additional injunctive relief. Gelman disputed these
assertions. Following an evidentiary hearing in July 2000, the Court took the
matter of penalties "under advisement." The Court issued a Remediation
Enforcement Order requiring Gelman to submit and implement a detailed plan that
will reduce the contamination to acceptable levels within five years. The
Company's plan has been submitted to, and approved by, both the Court and the
State. In February 2004, the Court instructed the Company to submit its Final
Feasibility Study describing how it intends to address an area of groundwater
contamination not addressed by the previously approved plan. The Company has
submitted its Feasibility Study as instructed. The Court has expressed its
satisfaction with the Company's progress.
In correspondence dated June 5, 2001, the State asserted that additional
stipulated penalties in the amount of $142,000 were owed for a separate alleged
violation of the consent judgment. The Court found that a "substantial basis"
for Gelman's position existed and again took the State's request "under
advisement", pending the results of certain groundwater monitoring data. Those
data have been submitted to the Court, but no ruling has been issued. On August
9, 2001, the State made a written demand for reimbursement of $227,000 it has
allegedly incurred for groundwater monitoring. Gelman considers this claim
barred by the consent judgment.
On May 12, 2004, the City of Ann Arbor filed a lawsuit against Gelman Sciences,
Inc. d/b/a Pall Life Sciences in Washtenaw County Circuit Court. The City's suit
seeks damages, including the cost of replacing a municipal water supply well
allegedly affected by the 1,4-dioxane groundwater contamination, as well as
injunctive relief in the form of an order requiring Pall Life Sciences to
remediate the soil and groundwater beneath the City. The contaminant levels
allegedly detected in the municipal well at issue, however, are well below
applicable cleanup standards and the Company will vigorously defend against the
claim.
On June 25, 2004, the Company was sued in the United States District Court for
the Eastern District of Michigan by a private plaintiff in connection with the
groundwater contamination. The complaint seeks both money damages and injunctive
relief requiring remediation of the contamination. The plaintiff also seeks to
represent a larger class of property owners and residents within the area
plaintiff claims is affected by the groundwater contamination. The Company does
not believe that there is substantive merit to the named plaintiff's claims or a
basis for class certification. The Company will vigorously defend the lawsuit.
1
PINELLAS PARK
In 1995, as part of facility closure, an environmental site assessment was
conducted to evaluate any soil and groundwater impacts from chemicals that may
have been used at the Pinellas Park facility during the previous 24-year period
of manufacturing and testing operations conducted at the facility. MIBK (methyl
isobutyl ketone) concentrations in groundwater were found to be higher than
regulatory levels. Soil excavation was conducted in 1998 and subsequent
groundwater sampling in the bubble point area showed MIBK concentrations below
the regulatory level.
In October 2000, environmental consultants for a prospective buyer of the
property found groundwater contamination outside the building, but on Pall's
property. The contamination in the groundwater consisted of chlorinated solvents
(perchloroethylene, trichloroethylene) and their breakdown products
(cis-1,2-dichloroethene, trans-1,2-dichloroethene, vinyl chloride) in excess of
regulatory levels. In October 2001, a Site Assessment Report (SAR) was submitted
to the Florida Department of Environmental Protection (FDEP), which showed
details of contamination locations and concentrations.
In July, 2002 a Supplemental Contamination Assessment Plan (SCAP) and an Interim
Remedial Action Plan (IRAP) were prepared by Pall's consultants/contractors and
submitted to FDEP. A revised IRAP was submitted by Pall in December, 2003, and
it was accepted by the FDER in January, 2004. A Remedial Action Plan (RAP) was
submitted in June, 2004, and approval and the start of work pursuant to this RAP
is expected in the Fall of 2004.
30 SEA CLIFF
A March, 1994 report indicated contamination at a neighboring site to the Pall
facility, and later reports found both shallow and intermediate zone
contamination. In 2000, Pall entered into a Consent Judgment with the New York
State Department of Environmental Conservation (NYSDEC), and completed a Phase
II Remedial Investigation.
The NYSDEC has finalized the Record of Decision (ROD) for the shallow
groundwater zone termed OU-1 and Pall has signed an Order on Consent for OU-1 to
be effective July 5, 2004. This Order requires Pall to submit a Work Plan for a
Remedial Investigation/Feasibility Study, Interim Remedial Measures, Remedial
Action and Operation & Maintenance.
The deeper groundwater zone (OU-2) ROD has been deferred by the NYSDEC until
after additional data are available to delineate contamination and select an
appropriate remedy. Pall has initiated discussions with Photocircuits regarding
entering into a joint OU-2 Order on Consent.
2
ROSEN SITE
Rosen is an EPA Superfund Site. The EPA named several Potentially Responsible
Parties ("PRP") to clean up the site and the PRP's in turn brought a civil
action against Pall Trinity Microcorp and others to participate in the site
clean up (Cooper vs Agway). In conjunction with settling the Cooper v. Agway
private-party litigation, Pall and the nine other defendants entered into a
Consent Decree with the EPA to complete the site remedial tasks required by EPA
in its Record of Decision. At the time of the Consent Decree, the Group's
consultants estimated future site costs at approximately $2,000,000. The Group
determined to allocate those costs per capita among the 10 parties, which came
to an estimated $200,000 per party, exclusive of legal fees. In August 2001,
Pall was able to finalize a settlement of its insurance claims against
Aetna/Travelers for $200,000. Work under the Consent Decree was largely
completed in late 2002. Pall has paid in more than was estimated at the time of
the Consent Decree, due to EPA-mandated cost increases Remaining Group costs to
Pall are not currently expected to exceed $50,000 (including net recovery from
non-participants).
3
SCHEDULE 5.11
TAX SHARING AGREEMENTS
GERMANY: A number of the Borrower's German Subsidiaries are party to
one of several so-called "Organschafts". Effectively, an
Organschaft is an agreement that enables a group of commonly
controlled legal entities to "pool" their profits and losses
such that losses of one or more entities can be used to offset
profits of one or more other entities. The ultimate effect is
not dissimilar to US Consolidated Return rules.
UK: Although there is no requirement for a formal agreement, all
commonly controlled UK Subsidiaries of the Borrower can avail
themselves of so-called Group Relief provisions. Such
provisions allow subsidiaries to "surrender losses" (and the
attendant tax benefit) to profitable subsidiaries within the
Group thereby minimizing the overall tax burden of the Group.
Again, the ultimate effect is not dissimilar to US
Consolidated Return rules.
NOTE: The Borrower IS NOT party to any of the agreement/arrangements outlined
above.
1
SCHEDULE 5.13
SUBSIDIARIES; OTHER EQUITY INVESTMENTS;
EQUITY INTERESTS IN THE BORROWER
DOMESTIC SUBSIDIARIES: ACTIVE
Schenk Filter Systems, Inc. California
Pall Acquisition LLC Delaware
Pall Filtration and Separations Group Inc. Delaware
Memtec Finance, Inc. Delaware
Medsep Corporation Delaware
Pall Aeropower Corporation Delaware
Pall Biomedical, Inc. (sec 936 Corp) Delaware
Pall International Corporation Delaware
Pall Puerto Rico, Inc. (sec 936 Corp) Delaware
Pall- PASS US, Inc. Delaware
Russell Associates Inc. Maryland
Gelman Sciences, Inc. Michigan
INACTIVE
Pall Medical Products, Inc. Delaware
Rochem Separations Systems, Inc Delaware
FOREIGN SUBSIDIARIES: ALL
Pall Technologies S.A. Argentina
Pall Filtration & Separations Pty Limited Australia
Presian Pty Ltd Australia
Gelman Sciences Pty Limited Australia
Pall SeitzSchnek Filtertechnik GmbH Austria
Pall Austria Filter Ges.m.b.H. Austria
Pall BVBA (f) Belgium
Pall do Brasil Ltda Brazil
Pall (Canada) Limited Canada
Pall Filter (Beijing) Co., Ltd. China
Pall Exekia S.A. France
Pall France S.A. France
Filtration and Separations Group SAS France
Pall Filtration SAS France
Pall Filtration & Separation GmbH Germany
Pall SeitzSchenk Filtersystems GmbH Germany
Pall SeitzSchenk Modultechnik Gmbh Germany
1
Pall Verwaltungs GmbH Germany
Pall Deutschland Beteilgungs GmbH Germany
Pall Schumacher GmbH Germany
Pall Fluid Dynamics-Filterite GmbH Germany
Schenk Werkzeug und Maschinenbau GmbH Germany
Strassburger Filterschichten GmbH Germany
Pall GmbH Germany
Pall Rochem Wassertechnik GmbH Germany
D.T. Membranfilter-Vertriebs- GmbH Germany
Pall Asia International Ltd. Hong Kong
Filtration Fluid Dynamics India Pvt Ltd. India
Pall India Private Limited India
Gelman Ireland Ltd. Ireland
SeitzSchenk Italia S.r.l. Italy
Vessel S.r.l. Italy
Pall Filtration and Separations S.p.A. Italy
Pall Italia S.R.L. Italy
Pall Export Sales Corporation, Limited Jamaica
Nihon Pall Ltd. Japan
Pall Luxembourg Luxembourg
Pall (Malaysia) SDN. BHD. Malaysia
Pall New Zealand Limited New Zealand
Pall Norge AS Norway
Schumacher Polska Sp. z.o.o. Poland
Pall Poland Limited Poland
Pall Eurasia OOO Russia
Pall Filtration Pte. Ltd. Singapore
Pall South Africa (Pty) Ltd. South Africa
Pall Korea Limited South Korea
Pall Espana S.A. Spain
Pall Norden AB Sweden
Pall (Schweiz) A.G. Switzerland
Argentaurum A.G. Switzerland
Pall Corporation Filtration &
Separations (Thailand) Ltd. Thailand
Pall Filtration and Separations Holding B.V. The Netherlands
Pall Netherlands B.V. The Netherlands
Pall Europe Limited (PEL) UK
Rochem Separations Systems, LTD. UK
Pall Filtration and Separations Limited UK
Pall Seitz Filterite Ltd, UK
Cord Chemical Company Ltd. UK
2
FOREIGN PARTNERSHIPS: PLLN C.V. The Netherlands
Pall Deutschland Holding GmbH & Co KG Germany
Note: All Subsidiaries (Domestic & Foreign) and both Foreign Partnerships are,
directly or indirectly, 100% owned by Pall Corporation.
*See attached addendum for schematic of Corporate Structure.
3
ADDENDUM : PALL CORPORATION STRUCTURE
Unless otherwise noted, all interests in an ownership chain are 100%
TIER
----
Pall Corporation P New York P= Parent
Pall Medical Products, Inc. (inactive) 1 Delaware 1= 1st Tier Subsidiary
Pall Acquisition LLC 1 Delaware 2= 2nd Tier Subsidiary
Pall Filtration & Separations Pty Limited 2 Australia etc
Presian Pty Ltd 3 Australia
Pall Filtration and Separations Group Inc. 4 Delaware
Memtec Finance, Inc. 5 Delaware
SeitzSchenk Italia S.r.l. 5 Italy MEMTEC FINANCE, INC 9.09% DIRECT OWNERSHIP
Vessel S.r.l. 5 Italy MEMTEC FINANCE, INC 9.09% DIRECT OWNERSHIP
Pall Filtration and Separations S.p.A. 5 Italy
Pall SeitzSchnek Filtertechnik GmbH 2 Austria
Pall Exekia S.A. 2 France
Medsep Corporation 1 Delaware
Pall Aeropower Corporation 1 Delaware
Pall Biomedical, Inc. (sec 936 Corp) 1 Delaware
Pall International Corporation 1 Delaware
Pall Puerto Rico, Inc. (sec 936 Corp) 1 Delaware
Russell Associates Inc. 1 Maryland
Rochem Separations Systems, Inc (inactive) 1 Delaware
Pall New Zealand Limited 1 New Zealand
Pall Austria Filter Ges.m.b.H. 1 Austria
Pall do Brasil Ltda 1 Brazil PALL INTERNATIONAL CORPORATION DIRECT
OWNERSHIP.5%
Pall (Canada) Limited 1 Canada
Pall Filter (Beijing) Co., Ltd. 1 China
Pall France S.A. 1 France
Pall Asia International Ltd. 1 Hong Kong
Gelman Ireland Ltd. 1 Ireland
Pall Italia S.R.L. 1 Italy
Pall Export Sales Corporation, Limited (inactive) 1 Jamaica
Nihon Pall Ltd. 1 Japan
Pall Norge AS 1 Norway
Pall Norden AB 1 Sweden
Pall Filtration Pte. Ltd. 1 Singapore
1
Pall Corporation Filtration & Separations (Thailand) Ltd. 1 Thailand
Pall Korea Limited 1 South Korea
Pall Espana S.A. 1 Spain
Pall (Schweiz) A.G. 1 Switzerland
Gelman Sciences, Inc. 1 Michigan
Gelman Sciences Pty Limited 2 Australia
Pall- PASS US, Inc. 1 Delaware
PLLN C.V. PARTNERSHIP 2 The Netherlands PARTNERS: PALL CORP; PALL- PASS US, INC.
Pall Europe Limited (PEL) 3 England
Pall Filtration and Separations Holding B.V. 4 The Netherlands
Pall Filtration and Separations Limited 5 UK
Filtration and Separations Group SAS 6 France
Pall Filtration SAS 7 France
Pall Seitz Filterite Ltd, 6 UK
Cord Chemical Company Ltd. 6 UK
Pall Filtration & Separation GmbH 7 Germany
Pall SeitzSchenk Filtersystems GmbH 8 Germany PALL DIRECT OWNERSHIP 5.1%
Schenk Filter Systems, Inc. 9 California
Pall SeitzSchenk Modultechnik Gmbh 9 Germany
Pall Verwaltungs GmbH 4 Germany
Pall Netherlands B.V. 3 The Netherlands
Pall BVBA 4 Belgium
Pall Technologies S.A. 4 Argentina
Pall South Africa (Pty) Ltd. 4 South Africa
Pall (Malaysia) SDN. BHD. 4 Malaysia
Pall Deutschland Beteilgungs GmbH 1 Germany
Pall Deutschland Holding GmbH & Co KG PARTNERSHIP 2 Germany PARTNERS: PALL CORP; PALL DUETSCHLAND
BETEILGUNGS GMBH
Pall Schumacher GmbH 3 Germany
Schumacher Polska Sp. z.o.o. 4 Poland
Pall Fluid Dynamics-Filterite GmbH 3 Germany
Schenk Werkzeug und Maschinenbau GmbH 3 Germany
Strassburger Filterschichten GmbH 3 Germany
Pall GmbH 3 Germany
Pall Rochem Wassertechnik GmbH 3 Germany
Pall Poland Limited 3 Poland
2
Pall Eurasia OOO 3 Russia
Argentaurum A.G. 1 Switzerland
Rochem Separations Systems, LTD. 2 England
D.T. Membranfilter-Vertriebs- GmbH 2 Germany
Pall India Private Limited 1 India
3
SCHEDULE 7.01
EXISTING LIENS
- ----------------------------------------------------------------------------------------------------------------------
TYPE OF
DEBTOR SECURED PARTY JURISDICTION TYPE OF FILING FILING DATE COLLATERAL FILE NO.
- ----------------------------------------------------------------------------------------------------------------------
Gelman Sciences, Dell Financial Michigan
Inc. Services, L.P. Secretary of UCC-1 7/31/00 Equipment D679398
State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 10/13/00 Equipment D703795
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 10/18/00 Equipment D705073
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 10/26/00 Equipment D708353
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 10/30/00 Equipment D709151
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 12/5/00 Equipment D720065
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 12/5/00 Equipment D720066
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 12/8/00 Equipment D721631
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 12/8/00 Equipment D721633
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 12/14/00 Equipment D723431
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 1/30/01 Equipment D738672
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 1/30/01 Equipment D738676
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
1
- ----------------------------------------------------------------------------------------------------------------------
TYPE OF
DEBTOR SECURED PARTY JURISDICTION TYPE OF FILING FILING DATE COLLATERAL FILE NO.
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 2/5/01 Equipment D740683
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 2/5/01 Equipment D740738
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 2/8/01 Equipment D742173
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 2/8/01 Equipment D742174
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 2/23/01 Equipment D747171
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 3/20/01 Equipment D754535
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 4/3/01 Equipment D758788
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 5/14/01 Equipment D773788
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 5/18/01 Equipment D775608
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 5/18/01 Equipment D775677
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Dell Financial Secretary of UCC-1 6/21/01 Equipment D788241
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Michigan
Gelman Sciences, Bell Fork Lift, Secretary of UCC-1 5/13/02 Equipment D909556
Inc. Incorporated State
- ----------------------------------------------------------------------------------------------------------------------
Gelman Sciences, Dell Financial Florida UCC-1 10/18/00 Equipment 200000238184
Inc. Services, L.P. Secretary of
State
- ----------------------------------------------------------------------------------------------------------------------
2
- ----------------------------------------------------------------------------------------------------------------------
TYPE OF
DEBTOR SECURED PARTY JURISDICTION TYPE OF FILING FILING DATE COLLATERAL FILE NO.
- ----------------------------------------------------------------------------------------------------------------------
Florida
Gelman Sciences, Dell Financial Secretary of UCC-1 10/24/00 Equipment 200000242822
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Gelman Sciences, Dell Financial Secretary of UCC-1 1/30/01 Equipment 200100022371
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Gelman Sciences, Dell Financial Secretary of UCC-1 2/02/01 Equipment 200100025279
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Gelman Sciences, Dell Financial Secretary of UCC-1 2/23/01 Equipment 200100041386
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Gelman Sciences, Dell Financial Secretary of UCC-1 3/01/01 Equipment 200100045807
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Gelman Sciences, Dell Financial Secretary of UCC-1 3/07/01 Equipment 200100050436
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Gelman Sciences, Dell Financial Secretary of UCC-1 3/07/01 Equipment 200100050467
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Gelman Sciences, Dell Financial Secretary of UCC-1 3/20/01 Equipment 200100061248
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Gelman Sciences, Dell Financial Secretary of UCC-1 4/03/01 Equipment 200100072654
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Gelman Sciences, Dell Financial Secretary of UCC-1 4/13/01 Equipment 200100080924
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Gelman Sciences, Dell Financial Secretary of UCC-1 4/13/01 Equipment 200100080949
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Gelman Sciences, Dell Financial Secretary of UCC-1 6/05/01 Equipment 200100122636
Inc. Services, L.P. State
- ----------------------------------------------------------------------------------------------------------------------
Property 40844003
covered by
lease
agreement,
finance
agreement or
other
agreement
between
Medsep Corporation American Express Delaware UCC-1 3/25/04 Debtor and
Business Finance Secretary of Secured Party
State and all
insurance
proceeds
attributable
to the loss
or damage to
any property
and all
proceeds,
replacements
additions to,
substitutions
for or
accessions to
the property.
- ----------------------------------------------------------------------------------------------------------------------
3
- ----------------------------------------------------------------------------------------------------------------------
TYPE OF
DEBTOR SECURED PARTY JURISDICTION TYPE OF FILING FILING DATE COLLATERAL FILE NO.
- ----------------------------------------------------------------------------------------------------------------------
Pall Aeropower Maruka U.S.A. Delaware UCC-1 10/19/01 Equipment 11441018
Corporation Inc. Secretary of
State
- ----------------------------------------------------------------------------------------------------------------------
Wells Fargo Delaware
Pall Aeropower Equipment Secretary of UCC-1 11/15/01 Equipment 11717524
Corporation Finance, Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Wells Fargo Delaware
Pall Aeropower Equipment Secretary of UCC-1 3/18/02 Equipment 20901508
Corporation Finance, Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Pall Aeropower Wells Fargo Delaware UCC-1 6/9/03 31806556
Corporation Equipment Secretary of Equipment
Finance, Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Wells Fargo Delaware
Pall Aeropower Equipment Secretary of UCC-1 7/3/03 Equipment 31942591
Corporation Finance, Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Delaware
Pall Aeropower Maruka U.S.A. Secretary of UCC-1 2/25/04 Equipment 40593212
Corporation Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Accounts
Receivable
from United
Technologies
Corp.
purchased by
Citibank,
Pall Aeropower Delaware N.A. per the
Corporation Citibank, N.A. Secretary of UCC-1 6/7/04 terms of the 41568544
State Supplier
Agreement
between Pall
Aeropower
Corporation
and Citibank,
N.A.
- ----------------------------------------------------------------------------------------------------------------------
Pall Aeropower Wells Fargo Florida UCC-1 11/12/99 Equipment 990000256475
Corporation Equipment Secretary of
Finance, Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Pall Aeropower Toyota Motor Secretary of UCC-1 3/17/00 Equipment 200000064059
Corporation Credit Corp. State
- ----------------------------------------------------------------------------------------------------------------------
4
- ----------------------------------------------------------------------------------------------------------------------
TYPE OF
DEBTOR SECURED PARTY JURISDICTION TYPE OF FILING FILING DATE COLLATERAL FILE NO.
- ----------------------------------------------------------------------------------------------------------------------
Wells Fargo Florida
Pall Aeropower Equipment Secretary of UCC-1 7/11/00 Equipment 200000159238
Corporation Finance Inc. State
- ----------------------------------------------------------------------------------------------------------------------
U.S. Bankcorp
Pall Aeropower Oliver Allen Florida
Corporation Technology Secretary of UCC-1 10/16/00 Equipment 200000235494
Leasing State
- ----------------------------------------------------------------------------------------------------------------------
U.S. Bankcorp
Pall Aeropower Oliver Allen Florida
Corporation Technology Secretary of UCC-1 1/17/01 Equipment 200100012818
Leasing State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Pall Aeropower Wells Fargo Secretary of UCC-1 2/7/01 Equipment 200100028920
Corporation Equipment Finance State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Pall Aeropower Wells Fargo Secretary of UCC-1 11/15/01 Equipment 200190363582
Corporation Equipment Finance State
- ----------------------------------------------------------------------------------------------------------------------
Florida
Pall Aeropower Mitsui Seiki Secretary of UCC-1 5/30/03 Equipment 200304090806
Corporation USA, Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Pall Corporation Worldcom New York UCC-1 5/22/01 099762
Communications Secretary of Equipment
Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Fleet Business New York
Pall Corporation Credit Secretary of UCC-1 11/15/01 Equipment 223355
Corporation State
- ----------------------------------------------------------------------------------------------------------------------
Computer Sales New York
Pall Corporation International Secretary of UCC-1 1/7/02 Equipment 004506
Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Computer Sales New York
Pall Corporation International Secretary of Amendment 5/31/02 Equipment 126785
Inc. State
- ----------------------------------------------------------------------------------------------------------------------
New York
Pall Corporation First Bank of Secretary of Assignment 7/10/02 Equipment 159232
Highland Park State
- ----------------------------------------------------------------------------------------------------------------------
5
- ----------------------------------------------------------------------------------------------------------------------
TYPE OF
DEBTOR SECURED PARTY JURISDICTION TYPE OF FILING FILING DATE COLLATERAL FILE NO.
- ----------------------------------------------------------------------------------------------------------------------
Computer Sales New York
Pall Corporation International Secretary of UCC-1 1/7/02 Equipment 004512
Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Computer Sales New York
Pall Corporation International Secretary of Amendment 5/31/02 Equipment 126781
Inc. State
- ----------------------------------------------------------------------------------------------------------------------
New York
Pall Corporation First Bank of Secretary of Assignment 7/10/02 Equipment 159234
Highland Park State
- ----------------------------------------------------------------------------------------------------------------------
Computer Sales New York
Pall Corporation International Secretary of Assignment 4/29/04 Equipment 200404290445973
Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Computer Sales New York
Pall Corporation International Secretary of UCC-1 5/21/02 Equipment 118440
Inc. State
- ----------------------------------------------------------------------------------------------------------------------
New York
Pall Corporation First Bank of Secretary of Assignment 11/25/02 Equipment 200211252636391
Highland Park State
- ----------------------------------------------------------------------------------------------------------------------
New York
Pall Corporation Thomson Tractor Secretary of UCC-1 7/9/02 Equipment 158449
Co., Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Computer Sales New York
Pall Corporation International Secretary of UCC-1 10/10/02 Equipment 230953
Inc. State
- ----------------------------------------------------------------------------------------------------------------------
New York
Pall Corporation First Bank of Secretary of Assignment 3/4/03 Equipment 200303040477429
Highland Park State
- ----------------------------------------------------------------------------------------------------------------------
Computer Sales New York
Pall Corporation International Secretary of UCC-1 1/22/03 Equipment 200301220155899
Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Computer Sales New York
Pall Corporation International Secretary of Amendment 6/6/03 Equipment 200306061127188
Inc. State
- ----------------------------------------------------------------------------------------------------------------------
New York
Pall Corporation Bank Financial Secretary of Assignment 7/2/03 Equipment 200307021267075
F.S.B. State
- ----------------------------------------------------------------------------------------------------------------------
6
- ----------------------------------------------------------------------------------------------------------------------
TYPE OF
DEBTOR SECURED PARTY JURISDICTION TYPE OF FILING FILING DATE COLLATERAL FILE NO.
- ----------------------------------------------------------------------------------------------------------------------
Wells Fargo New York
Pall Corporation Equipment Secretary of UCC-1 7/3/03 Equipment 200307031279200
Finance Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Wells Fargo New York
Pall Corporation Equipment Secretary of UCC-1 11/19/03 Equipment 200311191876690
Finance Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Wells Fargo New York
Pall Corporation Equipment Secretary of UCC-1 2/26/04 Equipment 200402260200379
Finance Inc. State
- ----------------------------------------------------------------------------------------------------------------------
New York
Pall Corporation IOS Capital Secretary of UCC-1 3/4/04 Equipment 200403040228020
State
- ----------------------------------------------------------------------------------------------------------------------
De Lage Landen New York
Pall Corporation Financial Secretary of UCC-1 3/31/04 Equipment 200403315252287
Services Inc. State
- ----------------------------------------------------------------------------------------------------------------------
De Lage Landen New York
Pall Corporation Financial Secretary of UCC-1 7/6/04 Equipment 200407060701545
Services Inc. State
- ----------------------------------------------------------------------------------------------------------------------
Pall Corporation Citicorp Vendor New York UCC-1 12/7/00 Equipment 235576
Fiance, Inc. Secretary of
State
- ----------------------------------------------------------------------------------------------------------------------
New York
Pall Corporation IBM Credit Secretary of UCC-1 1/20/00 Equipment 014116
Corporation State
- ----------------------------------------------------------------------------------------------------------------------
Pall Trinity Inacom
Micro Corp. Technology New York
(Branch of Pall Financial Secretary of UCC-1 4/5/99 Equipment 066101
Corporation) Services State
- ----------------------------------------------------------------------------------------------------------------------
Pall Corporation Citicorp Nassau County UCC-1 12/21/00 Equipment 2000-20474
Del-Lease, Inc. NY
- ----------------------------------------------------------------------------------------------------------------------
Texas
Pall Corporation Crown Credit Secretary of UCC-1 1/31/00 Equipment 00-421177
Company State
- ----------------------------------------------------------------------------------------------------------------------
7
SCHEDULE 7.02
EXISTING INVESTMENTS
PER SHARE TOTAL
# SHARES CURRENCY L/C FX US$'S
-------- -------- --- -- ------
Equity: SATIR 100,000 Swedish Krona 244.559 0.142188855 $ 3,477,356
VI Tech 6,174,590 US$ $3.26 $ 20,145,611
Euroflow UK Limited 838 (pound) (pound)298.33 (pound)1.82 $ 454,575
Baxter (BAX) 20 US$ 30.07 $ 601
Cerus (CERS) 100 US$ 2.15 $ 215
Donaldson Co. Inc. 240 US$ 26.63 $ 6,391
(DCI)
Esco Technologies 125 US$ 53.15 $ 6,644
Inc. (ESE)
Whatman Hemasure, 300 US$ 3.90 $ 1,170
Inc. (WTPLF.PK)
Millipore (MIL) 42 US$ 53.25 $ 2,237
Parker-Hannifin (PH) 50 US$ 57.38 $ 2,869
PRINCIPAL
INTEREST RATE CURRENCY L/C FX
------------- -------- --- --
Debt: Euroflow UK Limited base + 5% * (pound) (pound)3,500,000 (pound)1.82 $ 6,364,050
* minimum rate 10%
1
SCHEDULE 7.03
EXISTING INDEBTEDNESS
SUBSIDIARY INSTITUTION GUARANTEE CURRENCY
- ---------- ----------- ---------- --------
Pall Asia International Ltd. Hong Kong & Shanghi Banking Corporation 8,000,000 HK $'s
Pall Filtration Pte. Ltd. (Singapore) CitiBank NA Singapore 5,000,000 Sn $'s
Development Bank of Singapore 3,000,000 Sn $'s
Pall Italia S.R.L. Banca Poplare di Milano 6,000,000 euro
Cassa di Risparmio di Parma e Piacenza 3,665,000 euro
Banca Commerciale Italiana 3,400,000 euro
Pall France S.A. Natexis Banques Populaires 6,860,206 euro
BNP Paribas 4,500,000 euro
German Affiliates Commerzbank 16,000,000 euro
Deutsche Bank 5,000,000 euro
Pall Netherlands B.V. (Irish Branch) Bank of Ireland 1,270,000 euro
Pall (Canada) Limited Royal Bank of Canada 2,500,000 C$'s
Pall South Africa (Pty) Ltd. The Standard Bank of South Africa 1,300,000 Rand
Pall Espana S.A. Banco de Santander 601,012 euro
FSG Germany Commerzbank 7,779,000 euro
FSG UK* HSBC 700,000 (pound)
* Guaranteed by Pall Europe Limited. All other guarantees issued by Pall
Corporation.
1
SCHEDULE 7.03(D)
EXISTING GUARANTEES
SUBSIDIARY INSTITUTION GUARANTEE CURRENCY
- ---------- ----------- ---------- --------
Pall Asia International Ltd. Hong Kong & Shanghi Banking Corporation 8,000,000 HK $'s
Pall Filtration Pte. Ltd. (Singapore) CitiBank NA Singapore 5,000,000 Sn $'s
Development Bank of Singapore 3,000,000 Sn $'s
Pall Italia S.R.L. Banca Poplare di Milano 6,000,000 euro
Cassa di Risparmio di Parma e Piacenza 3,665,000 euro
Banca Commerciale Italiana 3,400,000 euro
Pall France S.A. Natexis Banques Populaires 6,860,206 euro
BNP Paribas 4,500,000 euro
German Affiliates Commerzbank 16,000,000 euro
Deutsche Bank 5,000,000 euro
Pall Netherlands B.V. (Irish Branch) Bank of Ireland 1,270,000 euro
Pall (Canada) Limited Royal Bank of Canada 2,500,000 C $'s
Pall South Africa (Pty) Ltd. The Standard Bank of South Africa 1,300,000 Rand
Pall Espana S.A. Banco de Santander 601,012 euro
FSG Germany Commerzbank 7,779,000 euro
FSG UK * HSBC 700,000 (pound)
* Guaranteed by Pall Europe Limited: all other guarantees issued by Pall
Corporation
1
SCHEDULE 10.02
ADMINISTRATIVE AGENT'S OFFICE;
CERTAIN ADDRESSES FOR NOTICES
BORROWER:
Pall Corporation
2200 Northern Blvd.
East Hills, New York 11548
Attention: John Adamovich
Telephone: 516-801-9808
Fax: 516-625-1192
Email: John_Adamovich@pall.com
Website Address: www.pall.com
With a copy to:
Carter Ledyard & Milburn LLP
2 Wall Street
New York, NY 10005
Attention: Heywood Shelley, Esq.
Telephone: 212-238-8709
Fax: 212-732-3232
Email: shelley@clm.com
ADMINISTRATIVE AGENT:
Administrative Agent's Office
(for payments and Requests for Credit Extensions):
Loan and Agency Services
JP Morgan Chase Bank
1111 Fannin, 10th Floor
Houston, Texas 77002
Attention: Ms. Candace Grayson
Telephone: 713-750-7904
Fax: 713-750-2938
Email: candace.c.grayson@jpmchase.com
Account # 304 256 366:
Ref: Pall Corp., fees
ABA # 021000021
Other Notices as Administrative Agent:
JPMorgan Chase Bank
395 North Service Road
Melville, NY 11747
Attention: Ms.Louise Duchi
Vice President
Telephone: 631-755-5152
Fax: 631-755-5184
Email: Louise.duchi@jpmorgan.com
L/C ISSUER:
JPMorgan Chase Bank
395 North Service Road
Melville, NY 11747
Attention: Ms.Louise Duchi
Vice President
Telephone: 631-755-5152
Fax: 631-755-5184
Email: Louise.duchi@jpmorgan.com
SWING LINE LENDER:
Ms. Candace Grayson
Loan and Agency Services
JP Morgan Chase Bank
1111 Fannin, 10th Floor
Houston, Texas 77002
Attention: Ms. Candace Grayson
Telephone: 713-750-7904
Fax: 713-750-2938
Email: candace.c.grayson@jpmchase.com
Account # 304 256 366:
Ref: Pall Corp., fees
ABA # 021000021
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
_______ ____, 200__
To: JPMorgan Chase Bank, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of August
24, 2004 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Pall Corporation, a New York corporation (the
"Borrower"), the Lenders from time to time party thereto, JPMorgan Chase Bank,
as Administrative Agent, L/C Issuer and Swing Line Lender, Fleet National Bank,
as Syndication Agent, Wachovia Bank National Association and UBS Securities LLC,
as Co-Documentation Agents, and Banc of America Securities LLC and J.P. Morgan
Securities Inc., as Co-Arrangers.
The undersigned hereby requests (select one):
/ / A Borrowing of Committed Loans / / A conversion or
continuation of Loans
1. On _________________________________ (a Business Day).
2. In the amount of $_____________________.
3. Comprised of ______________________________________.
[Type of Committed Loan requested]
4. For Eurodollar Rate Loans: with an Interest Period of ______
months.
The Committed Borrowing, if any, requested herein complies with the
provisos to the first sentence of Section 2.01 of the Agreement.
PALL CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A-1
Form of Committed Loan Notice
EXHIBIT B-1
FORM OF BID REQUEST
To: JPMorgan Chase Bank, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of August
24, 2004 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Pall Corporation, a New York corporation (the
"Borrower"), the Lenders from time to time party thereto, JPMorgan Chase Bank,
as Administrative Agent, L/C Issuer and Swing Line Lender, Fleet National Bank,
as Syndication Agent, Wachovia Bank National Association and UBS Securities LLC,
as Co-Documentation Agents, and Banc of America Securities LLC and J.P. Morgan
Securities Inc., as Co-Arrangers.
The Lenders are invited to make Bid Loans:
1. On _________________________________ (a Business Day).
2. In an aggregate amount not exceeding $________________ (with any
sublimits set forth below).
3. Comprised of (select one):
/ / Absolute Rate Loans / / Eurodollar Margin Rate Bid Loans
BID LOAN INTEREST PERIOD MAXIMUM PRINCIPAL AMOUNT
NO. REQUESTED REQUESTED
- -------------------- ----------------------------- -----------------------------
1 _______days/mos $_________________
2 _______days/mos $_________________
3 _______days/mos $_________________
The Bid Borrowing requested herein complies with the requirements of
the proviso to the first sentence of Section 2.03(a) of the Agreement.
B-1-1
Form of Bid Request
The Borrower authorizes the Administrative Agent to deliver this Bid
Request to the Lenders. Responses by the Lenders must be in substantially the
form of Exhibit B-2 to the Agreement and must be received by the Administrative
Agent by the time specified in Section 2.03 of the Agreement for submitting
Competitive Bids.
PALL CORPORATION
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
B-1-2
Form of Bid Request
EXHIBIT B-2
FORM OF COMPETITIVE BID
_______ ____, 200__
To: JPMorgan Chase Bank, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of August
24, 2004 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Pall Corporation, a New York corporation (the
"Borrower"), the Lenders from time to time party thereto, JPMorgan Chase Bank,
as Administrative Agent, L/C Issuer and Swing Line Lender, Fleet National Bank,
as Syndication Agent, Wachovia Bank National Association and UBS Securities LLC,
as Co-Documentation Agents, and Banc of America Securities LLC and J.P. Morgan
Securities Inc., as Co-Arrangers.
In response to the Bid Request dated ________________________, ____,
the undersigned offers to make the following Bid Loan(s):
1. Borrowing date:__________________________(a Business Day).
2. In an aggregate amount not exceeding $_______________(with any
sublimits set forth below).
3. Comprised of:
- --------------------- ----------------------------- ----------------------------- -------------------------
BID LOAN INTEREST PERIOD BID ABSOLUTE RATE BID OR
NO. OFFERED MAXIMUM EURODOLLAR MARGIN BID*
- --------------------- ----------------------------- ----------------------------- -------------------------
1 _______days/mos $________________ (- +) _______%
2 _______days/mos $________________ (- +) _______%
3 _______days/mos $________________ (- +) _______%
- -----------------------
* Expressed in multiples of 1/100th of a basis point.
B-2-1
Form of Competitive Bid
Contact Person: _____________ Telephone: _____________________
[LENDER]
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
******************************************************************************
THIS SECTION IS TO BE COMPLETED BY THE BORROWER IF IT WISHES TO ACCEPT
ANY OFFERS CONTAINED IN THIS COMPETITIVE BID:
The offers made above are hereby accepted in the amounts
set forth below:
- ---------------------- --------------------------------------
BID LOAN NO. PRINCIPAL AMOUNT ACCEPTED
- ---------------------- --------------------------------------
$
- ---------------------- --------------------------------------
$
- ---------------------- --------------------------------------
$
- ---------------------- --------------------------------------
PALL CORPORATION
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Date:
----------------------------------------------
B-2-2
Form of Competitive Bid
[JPMorgan Logo]
APPLICATION AND AGREEMENT FOR STANDBY LETTER OF CREDIT
WHEN TRANSMITTING THIS APPLICATION BY FACSIMILE ALL PAGES MUST BE TRANSMITTED TO
JPMORGAN.
TO: JPMorgan Chase Bank
Attention Standby Letter of Credit Department
c/o JPMorgan Treasury Services
Global Trade Services
10420 Highland Manor Drive
Tampa, FL 33610
("Issuer")
- -------------------------------------------------------------------------------,
[NAME(S) OF APPLICANT(S)]
JOINTLY AND SEVERALLY IF MORE THAN ONE, (INDIVIDUALLY AND COLLECTIVELY,
"APPLICANT") HEREBY REQUESTS THAT PURSUANT TO THE TERMS AND CONDITIONS CONTAINED
YOU ISSUE YOUR IRREVOCABLE STANDBY LETTER OF CREDIT REQUESTED BELOW (TOGETHER
WITH ANY REPLACEMENTS, EXTENSIONS OR MODIFICATIONS, THE "CREDIT) AND TRANSMIT IT
BY:
[ ] Airmail [ ] Teletransmission [ ] Courier Service
[ ] Other _______(Please specify)
IN FAVOR OF: TO BE ADVISED THROUGH
(If Applicable):
("Beneficiary")
Up to an aggregate amount of __________________________
[ ] If not USD, indicate currency _____________________
Available by (indicate (i) A and/or B or (ii) C)
[ ] A. Drafts at sight drawn on you.
[ ] B. Beneficiary's dated statement purportedly signed by an authorized person
reading as follows (Please state within the quotation marks the wording to
appear on the statement to be presented):
"The amount of this drawing (indicate currency and amount) ______________ under
JPMorgan Chase Bank Letter of Credit Number ________ represents funds due us as
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
"
- --------------------------------------------------------------------------------
[ ] C. Authenticated Teletransmission to Issuer (SWIFT demand available for use
only when the Beneficiary is a SWIFT participant or a Bank) stating (PLEASE
STATE WITHIN THE QUOTATION MARKS THE WORDING TO APPEAR IN THE DEMAND TO BE
PRESENTED):
"Re: JPMorgan Chase Bank Letter of Credit Number _______________________. We
hereby demand payment of (indicate currency and amount)
____________________________ and such amount represents funds due us as "
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
03 0916 1
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
[ ] See attached sheet(s) for continuation of other documents and/or special
instructions which form and are an integral part of this Application.
EXPIRATION DATE:
Drafts and documents must be dated and presented to, or Authenticated
Teletransmission received by, Issuer at the address set forth above not later
than ________________________.
[ ] Credit to contain Automatic Extension clause with extension period of
[ ] one year/[ ] other ________(please specify) with no less than __ days'
notice of non-renewal (no extension) of the Credit to the Beneficiary and
with a final Expiration date of _______________________.
[ ] Partial drawings prohibited Multiple drawings prohibited
[ ] Credit is Transferable only in its entirety (issuer is authorized to
include its standard tranfser conditions and is authorized to nominate a
transferring bank, if applicable).
CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES 1998 (INTERNATIONAL
CHAMBER OF COMMERCE PUBLICATION 590) ("THE "ISP") OR, [ ] IF BOX IS CHECKED, IT
SHALL BE SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS
(1993) REVISION INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500 (THE
"UCP").
Unless otherwise stated herein, the nominated bank (if any) is authorized to
send all documents to you in one airmail or courier service, if available.
Without limiting the terms below, you are authorized to debit our account
no._____________________________ with The JPMorgan Chase Bank for the amount of
each drawing for your commissions and charges.
PART II:
In consideration of Issuer issuing the Credit requested above, Applicant agrees
as to such letter of credit as follows.
1. APPLICATIONS/INSTRUCTIONS. The request to issue the Credit contained in Part
I above and each inquiry, communication and instruction (whether oral,
telephonic, written, telegraphic, facsimile, electronic or other) regarding this
Application & Agreement for Standby Letters of Credit (this "AGREEMENT") or the
Credit are referred to herein as an "INSTRUCTION." Issuer's records of the
content of any Instruction shall be conclusive. Applicant shall be responsible
for the final text of the Credit notwithstanding Issuer's recommendation or
drafting of text or Issuer's use, non-use or refusal to use text submitted by
Applicant. Issuer may transmit the Credit and any amendment thereto by
S.W.I.F.T. message and thereby bind Applicant directly and as indemnitor to the
S.W.I.FT. rules, including rules obligating Applicant or Issuer to pay charges.
"S.W.I.F.T." means the Society For Worldwide Interbank Financial
Telecommunication.
2. PAYMENT TERMS; OBLIGATIONS ABSOLUTE. (a) Applicant shall pay Issuer: (i) the
amount of each drawing paid by Issuer under the Credit on demand, if under a
sight draft and at least one Business Day prior to the date when payment is to
be made thereunder if a time draft or deferred payment obligation; (ii)
commissions, fees and charges in respect of the Credit (including, commissions
and fees for issuance, transfer, assignment of proceeds, amendments and
drawings), at such rates, amounts and times as Issuer and Applicant shall
mutually agree upon (or if no agreement, the rate then customarily charged by
Issuer in like circumstances); (iii) interest on each amount to be paid by
Applicant under this Agreement for each day from and including the date such
payment is due through the date of payment by Applicant, on demand, at a rate
per annum (calculated on the basis of a 360 day year for the actual number of
days elapsed) equal to the Prime plus 3%; (iv) Issuer's charges, costs and
expenses (including reasonable internal and outside counsel fees, expenses and
charges) incurred in connection with the protection or enforcement of Issuer's
rights under this Agreement and any correspondent's charges, with interest from
the date paid or incurred by Issuer, at Prime plus 3%; and (v) such other
amounts as Issuer in its sole discretion determines are necessary to compensate
it for, any increase in the cost of or reduction in the yield or amount received
or receivable by Issuer from Issuer issuing letters of credit (including the
Credit) or having letters of credit (including the Credit) outstanding,
including any costs resulting from (X) the implementation of the European
Monetary Union that would not have been incurred or sustained but for the
issuance of letters of credit (including the Credit) and/or (Y) application of
03 0916 2
any law, regulation, guideline or instruction from any central bank, monetary
authority or governmental authority, or any change in the interpretation of the
foregoing (whether or not having the force of law) applicable to Issuer or any
entity controlling Issuer, regarding any reserve (including any special deposit
or similar requirement), assessment, capital or similar requirement (including
changes in the capital adequacy conversion factor), or any change in generally
accepted accounting principles or in Issuer's accounting, relating to letters of
credit or the Credit or reimbursement agreements generally or to similar
liabilities or assets, whether existing at the time of issuance of the Credit or
adopted thereafter. Applicant acknowledges that there may be various methods of
allocating costs to the Credit and agrees that Issuer's allocation for purposes
of determining the costs referred to above shall be conclusive and binding upon
Applicant provided such allocation is made in Good Faith. "BUSINESS DAY" means
any day on which commercial banks in New York City, New York are not authorized
or required to be closed for business. "GOOD FAITH" means honesty in fact in the
conduct or the transaction concerned. "PRIME" means the rate of interest per
annum publicly announced from time to time by Issuer as its prime rate in effect
at its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
(b) If the amount drawn under the Credit is in non-United States currency
("FOREIGN CURRENCY"), Applicant shall pay under paragraph 2(a)(i) above the
United States dollar equivalent of the amount computed at Issuer's selling rate,
as of the date of Applicant's payment, for cable transfers of such foreign
currency to the place of payment; provided, further, that if, for any reason,
Issuer has no selling rate for cable transfers of that currency to such place on
the payment date, Applicant shall pay Issuer an amount in United States currency
equivalent to Issuer's actual cost of settlement of its obligation.
(c) All payments shall be made in immediately available funds, free and clear of
and without deduction for any present or future taxes, levies, imposts,
deductions, charges, withholdings, set-off or other liabilities. Applicant shall
pay all withholding, stamp and other taxes or duties imposed by any taxing
authority on payment under the Credit and this Agreement and shall indemnify
Issuer against all liabilities, costs, claims, and expenses resulting from
Issuer having to pay or from any omission to pay or delay in paying any duty or
tax.
(d) Issuer may (but shall not be required to), without demand for payment or
notice to the Applicant, and in addition to any other right of set-off which
Issuer may have, (i) debit any account or accounts maintained by Applicant with
any office of Issuer or any subsidiary or affiliate of Issuer (now or in the
future) and set-off and apply (X) any balance or deposits (general, special,
time, demand, provisional, final, matured, unmatured, contingent or absolute) in
the account(s) and (Y) any sums due or payable from Issuer or any subsidiary or
affiliate of Issuer, to the payment of any and all amounts owed by Applicant to
Issuer and/or (ii) advance funds to Applicant under any line of credit
(committed or uncommitted) made available to Applicant by Issuer and apply such
funds to said payment obligations.
(e) Applicant's payment obligations under this paragraph 2 are absolute,
unconditional and irrevocable and shall be performed strictly in accordance with
the terms of this Agreement under any and all circumstances whatsoever,
including, without limitation: (i) any lack of validity, enforceability or legal
effect of the Credit or this Agreement (including Part I), or any term or
provision therein or herein; (ii) payment against presentation of any draft,
demand or claim for payment under the Credit or other document presented for
purposes of drawing under the Credit ("DRAWING DOCUMENT") that does not comply
in whole or in part with the terms of the Credit or which proves to be
fraudulent, forged or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, or which is signed, issued or presented by
a Person (or a transferee of such Person) purporting to be a successor or
transferee of the beneficiary of the Credit; (iii) Issuer or any of its branches
or affiliates being the beneficiary of the Credit; (iv) Issuer or any
correspondent honoring a drawing against a Drawing Document up to the amount
available under the Credit even if such Drawing Document claims an amount in
excess of the amount available under the Credit; (v) the existence of any claim,
set-off, defense or other right that Applicant or any other Person may have at
any time against any beneficiary, any assignee of proceeds, Issuer or any other
Person; (vi) Issuer or any correspondent having previously paid against
fraudulently signed or presented Drawing Documents (whether or not Applicant
reimbursed Issuer for such drawing); and (vi) any other event, circumstance or
conduct whatsoever, whether or not similar to any of the foregoing, that might,
but for this paragraph, constitute a legal or equitable defense to or discharge
of, or provide a right of set-off against, Applicant's obligations hereunder
(whether against Issuer, the beneficiary or any other Person); provided,
however, that the foregoing shall not exculpate Issuer from liability to
Applicant as may be finally, judicially determined in an independent action or
proceeding brought by Applicant against Issuer following payment of Applicant's
obligations under this Agreement, subject to paragraph 4 hereof. "PERSON" means
any natural Person, corporation, limited liability company, trust, joint
venture, association, company, partnership, governmental authority or other
entity.
03 0916 3
3. AMENDMENT; WAIVER. Issuer shall not be deemed to have amended, changed or
modified any term hereof, or to have waived any of its rights hereunder or
thereunder unless Issuer or its authorized agent shall have consented to and
signed such amendment, change, modification or waiver. No such waiver, unless
expressly stated therein, shall be effective as to any transaction which occurs
subsequent to the date of such waiver, nor as to any continuance of a breach
after such waiver. Issuer's consent to any amendment, change, waiver, or
modification does not mean that Issuer shall consent or has consented to any
other or subsequent Instruction to amend, change, modify, or waive a term of
this Agreement or the Credit.
4. AGREEMENTS AND ACKNOWLEDGMENTS; INDEMNIFICATION; LIMITATION OF LIABILITY. (a)
The Credit shall be subject to the International Standby Practices 1998
(International Chamber of Commerce Publication Number 590) and any subsequent
revision thereof adhered to by Issuer (the "ISP"), or, if specified in Part I,
the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 and any subsequent
revision therefof adhered by the Issuer ("UCP").
(b) Applicant shall indemnify and hold harmless Issuer, its parent, affiliates,
subsidiaries and correspondents and each of their respective directors,
officers, employees and agents (each, including Issuer, an "INDEMNIFIED PERSON")
from and against any and all claims, suits, judgments, costs, losses, fines,
penalties, damages, liabilities, and expenses, including expert witness fees and
legal fees, charges and disbursements of any counsel ( including in-house
counsel fees and allocated costs) for any Indemnified Person ("Costs"), arising
out of, in connection with, or as a result of: (i) the Credit or any pre-advice
of its issuance; (ii) any transfer, sale, delivery, surrender, or endorsement of
any Drawing Document at any time(s) held by any Indemnified Person in connection
with the Credit; (iii) any action or proceeding arising out of or in connection
with the Credit or this Agreement (whether administrative, judicial or in
connection with arbitration), including any action or proceeding to compel or
restrain any presentation or payment under the Credit, or for the wrongful
dishonor of or honoring a presentation under the Credit; (iv) any independent
undertakings issued by the beneficiary of the Credit; (v) any unauthorized
Instruction or error in computer transmission; (vi) the enforcement of this
Agreement or any rights or remedies under or in connection with this Agreement
or the Credit; (vii) Issuer dishonoring any presentation upon or during the
continuance of any Event of Default or for which Applicant is unable or
unwilling to make any payment to Issuer required under paragraph 2 above; (viii)
the acts or omissions, whether rightful or wrongful, of any present or future de
jure or de facto governmental or regulatory authority or cause or event beyond
the control of such Indemnified Person; provided, however, that such indemnity
shall not be available to any Person claiming indemnification under (i) through
(vi) above to the extent that such Costs are found in a final, non-appealable
judgement by a court of competent jurisdiction to have resulted directly from
the gross negligence or willful misconduct of the Indemnified Person claiming
indemnity. If and to the extent that the obligations of Applicant under this
paragraph are unenforceable for any reason, Applicant shall make the maximum
contribution to the Costs permissible under applicable law.
(c) The liability of Issuer (or any other Indemnified Person) under, in
connection with and/or arising out of this Agreement or the Credit (or any
pre-advice), regardless of the form or legal grounds of the action or
proceeding, shall be limited to any direct damages suffered by Applicant that
are caused directly by Issuer's gross negligence or willful misconduct in (i)
honoring a presentation that does not at least substantially comply with the
Credit, (ii) failing to honor a presentation that strictly complies with the
Credit or (iii) retaining Drawing Documents presented under the Credit. In no
event shall Issuer be deemed to have failed to act with due diligence or
reasonable care if Issuer's conduct is in accordance with Standard Letter of
Credit Practice or in accordance with this Agreement, including paragraph 4(d)
below. Applicant's aggregate remedies against Issuer and any Indemnified Person
for wrongfully honoring a presentation under the Credit or wrongfully retaining
honored Drawing Documents shall in no event exceed the aggregate amount paid by
Applicant to Issuer in respect of the honored presentation in respect of the
Credit under paragraph 2 above, plus interest. Notwithstanding anything to the
contrary contained herein, Issuer and the other Indemnified Persons shall not,
under any circumstances whatsoever, be liable for any punitive, consequential,
indirect or special damages or losses regardless of whether Issuer or any
Indemnified Person shall have been advised of the possibility thereof or of the
form of action in which such damages or losses may be claimed. Applicant shall
take action to avoid and mitigate the amount of any damages claimed against
Issuer or any Indemnified Person, including by enforcing its rights in the
underlying transaction. Any claim by Applicant for damages under or in
connection with this Agreement or any Credit shall be reduced by an amount equal
to the sum of (i) the amount saved by Applicant as a result of the breach or
alleged wrongful conduct and (ii) the amount of the loss that would have been
avoided had Applicant mitigated damages. If the Credit is to be governed by a
law other than that of the State of New York, Issuer shall not be liable for any
Costs resulting from any act or omission by Issuer in accord with the UCP and
Applicant shall indemnify Issuer for all such Costs. "STANDARD LETTER OF CREDIT
PRACTICE" means any domestic or foreign law or letter of credit practices
applicable in the city in which Issuer issued the Credit or for its branch or
correspondent, such laws and practices applicable in the city in which it has
advised, confirmed or negotiated the Credit, as the case may be. Such practices
shall be (i) of banks that regularly issue Credits in the particular city and
(ii) required or permitted under the UCP orth ISP, as chosen in the Credit.
03 0916 4
(d) Without limiting any other provision of this Agreement, Issuer and each
other Indemnified Person (if applicable): (i) may (but shall not be obligated
to) honor a presentation under the Credit which on its face substantially
complies with the terms of the Credit; (ii) may honor a presentation of any
Drawing Documents which appear on their face to have been signed, presented or
issued (X) by any purported successor or transferee of any beneficiary or other
party required to sign, present or issue the Drawing Documents or (Y) under a
new name of the beneficiary; (iii) shall not be responsible for the identity or
authority of any presenter or signer of any Drawing Document or the form,
accuracy, genuineness, or legal effect of any presentation under the Credit or
of any Drawing Documents; (iv) may (but shall not be obligated to) disregard any
non-documentary conditions stated in the Credit; (v) may act upon any
Instruction which it, in Good Faith believes to have been given by a Person or
entity authorized to give such Instruction; (vi) shall not be responsible for
any errors, omissions, interruptions or delays in transmission or delivery of
any message, advice or document, (regardless of how sent or transmitted) or for
errors in interpretation of technical terms or in translation; (vii) shall not
be responsible for any acts, omissions or fraud by, or the solvency of, any
beneficiary, any nominated Person or any other Person; (viii) may assert or
waive any provision of the UCP or ISP which primarily benefits an issuer of a
letter of credit, including, any requirement that any Drawing Document be
presented to it at a particular hour or place; (ix) may pay any paying or
negotiating bank (designated or permitted by the terms of the Credit) claiming
that it rightfully honored or is entitled to reimbursement or indemnity under
the Standard Letter of Credit Practice applicable to it; (x) may dishonor any
presentation upon or during any Event of Default or for which Applicant is
unable or unwilling to reimburse or indemnify Issuer (provided that Applicant
acknowledges that if Issuer shall later be required to honor the presentation,
Applicant shall be liable therefore in accordance with paragraph 2 hereof); and
(xi) may act or not act if required or permitted under Standard Letter of Credit
Practice applicable to where it has issued, confirmed or advised the Credit, as
the case may be.
(e) Applicant shall notify Issuer of (i) any noncompliance with any Instruction,
any other irregularity with respect to the text of the Credit or any amendment
thereto or any claim of an unauthorized, fraudulent or otherwise improper
Instruction, within one (1) Business Day of Applicant's receipt of a copy of the
Credit or amendment and (ii) any objection Applicant may have to Issuer's honor
or dishonor of any presentation under the Credit or any other action or inaction
taken or proposed to be taken by Issuer under or in connection with this
Agreement or the Credit, within three (3) Business Days after Applicant receives
notice of the objectionable action or inaction. The failure to so notify the
Issuer within said times shall discharge Issuer from any loss or liability that
Issuer could have avoided or mitigated had it received such notice; to the
extent that the Issuer could be held liable for damages hereunder; provided,
that, if Applicant shall not provide such notice to Issuer within three (3)
Business Days of the date of receipt in the case of clause (i) or ten (10)
Business Days from the date of receipt of clause (ii), then Issuer shall have no
liability whatsoever for such noncompliance, irregularity, action or inaction
and Applicant shall be precluded from raising such noncompliance, irregularity
or objection as a defense or claim against Issuer. Applicant's acceptance or
retention of any Drawing Documents presented under or in connection with the
Credit (whether or not the document is genuine) shall ratify Issuer's honor of
the presentation and preclude Applicant from raising a defense, set-off or claim
with respect to Issuer's honor of the Credit. Issuer shall not be required to
seek any waiver of discrepancies from Applicant or to grant any waiver of
discrepancies which Applicant approves or Instructions.
(f) Applicant will (i) comply with all foreign and domestic laws, rules and
regulations (including foreign exchange control regulations, foreign asset
control regulations and other trade-related regulations) now or hereafter
applicable to the Credit, the transactions underlying the Credit or Applicant's
execution, delivery and performance of this Agreement and (ii) to the extent not
provided to Issuer under other agreements, upon Instruction, furnish Issuer with
Applicant's most recent year-end, quarterly and monthly (if any), financial
statements (as audited) and such other information as Issuer shall reasonably
request regarding the financial condition, business or operations of Applicant.
(g) Applicant acknowledges that this Agreement and the Credit is entered into
(or will be entered into) for commercial purposes and hereby irrevocably waives
any immunity from jurisdiction of any court or from any legal process, including
from any writs of attachment, with respect to itself or its property that it may
have or may hereafter acquire to the maximum extent permitted by applicable law.
03 0916 5
5. REPRESENTATIONS AND WARRANTIES. Applicant hereby represents and warrants as
of the date of this Agreement (and with each Instruction for the issuance of the
Credit represents and warrants as of the date of the Instruction) that: (a) it
has all necessary power and authority to enter into and perform under this
Agreement; (b) it has obtained all authorizations, consents and approvals
required for it to enter into this Agreement and has or shall, in a timely
manner, file such notices or filings or obtain such other approvals as may be
required for it to perform this Agreement in accordance with its terms; (c) this
Agreement constitutes the legal, valid and binding obligation of Applicant,
enforceable against it in accordance with its terms; (d) the execution, delivery
and performance of this Agreement by Applicant does not and will not contravene
(i) its charter, by-laws or other organizational documents, (ii) any order or
writ binding on or affecting Applicant or its properties, or (iii) any agreement
or arrangement to which Applicant is a party or by which it or its properties
may otherwise be bound, the contravention of which agreement or arrangement
would have a material adverse effect on Applicant; (e) the financial statements
most recently furnished to Issuer by Applicant fairly present the financial
condition of Applicant in accordance with generally accepted accounting
principles, and there has been no material adverse change in Applicant's
business, condition (financial or otherwise) or results of operation since the
date of Applicant's most recent annual financial statements; (f) no information
now or hereafter furnished by Applicant to Issuer in connection with this
Agreement or the Credit is or shall be materially false or misleading when
furnished; (g) there is no pending or threatened action which may materially
adversely affect its financial condition or business or which purports to affect
the validity or enforceability of this Agreement, the Credit or any transaction
related to the Credit; and (h) Applicant is acting for itself and for no other
Person or entity in instructing issuance of the Credit.
6. PLEDGE AND ASSIGNMENT OF SECURITY. (a) As security for the payment and
performance of any and all obligations and liabilities of Applicant to Issuer in
respect of the Credit and under this Agreement, whether matured or unmatured,
absolute or contingent, now existing or hereafter incurred ("OBLIGATIONS"),
Applicant hereby grants to Issuer a continuing lien and security interest in,
and pledges and assigns to Issuer all of Applicant's present and future right,
title and interest in, to and under all of the following personal property
(whether now existing or hereafter created or acquired): (i) the balance of all
deposit accounts and all securities accounts with any office of Issuer or any
affiliate or subsidiary thereof, wherever located, and any other claims of
Applicant against Issuer or any affiliate or subsidiary or correspondent
thereof; (ii) all Property which has been or at any time shall be delivered to
or otherwise come into the possession, custody or control (actual, constructive
or as "control" is defined in Article 8 or 9 of the Uniform Commercial Code as
adopted by the State of New York, as revised from time to time (the "Code")) of
any office of Issuer or any affiliate or subsidiary thereof or any correspondent
of any such entity (and Applicant acknowledges that any such entity shall be
deemed a collateral agent or a bailee of Issuer for the purpose of perfecting a
security interest in the Property) for any purpose, whether or not for the
express purpose of being used by any such entity as collateral security or for
safekeeping, custody, pledge, transmission or otherwise; (iii) all Property
received or receivable by Issuer or its correspondents under or in connection
with the Credit; (iv) all Property received or receivable by Applicant in
connection with the transaction underlying the Credit giving rise to the
Obligations; (v) all present and future claims and rights of Applicant against
any beneficiary of the Credit arising in connection with the Credit or the
transaction underlying the Credit; and (vi) all products and proceeds of the
foregoing (collectively, the "Collateral"). Property" means all personal
property of any kind whatsoever (now existing or hereafter acquired) including,
without limitation, any and all right, title and interest of Applicant in any
goods, equipment, inventory, money, documents, letters of credit, warehouse
receipts, instruments, securities, security entitlements, financial assets,
investment property, precious and base metals, chattel paper, electronic chattel
paper, accounts, commercial tort claims, deposit accounts, general intangibles
(including any claims for breach of contract, breach of warranty claims and any
insurance policies and proceeds), letter of credit rights, choses in action and
the proceeds of any and all thereof (including any and all of the aforesaid
referred to in the Credit or the Drawing Documents relating thereto).
(b) Applicant shall hold all payments of the Obligations and all proceeds of
Collateral in trust for Issuer. Issuer shall be deemed to have possession,
custody or control of all Collateral actually in transit to or set apart for it
or for any of its affiliates or subsidiaries (or any of their agents,
correspondents or others acting in their behalf), it being understood that the
receipt at any time by Applicant (or any of its agents, correspondents, or
others acting in its behalf), of Collateral of whatever nature, including cash,
shall not be deemed a waiver of any of Issuer's rights or powers.
(c) If at any time there shall occur and be continuing (i) any Event of Default,
(ii) any material adverse change in the condition (financial or otherwise),
business, operations or prospects of Applicant or any Person that has guaranteed
or provided credit support for all or part of the Obligations ("GUARANTOR"),
(iii) any action for a temporary restraining order, preliminary or permanent
injunction, beneficiary wrongful dishonor action or the issuance or commencement
of any similar order, action or event in connection with the Credit or any
Drawing Document or this Agreement, which order, action or event may apply,
directly or indirectly, to Issuer or which otherwise threatens to extend or
increase Issuer's contingent liability beyond the time, amount or other limit
provided in the Credit or this Agreement; or (iv) any other event or condition
which provides a basis for Issuer in good faith to deem itself insecure, then,
Applicant, shall, upon Issuer's demand, deliver to Issuer, as additional
security for the Obligations, cash in an amount required by Issuer.
03 0916 6
(d) Issuer is authorized to sign and file financing statements, naming Applicant
as debtor and Issuer as secured party, with respect to any or all of the
Collateral hereunder. In any such event, a photographic or other reproduction of
this Agreement shall be sufficient as a financing statement, and Applicant shall
reimburse Issuer for the filing or recording fees. Issuer is further authorized
to take any action necessary to protect its rights in the Collateral (whether or
not a drawing, claim or demand for payment has been made under the Credit),
including but not limited to segregating all or any part of any deposit or
securities account. Applicant will, at its own expense upon Instruction by
Issuer from time to time, sign any other instrument or document (including any
security agreement, financing statement or control agreement) and take any other
action as Issuer may reasonably deem necessary or desirable to preserve,
perfect, protect or maintain the Collateral and the priority of Issuer's
security interest therein and to realize upon Issuer's rights and remedies as a
secured party.
(e) To the extent Issuer honors a presentation for which Issuer remains unpaid,
Issuer may assert rights of Applicant and Applicant shall cooperate with Issuer
in its assertion of Applicant's rights against the beneficiary, the
beneficiary's rights against Applicant and any other rights that Issuer may have
by subordination, subrogation, reimbursement, indemnity or assignment.
7. EVENTS OF DEFAULT; OBLIGATIONS DUE; REMEDIES. (a) Each of the following shall
be an "EVENT OF DEFAULT" under this Agreement: (I) Applicant shall fail to pay
any sum payable upon or in respect of any of the Obligations when due; (II)
Applicant shall fail to perform any agreement contained herein; (III) Applicant
or any Guarantor shall fail to pay any taxes when due and such taxes shall not
be contested in good faith and the amount thereof reserved for in accordance
with GAAP; (IV) there shall be commenced against Applicant or any Guarantor any
proceeding for enforcement of a money judgment, which proceeding shall not have
been stayed within ten (10) Business Days; (V) any statement made, or any
information, report or Instruction furnished by or for Applicant to Issuer
contains any misstatement of a material fact or omits to state a material fact
or any fact necessary to make any statement contained therein not materially
misleading; (VI) the dissolution, termination or, if an individual, death of
Applicant or a Guarantor; (VII) any indebtedness, obligation and/or liability of
Applicant or a Guarantor to any Person, including but not limited to Issuer,
shall not be paid or performed when due or any event or condition shall occur
that shall result in any indebtedness, obligation or liability becoming due
prior to its scheduled maturity or settlement date or permits (with or without
the giving of notice, the lapse of time or both) the holder of such indebtedness
or obligee to cause such indebtedness, obligation or liability to become due, or
to require the prepayment, repurchase, redemption or defeasance thereof, prior
to its scheduled maturity or settlement date; (VIII) any Person shall contest
the validity or enforceability of any guaranty supporting the Obligations; (IX)
Applicant or any Guarantor shall become insolvent (however such insolvency may
be evidenced or defined) or generally not be able to pay its debts as they
become due, shall make a general assignment for the benefit of creditors, or
shall suspend the transaction of its usual business or be expelled or suspended
from any exchange, or if an application is made by any judgment creditor of
Applicant or a Guarantor for any order directing Issuer to pay over money or to
deliver other property, or a petition in bankruptcy shall be filed by or against
Applicant or a Guarantor or any proceeding shall be instituted by or against
Applicant or a Guarantor for any relief under any bankruptcy or insolvency laws
or any law relating to the relief of debtors, readjustment of indebtedness,
reorganization, composition or extensions or if any governmental authority or
any court at the instance of any governmental authority, shall take possession
of any substantial part of the property of Applicant or any Guarantor or shall
assume control over the affairs or operations of Applicant or any Guarantor, or
if a receiver or custodian shall be appointed for, or a writ or order of
attachment or garnishment shall be issued or made against, any of the property
or assets of Applicant or a Guarantor or Applicant or a Guarantor shall indicate
that any of the foregoing has occurred or will occur; or (X) there shall occur
in one or a series of transactions (A) the sale or transfer of, or the creation
or assertion of a lien over, a substantial portion of the assets of Applicant or
of any Guarantor, (B) any transaction or event which results in the reduction in
shareholder's equity (or partnership capital, net worth or similar equivalent
term) of the Applicant or any Guarantor of 50% or more (measured against such
equity as of the date hereof), (C) an acquisition, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
Applicant (or any Guarantor), whether by means of contract, voting power or
otherwise, or (D) the merger or consolidation of Applicant or any Guarantor.
03 0916 7
(b) Upon an Event of Default, all of the Obligations shall be due and payable
forthwith without notice or demand (as if payment had been made under the
Credit, whether or not a drawing or claim had in fact been made) and Issuer may,
in addition to all other rights and remedies it may have at law or in equity,
(i) exercise the remedies of a secured party under the Code in respect of the
Collateral, (ii) charge, debit and/or set-off against any general or special
account of Applicant maintained at any office of Issuer or at any subsidiary or
affiliate of Issuer (whether matured or unmatured) for the amount of the
Obligations, (iii) amend or terminate, or transfer drawing rights or cure one or
more discrepancies under, the Credit, and/or (iv) Issuer may, at its option,
make payment in satisfaction of the Obligations or may hold all amounts,
proceeds and Collateral as security for the Credit. Upon an Event of Default,
Applicant shall assemble all Collateral and make it available to Issuer at a
place designated by Issuer which is reasonably convenient to Issuer and
Applicant, and Issuer shall be authorized to liquidate or sell immediately,
without demand for payment, advertisement or notice to Applicant, all of which
are hereby expressly waived (except such notice as is required by applicable law
and cannot be waived, in which event such notice shall be deemed proper if
mailed at least five Business Days before disposition or other action) any and
all Collateral (whether received pursuant to paragraph 5(c) hereof or otherwise)
at private sale or at public auction or at brokers' board or upon any exchange
or otherwise, at Issuer's option, in such parcels and at such time and at such
place and at such price and upon such terms and conditions as Issuer may deem
proper, and to apply the net proceeds of such sale or sales, together with any
balance of deposits and any sums credited by or due from Issuer to Applicant in
general account or otherwise, to the payment of any and all of the Obligations,
all without prejudice to the rights of Issuer against Applicant with respect to
any and all amounts which may be or remain unpaid and if any such sale be at
broker's board or public auction or upon any exchange Issuer may itself be a
purchaser at such sale, free from any right of redemption, which Applicant
hereby expressly waives and releases.
8. CONTINUING RIGHTS AND OBLIGATIONS. Issuer's rights and liens hereunder shall
continue unimpaired, and Applicant shall be and remain obligated in accordance
with the terms and provisions hereof, notwithstanding the release and/or
substitution of any Property which may be held as security hereunder at any
time, or of any rights or interest therein. Applicant waives any defense
whatsoever which might constitute a defense available to, or discharge of, a
surety or a guarantor. If more than one Person signs this Agreement or an
Application hereunder, each of them shall be jointly and severally liable
hereunder and thereunder and all the terms and provisions regarding liabilities,
obligations and Property of such Persons shall apply to any liabilities,
obligations and Property of any and all of them.
9. JURISDICTION; WAIVER OF JURY TRIAL. (a) Applicant submits to the nonexclusive
jurisdiction of any state or federal court located in the Borough of Manhattan,
City of New York, State of New York, for itself and its Property and agrees that
any such court shall be a proper forum for any action or suit brought by Issuer.
Service of process in any legal action or proceeding arising out of or in
connection with this Agreement, any Instruction or the Credit may be made upon
Applicant by mailing a copy of the summons to Applicant either at the address
set forth in the applicable Application or at Applicant's last address appearing
in Issuer's records. In addition, if Applicant is organized or incorporated in a
jurisdiction outside the United States of America, Applicant designates CT
Corporation located at 111 8th Avenue, New York, New York as the true and lawful
agent and attorney-in-fact of Applicant for receipt of the summons, writs and
notices in connection with any such action or suit.
(b) No legal action or proceeding arising out of or in connection with this
Agreement, any Instruction or the Credit may be brought by Applicant against
Issuer (i) except in a state or federal court located in the Borough of
Manhattan, City of New York, State of New York and (ii) unless commenced within
one (1) year after (X) the expiration date of the Credit or (Y) the alleged
breach shall have purportedly occurred, whichever is earlier.
(c) APPLICANT WAIVES (I) THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL
ACTION OR PROCEEDING IN WHICH ISSUER AND APPLICANT ARE PARTIES (WHETHER OR NOT
THE ONLY PARTIES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY
INSTRUCTION OR THE CREDIT AND (II) THE RIGHT TO INTERPOSE ANY CLAIM, SETOFF OR
COUNTERCLAIM OF ANY NATURE OR DESCRIPTION.
10. APPLICABLE LAW; SEVERABILITY. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS. The Credit shall be issued subject to either
the UCP, or if elected by Issuer, the ISP, and whichever is chosen to govern the
Credit is incorported by reference into this Agreement and is evidence of
Standard Letter of Credit Practice with respect to matters covered therein;
provided, however, that to the extent permitted by applicable law, this
Agreement shall prevail in case of a conflict between this Agreement, the Code
and Standard Letter of Credit Practice and the UCP or ISP, whichever governs the
Credit shall prevail in case of conflict between the UCP/ISP and the Code or
other Standard Letter of Credit Practice. Any provisions of this Agreement which
may be determined by competent authority to be prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, Applicant hereby
waives any provision of law which prohibits or renders unenforceable any
provision of this Agreement.
03 0916 8
11. NO THIRD PARTY BENEFITS; SUCCESSOR; ASSIGNMENT; INTEGRATION; DELIVERY BY
FACSIMILE; NOTICES. This Agreement shall be binding upon and inure to the
benefit of Issuer and Applicant and their respective successors and permitted
assigns. This Agreement shall not confer any rights or benefits upon any Person
other than the parties to this Agreement, and their respective permitted
successors and assigns. Issuer may assign or sell participations in all or any
part of the Credit or this Agreement to another entity and Issuer may
disseminate credit information relating to the Applicant in connection with any
proposed participation. This Agreement may not be assigned by Applicant without
the prior written consent of Issuer. This Agreement constitutes the entire
contract among the parties relating to the subject matter of this Agreement and
supersedes any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. This Agreement may be signed and
delivered by facsimile transmission. Notices to Issuer shall be sent to the
address of Issuer as set forth on the Application and shall be delivered by
hand, overnight courier or certified mail, return receipt requested. Notices to
Applicant shall be sent to the address set forth below the signature line
hereto.
12. CONTINUING AGREEMENT. This Agreement is a continuing agreement and may not
be terminated by Applicant except upon (i)payment of all Obligations and (ii)
the expiration or cancellation of the Credit.
THE UNDERSIGNED HEREBY AGREES TO ALL THE TERMS AND CONDITIONS SET FORTH IN THE
AGREEMENT, ALL OF WHICH HAVE BEEN READ AND UNDERSTOOD BY THE UNDERSIGNED.
----------------------------------------
(Applicant)
----------------------------------------
(Address)
----------------------------------------
(Authorized Signature) (Title)
----------------------------------------
(Date)
THE FOLLOWING IS TO BE EXECUTED IF THE CREDIT IS TO BE ISSUED FOR THE ACCOUNT OF
A PERSON OTHER THAN THE PERSON SIGNING ABOVE:
AUTHORIZATION AND AGREEMENT OF ADDITIONAL PARTY NAMED AS ACCOUNT PARTY
To: THE ISSUER OF THE CREDIT
We join in this Application, naming us as Account Party, for the issuance of the
Credit and, in consideration thereof, we irrevocably agree (i) that the above
Applicant has sole right to give instructions and make agreements with respect
to this Application, the Agreement, the Credit and the disposition of documents,
and we have no right or claim against you, any of your affiliates or
subsidiaries, or any correspondent in respect of any matter arising in
connection with any of the foregoing and (ii) to be bound by the Agreement and
all obligations of the Applicant thereunder as if we were a party thereto. The
Applicant is authorized to assign or transfer to you all or any part of any
security held by the Applicant for our obligations arising in connection with
this transaction and, upon any such assignment or transfer, you shall be vested
with all powers and rights in respect of the security transferred or assigned to
you and you may enforce your rights under the Agreement against us or our
Property in accordance with the terms hereof.
----------------------------------------
(Account Party)
----------------------------------------
(Address)
----------------------------------------
(Authorized Signature) (Title)
----------------------------------------
(Date)
03 0916 9
EXHIBIT C
FORM OF SWING LINE LOAN NOTICE
_______ ____, 200__
To: JPMorgan Chase Bank, as Swing Line Lender
JPMorgan Chase Bank, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of August
24, 2004 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Pall Corporation, a New York corporation (the
"Borrower"), the Lenders from time to time party thereto, JPMorgan Chase Bank,
as Administrative Agent, L/C Issuer and Swing Line Lender, Fleet National Bank,
as Syndication Agent, Wachovia Bank National Association and UBS Securities LLC,
as Co-Documentation Agents, and Banc of America Securities LLC and J.P. Morgan
Securities Inc., as Co-Arrangers.
The undersigned hereby requests a Swing Line Loan:
1. On _________________________________ (a Business Day).
2. In the amount of $______________________.
The Swing Line Borrowing requested herein complies with the
requirements of the provisos to the first sentence of Section 2.05(a) of the
Agreement.
PALL CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
C-1
Form of Swing Line Loan Notice
EXHIBIT D
FORM OF NOTE
_______ ____, 200__
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises
to pay to _____________________ or registered assigns (the "Lender"), in
accordance with the provisions of the Agreement (as hereinafter defined), the
principal amount of each Loan from time to time made by the Lender to the
Borrower under that certain Credit Agreement, dated as of August 24, 2004 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the "Agreement;" the terms defined therein being used herein as
therein defined), among the Borrower, the Lenders from time to time party
thereto, JPMorgan Chase Bank, as Administrative Agent, L/C Issuer and Swing Line
Lender, Fleet National Bank, as Syndication Agent, Wachovia Bank National
Association and UBS Securities LLC, as Co-Documentation Agents, and Banc of
America Securities LLC and J.P.Morgan Securities Inc., as Co-Arrangers.
The Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement.
Except as otherwise provided in Section 2.05(f) of the Agreement with respect to
Swing Line Loans, all payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in Dollars in immediately
available funds at the Administrative Agent's Office. If any amount is not paid
in full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in
the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled
to the benefits thereof and may be prepaid in whole or in part subject to the
terms and conditions provided therein. This Note is also entitled to the
benefits of the Guaranty. Upon the occurrence and continuation of one or more of
the Events of Default specified in the Agreement, all amounts then remaining
unpaid on this Note shall become, or may be declared to be, immediately due and
payable all as provided in the Agreement. Loans made by the Lender shall be
evidenced by one or more loan accounts or records maintained by the Lender in
the ordinary course of business. The Lender may also attach schedules to this
Note and endorse thereon the date, amount and maturity of its Loans and payments
with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
D-1
Form of Note
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
PALL CORPORATION
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
D-2
Form of Note
LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF OUTSTANDING
PRINCIPAL OR PRINCIPAL
TYPE OF LOAN AMOUNT OF LOAN END OF INTEREST INTEREST PAID BALANCE THIS
DATE MADE MADE PERIOD THIS DATE DATE NOTATION MADE BY
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D-3
EXHIBIT E
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _______ ___, 20___
To: JPMorgan Chase Bank, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of August
24, 2004 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Pall Corporation, a New York corporation (the
"Borrower"), the Lenders from time to time party thereto, JPMorgan Chase Bank,
as Administrative Agent, L/C Issuer and Swing Line Lender, Fleet National Bank,
as Syndication Agent, Wachovia Bank National Association and UBS Securities LLC,
as Co-Documentation Agents, and Banc of America Securities LLC and J.P. Morgan
Securities Inc., as Co-Arrangers.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the ____________________ of the Borrower, and that, as
such, he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Borrower, and that:
[Use following paragraph 1 for Fiscal Year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the Fiscal Year of
the Borrower ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of the
Borrower ended as of the above date. Such financial statements fairly present
the financial condition, results of operations and cash flows of the Borrower
and its Subsidiaries in accordance with GAAP as at such date and for such
period, subject only to normal year-end audit adjustments and the absence of
footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Borrower during such fiscal period
has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrower performed and
observed all its Obligations under the Loan Documents, and
E-1
[SELECT ONE:]
[THE BORROWER PERFORMED AND OBSERVED EACH COVENANT AND CONDITION OF THE
LOAN DOCUMENTS APPLICABLE TO IT.]
--OR--
[THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR
OBSERVED AND THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT AND ITS NATURE AND
STATUS:]
4. The representations and warranties of the Borrower contained in
Article V of the Agreement, and any representations and warranties of any Loan
Party that are contained in any document furnished at any time under or in
connection with the Loan Documents, are true and correct on and as of the date
hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this Compliance
Certificate, the representations and warranties contained in subsections (a) and
(b) of Section 5.05 of the Agreement shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.01 of the Agreement, including the statements in connection with which this
Compliance Certificate is delivered.
5. The financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
- -----------------, ----------.
PALL CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
E-2
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. SECTION 7.11 (A) - CONSOLIDATED NET INTEREST COVERAGE RATIO.
A. Consolidated EBITDA for four consecutive fiscal quarters
ending on above date ("Subject Period"):
1. Consolidated Net Income (Net Loss) for Subject
Period: $ ____________
2. Consolidated Interest Charges for Subject Period: $ ____________
3. Provision for income taxes for Subject Period: $ ____________
4. Depreciation expenses for Subject Period: $ ____________
5. Amortization expenses for Subject Period: $ ____________
6. Non-recurring non-cash reductions of Consolidated Net
Income (Net Loss) for Subject Period: $ ____________
7. Income tax credits for Subject Period: $ ____________
8. Non-cash additions to Consolidated Net Income (Net
Loss) for Subject Period: $ ____________
9. Consolidated EBITDA (Lines I.A1 + 2 + 3 + 4 + 5 +
6 - 7 - 8): $ ____________
B. Consolidated Interest Charges for Subject Period less income
earned by the Borrower and its Subsidiaries for Subject
Period: $ ____________
C. Consolidated Net Interest Coverage Ratio (Line I.A.9 / Line
I.B): ____________ to 1
Minimum required:
MINIMUM CONSOLIDATED
NET INTEREST COVERAGE
FOUR FISCAL QUARTERS ENDING RATIO
- ------------------------------------------------- -------------------------
Closing Date through _______, ____
______, ____ through _______,____
______, ____ and each fiscal quarter thereafter
E-3
II. SECTION 7.11 (B) - CONSOLIDATED LEVERAGE RATIO.
A. Consolidated Funded Indebtedness at Statement Date: $ ____________
B. Consolidated EBITDA for Subject Period (Line I.A.9 above): $ ____________
C. Consolidated Leverage Ratio (Line II.A / Line II.B): _______________ to 1
Maximum permitted:
MAXIMUM CONSOLIDATED
FOUR FISCAL QUARTERS ENDING LEVERAGE RATIO
- ------------------------------------------------ ------------------------
Closing Date through _______, ____
______, ____ through _______,____
______, ____ and each fiscal quarter thereafter
E-4
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 3
to the Compliance Certificate
($ in 000's)
CONSOLIDATED EBITDA
(in accordance with the definition of Consolidated EBITDA
as set forth in the Agreement)
- ---------------------------------- ---------------- ----------------- ----------------- ----------------- ----------------
Twelve
CONSOLIDATED Quarter Quarter Quarter Quarter Months
EBITDA Ended Ended Ended Ended Ended
---------- ---------- ---------- ---------- ----------
- ---------------------------------- ---------------- ----------------- ----------------- ----------------- ----------------
- ---------------------------------- ---------------- ----------------- ----------------- ----------------- ----------------
Consolidated
Net Income
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+ Consolidated Interest Charges
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+ income taxes
- ---------------------------------- ---------------- ----------------- ----------------- ----------------- ----------------
+ depreciation expense
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+ amortization expense
- ---------------------------------- ---------------- ----------------- ----------------- ----------------- ----------------
+ non-recurring non-cash
expenses
- ---------------------------------- ---------------- ----------------- ----------------- ----------------- ----------------
- - income tax credits
- ---------------------------------- ---------------- ----------------- ----------------- ----------------- ----------------
- - non-cash income
- ---------------------------------- ---------------- ----------------- ----------------- ----------------- ----------------
= Consolidated EBITDA
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E-5
EXHIBIT F
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations as a Lender under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount
and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, the Letters of Credit and the Swing Line Loans
included in such facilities) and (ii) to the extent permitted to be assigned
under applicable law, all claims, suits, causes of action and any other right of
the Assignor (in its capacity as a Lender) against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as, the "Assigned Interest"). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided
in this Assignment and Assumption, without representation or warranty by the
Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an
Affiliate/Approved Fund of [identify Lender][1]]
3. Borrower(s): Pall Corporation, a New York corporation
4. Administrative Agent: JPMorgan Chase Bank, as the administrative agent
under the Credit Agreement
- -------------------
[1] Select as applicable.
F-1
5. Credit Agreement: Credit Agreement, dated as of August 24, 2004 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the "Agreement;" the terms defined therein being used herein as
therein defined), among Pall Corporation, a New York corporation (the
"Borrower"), the Lenders from time to time party thereto, JPMorgan Chase Bank,
as Administrative Agent, L/C Issuer and Swing Line Lender, Fleet National Bank,
as Syndication Agent, Wachovia Bank National Association and UBS Securities LLC,
as Co-Documentation Agents, and Banc of America Securities LLC and J.P. Morgan
Securities Inc., as Co-Arrangers.
6. Assigned Interest:[2]
- --------------------------- -------------------------- --------------------------- ------------------------ -----------------------
Aggregate
Amount of Amount of Percentage
Commitment Commitment Assigned of
Facility Assigned for all Lenders* Assigned* Commitment[3] CUSIP Number
----------------- --------------- -------- ---------- ------------
- --------------------------- -------------------------- --------------------------- ------------------------ -----------------------
- --------------------------- -------------------------- --------------------------- ------------------------ -----------------------
Revolving Credit $________________ $________________ ______________%
Commitment
- --------------------------- -------------------------- --------------------------- ------------------------ -----------------------
________________ $________________ $________________ ______________%
- --------------------------- -------------------------- --------------------------- ------------------------ -----------------------
________________ $________________ $________________ ______________%
- --------------------------- -------------------------- --------------------------- ------------------------ -----------------------
[7. Trade Date: __________________][4]
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: _____________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: _____________________________
Title:
- -------------------
* Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective Date.
[2] The reference to "Loans" in the table should be used only if the
Credit Agreement provides for Term Loans.
[3] Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
[4] To be completed if the Assignor and the Assignee intend that the
minimum assignment amount is to be determined as of the Trade Date.
F-2
[Consented to and][5] Accepted:
JPMORGAN CHASE BANK, as
Administrative Agent
By: _________________________________
Title:
[Consented to:][6]
By: _________________________________
Title:
- -------------------
[5] To be added only if the consent of the Administrative Agent is
required by the terms of the Credit Agreement.
[6] To be added only if the consent of the Borrower and/or other
parties (e.g. Swing Line Lender, L/C Issuer) is required by the terms of the
Credit Agreement.
F-3
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
[___________________][7]
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that
(i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document,
(ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Loan Document or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee under the
Credit Agreement (subject to receipt of such consents as may be required under
the Credit Agreement), (iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together with
copies of the most recent financial statements delivered pursuant to Section __
thereof, as applicable, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase the Assigned Interest on the
basis of which it has made such analysis and decision independently and without
reliance on the Administrative Agent or any other Lender, and (v) if it is a
Foreign Lender, attached hereto is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
- -------------------
[7] Describe Credit Agreement at option of Administrative Agent.
F-4
2. Payments. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignor for amounts which have accrued to but excluding the Effective Date and
to the Assignee for amounts which have accrued from and after the Effective
Date.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of ____________________ [confirm that choice of law provision
parallels the Credit Agreement].
F-5
EXHIBIT G
FORM OF GUARANTY
G-1
EXHIBIT H
OPINION MATTERS
The matters contained in the following Sections of the Credit Agreement
should be covered by the legal opinion:
o Section 5.01(a), (b) and (c)
o Section 5.02
o Section 5.03
o Section 5.04
o Section 5.06
o Section 5.14
H-1